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UNITED STATES of America, Plaintiff-Appellee, v. Charles E. ROEMER, II and Carlos Marcello, Defendants-Appellants.
No. 82-3040.
United States Court of Appeals, Fifth Circuit.
April 11, 1983.
Rehearing and Rehearing En Banc Denied May 16, 1983.
Glass & Reed, John W. Reed, John R. Martzell, New Orleans, La., for defendants-appellants.
Arthur A. Lemann, III, New Orleans, La., for Carlos Marcello.
John P. Volz, U.S. Atty., L. Eades Hogue, Asst. U.S. Atty., Albert J. Winters, Jr., 1st Asst. U.S. Atty., John Voorhees, Dept. of Justice, Strike Force, New Orleans, La., for plaintiff-appellee.
Before GOLDBERG, GEE and RANDALL, Circuit Judges.
PER CURIAM:
Appellants Roemer and Marcello were convicted of conspiring to violate the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. 1962(d) (1976). On appeal they argue (1) the affidavit in support of the government’s initial application for electronic surveillance was inadequate; (2) the government artificially created federal jurisdiction; (3) the evidence was insufficient to support their convictions; and (4) the jury instructions incorrectly stated the law. Also, we have carried with the case a motion to disclose material pursuant to the Jencks Act, 18 U.S.C. § 3500 (1976).
We have carefully examined the briefs, all portions of the record directed to our attention by the parties or the opinions of the court below, and all authorities cited by the parties or the opinions of the court below. We have found that the verdicts below are supported by the law and evidence and must be affirmed. This case has been thoroughly briefed and well handled by all parties from the earliest stages, and all of the arguments presented to us on the four points of alleged error were also presented to the trial court below. The trial court was conscientious and thorough in its exposition of the law and we affirm the judgments below based upon the portions of the trial court’s opinions relating to the four points of appeal. United States v. Marcello, 508 F.Supp. 586, 601-07 (E.D.La. 1981) (affidavit); United States v. Marcello, 537 F.Supp. 1364, 1367, 1369-77 (E.D.La. 1982) (artificial creation of jurisdiction); id. at 1379-80, 1382-84 (sufficiency of evidence); id. at 1384-86 (jury charge).
This case carries with it a motion to unseal handwritten notes of an FBI agent prepared after a meeting with Roemer and subsequently incorporated into a standard “302” report. The 302 was produced under the Jencks Act, 18 U.S.C. § 3500 (1976), but the notes were not. The issue before us is whether the notes were a statement by the agent, who testified at trial. To be a statement, the notes must be “signed or otherwise adopted” by the agent. Id. § 3500(e)(1). The trial court found that the notes were not a statement, observing that the notes were full of abbreviations and difficult to interpret. The trial court also found that the 302 was almost totally duplicative of the rough notes.
One circuit has held that rough notes are not statements. See, e.g., United States v. Griffin, 659 F.2d 932, 937-38 (9th Cir.1981), cert. denied, 456 U.S. 949, 102 S.Ct. 2019, 72 L.Ed.2d 473 (1982); United States v. Spencer, 618 F.2d 605 (9th Cir.1980). Other courts have held to the contrary. See, e.g., United States v. Walden, 465 F.Supp. 255, 259-61 (E.D.Pa.1978), aff’d, 590 F.2d 85 (3rd Cir.), cert. denied, 444 U.S. 849,100 S.Ct. 99, 62 L.Ed.2d 64 (1979); United States v. Hilbrich, 232 F.Supp. 111 (N.D.Ill.1964), aff’d, 341 F.2d 555 (7th Cir.), cert. denied, 381 U.S. 941, 85 S.Ct. 1775, 14 L.Ed.2d 704 (1965). This circuit has not adopted any hard or fast rule, but has consistently held that a determination of whether a writing was a statement was a factual determination to be reversed only if clearly erroneous. See, e.g., United States v. Cole, 634 F.2d 866, 867 (5th Cir.), cert. denied, 452 U.S. 918, 101 S.Ct. 3055, 69 L.Ed.2d 422 (1981); United States v. Medel, 592 F.2d 1305, 1317 (5th Cir.1979); United States v. Cathey, 591 F.2d 268,274 (5th Cir.1979). Our circuit has noted that the roughness of the notes may be relevant to a finding that they were not adopted by the author as a statement. See United States v. Surface, 624 F.2d 23, 26 (5th Cir.1980); United States v. Jiminez, 484 F.2d 91, 92 (5th Cir.1973).
Given the trial court’s proper reliance on the roughness and abbreviations of the notes, its finding that the notes were not a statement is not clearly erroneous and must be affirmed. In any event, because the released 302 is substantially identical to the retained notes, had there been error it would have been harmless. United States v. Surface, supra, 624 F.2d at 26; United States v. Medel, supra, 592 F.2d at 1316-17; United States v. Jiminez, supra, 484 F.2d at 92.
AFFIRMED.
. In particular, there was sufficient evidence to support the finding of agreement by Roemer to commit mail fraud. “It was not necessary to prove that [the defendant] actually did the mailing, ‘he need only have had a reasonable basis to foresee that his actions would result in the use of the mails.’ ” United States v. Martino, 648 F.2d 367, 401 (5th Cir.1981), cert. denied, 456 U.S. 943, 102 S.Ct. 2006, 72 L.Ed.2d 465 (1982), 456 U.S. 943, 102 S.Ct. 2007, 72 L.Ed.2d 465 (1982), 456 U.S. 949, 102 S.Ct. 2020, 72 L.Ed.2d 474 (1982) (quoting United States v. Georgalis, 631 F.2d 1199, 1206 (5th Cir.1980)). As the trial court below stated, the evidence in this case “shows not only the expectation that the mail and interstate phone calls would be used to further the scheme, but also the defendants’ assent and approval of the use of those means of effecting the plan.” United States v. Marcello, supra, 537 F.Supp. at 1384. | What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the constitutionality of a law or administrative action, and if so, whether the resolution of the issue by the court favored the appellant. | Did the court's conclusion about the constitutionality of a law or administrative action favor the appellant? | [
"Issue not discussed",
"The issue was discussed in the opinion and the resolution of the issue by the court favored the respondent",
"The issue was discussed in the opinion and the resolution of the issue by the court favored the appellant",
"The resolution of the issue had mixed results for the appellant and respondent"
] | [
0
] | songer |
Vance J. SKILLSKY, Plaintiff-Appellant, v. LUCKY STORES, INC.; Colombo Baking Co., Inc., a wholly-owned subsidiary of Toscana Corporation; Bakery Wagon Drivers and Salesman Local Union No. 432 of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers, Defendants-Appellees.
No. 88-2540.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted May 10, 1989.
Decided Jan. 11, 1990.
Louis D. Silver, San Jose, Cal., for plaintiff-appellant.
Jonathan R. Bass, Coblentz, Cahen, McCabe & Breyer, San Francisco, Cal., for defendant-appellee, Colombo Baking Co., Inc.
Duane B. Beeson, Beeson, Tayer, Silbert & Bodine, San Francisco, Cal., for defendant-appellee, Local Union Number 432.
George J. Barron, William R. Hill, Donahue, Gallagher, Thomas & Woods, Oakland, Cal., for defendant-appellee, Lucky Stores, Inc.
Before BROWNING, HALL and LEAVY, Circuit Judges.
LEAVY, Circuit Judge:
OVERVIEW
The appellant, Vance J. Skillsky (Skill-sky), brought this action for wrongful termination and other related claims against two of his former employers, Lucky Stores, Inc. (Lucky Stores) and Colombo Baking Company, Inc. (Colombo), his union, Bakery Wagon Drivers and Salesman Local Union No. 432 of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers (Local 432), and Does I-XXX. Skillsky also sought to set aside an arbitration decision, affirmed by the Superior Court of California, that there was sufficient cause for his termination.
The district court granted summary judgment in favor of Lucky Stores and Colombo. It granted Local 432’s motion in limine, so that certain evidence could not be introduced against the union. The court also held that it lacked jurisdiction as to one of the claims against the union under Federal Rule of Civil Procedure 12(h)(3). The court ultimately dismissed all claims against the union and entered judgment in favor of all defendants. Skillsky appeals.
We affirm in part, reverse in part, and remand.
FACTS
For ten years Skillsky was employed as a bakery truck driver for Lucky Stores. He was discharged in 1982 after a confrontation with one of Lucky Stores’ managers. Skillsky was terminated for using profane and abusive language and for threatening the manager’s life.
Local 432 filed a grievance on the termination and pursued it to arbitration, requesting a reduced disciplinary action. The arbitrator found there was sufficient cause for Skillsky’s discharge based on his conduct during the confrontation, and denied his grievance. The Superior Court of California affirmed the arbitrator’s award.
Following his discharge from Lucky Stores, Local 432 referred Skillsky to Colombo for work. Colombo hired Skillsky as a probationary relief bakery truck driver. He worked intermittently for twenty-six days from June 14, 1982 until August 21, 1982. On August 21, 1982, he was informed he was no longer needed. Skillsky acquired no seniority status with Colombo because the collective bargaining agreement provided for seniority status only by working thirty consecutive days.
Colombo’s transport supervisor, Al Pas-torino, says he did not hire Skillsky as a permanent driver after he learned from a Colombo executive, Robert Herrick, that Skillsky was an unstable person with a reputation as a “kook” who would not be good for Colombo’s organization. However, Skillsky contends he was not hired because Lucky Stores management officials informed Colombo that Skillsky was a troublemaker, because seven years earlier he had filed a complaint with the California Occupational Safety and Health Association (Cal-OSHA) regarding the noise level of Lucky Stores’ trucks. As a result, Lucky Stores had to replace ten of its trucks.
Local 432 refused to process a grievance for Skillsky against Colombo. Local 432 would not file a grievance because it decided Skillsky was not entitled to a permanent position since he was only a probationary employee under section 7 of the collective bargaining agreement.
Skillsky filed a complaint in the Superior Court of California, alleging wrongful termination against Lucky Stores and Colombo and breach of the duty of fair representation by Local 432. Lucky Stores removed the action to federal court. Skillsky then filed an amended complaint.
DISCUSSION
The Claims Against Lucky Stores
Skillsky alleged seven claims against Lucky Stores: (1) it used corruption and fraud to obtain the arbitrator’s award and therefore, the award should be set aside; (2) wrongful discharge in violation of public policy and in violation of the collective bargaining agreement; (3) interference with an employment relationship; (4) slander; (5) intentional infliction of emotional distress; (6) negligent infliction of emotional distress; and (7) conspiracy.
Lucky moved for summary judgment. The district court granted the motion. The court found the claim of corruption against the arbitrator was res judicata because the Superior Court judgment had affirmed the arbitration award. Similarly, the court found the wrongful discharge claim barred by collateral estoppel. The court dismissed the interference, slander, and emotional distress claims, finding there was no admissible evidence to raise a genuine issue of material fact. For the same reason, the claim of conspiracy was dismissed. In addition, the court found there was no separate cause of action for conspiracy unless a wrong was committed.
Skillsky alleges his termination by Lucky Stores was wrongful in that:
[Defendant was without just cause and in violation of the agreement between LUCKY and LOCAL 432.
That said termination was further wrongful in that said termination was motivated by the exercise by plaintiff of protected activities to wit: the filing of safety complaints with appropriate governmental agencies, and as such is viola-tive of public policy.
The district court ruled that this claim was barred by collateral estoppel because the arbitrator found sufficient cause for termination and the Superior Court had affirmed that decision.
On appeal, Skillsky contends Lucky Stores’ motivation for the termination— Skillsky’s filing of the Cal-OSHA complaint seven years earlier — “had not yet come to light at the time of the arbitration or its affirmation proceeding. In this situ-tation [sic] there could not possibly have been any identity of issues and thus no collateral estoppel.” Lucky Stores, on the other hand, contends that not only collateral estoppel but also res judicata apply to preclude the cause of action for wrongful discharge.
We need not decide whether res judicata or collateral estoppel apply. There is not a scintilla of evidence in the record of any motive for Lucky Stores to discharge Skillsky other than for his conduct towards the store manager, as documented in Lucky Stores’ dismissal letter of May 19, 1982. Even if Lucky Stores did inform Colombo that Skillsky filed a Cal-OSHA complaint against Lucky Stores seven years earlier, prompting Colombo’s discharge of Skillsky, it does not follow that Lucky Stores discharged Skillsky for this reason. The grant of summary judgment on this issue was proper.
In connection with the claims against Lucky Stores arising out of Colombo’s termination of Skillsky, the district court ruled that certain affidavits and deposition testimony filed in opposition to the motions for summary judgment were hearsay and therefore inadmissible against Lucky Stores. This defeated Skillsky’s claims against Lucky Stores for slander, negligent and intentional infliction of emotional distress, interference with an employment relationship, and conspiracy.
Hearsay “is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Fed.R.Evid. 801(c). Hearsay is inadmissible in a court of law unless it comes under one of the exceptions set forth in Federal Rule of Evidence 803. Henein v. Saudi Arabian Parsons Ltd., 818 F.2d 1508, 1512 (9th Cir.1987), cert. denied, 484 U.S. 1009, 108 S.Ct. 707, 98 L.Ed.2d 657 (1988).
Skillsky contends the district court erred because the deposition testimony of Gou-las, a Colombo employee, was admissible against Lucky Stores. Skillsky contends that statements of Herrick and Pastorino, two other Colombo employees, related by Goulas, should have been admitted. Even though these statements constitute multiple hearsay, Skillsky claims they are admissible against Lucky because each statement fits within an exception to the hearsay rule.
Hearsay included within hearsay, or “multiple hearsay,” is not excluded under the hearsay rule if each part of the combined statements conforms with an exception to the hearsay rules. Fed.R.Evid. 805. Federal Rule of Civil Procedure 56(e) also provides that "[supporting and opposing affidavits shall be made on personal knowledge [and] shall set forth such facts as would be admissible in evidence.... ” Like affidavits, deposition testimony that is not based on personal knowledge and is hearsay is inadmissible and cannot raise a genuine issue of material fact sufficient to withstand summary judgment. Jacobsen v. Filler, 790 F.2d 1362, 1367 (9th Cir.1986).
Goulas’ deposition testimony relates to the day his supervisor at Colombo, A1 Pas-torino, told Goulas that he would have a different bakery truck run. Goulas testified:
A. I then inquired why.
Q. And his response was?
A. His response was is he was going to have to let Jack go. Therefore I wouldn’t be able to go on my run. He was going to have this other guy do my run.
Q. Did you ask him [Pastorino] why he was going to get rid of Jack [Skillsky]?
A. Yes.
Q. And did he respond to you?
A. Yes.
Q. What did he say?
A. He [Pastorino] said that the big wheels had called up from Lucky’s and had told his supervisors [including Herrick] to tell him [Pastorino] to let him [Skillsky] go, because he had caused problems over there with OSHA.
Skillsky contends: (1) Herrick’s alleged statement to Pastorino and Pastorino’s statement to Goulas were the admissions of a party-opponent, admissible under Rule 801; (2) Pastorino’s alleged statement to Goulas goes to his existing state of mind and is therefore admissible under Rule 803(3); and (3) Goulas’ testimony is admissible under Rule 803(24), the catch-all exception.
Goulas’ testimony as to what “the big wheels” from Lucky Stores said to Herrick, or what Herrick said to Pastorino, is inadmissible against Lucky Stores. It is not based on Goulas’ personal knowledge, as Rule 56(e) requires, but on what Goulas says Pastorino told him. Goulas does not claim he personally heard any statements made by anyone at Lucky Stores to Herrick, or made by Herrick to Pastorino. See Jacobsen, 790 F.2d at 1367 (deposition testimony about what another told the deponent is not based on personal knowledge and is inadmissible hearsay). Further, Pastori-no’s alleged statement to Goulas describes only the statements of others, of which Goulas has no personal knowledge. There is no evidence that Pastorino or Goulas had any authority to make admissions on behalf of Lucky Stores or that the statements were against the interest of either Pastori-no or Goulas. If offered to prove the state of mind of Pastorino, the statement is irrelevant in that there is no connection with Lucky Stores.
Whether hearsay evidence is to be received under Rule 803(24) is within the discretion of the district court. We find no abuse of discretion.
We agree with the district court that there is no material issue of fact supporting claims against Lucky Stores in connection with either the termination by Lucky Stores or the termination by Colombo. Moreover, there is no admissible evidence that Lucky Stores conspired to obtain Skillsky’s termination from Colombo. In California, “there ... is no separate tort of civil conspiracy and there is no civil action for conspiracy to commit a recognized tort, unless the wrongful act itself is committed and damage results therefrom.” Youst v. Longo, 161 Cal.App.3d 196, 207 Cal.Rptr. 447, 453 (1984).
The Claims Against Colombo
Skillsky alleged two claims against Colombo: (1) wrongful termination in violation of the collective bargaining agreement and in violation of public policy, and (2) conspiracy.
Skillsky alleges Colombo terminated him because he filed a Cal-OSHA complaint against Lucky Stores. The district court granted Colombo’s motion for summary judgment because “[t]his court is not prepared to extend the public policy with an unseasoned Garibaldi to a claim against another employer rather than the present employer.”
In Garibaldi v. Lucky Food Stores, Inc., 726 F.2d 1367 (9th Cir.1984), cert. denied, 471 U.S. 1099, 105 S.Ct. 2319, 85 L.Ed.2d 839 (1985), a case arising in California, the plaintiff was discharged for reporting the shipment of adulterated milk. Id. at 1374. We held in Garibaldi that section 301 of the Labor Management Relations Act (LMRA), 29 U.S.C. § 185, does not preempt a wrongful termination claim based on a state public policy against such retaliation. Id. at 1374-75, 1376. Skillsky now asks us to extend to subsequent employers the prohibition against the retaliatory discharge of an employee acting in the public interest.
To decide whether California’s prohibition against retaliatory discharge if an employee has acted in the public interest should extend to subsequent employment, this court follows a state supreme court’s interpretation of its own statute in the absence of extraordinary circumstances. Dimidowich v. Bell & Howell, 803 F.2d 1473, 1482 (9th Cir.1986), modified on other grounds, 810 F.2d 1517 (1987). The California Supreme Court has not determined this issue. If so,
Where the state’s highest court has not decided an issue, the task of the federal courts is to predict how the state high court would resolve it. In answering that question, this court looks for “guidance” to decisions by intermediate appellate courts of the state and by courts in other jurisdictions.
Id. (citations omitted). However, there are no appellate state court decisions or decisions from other jurisdictions deciding the issue. We may not certify this issue to the California Supreme Court because California law does not provide a certification process. Los Angeles Memorial Coliseum Comm’n v. National Football League 791 F.2d 1356, 1362 (9th Cir.1986), cert. denied, 484 U.S. 826, 108 S.Ct. 92, 98 L.Ed.2d 53 (1987).
We may consider “all available data” to predict how the California Supreme Court might decide the issue. See Estrella v. Brandt, 682 F.2d 814, 817 (9th Cir.1982) (diversity case). In doing so, we conclude the California Supreme Court would allow a cause of action for retaliatory discharge against subsequent employers.
The California Supreme Court has held that
an employer’s obligation to refrain from discharging an employee who refuses to commit a criminal act does not depend upon any express or implied “promises set forth in the [employment] contract,” but rather reflects a duty imposed by law upon all employers in order to implement the fundamental public policies embodied in the state’s penal statutes.
Tameny v. Atlantic Richfield Co., 27 Cal.3d 167, 176, 164 Cal.Rptr. 839, 844, 610 P.2d 1330, 1335 (1980) (citations omitted). This language creates a tort that limits the general right of an employer to dismiss employees for any reason. The tort of discharge in contravention of public policy is grounded on the need to protect important public policies, not on a particular relationship between the employee and employer.
Recently, the California Supreme Court reaffirmed the importance of this tort. The Court observed that “California cases have focused on the general social policies being advanced by recognition of the public-policy-based cause of action.” Foley v. Interactive Data Corp., 47 Cal.3d 654, 254 Cal.Rptr. 211, 216, 765 P.2d 373, 378 (1988). The court stated: “[W]e must ... inquire whether the discharge is against public policy and affects a duty which inures to the benefit of the public at large rather than to a particular employer or employee.” Id. at 217, 765 P.2d at 379; see Garibaldi, 726 F.2d at 1375 (recognizing the importance of this tort in “further[ing] the state’s interest in protecting the general public — an interest which transcends the employment relationship”).
The California Supreme Court has discussed at length California’s policy of prohibiting retaliatory discharges for filing health and safety complaints, which existed long before the Cal-OSHA statute was passed. See Hentzel v. Singer Co., 138 Cal.App.3d 290, 296-98, 188 Cal.Rptr. 159, 162-64 (1982). Skillsky’s Cal-OSHA complaint regarding the noise level of Lucky Stores’ trucks, which resulted in replacement of ten trucks, fits into this category. The public policy at stake here also involves “protecting the right of employees to voice their dissatisfaction with working conditions.” Id. at 296, 188 Cal.Rptr. at 162.
Therefore, the public policy prohibiting retaliatory discharge for reporting safety and health considerations in California is a strong one. The California Supreme Court has concluded that, even after the passage of Cal-OSHA, there remains a private right of action for employees discharged for reporting health and safety conditions because the common law right to be free of such .discharge is not extinguished by passage of statutory remedies. Id. at 299-300, 188 Cal.Rptr. at 165-66; see Paige v. Henry J. Kaiser Co., 826 F.2d 857, 863 (9th Cir.1987) (“A private right of action for wrongful discharge due to safety complaints co-exists with the Cal/OSHA remedial scheme.”)) cert. denied, 486 U.S. 1054, 108 S.Ct. 2819, 100 L.Ed.2d 921 (1988). Given this strong public policy, the tort should extend to subsequent employers.
Further, section 6310(a) of the California Occupational Safety and Health Act of 1973 does not limit legal actions to only those employers against whom complaints are filed:
No person shall discharge or in any manner discriminate against any employee because such employee has either (1) made any oral or written complaint, ... or (2) instituted or caused to be instituted any proceeding under or relating to his rights ... in any such proceeding.... (b) Any employee who is discharged, threatened with discharge, demoted suspended, or in any other manner discriminated against ... by his employer because such employee has made a bona fide oral or written complaint to the division [or others] ... shall be entitled to reinstatement and reimbursement for lost wages and work benefits by such acts of the employer.
(Emphasis added.)
There is a significant threat to employees, to the public, and to the Cal-OSHA statute if subsequent employers, hearing of an employee’s safety and health complaints against previous employers, decide to discharge that employee. Employers could circumvent an employee’s right to file these complaints by threatening retaliation in future employment. Employees would hesitate to file health and safety complaints if they knew they would face the risk of not finding future employment. Contrary to Colombo’s assertion that this “factual scenario ... is so idiosyncratic as to suggest that it is unlikely ever to be repeated,” it is very likely that such situations commonly arise in the workplace. The risk is particularly pronounced in smaller industries where employers tend to know one another. Employees would be especially at risk if prospective employers contacted previous employers for a recommendation.
We find that California would allow Skill-sky’s action for retaliatory discharge against a subsequent employer.
Colombo did not object to Goulas’ testimony regarding Colombo’s motive for firing Skillsky. Colombo instead advised the district court that it did not intend to stand on an evidentiary objection. See Colombo’s Opening Brief at 3 & n. 3. Nevertheless, the district court ruled that the testimony was inadmissible against Colombo as well as against Lucky Stores, relying on the arguments advanced by Lucky Stores.
The district court’s ruling was in error. For purposes of summary judgment, the court had to consider the testimony, even if it was hearsay, because Colombo failed to object. See Fireguard Sprinkler Sys., Inc. v. Scottsdale Ins. Co., 864 F.2d 648, 651-52 & n. 2 (9th Cir.1988) (failure to object to allegedly defective evidence waives the objection for purposes of summary judgment). The testimony brings into question Colombo’s actual motive for terminating Skillsky.
Skillsky’s attorney was never put to the task of explaining why Goulas’ testimony was admissible against Colombo. The considerations as to whether Goulas’ testimony is admissible against Colombo are altogether different than the considerations as to whether this testimony is admissible against Lucky Stores. The issue as to Colombo is whether, as a subsequent employer, there is evidence to show Skillsky’s termination was in violation of public policy because Colombo learned that Skillsky filed safety complaints with governmental agencies.
We reverse the grant of summary judgment in favor of Colombo. We anticipate that the issue of the admissibility of Gou-las’ testimony will be fully developed at trial. We express no opinion as to whether it will be admissible at that stage of the case.
Because Colombo did not object to Gou-las’ testimony at the hearing on the summary judgment motions, it is also admissible against Colombo to show there was a conspiracy, which creates a genuine issue of material fact. We reverse the grant of summary judgment in favor of Colombo on this issue. Again, we express no opinion as to the admissibility of Goulas’ testimony for purposes of trial.
The Claims Against Local 432
Skillsky alleged three claims against Local 432: (1) breach of the duty of fair representation in connection with the Lucky Stores termination; (2) breach of the duty of fair representation in connection with the Colombo termination; and (3) conspiracy.
Local 432 did not file a motion for summary judgment. Instead, eleven days before trial, Local 432 filed a motion in li-mine to prohibit the introduction of evidence on all but one of the claims against it. Local 432 also filed a separate Rule 12(h)(3) motion for lack of subject matter jurisdiction on the breach of duty of fair representation claim in connection with the termination by Colombo. The district court granted the motion in limine and dismissed the breach of duty of fair representation claim for lack of subject matter jurisdiction.
Skillsky alleges Local 432 breached the duty of fair representation in his action against Lucky Stores. To establish a claim for a breach of the duty of fair representation, Skillsky must show: (1) the discharge was in violation of the collective bargaining agreement, and (2) the union breached its duty by more than a mere error of judgment. Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 570-71, 96 S.Ct. 1048, 1059-60, 47 L.Ed.2d 231 (1976).
Federal courts must give preclusive effect to administrative determinations reviewed by a state court. 28 U.S.C. § 1738; see Marrese v. American Academy of Orthopaedic Surgeons, 470 U.S. 373, 375, 105 S.Ct. 1327, 1329, 84 L.Ed.2d 274 (1985); Eilrich v. Remas, 839 F.2d 630, 632 (9th Cir.), cert. denied, - U.S. -, 109 S.Ct. 60, 102 L.Ed.2d 38 (1988). Title 28 U.S.C. § 1738 requires federal courts to apply the preclusory rules of a particular state to judgments issued by courts of that state. Robi v. Five Platters, Inc., 838 F.2d 318, 322 (9th Cir.1988). Accordingly, the California laws apply. The district court’s construction of the California preclusion law is reviewed de novo. Clark v. Yosemite Community College Dist., 785 F.2d 781, 784 (9th Cir.1986).
Skillsky’s claim that Lucky Stores violated the collective bargaining agreement has already been decided against Skillsky and in favor of Lucky Stores. The arbitrator found sufficient cause for the discharge. Therefore, the collective bargaining agreement was not violated. The Superior Court affirmed the arbitrator’s conclusion. Skillsky cannot ask us to decide anew whether the discharge was in violation of the collective bargaining agreement. This claim against Local 432 is precluded.
Skillsky claims he may maintain an action against Local 432 for its breach of the duty of fair representation by refusing to process a grievance against Colombo. The amended complaint alleges that the discharge was in violation of the collective bargaining agreement. The union claims it did not process the grievance because Skill-sky, a probationary employee, had no right to the position under section 7 of the collective bargaining agreement.
Section 7 of the collective bargaining agreement provides, in relevant part, that:
Seniority shall not apply to any Employee until he shall have been employed by a particular Employer for a period of ... [t]hirty (30) consecutive days for Transport Employees.
Skillsky has presented no evidence to show that this discharge was in violation of the collective bargaining agreement. Skill-sky was a probationary employee who, as a matter of law, had no right to a position. Skillsky cannot show a breach of the duty of fair representation. The district court’s ruling is affirmed.
Skillsky contends Local 432’s motion in limine was untimely because it was filed only eleven days before trial. This matter is within the sound discretion of the district court. See Fed.R.Civ.P. 16(a)(1) (the court may, in its discretion, expedite the disposition of the action). We see no abuse of discretion.
Finally, there is no evidence of any act on the union’s part to obtain Skillsky’s discharge from Colombo. Because there was no wrongful act, there is no action for conspiracy. Youst, 161 Cal.App.3d 195, 207 Cal.Rptr. at 453.
AFFIRMED on all claims for Lucky Stores and Local 432. AFFIRMED in part and REVERSED in part as to Colombo, and REMANDED. Costs shall be awarded to Lucky Stores and to Local 432. Skillsky and Colombo shall bear their own costs on appeal.
. Skillsky's affidavit in opposition to the motion for summary judgment explains more fully the context of Goulas’ testimony. Skillsky's effort to describe the conversation between Goulas and Pastorino is simply more hearsay in addition to what is already multiple hearsay.
. Colombo informed the district court that its arguments were "different” from those of Lucky Stores, and that "we have not advanced these evidentiary arguments." Transcript of Hearings, Excerpt of Record, at 136. At no point did Colombo, when invited by the court to present its arguments, object to the introduction of Gou-las' testimony.
. Under California law, res judicata includes two types of preclusion: claim preclusion and issue preclusion. Robi, 838 F.2d at 321. Claim preclusion " ‘treats a judgment, once rendered, as the full measure of relief to be accorded between the same parties on the same “claim” or "cause of action." ’ ” Id. (quoting Kaspar Wire Works, Inc. v. Leco Eng’g & Mach., Inc., 575 F.2d 530, 535 (5th Cir.1978)). Claim preclusion prevents relitigation of all grounds supporting, or in defense of, recovery that were previously available to the parties, regardless of whether they were asserted or determined in the prior proceeding. Id. at 322. Issue preclusion or collateral estoppel, on the other hand, “bars relitigation of issues actually adjudicated and essential to the judgment in earlier litigation between the same parties." Garrett v. City and County of San Francisco, 818 F.2d 1515, 1520 (9th Cir.1987). "‘[That] determination [of the issues] is conclusive in a subsequent action between the parties, whether on the same or a different claim.' ” Eilrich, 839 F.2d at 632 (quoting Restatement (Second) of Judgments § 27 (1982)). | What follows is an opinion from a United States Court of Appeals. Your task is to identify whether the opinion writter is identified in the opinion or whether the opinion was per curiam. | Is the opinion writer identified in the opinion, or was the opinion per curiam? | [
"Signed, with reasons",
"Per curiam, with reasons",
"Not ascertained"
] | [
0
] | songer |
Robert C. SCHELL and Liberty Mutual Insurance Company, Appellants, v. AMF, INCORPORATED, Defendant and Third-Party Plaintiff, v. CAPITAL BAKERS, INC., Third-Party Defendant.
No. 77-1143.
United States Court of Appeals, Third Circuit.
Argued Oct. 7, 1977.
Decided Dec. 22, 1977.
James K. Thomas, James K. Thomas, II, Thomas & Thomas, Harrisburg, Pa., for ap-pellee, AMF, Inc.
James F. Carl, Metzger, Wickersham, Knauss & Erb, Harrisburg, Pa., for appel-lee, Capital Bakers, Inc.
Philip D. Freedman, Caldwell, Clouser & Kearns, Harrisburg, Pa., for appellants.
Before GIBBONS and WEIS, Circuit Judges and WRIGHT, District Judge.
The Honorable Caleb M. Wright, United States District Court for the District of Delaware, sitting by designation.
OPINION OF THE COURT
WEIS, Circuit Judge.
At issue in this appeal are the roles of court and jury in determining whether a manufacturer was liable under Restatement (Second) of Torts § 402A for an alleged design defect. Plaintiff contends his injury was the result of inadequate protection from moving gears on a machine he was operating. The manufacturer’s defense is that the design it utilized was adequate for normal use. After weighing the relevant considerations, we determine that the question should be decided by a jury.
Plaintiff Robert Schell was seriously injured when his arm became caught in the sprockets of a machine manufactured by the defendant AMF, Incorporated. He brought a diversity action in the district court alleging liability under Pennsylvania law adopting § 402A. The case was tried to a jury which was> unable to agree upon a verdict. Thereafter, the district court entered judgment for the defendant pursuant to Fed.R.Civ.P. 50(b).
Plaintiff was employed by Capital Bakers, Inc. in Harrisburg, Pennsylvania. His usual duties were to feed baking pans into a machine called a Pan-O-Mat. On March 13, 1972, about 15 minutes before the accident occurred, he was called upon to operate the machine, a task apparently he had not performed previously.
The Pan-O-Mat is designed to receive roll-shaped pieces of dough from another machine and place them on baking pans. The Pan-O-Mat’s chief component is a series of cups which are attached to a convey- or assembly. The cups receive the dough and then carry it upward. Occasionally pieces of dough not properly directed miss the cups and fall to the floor. In order to collect the falling dough, the Pan-O-Mat is equipped with an “excess tray” which slides beneath it on the floor.
The conveyor is driven by a series of chain and sprocket drives within the machine. Access to the drive mechanism is secured through a door on each side of the machine. The door bottom is approximately six inches above the floor and the excess tray fits into this space. When it is necessary to remove an accumulation of dough on the tray, usually it may be pulled out and reinserted without opening a door or shutting down the machine. The baking industry’s sanitation standards require that the area behind the doors be accessible for cleaning, a procedure which Capital carried out at least every four hours.
One of the Pan-O-Mat operators’ duties is to prevent undue accumulation of dough in the excess tray. When Schell began to operate the machine, he observed that an excessive amount of dough had piled up, so much in fact, it was necessary to open the door to remove the tray. With the assistance of another employee, he pulled the tray from underneath the machine. Before the tray could be removed, however, the other employee was called away and because it was too heavy for one man, Schell left it on floor near the Pan-O-Mat. Since there was no replacement tray available, the misguided dough fell to the floor beneath the machine.
Schell left the area and returned within an estimated time of two to ten minutes. In the meantime, the machine continued to run with the door open and dough piled up on the floor near the door. Schell got down on his hands and knees in order to brush the dough away from the machine and put his right hand into the now accessible machinery area. Because he slipped, or for some other reason, Schell lost his balance and his arm became entangled in the mechanism. His arm was injured so severely that it had to be amputated.
At trial the plaintiff produced an expert who testified that the machine was defective because:
1. It lacked an interlock mechanism which would have caused the conveyor to stop whenever a door was opened.
2. There was no warning on the doors.
3. The doors could be opened easily and quickly without opportunity for reflection.
The expert testified that in 1956, when the machine was manufactured, an interlock device could have been incorporated for about $25.00.
There was no dispute that an interlock was both feasible and practical. No testimony was presented as to the exact cost of the machine, but there was evidence that the price of the Pan-O-Mat was between $5,000 and $9,000. Although witnesses testified that the doors should not be open while the machine was operating, there was also evidence that when the machine was shut down for even a short time during production, dough would stick to the cups and had to be removed before operation could continue.
In entering judgment for the defendant, the district court relied upon Bartkewich v. Billinger, 432 Pa. 351, 247 A.2d 603 (1968), and concluded that Pan-O-Mat lacked no safety device which caused an injury of the type that could be expected from the machine’s normal use. Schell’s actions were said to have created a risk to himself against which AMF had no duty to guard.
Pennsylvania has adopted § 402A of the Restatement (Second) of Torts, Webb v. Zern, 422 Pa. 424, 220 A.2d 853 (1966), and imposes strict liability for defect in design as well as in the manufacture of products. Lack of proper safety devices can constitute a defective design for which there may be recovery under § 402A. Bartkewich v. Bil-linger, supra, 432 Pa. at 354, 247 A.2d at 605.
The circumstances here are similar in some respects to those present in Bartke-wich. There, the plaintiff was operating a machine which broke up glass. No guard was provided which would have prevented the operator from putting his hand into the area where the glass was being fragmented. While the machine was running, the plaintiff, an experienced operator, saw that glass was beginning to jam. Rather than using wooden sticks which had been provided for that purpose, he reached in with his hand to loosen the obstruction. His glove became caught in the mechanism and his hand was injured.
The Pennsylvania Supreme Court opinion dwells upon plaintiff’s voluntary exposure to danger and the normal use to which the machine was to be put. Views conflict, however, whether the court decided the case on the basis of the condition of the machine, see, e.g., Elder v. Crawley Book Machinery Co., 441 F.2d 771, 773 n. 2 (3d Cir. 1971), or assumption of risk, see, e.g., Colosimo v. May Department Store Co., 466 F.2d 1234, 1236 (3d Cir. 1972) (Hastie, J., concurring), Greco v. Bucciconi, 407 F.2d 87 (3d Cir. 1969). In the case sub judice, neither interpretation controls.
Unlike Bartkewich, where the plaintiff deliberately placed his hand in the dangerous part of a machine, here Schell intended to reach for dough which was on the floor below the drive mechanism. According to his testimony, it was his loss of balance which caused his hand to come into contact with the conveyor sprockets. In the plaintiff’s version, he neither intended nor anticipated placing his arm so close to the sprockets and it was for the jury to determine whether assumption of risk had been established, or whether plaintiff’s conduct was inadvertent. It cannot be said in the circumstances of this case that plaintiff was guilty of assumption of risk as a matter of law. Elder v. Crawley Book Machinery Co., supra; cf. Green v. Sanitary Scale Co., 431 F.2d 371 (3d Cir. 1970) (en banc).
We therefore must assess whether the condition of the machine itself constituted a defective design for which there may be recovery under § 402A. Bartkewich says that the design defect rule applies to allow recovery “where the absence of the safety device caused an accidental injury which was of the type that could be expected from the normal use of the product.” 432 Pa. at 354, 247 A.2d at 605. The manufacturer is “entitled to believe that the machine would be used in its usual manner, and need not be an insurer for the extraordinary risks an operator might choose to take.” Id. at 356, 247 A.2d at 606. Pennsylvania thus requires that there be a determination of the normal use of a product and the ordinary risk that might be expected to be taken in its operation.
The purpose of the machine used by Bartkewich and that operated by Schell are significantly different. The glass-breaking machine of necessity required an opening into which the glass is pushed — an opening in which devices strong enough to break glass (and mangle arms) must necessarily operate. If such an opening were not provided, the machine could not function in its productive capacity.
By contrast, in the Pan-O-Mat production operation, the conveyor drive mechanism did not have to be exposed. In fact, the machinery was covered by protective housing. Only when a guard door was open was there a risk to the operator of entanglement in the sprockets and only during cleaning operations was it normally necessary for a door to be open. By shielding the sprockets, the manufacturer recognized the hazard of leaving them exposed during normal operation. The question then becomes whether the court can conclude as a matter of law that a machine with an easily opened door which could remain ajar while the drive mechanism was operating was equipped with adequate protective devices at the time of manufacture in 1956. Sucho-majcz v. Hummel Chemical Co., 524 F.2d 19, 28 (3d Cir. 1975); Dorsey v. Yoder Co., 331 F.Supp. 753, 761 & n. 12 (E.D.Pa.1971), aff’d sub nom. Yoder Co. v. General Copper & Brass Co., 474 F.2d 1339 (3d Cir. 1973); cf. Ward v. Hobart Manufacturing Co., 450 F.2d 1176, 1182 (5 Cir. 1971).
The door was located at a point where the manufacturer knew that dough would collect, as evidenced by the fact that the excess tray was provided to facilitate removal. We cannot say it is unreasonable to expect that on occasion dough would build up so high that it could not be removed except by opening the door and exposing the dangerous machinery parts. See Greco v. Bucciconi Engineering Co., supra; La Gorga v. Kroger Co., 275 F.Supp. 373, 379-80 (W.D.Pa.1967), aff’d on other grounds, 407 F.2d 671 (3d Cir. 1971).
We are persuaded that Bartkewich v. Bil-linger, supra, does not require that the court conclude as a matter of law that in these circumstances the manufacturer is entitled to ignore the possibility that, under pressure to maintain uninterrupted production, a working force with low safety consciousness would work around the exposed drive train while it continued to operate. Rather, it is consistent with the Bartkewich approach to inquire whether the manufacturer was justified in believing that the machinery would be used in its normal manner (with the doors closed) and not anticipate that an operator would take some risk in removing the dough from the area near the drive assembly. In Kuisis v. Baldwin-Lima-Hamilton Corp., 457 Pa. 321 n. 13, 319 A.2d 914, 921 n. 13 (1974), the Pennsylvania Supreme Court observed that the principle of foreseeability carries over from traditional negligence to strict liability cases and “whether a particular use of a product is abnormal depends on whether the use was reasonably foreseeable by the seller.” Cf. Restatement (Second) of Torts § 402A, comment h ; § 395, comments j, k. See also Noel, Defective Products: Abnormal Use, Contributory Negligence, and Assumption of Risk, 25 Vand.L.Rev. 93 (1972).
In the circumstances of this case the issues should be resolved by the jury. We have taken into account such considerations as (1) the social utility of the Pan-O-Mat, (2) the expected expertise of the manufacturer in a highly specialized field, (3) the simplicity, feasibility and low cost of an interlock, (4) the fact that the interlock would be an improvement over the existing safety device (the door) although not foolproof, (5) the use of an interlock would not impair the efficiency of the Pan-O-Mat to any measurable extent, (6) an injury caused by entanglement with moving gears and sprockets is apt to be serious.
We do not deem it necessary to analyze the factors which may be involved in the other two contentions raised by plaintiff— the design of the door fastener and the failure to attach a warning to the machine. As to the latter item, particularly, there are substantial difficulties in a concept that a warning is always an adequate answer to the problem of product safety.
We believe the issues in this case should not have been ruled on as a matter of law. Accordingly, the judgment of the district court will be vacated and the matter remanded for a new trial.
. Section 402A provides:
“(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if
(a) the seller is engaged in the business of selling such a product, and
(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.
(2) The rule in subsection (1) applies although
(a) the seller has exercised all possible care in the preparation and sale of his product, and
(b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.”
Comment n explains:
“Since the liability with which this Section deals is not based upon negligence of the seller, but is strict liability, the rule applied to strict liability cases (see § 524) applies. Contributory negligence of the plaintiff is not a defense when such negligence consists merely in a failure to discover the defect in the product, or to guard against the possibility of its existence. On the other hand the form of contributory negligence which consists in voluntarily and unreasonably proceeding to encounter a known danger, and commonly passes under the name of assumption of risk, is a defense under this Section as in other cases of strict liability. If the user or consumer discovers the defect and is aware of the danger, and nevertheless proceeds unreasonably to make use of the product and is injured by it, he is barred from recovery.”
In Ferraro v. Ford Motor Co., 423 Pa. 324, 223 A.2d 746 (1966), the Pennsylvania Supreme Court adopted the assumption of risk defense as a supplement to its recognition of strict liability in Webb v. Zern, supra. See generally Twerski, Old Wine in a New Flask — Restructuring Assumption of Risk in the Products Liability Era, 60 Iowa L.Rev. 1 (1974).
. See Twerski, supra, 60 Iowa L.Rev. at 16-25. See also Noel, Defective Product: Abnormal Use, Contributory Negligence, and Assumption of Risk, 25 Vand.L.Rev. 93 (1972).
. Compare e.g., Schreffler v. Birdsboro Corp., 490 F.2d 1148 (3d Cir. 1974), where we held that the manufacturer was not liable for an employee’s injury where the employer substantially modified the machinery and adopted a use for it which could not have been anticipated by the manufacturer in its original design.
. See Twerski, Weinstein, Donaher & Piehler, The Use and Abuse of Warnings in Products Liability — Design Defect Litigation Comes of Age, 61 Cornell L.Rev. 495, 524-40 (1976).
. There is an element of futility in requiring a warning of obvious dangers, e.g., requiring that a notice .be attached to a knife warning that it might cut fingers. And, as a matter of policy, it is questionable whether a manufacturer which produces a machine without minimal available safeguards is entitled to escape liability by warning of a dangerous condition which could reasonably have been avoided by a better design. See generally id, where the authors thoroughly explore the pitfalls of a court adopting an approach of “when in doubt, warn,” and decry the trend of overwaming, encouraged in part by this apparently inexpensive mode of dealing with risks in products. Id at 513. | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Your specific task is to determine the total number of appellants in the case. If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. | What is the total number of appellants in the case? Answer with a number. | [] | [
2
] | songer |
Ruth H. GRAY and Chester H. Gray, Appellants, v. EVENING STAR NEWSPAPER COMPANY et al., Appellees.
No. 15424.
United States Court of Appeals District of Columbia Circuit.
Argued Feb. 2, 1960.
Decided April 7, 1960.
Petition for Rehearing Denied May 18, 1960.
Mr. David G. Bress, Washington, D. C. , with whom Lucien Hilmer, Washington, D. C., was on the brief, for appellants.
Mr. Jeremiah C. Collins, Washington, D. C., with whom Messrs. Frank F. Roberson and David N. Webster, Washington, D. C., were on the brief, for appellees.
Before Prettyman, Chief Judge, and Bazelon and Burger, Circuit Judges.
BURGER, Circuit Judge.
Actions to recover $50,000 for personal injuries to appellant Ruth Gray and $20,000 for loss of her services were brought in the District Court and certified by that court to the Municipal Court under Title 11 D.C.Code § 756 (Supp. VII, 1959). Under this section the District Court may transfer an action to the Municipal Court if satisfied that “the action will not justify a judgment in excess of $3,000.” By the very nature of the object to be accomplished as well as by the langauge of the statute, broad discretion is vested in the District Court. Barnard v. Schneider, 1957, 100 U.S.App.D.C. 152, 243 F.2d 258; Melton v. Capital Transit Co., 1958, 102 U.S.App.D.C. 306, 253 F.2d 42; Davis v. Peerless Ins. Co., 1958,103 U.S.App.D.C. 125, 255 F.2d 534. Moreover, the Municipal Court jury is explicitly empowered to award whatever verdict the evidence warrants, even though in excess of $3,000.
The District Court had before it the pleadings, a deposition of Mrs. Gray describing her injuries and their treatment, a report of her physician and a report from a physician who had examined her on behalf of the appellees. Medical expenses of $1,000 were alleged and no challenge to this appears. On the basis of this information the District Court transferred the cause. Appellants moved for reconsideration, quoting pertinent parts of Mrs. Gray’s deposition and supplementing the record with more detailed reports by her physicians, and emphasizing the special damages. The motion was denied and this appeal followed.
From the admitted fact that the District Judge examined reports of medical examinations made on behalf of all parties, appellants infer that the District Court weighed the report of appellees’ doctor against those of appellants’ physicians and discounted appellants’ medical reports. This, it is argued, is error requiring reversal of the order certifying the case to the Municipal Court.
On this record we have no way of knowing whether, as appellants infer, the District Judge did in fact undertake to weigh the reports of appellees’ medical examiner against those of the appellants in a comparative sense or discount the extent of the claimed injuries by reason of what the appellees’ medical examiner reported. Such a course would be plainly an erroneous application of Section 756 for that is not the time or place for comparative evaluations of evidence. No comparative appraisal could be made adequately at that stage; it would involve, among other things, the comparative credibility of witnesses. In deciding whether to retain or certify a case to the Municipal Court, the District Court should act on the basis of the data presented under the Rules by the parties prior to trial, including the pre-trial hearing. But a comparative evaluation of conflicting evidence is not part of the function of the court at that stage of the litigation. True comparative consideration of conflicting evidence is reserved for the trial when witnesses can be examined and cross-examined fully.
The data before the District Court indicated medical expenses of the plaintiffs in excess of $1,000. Such a figure might conceivably forecast a verdict for total damages in excess of $3,-000, and the District Court might properly keep such a case on its own calendar; but discretion is an area not a line or a point, and our scope of review of this kind of order is necessarily very limited. The issue for us is not whether the District Court wisely exercised its discretion but whether in certifying the case to the Municipal Court it acted arbitrarily and thus abused its discretion.
We are unable to conclude that the action was arbitrary or that there was an abuse of discretion.
Affirmed. | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the second listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "other". Your task is to determine what subcategory of business best describes this litigant. | This question concerns the second listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "other". What subcategory of business best describes this litigant? | [
"medical clinics, health organizations, nursing homes, medical doctors, medical labs, or other private health care facilities",
"private attorney or law firm",
"media - including magazines, newspapers, radio & TV stations and networks, cable TV, news organizations",
"school - for profit private educational enterprise (including business and trade schools)",
"housing, car, or durable goods rental or lease",
"entertainment: amusement parks, race tracks, for profit camps, record companies, movie theaters and producers, ski resorts, hotels, restaurants, etc.",
"information processing",
"consulting",
"security and/or maintenance service",
"other service (including accounting)",
"other (including a business pension fund)",
"unclear"
] | [
2
] | songer |
Don BOYSTER and James Shoffner, Appellants, v. O. R. RODEN, Michael Hare and Phillip Lassiter, Appellees.
No. 79-1855.
United States Court of Appeals, Eighth Circuit.
Submitted April 14, 1980.
Decided Sept. 2, 1980.
Robert Banks, Jr., Memphis, Tenn., for appellants; Collins Kilgore, Jr., Little Rock, Ark., on brief.
Timothy Fagan Watson, Pickens, Boyce, McLarty & Watson, Newport, Ark. (argued), and Fred M. Pickens, Jr., Newport, Ark., on brief, for appellees.
Before STEPHENSON and McMILLIAN, Circuit Judges, and VIETOR, District Judge.
The Honorable Harold D. Vietor, United States District Judge for the Southern District of Iowa, sitting by designation.
VIETOR, District Judge.
This is an appeal' from an order of the United States District Court for the Eastern District of Arkansas dismissing appellants’ complaint for lack of subject matter jurisdiction.
Appellants Don Boyster and James Shoffner filed a complaint seeking damages against appellees O. R. Roden, Michael Hare and Phillip Lassiter for alleged violation of fiduciary duties under the laws of the United States and under the laws of the state of Arkansas. The complaint alleges in essence that Rodin, in his capacity as vice chairman of the board of directors of the White River Production Credit Association (WRPCA), a production credit association organized and existing under the laws of the United States, learned in confidence the details of a proposed sale and purchase of some farm land in respect to which Boyster and Shoffner were seeking a purchase loan from WRPCA, and then conveyed this confidential information to Hare and Lassiter, who then, pursuant to an agreement with Rodin, submitted a higher bid for the farm land and purchased it.
Appellants’ sole federal jurisdictional allegation is that the matter in controversy arises under the common law of the United States. There is no contention by appellants that the matter in controversy arises under any federal constitutional provision, statute, administrative regulation or treaty. Thus, the only question on appeal is whether the matter in controversy arises under federal common law.
Jurisdiction under 28 U.S.C. § 1331(a) may rest on federal common law. Illinois v. City of Milwaukee, 406 U.S. 91, 92 S.Ct. 1385, 31 L.Ed.2d 712 (1972). Appellants concede that there is no federal case recognizing the existence of federal common law governing fiduciaries in any context whatsoever, but they contend that this court should now declare that federal common law governs fiduciaries of federally chartered production credit associations. We decline to do so and we affirm the district court’s order of dismissal.
The Farm Credit Act of 1971, 12 U.S.C. § 2071, et seq., P.L. 92-181, a complete legislative rewriting of the farm credit laws and the statutory basis for the farm credit system, was passed by the 92d Congress, First Session. According to the House Report on the bill, H.R.Rep.92-593, 92d Cong., 1st Sess., the “Federal Farm Credit System will, under [the Act], continue to bring much needed credit to a growing and changing agriculture.” 1971 U.S.Code Cong. & Admin.News, p. 2091. See also Daley v. Farm Credit Administration, 454 F.Supp. 953, 954 (D.Minn.1978) (“The objective of the Farm Credit System is to satisfy the peculiar credit needs of American farmers and ranchers while encouraging those farmers and ranchers to participate through management, control, and ownership of the system.”).
12 U.S.C. § 2091 provides for the organization of production credit associations by “ten or more farmers or ranchers or producers or harvesters of aquatic products desiring to borrow money under the provisions” of Title II of the Farm Credit Act of 1971, 12 U.S.C. § 2001, et seq. The proposed articles of association must be forwarded to the federal intermediate credit bank for the district. Provision for the establishment of federal intermediate credit banks is made in 12 U.S.C. § 2071, and they are in turn subject to the supervision of the Farm Credit Administration. 12 U.S.C. § 2071. Upon approval of the proposed articles by the Governor of the Farm Credit Administration, “the association shall become as of such date a federally chartered body corporate and an instrumentality of the United States.” 12 U.S.C. § 2091. Section 2091 also provides that “[ejach production credit association chartered under Section 20 of the Farm Credit Act of 1933, as amended, shall continue as a federally chartered instrumentality of the United States.” 12 U.S.C. § 2098, which exempts notes, debentures and other obligations issued by production credit associations from most forms of taxation, recites that “[ejach production credit association and its obligations are instrumentalities of the United States * * * >>
Appellants advance the view that the fiduciary obligations of production credit association officers and directors should be governed by federal common law rather than the laws of the states in order to effectuate the Farm Credit System’s purpose of satisfying the credit needs of farmers and ranchers. They contend that there is an overriding federal interest in having credit available to farmers and ranchers, and that this interest requires that the farmers and ranchers trust the officers and directors of the production credit associations. In support of this view, appellants point to the statutes discussed supra, especially the statutory declarations that a production credit association is an “instrumentality of the United States,” and to the following regulations:
The maintenance of high standards of industry, honesty, integrity, impartiality, and conduct by directors, officers, and employees of all institutions and organizations in the Farm Credit System is essential to insure the proper performance of System business and continued public confidence in the System and all its entities. The avoidance of misconduct and conflicts of interest, either real or apparent, by all personnel is indispensable to the maintenance of these standards. All personnel shall observe both the letter and the intent of the laws, regulations, instructions, and procedures applicable to them and to entities in the System,, whether issued by the Farm Credit Administration or by the entities themselves.
12 C.F.R. § 612.2110.
A salaried officer, employee, or agent of any institution of the Farm Credit System:
(b) Shall not use for his own personal benefit or that of another or, except in the performance of his official duties, divulge to another person any fact or information acquired, directly or indirectly, by virtue of his employment which is not generally available to the public; * *.
12 C.F.R. § 612.2160.
There is a substantial federal interest in having credit available to farmers and ranchers, and this interest no doubt requires that the farmers and ranchers trust the officers and directors of production credit associations to meet the standards enumerated in 12 C.F.R. § 612.2110 and not to violate the prohibitions of 12 C.F.R. § 612.2160. Also, there is a “pervasive involvement of the federal government in the creation and operation of the production credit associations.” Schlake v. Beatrice Production Credit Ass’n, 596 F.2d 278, 281 (8th Cir. 1979). These truths, however, do not necessarily establish that the federal interest is of such a nature as to require that the fiduciary responsibilities of production credit association officers and directors be governed by a body of federal common law rather than state law.
Appellants rely primarily on the following cases: Illinois v. City of Milwaukee, supra (federal common law to be applied to abate nuisance of interstate water pollution); Banco Nacional De Cuba v. Sabbatino, 376 U.S. 398, 425, 84 S.Ct. 923, 938, 11 L.Ed.2d 804 (1964) (the scope of the act of state doctrine is to be governed by federal, rather than state, law, the Court noting: “[W]e are constrained to make it clear that an issue concerned with a basic choice regarding the competence and function of the Judiciary and the National Executive in ordering our relationships with other members of the international community must be treated exclusively as an aspect of federal law.”); Clearfield Trust Co. v. United States,. 318 U.S. 363, 63 S.Ct. 573, 87 L.Ed. 838 (1943) (a case heavily relied on by appellants in which the Court applied federal common law because the rights and duties of the United States on commercial paper which it issues were involved, noting that the application of state law would subject the rights and duties of the United States to exceptional uncertainty and diversity in results); D’Oench, Duhme & Co. v. Federal Deposit Ins. Co., 315 U.S. 447, 457, 62 S.Ct. 676, 86 L.Ed. 956 (1942) (federal common law applied because the Federal Reserve Act revealed “a federal policy to protect respondent, and «the public funds which it administers, against misrepresentations as to the securities or other assets in the portfolios of the banks which respondent insures or to which it makes loans.”); Evansville v. Kentucky Liquid Recycling, Inc., 604 F.2d 1008 (7th Cir. 1979), cert. denied, 444 U.S. 1025, 100 S.Ct. 689, 62 L.Ed.2d 659 (1980) (federal common law applied to damage claims arising from contamination of interstate waters); Ivy Broadcasting Co. v. American Tel. & Tel. Co., 391 F.2d 486 (2d Cir. 1968) (federal common law applied to claims for negligence and breach of contract in providing interstate telephone service by a communications common carrier that was subject to the Communications Act of 1934).
The overriding federal interest requiring application of federal common law in the cited cases is clear, but those decisions do not persuade us that there is a need to override state law with federal common law in respect to the obligations a production credit association fiduciary owes to a loan applicant. In Wallis v. Pan American Petroleum Corp., 384 U.S. 63, 68, 86 S.Ct. 1301, 1304, 16 L.Ed.2d 369 (1966), the Court set forth the nature of the federal interest required to apply federal common law:
In deciding whether rules of federal common law should be fashioned, normally the guiding principle is that a significant conflict between some federal policy or interest and the use of state law in the premises must first be specifically shown. It is by no means enough that, as we may assume, Congress could under the Constitution readily enact a complete code of law governing transactions in federal mineral leases among private parties. Whether latent federal power should be exercised to displace state law is primarily a decision for Congress. Even where there is related federal legislation in an area, as is true in this instance, it must be remembered that “Congress acts . against the background of the total corpus juris of the states. . . . ” Hart & Wechsler, The Federal Courts and the Federal System 435 (1953).
The quoted Wallis language was relied on in Miree v. DeKalb County, 433 U.S. 25, 31-32, 97 S.Ct. 2490, 2494-95, 53 L.Ed.2d 557 (1977), in which the Court held that state law, not federal common law, must be applied to suits arising out of an airplane takeoff crash at the county’s airport. The complaints asserted a third party beneficiary breach of contract theory. Six “grant” agreements between the county and the Federal Aviation Administration required the county to restrict use of land adjacent to the airport to purposes compatible with takeoff of aircraft. The complaints alleged that the county’s breach of this term of the agreements caused the crash. The Court disagreed with the court of appeals’ conclusion that uniformity of decision demanded that federal common law control the contracts’ interpretation. Id. at 28, 97 S.Ct. at 2493. The Court observed that the litigation raised “no question regarding the liability of the United States or the responsibilities of the United States under the contracts,” id. at 28-29, 97 S.Ct. at 2493; that application of federal common law “would promote no federal interests even approaching the magnitude of those found in Clearfield Trust,” id. at 29, 97 S.Ct. at 2493; that resolution of the litigation “will have no direct effect upon the United States or its Treasury,” id. at 29, 97 S.Ct. at 2494; that the operations of the United States in connection with Federal Aviation Administration grants, which the Court characterized as being of “eonsiderable magnitude,” would not “be burdened or subjected to uncertainty by variant state-law interpretations,” id. at 30, 97 S.Ct. at 2494; and that “[s]ince only the rights of private litigants are at issue here, we find the Clearfield Trust rationale inapplicable.” Id. at 30, 97 S.Ct. at 2494. The Court further observed: “Nor is the fact that the United States has a substantial interest in regulating aircraft travel and promoting air travel safety sufficient * * * to call into play the rule of Clearfield Trust.” Id. at 31, 97 S.Ct. at 2495. In conclusion the Court stated: “We conclude that any federal interest in the outcome of the question before us ‘is far too speculative, far too remote a possibility to justify the application of federal law to transactions essentially of local concern.’ [Bank of America Nat. Trust & Sav. Ass’n v. Parnell, 352 U.S. 29, 33-34, 77 S.Ct. 119, 121, 1 L.Ed.2d 93 (1956)].” Id. at 32-33, 97 S.Ct. at 2495.
We are not persuaded that the substantial federal interest in successful operation of the Farm Credit System will be impaired by application of state law to appellants’ claims. Even if the fiduciary law varies somewhat from state to state, no burden to the System is perceived; each production credit association is a separate entity with a local situs, and its business transactions are with farmers and ranchers in its locale. Appellants have failed to specifically show any significant conflict between some federal policy or interest and the use of state law, nor have they shown that state law is inadequate to protect their rights. There is no reason to override state law in this suit between private litigants.
The matter in controversy does not arise under federal common law and therefore the district court was without subject matter jurisdiction. '
The order of the district court dismissing appellants’ complaint is affirmed.
Affirmed.
. The Honorable Elsijane Trimble Roy, United States District Judge for the Eastern District of Arkansas.
. 28 U.S.C. § 1331(a) provides in-pertinent part: “The district courts shall have original jurisdiction of all civil actions wherein the matter in controversy exceeds the sum or value of $10,-000, exclusive of interest and costs, and arises under the Constitution, laws, or treaties of the United States * *
. Appellants cited the regulations, 12 C.F.R. §§ 612.2110 and 612.2160(b), for the first time in oral argument before this court. They cite them for the purpose of supporting their view that the matter in controversy arises under federal common law; they do not contend that the matter in controversy arises under administrative regulations of the United States, see Farmer v. Philadelphia Electric Co., 329 F.2d 3 (3d Cir. 1964), nor could we consider such a proposition because it was not presented to the district court. Miree v. DeKaib County, 433 U.S. 25, 33-34, 97 S.Ct. 2490, 2495-96, 53 L.Ed.2d 557 (1977).
. The regulations, 12 C.F.R. §§ 612.2110 and 612.2160(b), the pertinent provisions of which are set forth in the text of this opinion, could probably be used by appellants as evidence in a trial of their claim under state law.
. Illinois v. City of Milwaukee, Evansville v. Kentucky Liquid Recycling, Inc., and Ivy Broadcasting Co. v. American Tel. & Tel. Co. are the only cited cases in which federal jurisdiction rested on the matter in controversy arising under federal common law. The other cases had different jurisdictional grounds, but are cited for their application of federal common law to the controversies. | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine which of these categories best describes the income of the litigant. Consider the following categories: "not ascertained", "poor + wards of state" (e.g., patients at state mental hospital; not prisoner unless specific indication that poor), "presumed poor" (e.g., migrant farm worker), "presumed wealthy" (e.g., high status job - like medical doctors, executives of corporations that are national in scope, professional athletes in the NBA or NFL; upper 1/5 of income bracket), "clear indication of wealth in opinion", "other - above poverty line but not clearly wealthy" (e.g., public school teachers, federal government employees)." Note that "poor" means below the federal poverty line; e.g., welfare or food stamp recipients. There must be some specific indication in the opinion that you can point to before anyone is classified anything other than "not ascertained". Prisoners filing "pro se" were classified as poor, but litigants in civil cases who proceed pro se were not presumed to be poor. Wealth obtained from the crime at issue in a criminal case was not counted when determining the wealth of the criminal defendant (e.g., drug dealers). | This question concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Which of these categories best describes the income of the litigant? | [
"not ascertained",
"poor + wards of state",
"presumed poor",
"presumed wealthy",
"clear indication of wealth in opinion",
"other - above poverty line but not clearly wealthy"
] | [
5
] | songer |
Willie S. GRIGGS, James S. Tucker, Herman Martin, William C. Purcell, Clarence M. Jackson, Robert A. Jumper, Lewis H. Harrison, Jr., Willie Boyd, Junior Blackstop, John D. Hatchett, Clarence Purcell, Eddie Galloway, and Eddie Broadnax, Appellants, v. DUKE POWER COMPANY, a corporation, Appellee.
No. 13013.
United States Court of Appeals Fourth Circuit.
Argued April 10, 1969.
Decided Jan. 9, 1970.
Sobeloff, Circuit Judge, dissented in part.
Jack Greenberg, New York City (Conrad O. Pearson, Durham, N. C., J. Le-Vonne Chambers, Chambers, Stein, Ferguson & Lanning, Charlotte, N. C., Sammie Chess, Jr., High Point, N. C., James M. Nabrit, III, Norman C. Amaker, Robert Belton, Gabrielle A. Kirk, George Cooper, and Albert J. Rosenthal, New York City, on brief) for appellants.
. George W. Ferguson, Jr., Charlotte, N. C. (Carl Horn, Jr., and William I. Ward, Jr., Charlotte, N. C., on brief) for appellee.
Russell Specter, Asst. Gen. Counsel, Equal Employment Opportunity Commission, and Gary J. Greenberg, Atty., Dept.' of Justice (Daniel Steiner, Gen. Counsel, Philip B. Sklover, Atty., Equal Employment Opportunity Commission, Jerris Leonard, Asst. Atty. Gen., and Carol R. Aronoff, Atty., Dept, of Justice, on brief) for amicus curiae.
Before SOBELOFF, BOREMAN and BRYAN, Circuit Judges.
BOREMAN, Circuit Judge:
Present Negro employees of the Dan River Steam Station of Duke Power Company in Draper, North Carolina, in a class action with the class defined as themselves and those Negro employees who subsequently may be employed at the Dan River Steam Station and all Negroes who may hereafter seek employment at the station, appeal from a judgment of the district court dismissing their complaint brought under Title VII of the Civil Rights Act of 1964. (Duke Power Company will be referred to sometimes as Duke or the company.) The plaintiffs challenge .the validity of the company’s promotion and transfer system, which involves the use of general intelligence and mechanical ability tests, alleging racial discrimination and denial of equal opportunity to advance into jobs classified above .the menial laborer category.
Duke is a corporation engaged in the generation, transmission and distribution of electric power to the general public in North Carolina and South Carolina. At the .time this action was instituted, Duke had 95 employees at its Dan River Station, fourteen of whom were Negroes, thirteen of whom are plaintiffs in this action. The work force at Dan River is divided for operational purposes into five main departments: (1) Operations; (2) Maintenance; (3) Laboratory and Test; (4) Coal Handling; and (5) Labor. The positions of Watchman, Clerk and Storekeeper are in a miscellaneous category.
The employees in the Operations Department are responsible for the operation of the station’s generating equipment, such as boilers, turbines, auxiliary and control equipment, and the electrical substation. They handle also interconnections between the station, the company’s power system, and the systems of other power companies.
The Maintenance Department is responsible for maintenance of all .the mechanical and electrical equipment and machinery in the plant.
Technicians working in the Laboratory Department analyze water to determine its fitness for use in .the boilers and run analyses of coal samples to ascertain the quality of the coal for use as fuel in the power station. Test Department personnel are responsible for the performance of .the station by maintaining the accuracy of instruments, gauges and control devices.
Employees in the Coal Handling Department unload, weigh, sample, crush, and .transport coal received from the mines. In so doing, they operate diesel and electrical equipment, bulldozers, conveyor belts, crushers and other heavy equipment items. They must be able to read and understand manuals relating to such machinery and equipment.
The Labor Department provides service to all other departments and is responsible generally for the janitorial services in the plant. Its employees mix mortar, collect garbage, help construct forms, clean bolts, and provide the necessary labor involved in performing other miscellaneous jobs. The Labor Department is the lowest paid, with a maximum wage of $1.565 per hour, which is less than the minimum of $1.-705 per hour paid to any other employee in the plant. Maximum wages paid .to employees in other departments range from $3.18 per hour to $3.65 per hour.
Within each department specialized job classifications exist, and these classifications constitute a line of progression for purposes of employee advancement. Promotions within departments are made at Dan River as vacancies occur. Normally, the senior man in the classification directly below that in which the vacancy occurs will be promoted, if qualified to perform the job. Training for promotions within departments is not formalized, as employees are given on-the-job training within departments. In transferring from one department to another, an employee usually goes in at the entry level; however, at Dan River an employee is potentially able to move into another department above the entry level, depending on his qualifications.
In 1955, approximately nine years pri- or to the passage of the Civil Rights Act of 1964 and some eleven years prior to the institution of this action, Duke Power initiated a new policy as to hiring and advancement; a high school education or its equivalent was thenceforth required for all new employees, except as to those in the Labor Department. The new policy also required an incumbent employee to have a high school education or its equivalent before he could be considered for advancement from the Labor Department or the position of Watchman into Coal Handling, Operations or Maintenance or for advancement from Coal Handling into Operations or Maintenance. The company claims that this policy was instituted because it realized that its business was becoming more complex and .that there were some employees who were unable to adjust to the increasingly more complicated work requirements and thus unable to advance through the company’s lines of progression.
The company subsequently amended its promotion and transfer requirements by providing .that an employee who was on the company payroll prior to September 1, 1965, and who did not have a high school education or its equivalent, could become eligible for transfer or promotion from Coal Handling, Watchman or Labor positions into Operating, Maintenance or other higher classified jobs by .taking and passing two tests, known as the Wonderlic general intelligence test and the Bennett Mechanical AA general mechanical test, with scores equivalent to those achieved by an average high school graduate. The company admits that this change was made in response to requests from employees in Coal Handling for a means of escape from that department but the same opportunity was also provided for employees in the Labor Department.
Until 1966, no Negro had ever held a position at Dan River in any department other than the Labor Department. On August 6, 1966, more than a year after July 2, 1965, the effective date of the Civil Rights Act of 1964, the first Negro was promoted out of the Labor Department, as Jesse C. Martin (who had a high school education) was advanced into Coal Handling. He was subsequently promoted to utility operator on March 18, 1968. H. E. Martin, a Negro with a high school education, was promoted to Watchman on March 19, 1968, and subsequently to the position of Learner in Coal Handling. Another Negro, R. A. Jumper, was promoted to Watchman and then to Trainee for Test Assistant on May 7, 1968. These three were the only Negroes employed at Dan River who had high school educations. Recently, another Negro, Willie Boyd, completed a course which is recognized and accepted as equivalent to a high school education; thereby he became eligible for advancement under current company policies. Insufficient time has elapsed in which to determine whether or not Boyd will be advanced without discrimination, but it does appear that the company is not now discriminating in its promotion and transfer policies against Negro employees who have a high school education or its equivalent.
The plaintiff Negro employees admit that at the present time Duke has apparently abandoned its policy of restricting all Negroes to the Labor Department; but the plaintiffs complain that the educational and testing requirements preserve and continue .the effects of Duke’s past racial discrimination, thereby violating the Civil Rights Act of 1964.
The district court found that prior to July 2, 1965, the effective date of the Civil Rights Act of 1964, Negroes were relegated to the Labor Department and deprived of access to other departments by reason of racial discrimination practiced by the company. This finding is fully supported by the evidence.
However, the district court also held that Title VII of the Civil Rights Act of 1964 does not encompass the present and continuing effects of past discrimination. This holding is in conflict with other persuasive authority and is disapproved. While it is true that the Act was intended to have prospective application only, relief may be granted to remedy present and continuing effects of past discrimination. Local 53 of International Association of Heat and Frost Insulators and Asbestos Workers v. Vogler, 407 F.2d 1047, 1052 (5 Cir. 1969); United States v. Local 189, 282 F.Supp. 39, 44 (E.D.La.1968), aff’d, 416 F.2d 980 (5 Cir. 1969); Quarles v. Philip Morris, Inc., 279 F.Supp. 505, 516 (E.D.Va.1968). See, United States v. Hayes International Corporation, 415 F. 2d 1038 (5 Cir. 1969) (Sept. 16, 1969). In Quarles, it was directly held that present and continuing consequences of past discrimination are covered by the Act, the court stating, “It is also apparent that Congress did not intend to freeze an entire generation of Negro employees in•to discriminatory patterns that existed before the act.” Quarles v. Philip Morris, Inc., supra, 279 F.Supp. at 516. The Quarles decision was expressly approved and followed in United States v. Local 189, supra, as the district court, with subsequent approval of the Fifth Circuit Court of Appeals, struck down a seniority system which had the effect of perpetuating discrimination. “ * * * [W]here, as here, ‘job seniority’ operates to continue the effects of past discrimination, it must be replaced * United States v. Local 189, supra at 45. In Local 53 of International Association of Heat and Frost Insulators and Asbestos Workers v. Volger, 407 F.2d 1047, 1052 (5 Cir. 1969), the court said: “Where necessary to ensure compliance with the Act, the District Court was fully empowered to eliminate the present effects of past discrimination.”
Those six Negro employee-plaintiffs without a high school education or its equivalent who were discriminatorily hired only into the Labor Department prior to Duke’s institution of the educational requirement in 1955 were simply locked into the Labor Department by the adoption of this requirement. Yet, on the other hand, many white employees who likewise did not have a high school education or its equivalent had already been hired into the better departments and were free to remain there and be promoted or transferred into better, higher paying positions. Thus, it is clear that those six plaintiff Negro employees without a high school education or its equivalent who were hired prior to the adoption of the educational requirement are entitled to relief; the educational requirement shall not be invoked as an absolute bar to advancement, but must be waived as to these plaintiffs and they shall be entitled to nondiscriminatory consideration for advancement to other departments if and when job openings occur.
Likewise, as to these same six Negro plaintiffs, the testing requirements established in 1965 are also discriminatory. The testing requirements, as will be fully explained later in this opinion, were established as an approximate equivalent to a high school education for advancement purposes. Since the adoption of the high school education requirement was discriminatory as to these six Negro employees and the tests are used as an approximate equivalent for advancement purposes, it must follow that the testing requirements were likewise discriminatory as to them. These six plaintiffs had to pass these tests in order to escape from the Labor Department while their white counterparts, many of whom also did not have a high school education, had been hired into departments other than the Labor Department and therefore were not required to take the tests. Therefore, as to these six plaintiffs, .the testing requirements must also be waived and shall not be invoked as a bar to their advancement.
Next, we consider the rights of the second group of plaintiffs, those four Negro employees without a high school education or its equivalent who were hired into the Labor Department after the institution of the educational requirement. We find that they are not entitled to relief for the reasons to be hereinafter assigned. In determining the rights of this second group of plaintiffs, it is necessary .to analyze and determine the validity of Duke’s educational and testing requirements under the Civil Rights Act of 1964. We have found no cases directly in point. The Negro employee-plaintiffs contend that the requirements continue the effects of past discrimination and, therefore, must be struck down as invalid under the Act. We find ourselves unable to agree with .that contention.
Plaintiffs claim that Duke’s educational and testing requirements are discriminatory and invalid because: (1) there is no evidence showing a business need for the requirements; (2) Duke Power did not conduct any studies to discern whether or not such requirements were related to an employee’s ability to perform his duties; and (3) the tests were not job-related, and § 703(h) of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2 (h), requires tests to be job-related in order to be valid.
The company admits that it initiated the requirements without making formal studies as to the relationship or bearing such requirements would have upon its employees’ ability to perform their duties. But, Duke claims that the policy was instituted because its business was becoming more complex, it had employees who were unable to grasp situations, to read, to reason, and who did not have an intelligence level high enough to enable them to progress upward through the company’s line of advancement.
Pointing out that it uses an intracom-pany promotion system to train its own employees for supervisory positions inside the company rather than hire supervisory personnel from outside, Duke claims that it initiated the high school education requirement, at least partially, so that it would have some reasonable assurance that its employees could advance into supervisory positions; further, that its educational and testing requirements are valid because they have a legitimate business purpose, and because the tests are professionally developed ability tests, as sanctioned under § 703(h) of the Act, 42 U.S.C. § 2000e-2 (h).
In examining the validity of the educational and .testing requirements, we must determine whether Duke had a valid business purpose in adopting such requirements or whether the company merely used the requirements to discriminate. The plaintiffs claim that centuries of cultural and educational discrimination have placed Negroes at a disadvantage in competing with whites for positions which involve an educational or .testing standard and that Duke merely seized upon such requirements as a means of discrimination without a business purpose in mind. Plaintiffs have admitted in their brief that an employer is permitted to establish educational or testing requirements which fulfill genuine business needs and that such requirements are valid under the Act. In support of this statement, we quote verbatim from appellants’ brief:
“An employer is, of course, permitted to set educational or test requirements that fulfill genuine business needs. For example, an employer may require a fair .typing test of applicants for secretarial positions. It may well be that, because of long-standing inequality in educational and cultural opportunities available to Negroes, proportionately fewer Negro applicants than white can pass such a test. But where business need can be shown, as it can where typing ability is necessary for performance as a secretary, the fact that the test tends to exclude more Negroes than whites does not make it discriminatory. We do not wish even to suggest that employers are required by law to compensate for centuries of discrimination by hiring Negro applicants who are incapable of doing the job. But when, a test or educational requirement is not shown to be based on business need, as in the instant case, it measures not ability to do a job but rather the extent to which persons have acquired educational and cultural background which has been denied to Negroes.” (Emphasis added.)
Thus, plaintiffs would apparently concede that if Duke adopted its educational and testing requirements with a genuine business purpose and without intent to discriminate against future Negro employees, such requirements would not be invalidated merely because of Negroes’ cultural and educational disadvantages due to past discrimination. Although earlier in this opinion we upheld the district court’s finding that the company had engaged in discriminatory hiring practices prior to the Act and we concluded also that the educational and .testing requirements adopted by the company continued the effects of this prior discrimination as to employees who had been hired prior to the adoption of the educational requirement, it seems reasonably clear that this requirement did have a genuine business purpose and that the company initiated the policy with no intention to discriminate against Negro employees who might be hired after the adoption of the educational requirement. This conclusion would appear to be not merely supported, but actually compelled by the following facts:
(1) Duke had long ago established the practice of training its own employees for supervisory positions rather than bring in supervisory personnel from outside.
(2) Duke instituted its educational requirement in 1955, nine years prior to the passage of the Civil Rights Act of 1964 and well before the civil rights movement had gathered enough momentum to indicate the inevitability of the passage of such an act.
(3) Duke has, by plaintiffs’ own admission, discontinued the use of discriminatory tactics in employment, promotions and transfers
(4) The company’s expert witness, Dr. Moffie, testified that he had observed the Dan River operation; had observed personnel in the performance of jobs; had studied the written summary of job duties; had spent several days with company representatives discussing job content; and he concluded that a high school education would provide the training, ability and judgment to perform tasks in the higher skilled classifications. This testimony is uncontro-verted in the record.
(5) When the educational requirement was adopted it adversely affected the advancement and transfer of white employees who were Watchmen or were in the Coal Handling Department as well as Negro employees in the Labor Department.
(6) Duke has a policy of paying the major portion of the expenses incurred by an employee who secures a high school education or its equivalent. In fact, one of the plaintiffs recently obtained such equivalent, the company paying seventy-five percent of the cost.®
Next, we consider the testing requirements to determine their validity and we conclude that they, too, are valid under § 703(h) of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(h). In pertinent part, § 703(h) reads: “* * * nor shall it be an unlawful employment practice for an employer to give and to act upon the results of any professionally developed ability test provided that such test, its administration or action upon the results is not designed, intended or used to discriminate because of race, col- or, religion, sex, or national origin.”
There is no evidence in the record that there is any discrimination in the administration and scoring of the tests. Nor is .there any evidence that the tests are not professionally developed. The company’s expert, Dr. D. J. Moffie, testified that in his opinion the tests were professionally developed and are reliable and valid; that they are “low level” tests and are given at Dan River by one who has had special training in the administration of such tests. The minimum acceptable scores used by the company are approximately those achieved by the average high school graduate, which fact indicates that the tests are accepted as a substitute for a high school education. The evidence disclosed that the minimum acceptable scores used by Duke are Wonderlie-20, and Bennett Mechanical-39; the score of the average high school graduate, i. e., .the fiftieth percentile, is 21.9 for the Wonderlic, nearly two points higher than the score accepted by Duke, and 39 for the Bennett Mechanical.
The plaintiffs claim that .tests must be job-related in order to be valid under § 703(h). The Equal Employment Opportunity Commission which is charged with administering and implementing the Act supports plaintiffs’ view. The EEOC has ruled that tests are unlawful “ * * * in the absence of evidence that the tests are properly related to specific jobs and have been properly validated * * Decision of EEOC, December 2, 1966, reprinted in CCH, Employment Practices Guide, U 17,304.-53. The EEOC’s position has been supported by two federal district courts. United States v. H. K. Porter, 59 L.C. H 9204 (M.D.Ala.1969); Dobbins v. Local 212, IBEW, 292 F.Supp. 413 (S.D. Ohio 1968). In Dobbins the court invalidated a test which was being given for membership in a labor union or in connection with a referral system because it was not adequately related to job performance needs. However, in that case it was clear that .the testing requirement was not one of business necessity and the reasons for adopting such a requirement compellingly indicated that the purpose of such requirement was discrimination, which is not true in the present case.
The court below held that the tests given by Duke were not job-related, but then refused to give weight to the EEOC ruling that tests must be job-related in order to be valid under § 703 (h). The plaintiffs assert that such refusal was error. It has been held that the interpretation given a statute by an agency which was established to administer the statute is entitled to great weight. Udall v. Tallman, 380 U.S. 1, 15, 85 S.Ct. 792, 13 L.Ed.2d 616 (1965). This principle has been applied to EEOC interpretations given the Civil Rights Act of 1964. Weeks v. Southern Bell Telephone & Telegraph Co., 408 F.2d 228, 235 (5 Cir. 1969); Cox v. United States Gypsum Co., 284 F.Supp. 74, 78 (N.D.Ind.1968); International Chemical Workers Union v. Planters Manufacturing Co., 259 F.Supp. 365, 366 (N.D.Miss. 1966). Plaintiffs cite these cases last mentioned above to support their argument that this court should adopt .the EEOC ruling that tests must be job-related in order to be valid. However, none of these cases stands for .the proposition that an EEOC interpretation is binding upon the courts; in fact, in International Chemical Workers, supra at 366, it was held .that such interpretations of the EEOC are “ * * * not conclusive on the courts * * We cannot agree with plaintiffs’ contention that such an interpretation by EEOC should be upheld where, as here, it is clearly contrary to compelling legislative history and, as will be shown, the legislative history of § 703(h) will not support the view that a “professionally developed ability test” must be job-related.
The amendment which incorporated the testing provision of § 703(h) was proposed in a modified form by Senator Tower, who was concerned about a .then-recent finding by a hearing examiner for the Illinois Fair Employment Practices Commission in a case involving Motorola, Inc. The examiner had found that a pre-employment general intelligence test which Motorola had given to a Negro applicant for a job had denied .the applicant an equal employment opportunity because Negroes were a culturally deprived or disadvantaged group. In proposing his original amendment, essentially the same as the version later unanimously accepted by the Senate, Senator Tower stated:
“It [the amendment which, in substance, became the ability testing provision of § 703(h)] is an effort to protect the system whereby employers give general ability and intelligence tests to determine the trainability of prospective employees. The amendment arises from my concern about what happened in the Motorola FEPC case * * *.
“Let me say, only, in view of the finding in the Motorola case, that the Equal Employment Opportunity Commission, which would be set up by the act, operating in pursuance of Title VII, might attempt to regulate the use of tests by employers * * *.
“If we should fail to adopt language of this kind, there could be an Equal Employment Opportunity Commission ruling which would in effect invalidate tests of various kinds of employees by both private business and Government to determine the professional competence or ability or train-ability or suitability of a person to do a job.” (Emphasis added.) 110 Congressional Record 13492, June 11, 1964.
The discussion which ensued among members of the Senate reveals that proponents and opponents of the Act agreed that general intelligence and ability tests, if fairly administered and acted upon, were not invalidated by the Civil Rights Act of 1964. See, 110 Congressional Record 13503-13505, June 11, 1964.
The “Clark-Case” interpretative memorandum pertaining to Title VII fortifies the conclusion that Congress did not intend to invalidate an employer’s use of bona fide general intelligence and ability tests. It was stated in said memorandum :
“There is no requirement in Title VII that employers abandon bona fide qualification tests where, because of differences in 'background and education, members of some groups are able to perform better on these tests than members of other groups. An employer may set his qualifications as high as he likes, he may test to determine which applicants have these qualifications, and he may hire, assign, and promote on the basis of test performance.” (Emphasis added.) 110 Congressional Record 7213, April 8, 1964.
When Senator Tower called up his modified amendment, which became the ability testing provision of § 703(h), Senator Humphrey — one of the leading proponents and the principal floor leader of the fight for passage of the entire Act — stated:
“I think it should be noted that the Senators on both sides of the aisle who were deeply interested in Title VII have examined the text of this amendment and found it to be in accord with the intent and purpose of that title.
“I do not think .there is any need for a rolleall. We can expedite it. The Senator has won his point.
“I concur in the amendment and ask for its adoption.” (Emphasis added.) 110 Congressional Record 13724, June 13, 1964.
At no place in the Act or in its legislative history does there appear a requirement that employers may utilize only those tests which measure the ability and skill required by a specific job or group of jobs. In fact, the legislative history would seem to indicate clearly .that Congress was actually trying to guard against such a result. An amendment requiring a “direct relation” between the test and a “particular position” was proposed in May 1968, but was defeated. We agree with .the district court that a test does not have to be job-related in order to be valid under § 703(h)
Having determined that Duke’s educational and testing requirements were valid under Title VII, we reach the conclusion that those four Negro employees without a high school education who were hired after the adoption of the educational requirement are not entitled to relief. These employees were hired subject to the educational requirement; each accepted a position in the Labor Department with his eyes wide open. Under this valid educational requirement these four plaintiffs could have been hired only in the Labor Department and could not have been promoted or advanced into any other department irrespective of race, since they could not meet the requirement. Consequently, it could not be said that they have been discriminated against. Furthermore, since the testing requirement is being applied to white and Negro employees alike as an approximate equivalent to a high school education for advancement purposes, neither is it racially discriminatory.
Once we have determined that certain of the plaintiffs are entitled to relief the next question for consideration is the nature and extent of relief to be provided. Those six Negro employees without a high school education or its equivalent who were hired prior to the initiation of the educational requirement are entitled to injunctive relief under § 706(g) of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5(g). The educational and test requirements are invalid as applied to their eligibility for transfer and promotion. Thus, on remand, the district court should award proper injunctive relief to insure that these six employees are considered for any future openings without being subject to the educational or testing requirements. This will work no hardship upon the company since the relief provided will simply require it to consider those Negro employees equally with similarly situated white employees, many of whom do not have a high school education or its equivalent. If a Negro employee is advanced to a job in one of the better departments and his inability to perform the duties of the job is demonstrated after a reasonable period the company will be justified in returning him to his previous position or placing him elsewhere. As Judge Butzner said in Quarles, 279 F.Supp. 505, 521 (E.D.Va. 1968) , supra:
“If any transferee fails to perform adequately within a reasonable time * * * he may be removed and returned to the department and job classification from which he came, or to another higher job classification for which the company may believe him fitted.”
In granting relief, the district court should order that seniority rights of the six Negro employees who are victims of discrimination be considered on a plant-wide, rather than a departmental, basis. To apply strict departmental seniority would result in the continuation of present effects of past discrimination whenever one of the six is considered in the future for advancement to a vacant job in competition with a white employee who has already gained departmental seniority in a better department as a result of past discriminatory hiring practices. In United States v. Local 189, 282 F.Supp. 39, 44 (E.D. La.1968), aff’d, 416 F.2d 980 (5 Cir. 1969) , supra, the court held:
“Where a seniority system has the effect of perpetrating discrimination, and concentrating or 'telescoping’ the effect of past years of discrimination against Negro employees into the present placement of Negroes in an inferior position for promotion and other purposes, that present result is prohibited, and a seniority system which operates to produce that present result must be replaced with another system.”
It is to be understood and remembered that there are thirteen named Negro plaintiffs who bring this action. Jesse C. Martin, a Negro formerly employed in the Labor Department who had a high school education, was advanced to a higher position subsequent to the effective date of the Act. He is not joined as a plaintiff since the past discrimination against him has been removed. This case is now moot as to two of the named Negro plaintiffs who have high school educations and have been advanced; also as to Willie Boyd, who has acquired the equivalent of a high school education and is now eligible for advancement.
Briefly summarizing, only those six Negro employees without a high school education or its equivalent who were hired prior to the adoption of the educational requirement are entitled to relief. As to them the judgment below is reversed and the case is remanded to the district court with directions to fashion appropriate injunctive relief consistent with this opinion. As to the remaining Negro plaintiffs the judgment below is affirmed.
Affirmed in part, reversed in part, and remanded.
. Pertinent sections of Title VII of the Civil Rights Act of 1964 are:
Section 703(a), 42 U.S.C. § 2000e-2(a) :
It shall be an unlawful employment practice for an employer—
(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or
(2) to limit, segregate, or classify his employees in any way which would deprive or tend tc deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.
sertion 703(h), 42 U.S.C. § 2000e-2(h) :
Notwithstanding any other provision of this subchapter, it shall not be an unlawful employment practice for an employer to apply different standards of compensation, or different terms, conditions, or privileges of employment pursuant to a bona fide seniority or merit system, or a system which measures earnings by quantity or quality of production or to employees who work in different locations, provided that such differences are not the result of an intention to discriminate because of race, color, religion, sex, or national origin, nor shall it be an unlawful employment practice for an employer to give and to act upon the results of any professionally developed ability test provided that such test, its administration or action upon the results is not designed, intended or used to discriminate because of race, color, religion, sex or national origin.
Section 706(g), 42 TJ.S.C. § 2000e-5(g) :
If the court finds that the respondent has intentionally engaged in or is intentionally engaging in an unlawful employment practice charged in the complaint, the court may enjoin the respondent from engaging in such unlawful employment practice, and order such affirmative action as may be appropriate, which may include reinstatement or hiring of employees, with or without back pay (payable by the employer, employment agency, or labor organization, as the case may be, responsible for the unlawful employment practice) .
. The company had an obvious business motive and objective in establishing the high school requirement, that is, hiring only personnel who had a reasonable expectation of ascending promotional ladders into supervisory positions thereby elim-mating road blocks which would interfere with movement to higher classifications and tend to decrease efficiency and morale throughout the entire work force.
. It is highly improbable that the company seized upon such a requirement merely for the purpose of continuing discrimination.
. This tends to demonstrate the company’s good faith.
. It is unreasonable to charge the company with prospective discrimination by instituting an educational requirement which was to be applied prospectively to white, as well as Negro, employees.
. It would be illosical to conclude that Duke established the educational requirement for purposes of discrimination when it was willing to pay for the education of incumbent Negro employees who could thus become eligible for advancement.
. Senate Report No. 1111, May 8, 1968.
. This decision is not to be construed as holding that any educational or testing requirement adopted by any employer is valid under the Civil Rights Act of 1964. There must be a genuine business purpose in establishing such requirements and they cannot be designed or used to further the practice of racial discrimination. Future cases must be decided on the bases of their own fact situations in light of pertinent considerations such as the company’s past hiring and advancement policies, the time of the adoption of the requirements, testimony of experts and other evidence as to the business purpose to be accomplished, and the company’s stated reasons for instituting such policies.
. The plaintiffs disclaim any request for or entitlement to relief other than by way of injunction. Had there been an issue as to monetary awards for damages to those plaintiffs found to have been the victims of racial discrimination, there would have been presented the further issue as to the date of applicability of the Act. There were only 95 employees at the Dan River plant when the Act became effective on July 2, 1965, but Duke Power Company then employed some 6,000 persons throughout its entire system. The Act was initially applicable to employers with 100 or more employees, and it did not become applicable to employers with 75 to 100 employees until July 2, 1966. However, since the relief requested and awarded is solely injunctive in nature no question as to the applicability date of the Act is presented for decision.
. Section 706(g) of the Civil Rights Act of 1964 limits injunctive relief to situations in which an employer or a union has “intentionally engaged in or is intentionally engaging in” an unlawful employment practice. While we have found Duke’s educational and testing requirements valid as to employees hired subsequently to the adoption of the educational requirement, we further conclude that Duke had intentionally engaged in discriminatory hiring practices in earlier years long prior to the enactment of the Civil Rights Act of 1964 and that, as to those six Negro employees hired prior to the adoption of the educational requirement, the effects of this discrimination were continued. Thus, these six plaintiffs may be granted appropriate injunc-tive relief under § 706(g). See, Clark v. American Marine Corp., 304 F.Supp. 603 (E.D.La. Sept. 15, 1969) ; Local 189 v. United States, 416 F.2d 980 (5 Cir. July 28, 1969).
. Here, despite the company’s representations to the contrary, it is apparent that strict departmental seniority is not always followed since the company admits that an employee sometimes enters a new department at a position above the entry level; however, it is the more general practice for an employee to enter a new department at the lowest classification therein. | What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "civil rights - voting rights, race discrimination, sex discrimination". | What is the specific issue in the case within the general category of "civil rights - voting rights, race discrimination, sex discrimination"? | [
"voting rights - reapportionment & districting",
"participation rights - rights of candidates or groups to fully participate in the political process; access to ballot",
"voting rights - other (includes race discrimination in voting)",
"desegregation of schools",
"other desegregation",
"employment race discrimination - alleged by minority",
"other race discrimination - alleged by minority",
"employment: race discrimination - alleged by caucasin (or opposition to affirmative action plan which benefits minority)",
"other reverse race discrimination claims",
"employment: sex discrimination - alleged by woman",
"pregnancy discrimination",
"other sex discrimination - alleged by woman",
"employment: sex discrimination - alleged by man (or opposition to affirmative action plan which benefits women)",
"other sex discrimination - alleged by man",
"suits raising 42 USC 1983 claims based on race or sex discrimination"
] | [
5
] | songer |
William Thomas CARTWRIGHT, Petitioner-Appellant, v. Gary D. MAYNARD, Warden, Oklahoma State Penitentiary at McAlester, Oklahoma, and Michael C. Turpen, Attorney General of Oklahoma, Respondents-Appellees.
No. 86-1231.
United States Court of Appeals, Tenth Circuit.
Sept. 29, 1986.
Mandy Welch, of Payne and Welch, Hugo, Okl., for petitioner-appellant.
David W. Lee (Michael C. Turpen, Atty. Gen., with him on briefs), Asst. Atty. Gen., Oklahoma City, Okl., for respondents-appellees.
Before BARRETT, McWILLIAMS and TACHA, Circuit Judges.
BARRETT, Circuit Judge.
Petitioner William Thomas Cartwright, presently incarcerated in the Oklahoma State Penitentiary under sentence of death following his conviction for the offense of Murder in the First Degree, appeals from the federal district court’s denial of his petition for Writ of Habeas Corpus. Appellant-petitioner Cartwright was sentenced to death by lethal drug injection on October 25,1982, for the offense of Murder in the First Degree of the person of Hugh Riddle. On November 12,1982, Cartwright was sentenced to seventy-five years imprisonment for the offense of Shooting With Intent to Kill the person of Charma Riddle. Cartwright was convicted of said offenses following trial by jury in the District Court of Muskogee County, Oklahoma. The convictions and sentences were affirmed on appeal, Cartwright v. State, 695 P.2d 548 (Okl.Cr.1985), and the Supreme Court of the United States denied the petition for writ of certiorari. Cartwright v. Oklahoma, — U.S. -, 105 S.Ct. 3538, 87 L.Ed.2d 661 (1985).
On August 22, 1985, Cartwright’s application for Post-Conviction relief was denied by the District Court of Muskogee County. That denial was affirmed on appeal. Cartwright v. State, 708 P.2d 592 (Okl.Cr.1985). A petition for writ of certiorari was denied by the Supreme Court of the United States. — U.S.-, 106 S.Ct. 837, 88 L.Ed.2d 808 (1986).
On February 6, 1986, Cartwright filed a Petition for a Writ of Habeas Corpus in the United States District Court for the Eastern District of Oklahoma. On February 11, 1986, that court, following denial of an evidentiary hearing, entered an order denying the petition. This appeal is taken from that order. We affirm the district court’s denial of habeas corpus relief.
Factual Background
Cartwright was employed by Hugh Riddle and his wife, Charma Riddle, in their construction-remodeling business in Muskogee, Oklahoma, for about six months from July, 1981, until early January, 1982. The relationship was excellent and Cartwright was promoted to foreman of a crew of about five. The Riddles considered Cartwright a conscientious employee and friend. Cartwright visited at the Riddle home often on business and social occasions.
In December, 1981, while working for the Riddles, Cartwright fell through loose flooring and injured his leg. He was treated at a hospital emergency room. On January 2, 1982, Cartwright contacted the Riddles about payment of the small medical bill and Hugh Riddle laid him off.
In January, 1982, Cartwright moved to Las Vegas, Nevada. Cartwright returned to Muskogee, Oklahoma, on May 1, 1982, after he claimed to have received a phone call from an unidentified attorney advising him that Hugh Riddle had determined to settle on the medical bill. During the evening of May 4, 1982, Hugh Riddle was killed by a shotgun blast at his home. Charma Riddle was also shot twice, her throat was cut and she was stabbed in the abdomen, but was able to notify the police before her attacker, whom she identified at trial as Cartwright, cut the telephone line. Upon arriving at the Riddle residence, the police noticed a lone male running away from the area.
Late at night on May 6,1982, Cartwright phoned his sister at her home in Muskogee from a pay telephone. His sister, Dovie Marie Field, informed him that the police were looking for him. After driving him to her home, feeding him and giving him aspirin for a bad headache, she phoned Assistant District Attorney Edmondson with whom she had spoken earlier in the day regarding Cartwright’s whereabouts. Edmondson came to her home and took her and her brother to the police station just before midnight on the evening of May 6, 1986. (R., Vol. I, pp. 218-220).
At the police station, Cartwright complained of a headache and a pain in his left knee. He was taken to a hospital emergency room where he was examined by Doctor Charles Thomas Morgan. Cartwright said he had headaches “off and on” since childhood because of a “soft spot” on his head. Dr. Morgan diagnosed Cartwright as having a “nonspecific headache” and recommended aspirin. Id. at 561. Dr. Morgan did not administer any drug and he did not prescribe any. Cartwright was then asked whether he wished to go to the police station and get some rest or go to the courthouse for interrogation. He said he did not care. Id. at 502.
Cartwright was taken to the courthouse and was interrogated by Investigator Gary Sturm in the presence of Officer James Allen Stone. Prior to interrogation, Cartwright was orally informed of his “Miranda” rights by Sturm and thereafter he read and acknowledged those rights. Cartwright signed a written waiver. The tape recorded interrogation started at about 2:15 a.m. and lasted about an hour. While Cartwright did complain of a headache, his responses to questions posed by Sturm were clear and direct.
For a substantial initial portion of the questioning by Sturm, resulting in some 28 typed pages from the tape recording, id. at 553, Cartwright related that he had gone to the Riddle home on the evening of May 4, 1982, to speak with Hugh Riddle about the medical expenses he (Cartwright) had incurred and while standing on the front porch of the Riddle home speaking with Hugh Riddle, he was hit on the head and blacked out. He had no recollection of anything more until he woke up in a ditch on the morning of May 6, 1982. Cartwright was fully aware of the charges against him but insisted that he had not entered the Riddle home and had not had any further contact with Hugh or Charma Riddle. Suddenly, during the interrogation, Cartwright recalled: going “back” to the Riddle home on the evening of May 4, 1982; watching the Riddles eat; entering the Riddle home through a side door; obtaining a loaded gun in the bedroom closet; the gun going off when Charma Riddle “grabbed” it, and the gun going off again; shooting Hugh Riddle and then finding Charma Riddle sitting on the bedroom floor as he cut the phone wire; his cutting and stabbing Charma Riddle with a pocket knife; and his placement of the two guns, sleeping bags and other things in the Riddle Blazer truck. He also recalled seeing a spotlight as he placed a note on the Riddle door and ran away.
An Information was executed by the District Attorney for Muskogee County, Oklahoma, charging Cartwright with the subject crimes on May 5, 1982. It was supported by an Affidavit executed by Mr. Edmondson, the Assistant District Attorney, who related that Lt. Tom Spriggs had informed him that Charma Riddle had stated to him that Tom Cartwright had shot her and her husband with a shotgun in their home on the evening of May 4, 1982. The district court judge found probable cause and a Warrant for Cartwright’s arrest on the subject charges was issued May 5, 1985. The warrant was served on Cartwright May 7, 1985. On that same date, Cartwright executed a pauper’s affidavit and attorney John Garrett was appointed to represent him. Cartwright was ordered to be held without bond. A preliminary hearing was held on June 14, 1982. Cartwright was bound over for district court arraignment and bond was again denied. On July 1, 1982, Cartwright was arraigned. He entered a not guilty plea after waiving reading of the Information. The court granted Cartwright thirty days within which to file motions. After various motions were filed and ruled on, the case came on for trial commencing October 18, 1982. The jury verdict was returned on October 20, 1982, and sentence was handed down on October 25, 1982.
On October 25, 1982, Cartwright made out a handwritten statement. He related that he had never seen a doctor for his head pain but each year the pain grows stronger and harder to control. Contrary to his admissions on May 7, 1982, he wrote that he recalled: going to the Riddle home on the evening of May 4, 1982; the conversation with Hugh Riddle about the medical bills; someone struck him on the head and he fell to the ground; he heard screams and shots as someone placed something in his arm; he tried to move but could not because he was numb all over; one of “them” took off his shirt and put it on him so that Charma Riddle would identify him; “they” blindfolded him, tied his hands and feet, placed him in a van; and he did not recall anything until he woke up while laying in a ditch in the rain on the morning of May 6, 1982.
Evidence at Trial
Cartwright testified at trial in his own defense. He stated that he received a phone call while in Las Vegas from an unidentified attorney advising him that Hugh Riddle wished to settle with him (Cartwright) on the small medical bills involving the injury to his leg during the fall the day he was fired; soon afterwards, he obtained a plane ticket to fly to Tulsa; from Tulsa he travelled to Muskogee, his hometown, where his parents and other relatives reside, arriving on May 1, 1982. He stated that he contacted Hugh Riddle at Riddle’s home phone on the morning of May 4, 1982, at which time it was agreed that he (Cartwright) should come to the Riddle home about 5:30 or 6:00 p.m. that day. There is substantial evidence that Hugh Riddle was not at his home on May 4, 1982, until the evening hours of 5:00 p.m. or thereabouts. Hugh and Charma Riddle had spent the night of May 3, 1982, at Charma’s father’s home in Muskogee. Neither returned to their home until the evening hours of May 4, 1982. A telephone bill was introduced in evidence demonstrating that on May 4, 1982, at 11:13 a.m. a long distance call was placed from the Riddles’ phone to the Las Vegas, Nevada, phone of Cartwright’s fiancee.
Cartwright further testified that: when he was a boy he was pushed out of a door of a moving car and hurt his head and that any time he gets any pressure applied to his head, he blacks out; he has blacked out sometimes for two or three days, depending on the amount of pressure applied to his head and this has happened several times; he did not place a long distance call to his fiancee from the Riddle telephone on May 4, 1982; he went to the Riddle home about 5:00 p.m. on May 4, 1982; Hugh Riddle was cutting the lawn when he arrived; he informed Hugh Riddle about receiving the call from an unidentified attorney who advised him that Hugh Riddle wished to settle the medical bills he had incurred involving the fall and injury; Hugh Riddle ordered him off of his property and as he turned to leave he was struck over the head; he has no recollection of anything until the morning of May 6, 1982, when he woke up near a creek in a wooded area near Muskogee.
Cartwright also testified that: he had never consulted a doctor about the “blackouts” because he does not like doctors, hospitals and clinics; that he recalled going to District Attorney Edmondson’s office and being interviewed on May 7, 1982, by Mr. Sturm in the presence of three men, but he could not remember making any statements; when he was taken to the courthouse and interviewed by Mr. Sturm, his head was hurting but nobody would pay any attention to his condition. When Cartwright was recalled to the stand he further testified that: he did not know that the statements he made could be used against him; he had been told that District Attorney Edmondson was going to help him; someone told him that if he did not make certain statements to the police when he was picked up that some member of his family would possibly be killed. Id. at 571-73.
Charma Leigh Riddle, residing at Dallas, Texas, at the time of trial, testified that: She and her husband, Hugh, had spent the evening of May 3, 1982, at her father’s home and did not return to their home until early evening on May 4th; they ate their evening meal and retired to the living room to watch television; she left to go to the bathroom; she was confronted by a man holding a shotgun with the barrel pointed at her in a narrow hallway; she grabbed the gun barrel and the man fired it, the shot striking her leg; as she fell to the floor she recognized the man as Cartwright; Cartwright shot her again, this time in the other leg; she observed Cartwright walk into the living room where Hugh was; she saw Cartwright fire twice and she heard her husband scream; she dragged or scooted herself down the hallway into a bedroom where she tried to make a call on the telephone but it was dead; she then proceeded to write her assailant’s name on the white bed sheet in her blood; she managed to spell out the letters TOM CAR when she ran out of blood; Cartwright then entered the bedroom; Charma asked Cartwright why he did it and he said “we shouldn’t have fired him,” id. at 394; Charma responded that they did not fire him, rather he was laid off; Charma asked Cartwright to help her and he came to the bed and acted as though he was going to pull her up on the bed; he placed his left hand on her forehead, cut her throat and stabbed her in the abdomen with a hunting knife she and Hugh had given him as a Christmas gift; after Cartwright left the room, she then managed to crawl under the bed and plug in the telephone; she was put in contact by the operator with a Muskogee police dispatcher; Charma, in a critical state, informed them that she and her husband had been shot by Cartwright in their home and that Cartwright was still in the house; Cartwright came back into the bedroom and cut the telephone line.
Muskogee law enforcement officers testified that they arrived at the Riddle residence after notification from the police dispatcher. A man was observed standing near the Riddle home by one of the officers and then seen ducking between trees and running away. Clothing, two guns and other personal possessions of the Riddles were found in the Riddle vehicle, including a silver jacket which Cartwright identified as identical to that which he owned and had lost.
A note was found attached to the front door of the Riddle home by Charma Riddle’s father on May 6, 1982. It was introduced in evidence. In printed form it read: “SORRY SUTCH SHORT NOTESS WE WHEN’T TO TENNASIE ON EMERGENCE BE BACK NEXT WEEK. FEED IS IN BARN.” It was signed “Hugh M. Riddle.” During cross-examination the State handed Cartwright a piece of paper and pencil and asked him to print the identical words appearing on the note found on the Riddle front door. Id. at 501. This sheet was admitted in evidence as State’s Exhibit 26 and in printed form reads: “SORRY SUTCH SHORT NOTIC WE WENT TO TENNISE ON EMERGENCE BE BACK NEXT WEEK FEED IS IN BARN.” Charma Riddle testified that although she and Hugh had planned a trip to Tennessee the next year, they had no immediate plans to take such a trip and that neither of them had written the note found on their front door.
Cartwright’s mother, Betty Cartwright, testified that when Cartwright was three years of age he “had a severe head injury” which caused “several severe headaches on through his life.” Id. at 431. She stated that as a result of the head injury, he has suffered migraine headaches which at times were so severe that “he didn’t know what he was doing, you know.” Id. at 432. The only other witness who testified about Cartwright’s headaches was his sister, Do-vie Field. She stated that when Tom was three years old he was pushed out of a moving car and fell on his head and has had a soft spot on his head since; that when she cut his hair he would pass out from pressure she put on the soft spot on his head; that she has seen Cartwright pass out several times. Id. at 434-36.
Eulan Pack, Jr., a friend of both Cartwright and the Riddles, testified that before Cartwright left for Las Vegas he remarked that the Riddles would not pay the medical bills and that if he (Cartwright) did not get the money from Hugh Riddle to pay the bills, he would “get Hugh Riddle.” (R., Vol. I., pp. 101, 102). Similarly, Cartwright remarked to Clifford D. Hamilton, a fellow employee with the Riddles, that he intended “to get even” with Hugh Riddle. Id. at 125. Cartwright denied that he made such a remark to Hamilton. Hamilton worked with Cartwright for some five months, during which time they worked some days as much as ten to fourteen hours; Cartwright did not display any tendencies to violence and did not use any rough language; he visited socially with Cartwright on many occasions. Id. at 458, 459. Hamilton did not testify about any “blackouts” suffered by Cartwright during the period he knew and worked with him.
Issues on Appeal
The appellant/petitioner presents the following contentions on appeal: (1) He was denied due process of law when the state trial court denied his motion for a complete psychological evaluation; (2) he was deprived effective assistance of counsel at trial in violation of the Sixth and Fourteenth Amendments to the United States Constitution; (3) the federal district court erred in denying his motion for an evidentiary hearing regarding his petition for writ of habeas corpus; (4) he was deprived of his right to a fair and impartial jury which represented a cross-section of the community in violation of the Sixth and Fourteenth Amendments to the United States Constitution; (5) Oklahoma’s interpretation of “especially heinous, atrocious or cruel” is vague and overbroad, resulting in an arbitrary and capricious imposition of the death penalty, in violation of the Eighth and Fourteenth Amendments to the Constitution of the United States; and (6) the state trial court failed to adequately instruct the jury regarding the meaning of “knowingly creating a great risk of death to more than one person,” leaving the jury with unbridled discretion regarding its meaning and application.
I.
Cartwright contends that the federal district court erred in finding/concluding that he was not denied due process of law when the state trial court denied his motion for a complete psychological evaluation. Cartwright points out that under Tit. 21, Okl. Stat. § 152(6) (1984) a person cannot be held responsible for criminal conduct if done while unconscious.
Prior to trial, Mr. Garrett, trial counsel for Cartwright, filed a motion for a “complete psychological evaluation” going “far beyond the question of right and wrong and ability to assist me as counsel.” The motion was made following Cartwright’s evaluation at the state hospital based on Mr. Garrett’s representation to the court, as follows:
And after having many occasions to visit with Mr. Cartwright and not only Mr. Cartwright himself but members of the family, and I can state that it is my opinion after having talked with William Cartwright, William Cartwright’s mother and father and two sisters that he in fact is in dire need, or we are in dire need of, some assistance as far as a complete psychological evaluation from either a doctor within the state institution or from a private source somewhere within the State of Oklahoma.
(R., Vol. XIV, p. 3.)
Following Cartwright’s trial and conviction, and denial of post-conviction relief and certiorari, Cartwright filed the habeas corpus petition herein. Attached to his motion for an evidentiary hearing on his habeas petition was the Affidavit of Attorney Mandy Welch and a letter dated February 2, 1986, marked Exhibit B, from Kit Farwell, Ph.D. In the letter, Dr. Farwell had, following a review of much of the trial testimony and other material, concluded that “there is a very strong possibility that Cartwright did suffer from a psychological and/or neurological disorder at the time of the crime and the period thereafter,” which, according to Dr. Farwell, created a suspicion that Cartwright “suffered a loss of ability to control his behavior and displayed problems with his memory of events surrounding this period due to serious psychopathology and/or neurological damage.” Dr. Farwell concluded that further psychological testing and referral to a psychiatrist for additional neurological study was required to determine Cartwright’s mental state at the time the offenses were committed. Dr. Farwell did not address the record with any specifics.
The federal district court in the case at bar, after applying the facts to the standards (factors) discussed by the Supreme Court in Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), (Ake) denied Cartwright’s habeas corpus petition. In so doing, the court agreed with the Oklahoma Court of Criminal Appeals that the record does not establish that Cartwright’s sanity was a viable issue upon which Cartwright could have based his defense. The federal district court favorably quoted from Cartwright v. State, 708 P.2d 592, 595-596 (Okl.Cr.1985), cert. denied, — U.S.-, 106 S.Ct. 837 (1986):
In contrast, (with the factors analyzed by the Supreme Court in Ake) the petitioner did not use the insanity defense, he did not display any bizarre behavior, an examination by the state psychiatrist showed that he was competent to stand trial and was able to assist in his defense, and finally stated that further observation was unnecessary. Although the petitioner complained of recurring blackouts, a physician who examined him three days after the crimes could not find anything abnormal even though his attention was specifically called to the “soft spot” on the petitioner’s head alleged to be the reason the blackouts occurred. In his statement to the police, the petitioner first claimed to have experienced a blackout and was therefore unable to recall his last two days, but after further questioning he gave in detail the events during the crimes. These events were corroborated by the witness, Mrs. Riddle. In his testimony during the trial he first claimed that he had been hit on the head, and that he had no recollection of what happened for the next two days. On cross-examination he claimed he could not remember the statement which he made to the police which contradicted his testimony. On sur-rebuttal he changed his story, claimed that he gave the police a statement which he was instructed to give by his unknown assailant about whom he had earlier testified.
In the federal district court, as here, petitioner relies almost exclusively on Ake v. Oklahoma, supra, for the proposition that he was denied due process of law and effective assistance of counsel when his motion for a complete psychological evaluation was denied. We agree that Ake, supra, is the focal case for our consideration. Ake holds that when an indigent defendant makes a preliminary showing that his sanity at the time of the offense is likely to be a significant factor at trial, the State must provide access to a psychiatrist’s assistance on the issue.
Ake was a first degree murder prosecution. There Ake acted in such a bizarre manner during his arraignment, that the trial court, sua sponte, ordered him committed to the state psychiatric hospital to determine his present sanity or competency to stand trial. The chief forensic psychiatrist at the state hospital notified the trial court that Ake was not competent to stand trial. The trial court held a competency hearing. A state psychiatrist testified that Ake was a paranoid schizophrenic, dangerous, with poor control and suffering from delusions. The trial court found Ake a mentally ill person and in need of care and treatment. The court also found Ake incompetent to stand trial and committed him to the state mental hospital.
After months of treatment and medication, Ake was returned for trial. Prior to trial, Ake’s counsel moved for a psychiatric examination by the state or that funds be provided to allow him to obtain the services of a psychiatrist. Ake’s counsel made it clear that Ake’s defense would be that of insanity at the time that the charged killings occurred. The trial court denied the motion. At the guilt phase of Ake’s trial, Ake’s sole defense was insanity at the time of the offense. The psychiatrists who had examined Ake at the state hospital testified extensively but none testified about Ake’s sanity at the time of the offense because none had examined him relative thereto.
The jurors were instructed that Ake could be found not guilty by reason of insanity if he could not distinguish right from wrong at the time of the offense. Furthermore, the jury was instructed that Ake was presumed to be sane at the time of the offense unless he presented evidence sufficient to create a reasonable doubt on the issue. There was no expert testimony on the defense interposed by Ake, i.e., his alleged insanity at the time of the offense.
As set forth supra, the Court in Ake held that when a defendant has made a preliminary showing that his sanity at the time of the offense is likely to be a significant factor at trial, the Constitution requires that a State provide access to a psychiatrist if the defendant cannot otherwise afford one. The Court also held:
The foregoing leads inexorably to the conclusion that, without the assistance of a psychiatrist to conduct a professional examination on issues relevant to the defense, to help determine whether the insanity defense is viable, to present testimony, and to assist in preparing the cross-examination of a State’s psychiatric witnesses, the risk of an inaccurate resolution of sanity issues is extremely high. With such assistance, the defendant is fairly able to present at least enough information to the jury, in a meaningful manner, as to permit it to make a sensible determination.
******
When the defendant is able to make an ex parte threshold showing to the trial court that his sanity is likely to be a significant factor in his defense, the need for the assistance of a psychiatrist is readily apparent.
******
We therefore hold that when a defendant demonstrates to the trial judge that his sanity at the time of the offense is to be a significant factor at trial, the State must, at a minimum, assure the defendant access to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense.
Ake, supra, 105 S.Ct. at 1096.
We hold that the district court properly denied Cartwright’s habeas petition because it was based on general allegations of need without substantive, supporting facts. Unlike Ake, Cartwright failed to make a preliminary showing that his sanity or mental capacity at the time of the offense was likely to be a significant factor at trial.
In Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 2637, n. 1, 86 L.Ed.2d 231 (1985), the Supreme Court, citing to Ake, upheld the trial court’s denial of a motion to appoint experts and investigators to assist the defense. The Court observed that the request was not based on facts but rather a general statement of need, involving “little more than an undeveloped assertions that the requested assistance would be beneficial.”
In United States v. Sloan, 776 F.2d 926 (10th Cir.1985), we examined Ake. We there held that if “sanity” or “mental capacity” defenses were to be defense issues, they must be established by a “clear showing” by the indigent defendant as “genuine,” “real” issues in the case. In order for a defendant’s mental state to become a substantial threshold issue, the showing must be clear and genuine, one that constitutes a “close” question which may well be decided one way or the other. It must be one that is fairly debatable or in doubt. Our interpretation of the showing required under Ake is consistent with the interpretation of Ake’s standard for appointment of a medical expert to aid an indigent defendant who has raised the insanity defense set forth in Volson v. Blackburn, 794 F.2d 173, 176 (5th Cir.1986):
It is not unreasonable to argue, as Volson does, that a defendant’s sanity at the time of the offense will always be a significant factor at trial whenever the defendant pleads insanity. This Court does not read Ake that broadly, however. Rather, Ake requires that the defendant, at a minimum, make allegations supported by a factual showing that the defendant’s sanity is in fact at issue in the case. In the instant case, Volson’s attorney merely alleged that Yolson was unable to understand the difference between right and wrong at the time of the offense. This conclusional allegation is considerably less evidence of insanity than was present in either Ake or Pedrero.4 (In Pedrero v. Wainwright, 590 F.2d 1383 (5th Cir.), cert. denied, 444 U.S. 943 [100 S.Ct. 299, 62 L.Ed.2d 310] (1979), the court held that a showing that the defendant was a drug addict and that he had been in a mental institution a few years before the offense was insufficient to establish his entitlement to a psychiatric expert at state expense). See also, Bowden v. Kemp, 767 F.2d 761, 765 (11th Cir.1985) (on remand for reconsideration in light of Ake) (Ake showing not met by undeveloped assertions that psychiatric assistance would be beneficial), (footnote deleted.)
Therefore, the issue before us, properly stated, is whether, upon review of the entire record, Cartwright could have made a threshold showing under Ake that “his sanity at the time of the offense is to be a significant factor at trial____” We hold that, based on the record before us, Cartwright could not have made the threshold showing required under Ake.
Before this court, counsel for Cartwright has insisted that questions about Cartwright’s mental condition “were raised in the State’s motion for commitment and Cartwright’s motion for a psychological evaluation.” (Brief of Petitioner, p. 11.) The so-called “State’s” motion for commitment is in fact a Joint Application of Mr. Garrett, trial counsel for Cartwright, and the State based upon “a doubt as to his [Cartwright’s] sanity [which] has been raised by defendant’s attorney.” The trial court, in ordering commitment for “observation and examination” for a period not to exceed sixty days did so based upon the “doubt raised by defendant’s attorney as to the present sanity of the defendant.” (Emphasis added). Thus, present sanity or sanity to stand trial was the sole basis of Cartwright’s request for examination.
During the period of Cartwright’s stay at the hospital, his actions and conduct were very normal and cooperative; he displayed a calm disposition and was never on any medication. He did not display any erratic or bizarre behavior, as in Ake. The doctors did not diagnose him as having any mental illness. He was not diagnosed as suffering from any psychotic disorder such as schizophrenia or psychomotor epilepsy. A complete physical examination did not disclose any neurological problems. The electroencephalogram test was normal. Cartwright’s I.Q. tested at 98, which is considered to be average intelligence.
The report submitted May 25, 1982, by the Deputy Superintendent for Clinical Services, Dr. Curva, of Eastern State Hospital, Vinita, Oklahoma, stated: Cartwright was able to comprehend the exact nature of the proceedings pending against him; Cartwright can adequately advise/assist his counsel in the defense of his case; the staff concluded that Cartwright was not in need of psychiatric care and/or treatment and was competent to stand trial; Cartwright is not considered dangerous to himself and/or others. Throughout the various documents involving Cartwright’s commitment/evaluation, continual references are made to Cartwright’s “blackout” complaints arising from the injury to his head when he was a child. Every examiner, it seems, was made aware of this history. Yet none recognized it as a condition bearing on Cartwright’s mental state in relation to his competency to assist in his own defense at trial.
Cartwright was also examined by a Dr. Richard L. Pentecost on September 8, 1982. Dr. Pentecost’s letter to the trial court of September 28, 1982, makes no reference to complaints made by Cartwright about blackouts or other mental problems. Following Cartwright’s arrest, Dr. Morgan ex-axnined him. He found, following an examination of Cartwright’s head, that there were no abnormalities even though Cartwright had complained of a headache. Cartwright’s “blackout” defense is not substantiated by any medical evidence.
Additionally, the inconsistencies in Cartwright’s own testimony regarding the events of May 4, 1982, through May 6, 1982, undermine his “blackout” defense. Cartwright’s statement of May 7, 1982, involves his initial contention that he (Cartwright) suffered a “blackout” at the Riddle residence when he was allegedly struck on the head as he was preparing to leave and that he woke up two days later in a ditch. Then, following additional testimony of non-recall, the transcript of the May 7th statement contains sudden, abrupt admissions of facts by Cartwright regarding the crimes committed at the Riddle home. Significantly, Cartwright further contradicted his testimony about the occurrences after he suffered the “blackout” when struck on the head on May 4, 1982. In his handwritten statement of October 25, 1982, he related that after speaking with Hugh Riddle about the medical bills and after turning to depart, he was hit on the head and as he fell to the ground someone stuck something in his arm as he heard screaming and gun shots. He stated that he tried to move but could not because he was numb all over, that “they” blindfolded him and placed him in a van; one of “them” took off his shirt and put it on him (Cartwright) so that Charma Riddle would identify him (Cartwright). Finally, Cartwright wrote that he woke up in a ditch in the rain. Cartwright contended that the “real killers” had given him instructions as to what to testify to should he get caught.
Cartwright’s claim that he suffered a “blackout” when hit on the head at the Riddle residence which created a loss of memory of the crimes with which he was charged, Reply Brief, p. 2, is simply not credible. Unlike the medical report submitted in Ake, here there was no medical indication that Cartwright suffered from any mental infirmity. There is nothing in terms of medical evidence that Cartwright’s “blackout” history was indicative of a possibility that he was suffering from a psychological and/or neurological disorder at the time of the offense and thereafter. Moreover, his blackout defense fails to rebut his own admissions, amply substantiated and corroborated: He did enter the Riddle home unbeknown to Hugh and Charma Riddle; he took Hugh Riddle’s shotgun from a bedroom closet; he stalked Charma Riddle in the hallway where he shot her twice; he then shot and killed Hugh Riddle in the living room; he then spoke with Charma Riddle who was in a critical condition pleading for help while on the floor of a bedroom; he cut the telephone wire and thereafter used his hunting knife to cut her throat and stab her. Char-ma Riddle’s version of the incident was not known to Cartwright during the early morning of May 7, 1982, when he gave his statement to Mr. Sturm. There can be no doubt that the versions are nearly identical in critical parts. This alone defies Cartwright’s contention that he had blacked out when struck on the head outside of the Riddle home and had no recollection of anything which may have happened until he woke up in a ditch on the morning of May 6, 1982.
We note that following his release from employment with the Riddles, Cartwright had informed Eulan Pack, Jr. that if he did not get the money from Hugh Riddle to pay the medical bills, he would “get Hugh Riddle.” Cartwright also stated to Clifford Hamilton that he intended “to get even” with Hugh Riddle. Further, no explanation is given for the phone call placed from the Riddle residence at 11:13 a.m. on May 4, 1982, traced to Cartwright’s fiancee’s phone in Las Vegas, Nevada. These facts are indicative of premeditation and awareness.
We do not consider the issue of Cartwright’s mental capacity at the time of commission of the offenses charged in the case at bar to be clear or substantial; it is not a close question, and it is not in doubt. Based upon the facts and circumstances of the record before us, the “blackout” contention is not a genuine issue. See, Blackledge v. Allison, 431 U.S. 63, 74, 97 S.Ct. 1621, 1629, 52 L.Ed.2d 136 (1977). We agree with the district court that the facts in this case, unlike those in Ake, demonstrate that Cartwright’s sanity was not a substantial issue in his trial. Cartwright did not present a substantial threshold showing of insanity or mental incapacity.
Insofar as the alleged constitutional error involving the failure to provide Cartwright with a psychiatrist to assist him during the sentencing portion of the trial is concerned, we simply observe that the State did not, contrary to the Ake case, present any psychiatric testimony about Cartwright’s future dangerousness. Thus, Cartwright’s “future dangerousness” was not a real factor in the sentencing phase of the case. Furthermore, no request was made for the appointment of a psychiatrist for the purpose of presenting mitigating evidence at the sentencing stage. Such a request was made in Ake.
II.
Denial of Effective Assistance of Counsel
Cartwright argues that the representation by his appointed counsel, Mr. John Garrett, fell below the objective standard of reasonableness, particularly with regard to sentencing, resulting in a trial that cannot be relied upon as having produced a just result. Thus, he contends that he was denied effective assistance of counsel violative of the Sixth and Fourteenth Amendments to the Constitution of the United States set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
Cartwright contends that his trial counsel failed to explore and investigate undefined “facts and circumstances” about him which were relevant to punishment, regardless of guilt. Cartwright argues that Mr. Garrett's trial performance was deficient on two fronts. It is argued that counsel’s opening argument was without even a hint of a possible defense except that Cartwright would “tell his story” and, in closing, reliance was had simply on Cartwright’s “version of the story” and that there was no evidence contradicting the testimony about Cartwright’s “blackouts” and memory loss. (Brief of Petitioner, p. 35.) Further, with regard to the sentencing stage, it is pointed out that Mr. Garrett waived an opening statement and called no witnesses to testify either in defense of the allegations of aggravating circumstances or in mitigation of punishment. Id. Specifically, Mr. Garrett is criticized, notwithstanding his personal belief that Cartwright suffered from a mental disorder, from making any reference about it in mitigation of punishment: “Although he recognized the bizarre nature of his client's testimony, he did not talk to the jury about it, leaving them with only one possible impression — that there is no explanation which is favorable to Mr. Cartwright.” Id. at 37.
Strickland v. Washington, supra, established a two-part “performance” and “prejudice” test: Reversal is required only when a criminal defendant demonstrates that his attorney’s performance was deficient and the deficiency prejudiced his defense. A deficient performance is established if counsel’s representation “fell below an objective standard of reasonableness.” Id. at 688, 104 S.Ct. at 2065. In making a judgment on counsel’s representation, Strickland admonishes the reviewing court to “indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance” and that a “fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.” Id. at 689, 104 S.Ct. at 2065. If counsel’s performance is determined to have been deficient, a defendant still must demonstrate that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694, 104 S.Ct. at 2068. See also, Nix v. Whiteside, — U.S.-, 106 S.Ct. 988, 89 L.Ed.2d 123 (1986).
We agree with this finding of the federal district court:
“Petitioner’s claim of ineffective assistance of counsel is without merit. The record before the Court indicates that petitioner’s trial counsel in representing petitioner filed a Motion to Suppress Evidence, Motion for Severance, Motion for Psychological Evaluation and Motion to Change Venue, which resulted in the case being tried in another county, rather than the county where the alleged murder took place. In addition, the trial record reflects that the defense counsel effectively cross-examined prosecution witnesses, demurred to the evidence of the State and called thirteen witnesses on behalf of the petitioner during the course of the trial. This Court finds that the conduct of petitioner’s court-appointed counsel can be very favorably compared to the defense attorney in United States v. Fitts, 576 F.2d 837, 839 (10th Cir.1978), where the Court stated:
“The record reflects that counsel conducted the defense in an acceptable manner. He challenged testimony of the government witnesses on cross-examination, interposed appropriate objections, called and adequately examined a defense witness to refute the incriminating testimony of Jost and presented arguments which demonstrated his knowledge of the law and facts in this case.”
This case presented very difficult tactical choices for trial counsel. Without elaborating, we observe that defense counsel would have been confronted with a credibility hurdle of great proportion had he elected to argue exclusively and vehemently in both opening and closing that Cartwright suffered a “blackout” when struck on the head and had no recollection of anything from that time early in the evening of May 4,1982, until he awoke in a ditch on the morning of May 6, 1982. This contention was refuted by Chama Riddle’s testimony and by Cartwright’s admissions. Certainly counsel did rely on the “blackout” defense but he did not do so in a manner as to present a direct credibility confrontation with the testimony of Char-ma Riddle and the law enforcement officer who interrogated Cartwright following his arrest. We are impressed by the manner defense counsel walked a veritable tightrope. Counsel effectively pursued efforts to obtain complete psychological evaluation for Cartwright and he conducted effective cross-examination. He posed vigorous objections. His trial representation was adequate.
The significant challenge to trial counsel’s alleged ineffective performance is directed to the sentencing stage of the trial proceeding. On appeal, Cartwright contends that “At the sentencing stage, Mr. Cartwright was virtually without representation. Mr. Garrett waived opening statement and called no witnesses to testify either in defense of the allegations of aggravating circumstances or in mitigation of punishment.” (Brief of Petitioner, p. 35.) Although no witnesses were called, Mr. Garrett had obtained a stipulation which allowed in evidence the prior testimony of Cartwright’s mother, sister, uncle, co-workers and friends bearing on his good demeanor, character, lawful conduct and good work record. These matters were fully before the jury.
We have already observed that Mr. Garrett was faced with a dilemma involving equally unsatisfactory tactics. Our review of the record indicates that his trial tactic was that of hoping that the jury adopted enough of the defenses in whole or in part to establish a reasonable doubt of Cartwright’s guilt. These defenses included a complete disavowal of any knowledge of the crimes in light of the “blackout” which lasted from the time Cartwright was struck on the head until he woke up in a ditch two days later. The difficulty with this defense was obvious at trial because (a) Charma Riddle testified that she conversed with Cartwright when he entered the bedroom after shooting her; they talked about why Cartwright shot her and her husband; and Cartwright responded that he did so because he had been fired, and (b) the note left on the Riddle door corresponded with the misspelled note printed by Cartwright during the trial, particularly the word “SUTCH;” and (c) Cartwright’s tape-recorded admissions-confessions wherein he recounted in detail the facts of the crimes committed at the Riddle home on the evening of May 4,1982. Another defense was that someone struck Cartwright on the head; as he was being tied up, he heard screams and shots; someone put a shirt on him which Charma Riddle would identify as the shirt worn by the person who shot her; he was placed in a van and driven away; and he woke up in a ditch on the morning of May 6, 1982. The last defense, from Cartwright’s pen, was that an unidentified person notified him that if he did not take the blame, members of his family would be harmed. In addition to the problems involving this varied scenario, Mr. Garrett could not counter the fact that a long-distance telephone call had been placed from the Riddle residence phone at approximately 11:13 a.m. on the morning of May 4, 1982, to Cartwright’s fiancee in Las Vegas, Nevada.
Trial counsel’s actions were well within the range of professionally reasonable judgments. We do not perceive that there existed any “reasonable probability” that the result would have been different given other trial tactics. See Denton v. Ricketts, 791 F.2d 824 (10th Cir.1986); United States v. Payne, 641 F.2d 866 (10th Cir.1981); United States v. Miller, 643 F.2d 713 (10th Cir.1981).
III.
Cartwright contends that the federal district court erred in denying his motion for an evidentiary hearing on his petition for habeas corpus regarding his need for the assistance of a mental health expert to assist in the preparation and presentation of his defense at trial and on his claim of ineffective assistance of counsel. Cartwright contends that these claims rely upon facts outside of the trial record which cannot be resolved without a full evidentiary hearing, and that he is entitled to present evidence in support of these allegations. He relies on 28 U.S.C. § 2254(d), Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), and Martinez v. Romero, 661 F.2d 143 (10th Cir.1981).
The federal district court reviewed the situations identified in Townsend v. Sain, supra, which would dictate an evidentiary hearing in federal court for a habeas corpus petitioner: (1) if the merits of a factual dispute were not resolved in a state hearing, (2) if the state factual determination is not fairly supported by the record as a whole, (3) if the finding procedure of the state trial court was not adequate so as to afford a full and fair hearing, (4) if there exists a substantial allegation of newly discovered evidence, (5) if material facts were not adequately developed at state court hearings, or (6) if for any reason it appears that the state trier of fact did not afford the applicant a full and fair fact hearing.
The federal district court found, and we agree: ner I), Sumner v. Mata, 455 U.S. 591 [102 S.Ct. 1303, 71 L.Ed.2d 480] (1982) (Sumner II).
The records and transcripts before this court conclusively establish that the state fact finding procedures were more than adequate to afford a full and fair hearing, that the state trier of fact did afford applicant a full and fair fact hearing, and that all necessary material facts were adequately developed at the state court hearings. Moreover, the record and transcripts establish beyond doubt that the merits of all factual disputes were resolved in the state hearings, and that the state factual determinations are sufficiently supported by the record as a whole.
Accordingly, the Court finds that the record and transcripts of the state court proceedings provide all the necessary data for a satisfactory determination of the issues raised in the petition, and an evidentiary hearing is not required. Townsend v. Sain, supra, at 318; Sumner v. Mata, 449 U.S. 530 [(539) 101 S.Ct. 764, 66 L.Ed.2d 722] (1981) (Sum-
Cartwright contends that his specific allegations regarding his need for a complete psychological evaluation to assist in his defense and ineffective assistance of counsel are claims which have never been the subject of an evidentiary hearing in either state or federal court and that each claim depends upon facts outside the trial record and cannot be resolved without a full evidentiary hearing. Cartwright contends that the Oklahoma Court of Criminal Appeals in Cartwright v. State, 708 P.2d 592 (Okl.Cr.1985), erroneously interpreted and applied the holding in Ake to the facts in his case. We disagree.
We note that in Marshall v. Lonberger, 459 U.S. 422, 103 S.Ct. 843, 74 L.Ed.2d 646 (1983) , the Supreme Court held that a federal district court in a § 2254 habeas corpus proceeding must respect the contents of state court records and findings that the petitioner was competent to stand trial and represented by competent counsel, and all inferences fairly deducible from these facts.
We have previously noted that Cartwright did not present an insanity defense. One of his defenses, however, although not expressly pled, was the defense of unconsciousness, resulting from the alleged “blackout.” Tit. 21, Okl.Stat. § 152(6) (1984) provides that a person is not capable of committing a crime who is not conscious of the act. In Foster v. State, 657 P.2d 166, 171 (Okl.Cr.1983), the court identified this defense:
The defense of unconsciousness may be used in situations where otherwise criminal conduct of an individual is the result of an involuntary act which is completely beyond the knowledge and control of that individual. The defense is totally separate from the defense of insanity. Jones v. State, 648 P.2d 1251 (Okl.Cr. 1982).
In the case at bar, the trial court instructed the jury, under Instruction No. 3, that the deliberate intent to take human life must be formed before the act, and must exist at the time a homicidal act is committed; further, that external circumstances surrounding the commission of a homicidal act may be considered in finding whether or not deliberate intent existed in the mind of the defendant to take a human life. (R., Vol. I, p. 579). Thus, the jury was advised that Cartwright’s mental capacity was an issue to be resolved in terms of specific intent to kill.
Under Oklahoma law, a defendant who invokes the defense of unconsciousness is not required to present evidence of mental disease or defect; rather, he must demonstrate that the criminal conduct resulted from an involuntary act completely beyond his knowledge and control. Jones v. State, 648 P.2d 1251 (Okl.Cr.1982). An instruction on the defense of unconsciousness should not be given where “[T]he record is devoid of any evidence other than vague statements by witnesses that a defendant was not acting normally ...” Foster v. State, 657 P.2d 166, 171 (Okl.Cr. 1983). In the instant case, no instruction on the defense of unconsciousness was requested. In any event, in Oklahoma an instruction on a theory of defense need not be given if the evidence does not support the theory. Foster v. State, supra; Martley v. State, 519 P.2d 544 (Okl.Cr.), cert. denied, 419 U.S. 863, 95 S.Ct. 116, 42 L.Ed.2d 99 (1974). The above rule is in harmony with the rule in Caldwell v. Mississippi, supra, 105 S.Ct. at 2637, n. 1, that a defendant who seeks psychiatric assistance must make more than simple assertions that such assistance would be beneficial. It is our view that the letter from Dr. Kit Farwell, proferred with counsel’s affidavit and motion for evidentiary hearing, falls short of the preliminary showing of the need of psychiatric assistance required under Ake. Insofar as the need for an evidentiary hearing on the claim that Cartwright’s appointed trial counsel was ineffective, we have adequately addressed that issue. The contention is without merit.
Both claims are unsupported by substantial showings. The claims are, based on the record as a whole, conclusory and unsupported by specifics. In our view, the federal district court did not err in denying the motion for an evidentiary hearing.
IV.
Cartwright contends that he was deprived of his right to a fair and impartial jury which represented a cross-section of the community in violation of the Sixth and Fourteenth Amendments to the United States Constitution. Specifically, this contention is based on the trial court’s systematic exclusion of jurors opposed to the death penalty. The record reflects that three prospective jurors were dismissed when they stated that they could not assent to imposition of the death penalty.
The issue was rendered moot by the United States Supreme Court’s decision in Lockhart v. McCree, — U.S. -, 106 S.Ct. 1758, 90 L.Ed.2d 137 (1986). The Court there held that the Constitution does not prohibit removal for cause, prior to the guilt phase of a bifurcated capital punishment trial, of prospective jurors whose opposition to the death penalty is so strong that it would prevent or substantially impair their performance of duties as jurors at the sentencing phase of the trial. The Court concluded that the so-called “death qualification” of the jury does not violate the requirement for a fair cross section under the Sixth Amendment.
Y.
Cartwright challenges the Oklahoma death penalty statute, Tit. 21, Okl.Stat. § 701.12 (1981), which authorizes the jury to impose the death penalty for murder when an aggravating circumstance is found. One of the aggravating circumstances enumerated in the statute provides that when the murder is “especially heinous, atrocious, or cruel” death may be imposed. Tit. 21, Okl.Stat. § 701.12(4). Cartwright argues that this aggravating circumstance is vague and overly broad. In the second prong of his challenge Cartwright argues that the Oklahoma Court of Criminal Appeals’ interpretation of this language and its application in his case is also unconstitutional.
The statutory language — “especially heinous, atrocious, or cruel” — has been subjected to scrutiny by the United States Supreme Court in Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976). The defendant there, like Cartwright, alleged that the statutory language was “so vague and so broad that virtually ‘any capital defendant becomes a candidate for the death penalty’____” Id. at 255, 96 S.Ct. at 2968. In analyzing the challenge, however, the Supreme Court considered the validity of the statute by examining how it had been construed by the Florida Supreme Court.
That court has recognized that while it is arguable “that all killings are atrocious, ... [sjtill, we believe that the Legislature intended something ‘especially’ heinous, atrocious or cruel when it authorized the death penalty for first degree murder.” Tedder v. State, 322 So.2d, [908] at 910. As a consequence, the court has indicated that the eighth statutory provision is directed only at “the conscienceless or pitiless crime which is unnecessarily torturous to the victim.” State v. Dixon, 283 So.2d, [1] at 9. See also Alford v. State, 307 So.2d 433, 445 (1975); Halliwell v. State, supra, [323 So.2d 557] at 561.
Proffitt at 255-56, 96 S.Ct. at 2968. On the basis of the Florida court’s construction, usage of the statutory language “especially heinous, atrocious or cruel” was upheld as providing adequate guidance to a jury.
Based on our reading of footnote 12 in Proffitt we believe that while the “unnecessarily torturous to the victim” language is indeed an element of “especially heinous, atrocious, and cruel” it need not be included in an instruction. However, the reviewing court must include it in its evaluation of the evidence in capital cases where this aggravating circumstance has been found. After concluding that the Florida Supreme Court has directed the especially heinous, atrocious, and cruel language “only at ‘the conscienceless or pitiless crime which is unnecessarily torturous to the victim’ ”, the Supreme Court, at footnote 12, stated:
The Supreme Court of Florida has affirmed death sentences in several cases, including the instant case, where this eighth statutory aggravating factor was found, without specifically stating that the homicide was “pitiless” or “torturous to the victim.”
* * * * * *
But the circumstances of all of these cases could accurately be characterized as “pitiless and “unnecessarily torturous,” and it thus does not appear that the Florida Court has abandoned the definition that it announced in Dixon and applied in Alford, Tedder, and Halliwell.
Proffitt, 428 U.S. at 256, n. 12, 96 S.Ct. at 2968, n. 12 (citations omitted).
After Proffitt the Oklahoma Legislature enacted 21 O.S. § 701.12. The Oklahoma Legislature adopted the statutory language “heinous, atrocious, or cruel” — the identical Florida statutory language upheld in Proffitt — as an aggravating circumstance authorizing the imposition of the death penalty. The language was challenged in the Oklahoma State Court system. The Oklahoma Court of Criminal Appeals upheld the validity of this language, expressly adopting the Florida Supreme Court’s construction in State v. Dixon, upheld in Proffitt:
[W]e feel that the meaning of such terms is a matter of common knowledge, so that an ordinary man would not have to guess at what was intended. It is our interpretation that heinous means extremely wicked or shockingly evil; that atrocious means outrageously wicked and vile; and that cruel means designed to inflict a high degree of pain with utter indifference to, or even enjoyment of, the suffering of others. What is intended to be included are those capital crimes where the actual commission of the capital felony was accomplished by such additional acts as to set the crime apart from the norm of capital felonies, the conscienceless or pitiless crime, which is unnecessarily torturous to the victim. (Emphasis Supplied.)
Eddings v. State, 616 P.2d 1159, 1167-68 (Okl.Cr.1980), rev’d on other grounds, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982). Chaney v. State, 612 P.2d 269, 280 (Okl.Cr. 1980), cert. denied, 450 U.S. 1025, 101 S.Ct. 1731, 68 L.Ed.2d 219 (1981). See also the following cases which favorably cite the State v. Dixon language: Irvin v. State, 617 P.2d 588, 598 (Okl.Cr.1980); Odum v. State, 651 P.2d 703, 706 (Okl.Cr.1982); Boutwell v. State, 659 P.2d 322, 329 (Okl. Cr.1983); Davis v. State, 665 P.2d 1186, 1202 (Okl.Cr.), cert. denied, 464 U.S. 865, 104 S.Ct. 203, 78 L.Ed.2d 177 (1983); Stafford v. State, 665 P.2d 1205, 1217 (Okl.Cr. 1983), vacated on other grounds, 467 U.S. 1212, 104 S.Ct. 2651, 81 L.Ed.2d 359 (1984), aff'd., 700 P.2d 223 (Okl.Cr.), cert. denied, — U.S.-, 106 S.Ct. 188, 88 L.Ed.2d 157 (1985); Nuckols v. State, 690 P.2d 463, 471-72 (Okl.Cr.1984), cert. denied, 471 U.S. 1030, 105 S.Ct. 2050, 85 L.Ed.2d 323 (1985); and Green v. State, 713 P.2d 1032, 1044 (Okl.Cr.1985).
In Cartwright’s case the jury was charged with Oklahoma Uniform Jury Instruction — Cr. No. 436 which provided: “ ‘heinous’ means extremely wicked or shockingly vile; ‘atrocious’ means outrageously wicked or vile; ‘cruel’ means pitiless or utter indifference to, or enjoyment of, the sufferings of others pitiless.” This language tracks State v. Dixon exactly and indicates that Oklahoma chose to copy Florida’s language and follow the construction supplied by the Florida court.
Oklahoma has clearly adopted the unnecessarily torturous element through its wholesale adoption of the Florida Supreme Court’s construction of “heinous, atrocious or cruel” in State v. Dixon, approved by the United States Supreme Court. While the “unnecessarily torturous to the victim” language need not be a part of the formal jury instruction, see, Irvin v. State, supra at 598-99, the facts of any capital case must be weighed against this standard on appellate review. Therefore, the appellate court’s construction of the elements of the aggravating circumstance is crucial. Oklahoma law specifically requires appellate courts to determine whether the evidence supports the finding of a statutory aggravating circumstance. 21 O.S. § 701.13(C)(2).
Our concern then becomes whether the Oklahoma Court of Criminal Appeals has been consistent in its construction of the “especially heinous, atrocious, or cruel” aggravating circumstance. Such consistency is required by Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980). In Godfrey the jury was instructed with nothing more than the bare statutory language. No definitions were included. The problem was not the language itself, inasmuch as it had been approved in Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976). The problem involved the summary application of the language by the court. On appeal, the Georgia Supreme Court affirmed the death sentence without applying a construction of the statutory language which included the objective standards of torture, depraved mind, or aggravated battery which the Georgia court had previously declared to be elements of that construction. This lack of standards and inconsistent construction was condemned in Godfrey, supra, 427-33, 100 S.Ct. at 1764-67. In Cartwright v. State, supra at 554, the court said:
According to the plurality in Godfrey v. Georgia, the Georgia Supreme Court had defined the aggravating circumstance that the murder was ‘outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim’ essentially to mean that torture must have been involved in the murder. (Citation omitted.) This court has not defined the ‘especially heinous atrocious or cruel’ aggravating circumstance in such a manner____ While it is true that torture may be a sufficient factor to justify a finding that the murder was especially heinous, atrocious, or cruel ... it is not a necessary one. (Underlining supplied.)
This holding of the Oklahoma Court of Criminal Appeals must be juxtaposed against that court’s statement some nine months later in Green v. State, supra. The court there repeated the passage from State v. Dixon, supra, including the construction expressly approved in Proffitt: “What is intended to be included are those capital crimes where the actual commission of the capital felony was accomplished by such additional acts as to set the crime apart from the norm of capital felonies, the conscienceless or pitiless crime, which is unnecessarily torturous to the victim.” (Emphasis supplied.) Green, supra at 1044, quoting State v. Dixon, supra. The Green court then stated, “We have consistently adhered to this definition of ‘especially heinous, atrocious, or cruel.’ ” Green at 1044.
The pronouncement by the court in Cartwright, i.e., that the condemned acts need not be found to be “unnecessarily torturous to the victim,” must be contrasted against prior and subsequent constructions, which, while often not expressly stating that the defendant’s conduct was “unnecessarily torturous to the victim,” can be characterized as such upon a review of the evidence. Proffitt, supra, at 255-56, n. 12, 96 S.Ct. 2968, n. 12. See Odum v. State, supra (where the conviction was reversed because the victim died instantly from a single shotgun blast to the neck; the court held, “There was no evidence of any physical or mental suffering whatsoever and the manner of killing cannot be said to lie at the ‘core’ of the statutory aggravating circumstance.” 651 P.2d at 707). See also, Burrows v. State, 640 P.2d 533 (Okl.Cr. 1982), cert. denied, 460 U.S. 1011, 103 S.Ct. 1250, 75 L.Ed.2d 480 (1983), (where the defendant killed his pregnant wife in front of their young son. He repeatedly fired shots into his wife as she tried to flee down the hallway.); Irvin v. State, supra (where the victim, a former co-employee of the defendant, was shot five times following an apparent robbery); Davis v. State, supra (where a mass-murder was perpetrated by multiple gunshot wounds to the victims). In each of these cases the same jury instruction was given. However, the standard of review had changed in Cartwright v. State, supra at 554.
Even though it is our view that the Oklahoma Court of Criminal Appeals has not been consistent in its construction, we nevertheless conclude that this departure is harmless because once the evidence is measured against the correct standard it is clear that the killing of Hugh Riddle satisfies the test. Under Oklahoma law this aggravating circumstance encompasses a number of factors in addition to “torturous to the victim”: the manner of killing, the circumstances surrounding the homicide, and the killer’s attitude. Nuckols v. State, supra at 472 (citations omitted). This combination of factors was in fact used by the Oklahoma Court of Criminal Appeals in considering whether Cartwright’s case met the aggravating circumstance:
In assessing whether the murder was especially heinous, atrocious or cruel, the appellant would have us consider the shooting as an isolated event, to-wit: that the appellant walked into a room and shot Hugh Riddle at close range with a shotgun killing him almost immediately.
******
Therefore, we decline to consider this murder as though it occurred in a vacuum. We deem it proper to gauge whether the murder was heinous, atrocious or cruel in light of the circumstances attendant to the murder, including the evidence that the appellant had previously expressed his intentions to “get even” with the Riddles; that he probably had been inside the Riddles’ home as early as 11:13 a.m. on the day of the murder; that he either lay in wait for them, or returned under the cover of darkness, and broke into their home to stalk them; that he attacked Charma immediately upon being discovered; that having gunned her down, he went into the living room and slayed Hugh; that Hugh doubtless heard the shotgun blasts which tore through Charma’s body; that he quite possibly experienced a moment of terror as he was confronted by the appellant and realized his impending doom; that the appellant again attempted to kill Charma in a brutal fashion upon discovery that his first attempt was unsuccessful; that he attempted to conceal his deeds by disconnecting the telephone and posting a note on the door; and that his apparent attempt to steal goods belonging to the Riddles by loading them in their vehicle was prevented only the arrival of the police officers, adequately supported the jury’s finding.
Cartwright, 695 P.2d at 553-54.
All of the factors surrounding a killing, including suffering, manner of killing, and the killer’s attitude have been considered by the Oklahoma Court of Criminal Appeals in determining whether it is torturous to the victim. Our independent evaluation of the evidence supports the conclusion of the Oklahoma Court of Criminal Appeals that Cartwright’s acts were unnecessarily torturous to Hugh Riddle.
Cartwright also challenges the trial court’s instruction of the separate aggravating circumstance of “knowingly created a great risk of death to more than one person,” Okl.Stat.Ann.Tit. 21 § 701.12(2), as overly broad in that it failed to adequately instruct the jury regarding the meaning of that language, thus creating the possibility of an overbroad interpretation by the jury. This challenge also must fail.
In Proffitt, supra, an aggravating circumstance using language very similar to Oklahoma’s, was challenged for vagueness. The Court once again looked to the construction applied by the state courts to determine if the language was impermissibly vague. By examining only the construction the Court impliedly upheld use of the statutory language in jury instructions. Proffitt, supra, at 256, 96 S.Ct. at 2968. In Alabama v. Evans, 461 U.S. 230, 103 S.Ct. 1736, 75 L.Ed.2d 806 (1983), the Court again entertained a challenge to this aggravating circumstance and held that “aggravating factors must be construed and applied in a nonarbitrary manner.” Evans, supra, at 233, 103 S.Ct. at 1738, citing Godfrey v. Georgia, supra. Thus, if the Oklahoma court has applied a consistent construction to the language and if the aggravating circumstance is supported by the evidence in this case, there is no constitutional infirmity.
A review of Oklahoma death penalty cases shows that this aggravating circumstance has been construed consistently. It is clear that the Oklahoma court has not required “the great risk of death to more than one person” to occur in a public place or to be directed only at those who become fatalities. See, Stout v. State, 693 P.2d 617 (Okl.Cr.1984), cert. denied, — U.S. -, 105 S.Ct. 3489, 87 L.Ed.2d 623 (1985), (the defendant killed two people by beating them to death in their bedroom; it does not appear that anyone else was present); Tobler v. State, 688 P.2d 350 (Okl.Cr.1984) (two brothers, also alone in their home were murdered at close range with a shotgun); Robinson v. State, 677 P.2d 1080 (Okl.Cr.), cert. denied, 467 U.S. 1246, 104 S.Ct. 3524, 82 L.Ed.2d 831 (1984), (all three victims were murdered in their home in an attempted robbery); and Dutton v. State, 674 P.2d 1134 (Okl.Cr.), cert. denied 467 U.S. 1256, 104 S.Ct. 3548, 82 L.Ed.2d 850 (1984) (the defendant killed one person and injured another while robbing a bar). See also, Ross v. State, 717 P.2d 117 (Okl.Cr. 1986) (where the danger was found to be present even though only one police officer was killed because the defendant threatened another person with death if she did not cooperate with him; the court found that the defendant’s actions showed he intended to carry through with his threats and clearly placed the woman’s life in danger). Cartwright killed Hugh Riddle. He intended to kill Charma Riddle, and came very close to doing so. Measured against the evidence in this case we hold that Cartwright’s conduct knowingly created a great risk of death for more than one person.
WE AFFIRM. In light of the fact that this is a capital case, following the consideration of any rehearing petition that may be filed, when the final order of this court is entered, or when the judgment becomes final without further order and issuance of the mandate of this court which would otherwise occur, we will stay our mandate and execution of petitioner’s death warrant for thirty days pending the filing of a petition for certiorari in the Supreme Court of the United States; if such a petition for certiorari is filed within such time, then the stay of our mandate and of petitioner’s execution will continue until disposition by the Supreme Court of the petition for certiorari.
. The record does not contain a statement of the exact amount of the medical bill, but it is undisputed that the amount was small.
. Other Oklahoma cases which have considered a challenge to this language do not cite State v. Dixon directly but do cite Oklahoma cases which have adopted the language. See, Cartwright v. State, 695 P.2d 548, 554 (Okl.Cr.1985) and Liles v. State, 702 P.2d 1025, 1031-32 (Okl. Cr.1985), cert. denied, — U.S. -, 106 S.Ct. 2291, 90 L.Ed.2d 732 (1986).
. In Proffitt, supra at 255-56, 96 S.Ct. at 2968, the Court reviewed Fla.Stat.Ann. § 921.141(5)(c) (Supp.1976-1977) which provided, "[t]he defendant knowingly created a great risk of death to many persons.” | 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". | From which district in the state was this case appealed? | [
"Not applicable",
"Eastern",
"Western",
"Central",
"Middle",
"Southern",
"Northern",
"Whole state is one judicial district",
"Not ascertained"
] | [
1
] | songer |
PUGET SOUND POWER & LIGHT CO. et al. v. CITY OF PUYALLUP.
No. 6369.
Circuit Court of Appeals, Ninth Circuit.
Aug. 4, 1931.
F. D. Oakley, of Tacoma, Wash., and Elmer E. Todd, Frank E. Holman, Todd, Holman & Sprague, and Clarence R. Innis, all of Seattle, Wash., for appellants.
E. K. Murray and Leo Teats, both of Tacoma, Wash., and M. F. Porter, City Atty., of Puyallup, Wash., for appellee.
Before WILBUR and SAWTELLE, Circuit Judges, and NETERER, District Judge.
WILBUR, Circuit Judge.
This is an appeal from a judgment rendered from a condemnation proceeding brought by the city of Puyallup, a municipal corporation, to condemn a distributing system installed and owned by the Puget Sound Power & Light Company within the city limits of the city of Puyallup'. The other appellants are joined because of their interest in an incumbrance upon the property. Tha verdict and judgment was for $216,825.67.
It is conceded that the appellants were entitled to the market value of the property taken, and, in view of the fact that appellants were the owners of a large generating and distributing system, of which the system in the city of Puyallup was a small but integral part, the appellants were also entitled to the damage to its remaining property, due to the severance of property taken.
As both parties introduced evidence as to these items, and the verdict of the jury is based upon comprehensive but conflicting testimony, that verdict is conclusive upon appeal, unless error was committed in the reception of evidence or in the court’s charge to the jury. The only questions presented by the appellants relate to the proper method of ascertainment of market value and to rul.ings made by the trial court during the taking of the evidence. - Preliminarily, it may be stated that the evidence was full and comprehensive, that the witnesses who testified were fully advised as to the various elements of value which have been considered by the courts in condemnation proceedings, and by rate-making bodies in proceedings for the fixing of rates for public utilities, and by the courts in considering th'e constitutionality of the rates thus fixed. The direct and cross examination of the witnesses fully developed the opinion of such witnesses with relation to such elements of value and the reasons upon which their conclusions as to market value were based.
In addition to the witnesses who testified with reference to' the market value of the entire plant to be condemned, witnesses were introduced by both parties who testified on their direct examination with reference to some of the elements of value which it had been consistently and repeatedly held are ap-. propriate evidence to be received in ascertaining the fair value of property for rate-making purposes. As the principal questions presented by appellants relate to the sufficiency of evidence upon these elements and to the rulings of the court with relation to the introduction or rejection of such evidence, it should be stated at the outset that the problem presented in a condemnation proceeding is essentially different from that presented to a rate-making body or to the courts in the consideration of whether or not rates thus established are confiscatory. In condemnation proceedings, “just compensation” is the market value of the property taken. In rate-making eases, the standard of market value of the investment cannot be applied in determining just compensation, for the simple reason that market value is dependent upon earning capacity and fluctuates with that capacity; consequently, in determining what earning capacity is just, the market value of the investment which is a result of earning capacity cannot be utilized as a basis for the determination of what constitutes the reasonable or just earning capacity of the plant. In view of this situation, it has been determined that the Constitution of the United States prohibiting the taking of property without compensation requires that the owners of a public utility shall not be deprived of a fair return upon the fair value of the property devoted to the public use. In arriving at the fair value of a public utility investment, the courts have gradually evolved rules with relation to- the evidence pertinent to that issue. These rules which, indicate the nature and character of the evidence to be considered by the rate-making body and by the courts in determining the fair value of a public utility property are largely prohibitive in character; that is to say, the courts have determined that rates cannot be fixed upon a basis which ignores certain elements of value which go to make up a fair value of the property. This process of evolving an appropriate method of valuation for rate-making purposes is still in a state of development, and involves very great practical difficulties, some of which are not completely solved, partly for the reason that under the Constitution final authoritative decision rests in the courts which have no power to make rates and no machinery for the ascertainment of all of the complex elements entering into the determination of what constitutes a fair valuation of the property. The province of the court in such a matter is confined to the duty of preserving to the owner of property the fundamental right guaranteed to him by the Constitution that his property shall not be taken from him without just compensation, and for that purpose to prohibit the nibbling away of his property by the fixing of rates which gradually but effectively destroy the value thereof.
In the case at bar, however, we have the familiar problem of ascertaining market value where expert witnesses found by the court to be competent to express an opinion on that subject have expressed that opinion in appropriate fashion, and opposing counsel have had an opportunity for full and complete cross-examination. In such a ease the function o-f the judge has been largely performed when he has passed upon the competence of witnesses, and then the jury must determine under appropriate instructions the weight and credibility of such evidence and render a verdict in accordance with their judgment as to the various items or claims advanced by the witnesses in support of their conclusion. This verdict upon the facts under our system is a final and conclusive determination of market value, for the same Constitution which prohibits the taking of property without just compensation guarantees the right to a trial by jury, and this right applies to the ascertainment of market value and pertains as much to the plaintiff as to the defendant in a condemnation case. The obligation of the plaintiff in a condemnation proceeding is to pay to the owner the market value of the property to be taken as fixed by a jury in a condemnation proceeding, and the right of the defendant to just compensation in such a proceeding is to the amount so fixed by the jury. This verdict, if supported by the evidence, is binding upon the courts, both in direct and collateral attack, subject to the power of the trial judge to grant a timely and appropriate motion for a new trial. No court can know, nor is there any method of ascertaining, the basis upon which a jury arrives at its verdict fixing a lump sum for prop erty condemned, if it is within the limits of value fixed by the evidence.
With these preliminary observations we turn to the assignments and specifications of error relied upon by the appellants in the case at bar, and we will further develop the facts as we proceed with a discussion of the legal questions involved.
We will state the propositions involved on the appeal in the language of the appellants. The first point thus presented is as follows: “Appellants’ Puyallup properties are in active and successful operation under franchises which have approximately twenty-five years to run. They have a value as an established and profitable enterprise over and above their reproduction and development cost. Appellants were denied the right to prove this value and were thereby denied that ‘due process’ of law guaranteed by the fourteenth amendment to the constitution of the United States, and the ‘just compensation’ guaranteed by Article I of section 16 of the constitution of the state of Washington.”
In support of this proposition, the appellants discuss at some length the alleged difference between “franchise value” and “going concern value,” but we will not follow this general discussion, for the reason that, as we have pointed out, such a discussion must be related to a definite assignment of error, and will therefore approach the matter from that standpoint.
Mr. C. Ray Moore, an expert witness introduced by the appellants, having testified upon direct examination as to the value of •various items of personal property to be condemned and the cost of reproduction of the property and the value thereof less depreciation, having testified that he allowed $256 in his estimate for securing franchises in the city of Puyallup, and having indicated his method of arriving at the going concern value, and having fixed the severance damage of $24,115 by reason of the cost of construction thereby rendered necessary, testified as follows :
“In addition to these costs, which are a part of the severance damage, I have an item that represents a loss to' the company in revenue should the Puyallup be severed from the Puget Sound system.
“Q. Have you taken into consideration the earnings of the company? A. Yes, sir. * # ii>
“Q. You have another item of severance damage here? A. Yes, sir. I have an item that represents a loss to the company in revenue should the Puyallup system be severed from the Puget Sound system.
“Q. Has that any relation to the value of this franchise? A. Yes, sir.
“Q. Does the loss of the franchise — A. It is based upon the value of the franchise.
“Q. Now, what did you determine with reference to that?
“Mr. Murray. [Appellee’s counsel]— Just a minute. Is he trying to arrive at the value of the franchise of the,distribution we are taking?
“Mr. Oakley. [Appellants’ counsel] Yes; there are two franchises being taken.
“Mr. Murray. I thought you already testified to those.
“Mr. Oakley. No, he did not, he testified as to original cost that it would cost that to get it, the mechanics of getting the franchise was $250. He testified to no value other than the cost of getting it in cost to the company of mechanical cost of obtaining that franchise. That is all your witnesses have testified to. * * *
“Mr. Oakley. Yes, and this is being taken from them, now I am simply basing the value of that right as reflected in the earnings. I know from reading his report that is the way he has treated that — earnings of the company. It has been uniformly held that that is proper to consider.
“Mr. Murray. Is it as severance damage, or value of the property? I object to any proof of loss of profits as an element of damage. I don’t quite understand — ■
“The Court. Well, as I understand the question and the statement, it is sought to ■prove a value of the franchise and property, and to argue that that is such a value in some way from the profits of the business.”
This was followed by a general discussion between the court and counsel as to the right to receive the value of a franchise in a condemnation proceeding. The court sustained the objection to the question, “Now, what did you determine with reference to that?” but stated that the matter would be left open for argument. Counsel proposed the question in a new form, as follows:
“Q. Now, Mr. Moore, did you include any value for franchise in your going concern value [$30,873.45] ? A. No, sir.
“Q. As I recall your testimony, you included in your estimate simply the cost of acquiring? A. That is correct.
“Q.. You did not—
“The Court. As a part of the overhead? A. —not as a part of the overhead, as a part of the cost of the structural value as the actual amount of money expended in acquiring the franchise.
“You considered the earnings as testified to by Mr. Robbins here? A. Yes, sir.
“Have you considered the value of this franchise and the loss to the company by reason of the taking of the franchise in this suit, having in mind the earnings of the company both past and present and prospective — probable earnings?
“Mr. Murray. * * * I think probably we can get at it a little better on cross examination, for the reason that we will concede that the value of franchise as property is a proper element, but as ordinarily, it is merged in going concerns. Now, whether his statement is going to show that he arrived at it by capitalizing earnings, or how, I don’t know, but I don’t see any other way to dispose of it than to wait and see. Therefore, as far as I am concerned he can answer. A. You want the amount first, Mr. Oakley?
“Q. Yes. A. $74,192.00. I arrived at that value for the franchise by determining the loss that the company would incur annually if the company were deprived of the right to do business in Puyallup. That is based upon the structural plant depreciated, plus going concern value, which amount is $290,212. The company has been and is today earning eight per cent on the money invested in the property in Puyallup. Six per cent of that eight per cent which is being earned is to cover the cost of money that is invested in the property at Puyallup. Two per cent of the eight per cent is the net profit to the company as the result of its operations in Puyallup. The two per cent of the $290,212 is $5,804. This represents the amount that the company would lose annually if the Puyallup property is severed. This amount capitalized for the life of the franchise would be $145,100. The present worth of that amount of money is $74,192, which is the amount that I am contending is a fair and reasonable amount for severance damage Number 2.
“Q. Well, the value of the franchise? A. The value of the franchise.
“Mr. Murray. At this time, if your Hon- or please, wé move to strike the answer of the witness given as to his reasons for arriving at the valuer and the value as fixed upon the franchise for the reason that it is based upon as an improper basis. What he has done here is to take and try to capitalize certain difference in earnings, and the courts nowhere recognize the propriety of any such thing as that. He has taken the difference .between what he says is the ordinary cost on the market to borrow money and what they are earning out here, but that element is included in going concern; it must necessarily be.” .
Appellee moved to strike out this answer for the reason that it is based upon an improper basis. “He has taken the difference between what he says is the ordinary cost on the market to borrow money and what they are earning out here, but that element is included in going concern; it must necessarily be.”
After discussion, this motion was granted. It should be said at this juncture that the witness had testified to a going concern value of $30,873.45. He arrived at this value “ * * * by applying the average percentage to the structural value that is used in determining the going concern values of public utilities. I ascertained that, from going concern values that I had placed on properties that had been sold and purchased and from going concern values that had been allowed in similar companies by federal and state courts and state commissions, and by state regulatory bodies. I have attempted to use the average percentage.
“Going concern value on the electric property in Puyallup is a difference in the plant' of the Puget Sound Power and Light Company as a successful public utility and a similar plant, assembled but not yet functioning. It includes the costs which are not included in the structural value, the cost of getting customers and all items entering into making the company a going concern and a profit-making institution. The going concern value very materially depends upon the success of the business and the property. With respect to the Puyallup property I found that the company is entitled to 15 per cent of its structural value as a going concern, which on the cost of reproduction new amounts to $41,476.56. On the present depreciated structural value it amounts to $30,-873.45. This makes the total under the cost ■of reproduction basis of structural value, plus going concern value, the sum of $317,-'986.99 and the present depreciated value the sum of $236,696.27.
“With reference to the allowance for going concern value, I considered allowances of which I have knowledge in the following eases: Pacific Gas and Electric Company of San Francisco was allowed 12 per cent of the physical value of its physical property. The Houston Electric Company of Houston was allowed 21 per cent by the Federal Court. The Mountain States Telephone & Telegraph Company of Utah was allowed ten per cent by the State Commission of Utah. The Hoke National Gas Company of West Virginia was allowed ten per cent by the State Commission of West Virginia. The Pioneer Telephone & Telegraph Company of Oklahoma was allowed twenty per cent by the Federal Court. The Interstate Light & Power Company of Wisconsin was allowed ten per cent by the State Commission of Wisconsin. The Public Service Company of New Jersey was allowed 14 per cent by the State Commission of New Jersey. The Indiana General Service Company of Indiana was allowed 13 per cent by the Indiana State Commission. The Appalachian Power Company was allowed 13 per cent by the State Commission of West Virginia. The Public Service Company of New Jersey was allowed 30 per cent by the State Commission of New Jersey. The Baker Utility of Montana was allowed ten per cent by the State Commission of Montana.”
It is apparent from the foregoing that the witness had already testified to a valuation based upon the earning capacity of the plant in his going concern value, although, having adopted an arbitrary rule of percentages in arriving at that going concern value, the witness may not have been aware of that fact, as he had based his percentage allowance upon a large number of eases which he cited wherein the. going concern value allowed by public utility commissions and courts have varied from 12 to 30 per cent. The testimony of the witness that $74,192, which represented the present worth of return of 2 per cent, upon the value of the company’s property for 25 years, represented the severance damage, or the franchise value, was correctly stricken out. It tended to confuse the issue before the jury by submitting to it as distinct elements of damage a going concern value which necessarily involved earning capacity and the same earning capacity in the form of franchise value or severance damage. The ruling of the trial court was correct. Appellants followed their exception by an offer to prove with the witness “that the fair and reasonable market value of that franchise is $74,292.00.” This was objected to, and the objection was sustained. But this offer must be read in light of the testimony of the witness to the effect that he ascertained the value of the franchise or the severance value by the method indicated, which was not a proper way to estimate such value.
Later, appellants, through their witness W. H. McGrath, vice president and manager of the Puget Sound Light & Power Company, renewed their effort to present to the jury the item of $74,292. The witness was asked the following questions:
“Q. Mr. McGrath, in your opinion what loss will the whole system of the company suffer, — now you need not answer this until counsel has objected, — I will withdraw that part of the question and repeat again. Mr. McGrath, in your opinion, what loss will the entire system of the company suffer by reason of having severed from it this plant from its market for 1,000 kilowatts? * * * A. The answer to that question is, I take it, in dollars?
“Q. No, what would be the effect upon the whole system of the company including its general system? A. Well, the effect in the first place is that we would lose the profits from that business. We are in business to make money. We have a market in Puyal-lup for the next 25 years by contract with the city. The removal of that market from our system removes the profits for the next 25 years.”
Appellee moved to strike out this answer on the ground-that loss of profits was not an element of the matter, and the motion was granted and exception taken, The court, in its ruling, made the following statement:
“The Court. It is the duty of the court to keep the issues submitted to the jury as simple as possible. Now, the witness has said that they have got a contract with the city for 25 years and that by this proceeding you are going to lose that profit. Well, the court does not care to enter into a thesis with the jury as to that contract which the company may have with the city being at all times subject to a condemnation proceeding. The matter for the jury to consider is the physical value of the property taken and the use that is being made of that property by the company in its business. The profits they are making is something bearing on that value, but it is not necessary to wholly protect you in the full and fair value of your property that the witness stress this loss. What the city is taking is your property and the value of that property is to be determined among other things by the use you are making of it, and the profitable use you are making of it.”
In commenting upon this ruling, appellants in their brief say: “The evidence which was stricken shows that the value added to the Puyallup properties, because they constituted an established and profitable enterprise, was $74,192 and that appellants were prevented from making any proof of this value either under the head of ‘franchise value* or under the head of'‘severance damage.’ There can be no doubt but that this was a reasonable additional value to place on the Puyallup properties which were to be taken.”
In considering the propriety of the ruling of the court, it should be stated that the witness had testified to the market value of the property taken, and had arrived at that value by multiplying the gross earnings by four or the net earnings by eleven. The value arrived at by the first method was $444,-000 and by the second $450,000. He testified : “Having obtained all these reports and studies by experts as to the values of the property, the cost of reproduction, less depreciation, the statement of what the property is doing in the way of gross earnings, what its operating expenses are, what the net earnings are and what the future prospects are, there are several yardsticks available to measure your market value. In case of electric light and power properties the yardstick usually used is not less than four times the gross earnings and not less than ten or eleven times the net earnings. By net earnings I mean the difference between the gross earnings and the operating expenses and taxes. By operating expenses I mean the cost of power.”
In view of the fact that the witness testified fully as to the capitalization of the profits derived from Puyallup system, it was not proper for him to again capitalize the same earning capacity under the name of “severance damages.” It should be borne in mind that the question involved is the market value of the property taken, including as it necessarily would the franchise under which the company is operating.
The witnesses on both sides were fully advised by their experience and by the rulings of the court that they were permitted to take into consideration the earning capacity of appellants’ property in determining its market value; that this earning capacity was something in addition to the value of the tangible property sought to be taken.
It must have been clear to the witnesses who testified as to the market value of the property sought to be condemned that the taking over' of this property by the city would necessarily appropriate the franchise, and that the right of the appellant to operate as a going concern was entirely dependent upon the franchise, and they evidently considered that fact in fixing the market value. We may assume that there is a difference between going concern value, as it is arrived at in rate-making eases, and the market value of a franchise to be fixed in the condemnation proceedings. A condemnation ease necessarily involves ascertainment of the market value of the right of the public utility to continue to operate as such and to derive such future income therefrom as is foreshadowed by the fact that it is operating the property as a going concern, and has a large number of present, and a larger number of prospective, customers, by whatever. name we may call that right. A critical analysis of the distinction between the franchise value and going concern value as presented in the two types of cases is entirely unnecessary in the case at bar. The witnesses were allowed to express' their opinions fully and completely as to the market value of the property and also as to the separate items of value usually considered in a rate-making case for the purpose of determining a fair value of the property, and we are only concerned in this case by the foregoing rulings of the court excepted to by the appellants, which rulings,' as we have held, were a proper exercise of the discretion of the trial judge in the conduct of the trial by the elimination of misleading testimony which might distract the attention of the jury from the fundamental questions involved; namely, the ascertainment of the market value of the property taken plus the depreciation of the market value of the property retained.
It would perhaps have been better for the parties, after qualifying their witnesses, to have merely asked the basic questions, “What is the market value of the property taken ?” and “What is the depreciation of the market value of the property retained by reason of its severance from the property taken?” giving the witnesses full opportunity to explain^ the basis of their valuation. In such ease no doubt the same questions would come up on direct and cross examination, for, if it appeared either on direct or cross examination that the witness had pursued a wholly unwarranted course in arriving at his estimate of value, it would be necessary to make correction thereof either by striking out his estimate of the market value or by instructing the jury to disregard that portion of the value due to the erroneous method.
Appellants’ next point is as follows: “Appellee’s attorneys had no right to eliminate from the proceedings e.ertain items of property which were included in and covered by the language of the city ordinance authorizing condemnation.”
The language of the ordinance was very general in its terms, and the description therein does not specifically indicate the items to he taken. That portion of the ordinance was as follows: “The existing works, plants and facilities of the Puget Sound Power So Light Company, a corporation, in the city of Puyallup, for the distribution of electricity within such city, together with the right to sever the same from the remaining works, plants and facilities of said Puget Sound Power So° Light Company. Such plants and facilities to be so acquired, consist of a substation, transformers, switches, motors, meters, machinery and equipment, distribution lines, poles, wires, lamps and all appurtenances and accessories, and all contracts, franchises, rights and privileges necessary and convenient for the distribution of such electricity or relating thereto.”
The itemizing of the property was accomplished by a detailed statement furnished by the appellee to the appellants.
The specific ruling assigned as error is the sustaining by the trial court of an objection by the appellee to proof of the value of certain transformers temporarily installed at the fair grounds within the city for use dur-
ing the fair. It is stated in the objection that these transformers were used only once a year, being moved in and out during the week of the fair (in September) under arrangements between the fair association and the company, “and we filed a disclaimer of any intention to take them. They are used probably a week or two or ten days by the fair’association, and by the company the rest of the year elsewhere.” Objection to this evidence was sustained, whereupon appellants offered to show that the transformers were necessary for the transaction of the business of the company during the fair week, and objection to this offer was also sustained. The trial court was justified under the evidence in concluding that these transformers did not come within the terms of the ordinance which applied to existing works and facilities in the city. The ordinance directing the institution of condemnation proceedings was passed July 3, 1929. The election authorizing the condemnation and approving a bond issue therefor was held March 12,1929.
Later, appellants offered to prove the value of certain materials stored in the substation at Puyallup for replacement purposes which were there prior to December 31, 1929, necessary for the operation and maintenance of the system worth $7,009.88. The argument advanced in the brief in support of the contention of the appellants is that neither court nor counsel had a right to interpret “the ordinance as excluding the foregoing item.” It was of course the duty of the trial court to interpret the ordinance, and its ruling to the effect that this property did not come within the description contained in the ordinance was proper. Certainly appellants cannot complain that their property was not taken from them by condemnation proceedings where they were awarded any damages resulting to the property not taken because of its severance from that which was taken.
The third point presented by appellants is as follows: “Though the city ordinance under which the condemnation proceedings were instituted specifically provided to the contrary, the appellee city was allowed to introduce evidence that it might continue to take power from Puget Sound Power & Light Company.”
The provision of the ordinance referred to is that for the construction of a transmission line to connect the distributing system to be condemned with the generating plants operated by the city of Tacoma. The question arose during the trial in this way: Mr. Towne, a witness called on behalf of the city, had given his opinion as to the severance damage suffered by the appellants as $14,-952. Included in this total he specified several items, among others, the removal of an electric sign, $575; the cost of adjusting street lights at Sumner, $1,350; cost of making severance changes in the system north of Puyallup, $3,018; cost of salvaging the severed thirteen K-V line from north of Puyal-lup to the Puyallup' city limits, $650; to make necessary changes to take care of the district south of the city of Puyallup, $3,-740; cost of adjustment necessary to take care of the territory east of the city of Puyal-lup, $1,610; cost of work necessary to dismantle transformers in the existing substation, together with incidental damages and costs, $3,242; cost of salvaging the tap in the main transmission line to the substation, $567. On cross-examination he gave the items in a somewhat different form. The cost of one transformer at North Puyallup, $2,018; .moving electric sign, installing outdoor street light regulators in Sumner, $1,-350; transformers, etc., on the south and west, $3,750; on the east, $1,510; salvage value of KL-V line from the city limits to North Puyallup, $650; removal and warehousing of materials on hand at the warehouse, $650; dismantling, packing, and moving large transformers and oil switch, $3,-242; salvaging of the 55 K-V tap for the main transmission line, $567. He had also stated in estimating the damages to the company by reason of the taking away of the Puyallup property and considering the amount of damage by reason of the severance or by reason of the fact that the company would lose so much business:
“It is my opinion that the amount of the damage is negligible, for the reason that in my opinion the city of Puyallup would go to the Puget Sound Power & Light Company for power in the event it takes over the distribution system. The Puget Sound Company is the logical company for supplying the city of Puyallup. In the event that the city of Puyallup did not buy from the Puget Sound Company then it is my opinion that the damages stiff would be negligible ‘by reason of its proportion to the rest of the system.’ In the event it is shown that the company is going to absolutely lose this business and be prohibited from the sale of wholesale power to the city of” Puyallup, thereby suffering a loss, and providing this loss is a loss that is guaranteed and perpetuated, it is my opinion that the company should be paid for it, but otherwise that it should not be paid.
“In the allowance made by me for the severance damage I did not allow any amount of money whatever based upon the earnings of the company.”
On redirect examination appellee asked this witness: “Now, Mr. Towne, getting back to this severance again, as to whether or not the earnings of the company, — the remaining property after the severance, I will ask you whether or not you considered the probability of the company keeping on selling to Puyallup in arriving at whether or not there would be any severance loss to the company by reason of loss of business?”
This was objected to on the ground it was irrelevant,' incompetent, and immaterial and not proper in this ease. The objection was overruled. Inasmuch as this evidence had already been adduced without objection, appellants cannot take advantage of this ruling.
The ruling of the court on this subject was again invoked by motion to strike out testimony already adduced upon this subject. The motion, however, did not specifically indicate the questions and answers to be stricken out; moreover, as we have already pointed out, some of this evidence was introduced without objection. The motion was in part as follows: “If the Court please, before we proceed with our case, I would like to move the court to strike out all evidence given by the petitioner’s witnesses to all of which we objected, to the effect that the city of Puyallup might buy its power from the Puget Sound Power & Light Company at the substation in Puyallup, for the reason that under the ordinance just introduced in evidence which set forth «the plan, part of that plan is that the transmission line be built into the city of Tacoma, they are to .buy power either from the city of Tacoma, or from some other person, and the plan eannot be deviated from.”
The motion was properly denied, for the reason that it was too general. Moreover, the probability or possibility that the city might buy its power from the Puget Sound Power & Light Company was a proper element to consider in determining loss suffered by the severance, if in the opinion of the witness it affected the market value of the remaining property. The court, in allowing an exception to this ruling, stated as follows:
“The Court! Exception allowed. The jury will understand that you are not to speculate. The only bearing that the court can see that evidence has, although you are instructed you are the sole and exclusive judges o£ the weight of the evidence, is that the city would be, if it acquires this property, a potential customer of this company.' It amounts to showing you that the city is not tied up in any way to keep it from being a customer; that it would be in the. market to purchase power such as the company furnishes. I see no other bearing it has in the case.
“Mr. Todd. May we have our exception to the remark of the Court.
“The Court. Considering your exception too general, it is disallowed.”
Thereupon counsel specified the same grounds of exception stated in the motion to strike out the testimony.
The court, in its final instructions to the jury upon this subject, stated: “You are not to take into consideration in arriving at your verdict, as a reason to lessen the owner’s compensation for property taken, the fact that the city of Puyallup, after it acquires the electrical distribution system of the defendant Puyallup, may purchase from the defendant electrical current for such distribution system.”
No exception was taken to this instruction, and it was more favorable to the appellants than they were entitled to. As we have stated, in severance damages an element to be considered is the depreciation of the market value of the balance of the plant by reason of the severance of the unit taken. A purchaser of such a plant would undoubtedly take into consideration the. fact that there would be an opportunity to sell power to the city of Puyallup. This would be true regardless of the legal obstacles which might be .interposed at the outset to the purchase of such power under then existing conditions. In other words, the question is, What would the purchaser and seller consider in fixing the market price of the property? The rule invoked by appellants in support of their position is thus stated in its brief: “The rule in eminent domain eases is that the damages cannot be reduced or mitigated by any consideration of future advantage to the owner which the condemnor is not under any obligation to concede; and evidence based on such claimed advantage is inadmissible. See: 20 C. J. pp. 766 et seq., § 1161.” This rule has no application to the situation involved here.
Appellants’ next point is thus stated: “The trial court erred in allowing testimony that appellants would suffer no substantial severance damage because, by the growth of new business on other plants, appellants would soon make up the loss, and in denying appellants the right to cross-examine a witness who had so testified.”
Appellee’s witness, Homer Blair, testified with reference to severance damage as follows : “I figure the severance damages to be the cost of making the necessary changes. The total cost in my opinion would be $13,-525.05.”
He explained the proposed changes, and stated in response to a question that this constituted all the severance damages that he had allowed in his estimate. He further testified :
“I took into consideration on the question of severance damage the possibilities of idle generating capacity being created by the taking of the Puyallup system. I did not make any allowance of damage on that account for the reason that the load into Puyal-lup is so small compared with the entire system that it would be just a few days before they would catch up-. The load at Puyallup is really about one per cent of the company’s entire load. Considering the normal increase of the load on the system of the Puget Sound Power- & Light Company only about three weeks time would be required to make up the loss of the load in Puyallup. The average idle period of generating capacity, therefore, in my opinion would be about ten days. * « *
“I did not allow any damages for any possible loss of profits that the company might suffer in the operation of the balance of its system after the Puyallup system was taken. In my opinion there is no such damage. There will not result any loss of usefulness or any idle capacity upon the 55,000 K.C. transmission line to Puyallup. The expense of serving territory outside of Puyal-lup will not be increased after the severance over what it is in the present system.”
It will be observed that the witness is giving the basis upon which he arrived at his severance damage. It is certainly proper for him to explain, not only that he considered certain elements as making up the total of such damage, but that he omitted therefrom the damage to the business of the appellants due to the severance of the property taken, because in his opinion there was no such damage. The rulings of the trial court in permitting this testimony are proper.
Appellants also claim that they were not permitted to cross-examine the appellee’s witness Glenn Smith upon the amount of severance damages. The question propounded on cross-examination, to which objection was sustained, is as follows: “But they have lost apparently a thousand kilowatts, haven’t they?” This was objected'to on the ground that it was immaterial, and objection sustained. It is not altogether clear what was intended by the question, and there was no error in the ruling, particularly in view of-the fact that the witness had stated on direct examination the fact that the question was calculated to draw out as follows: “You are taking away about 1,000 kilowatts of the company’s load. That is in the neighborhood of one-half of one per cent of their peak system load at the present time. They are going at 34,000 kilowatts in addition to their peak according to the report filed at Olympia that I cheeked, so that 1,000’ kilowatts represents about two weeks normal increase in their system load. That is, it would be so short a time before the load now in Puyallup would be made up by natural increase that it is hardly worth considering. The question of idle capacity brings into it the fact that, last year on the peak, which is the time when the capacity is needed, they did not have enough capacity to continue to- serve all their customers. The normal growth would take care of the entire load in Puyallup that they are losing in two weeks. There would be an average of one week’s loss, assuming that the City of Puyallup did not buy their energy to operate the distribution system when they take it over.”
It was a conceded fact in the case that the city of Puyallup was using about 1,000 kilowatts of electrical energy, so that there is no point to the particular question for the court to rule upon.
The court instructed the jury, among other things:_
“Not only in assessing the value of the property actually taken but also in assessing the damages to the property not taken you will be guided by the actual full fair cash market value of the property taken and the decrease or diminution of the actual fair cash market value — correct that last to read ‘full fair cash market value’ of the property not taken by reason of the taking of only a part of the property operated as one system, for that is the proper measure of damages and compensation to be awarded by you.
“If you find from the evidence in this case that by reason of the taking of the property involved in this proceeding from its entire electric system the remaining parts of the defendant’s system will suffer any loss or damage, then you shall also include in your -award such sum as will adequately compensate the owner for such loss or damage.
“The commencement of this condemnation proceeding by the city did not deprive the company of its right to continue to make additions and betterments to its property. At any time until the city has paid the just compensation to be determined by you and procured the entry of a decree of appropriation, the city can abandon this proceeding.
“You are instructed, therefore, that the defendant had a right in its discretion to make any additions and betterments to its plant and system during the pendency of these proceedings, and it is your duty to include in your verdict an allowance for the fair and reasonable cash market value of all such additions and betterments as are shown by the evidence to have been made.
“That instruction will be to a degree qualified by a later instruction.
* * * # * *
“You are instructed that it is the law in this jurisdiction and it is the duty of the owner in an action of this kind to refrain from unnecessarily aggravating the damages which may result to their property not taken, and if you find in this ease that the defendants have unnecessarily augmented or increased the damages which they will sustain by reason of the taking of the substation and distribution system'in the city of Puyallup, then you are to award them nothing for such augmented or increased damages. That is, to the extent that they are unreasonably. and unnecessarily increased.
“The fact that the city brought this suit did not require the owner to cease making additions and repairs .and if it did so in good faith, adding only what it considered necessary and prudent in the management of its property and business, you are not to withhold from them their value, but if the owner grossly and extravagantly overbuilt the property it has no right to recover the cost of such gross and extensive overbuilding because it would not correspondingly increase the market value.”
The appellants excepted to the instrue-, tion in regard to the aggravation of damages, and contend on appeal that there was no evidence to which such an instruction was properly applicable, and upon that basis claims that the giving of the instruction was erroneous. It appears from the evidence in this case that, after the city had voted a $250,000 bond issue to acquire this property in March, 1929, the appellants began a construction program in Puyallup of approximately $100,000. One of these items of new construction was an office building costing $28,000 which had not been contemplated by nor included in the appellants’ annual budget, but the construction was moved forward by emergency methods, so that at the time of the trial the building had been completed. The appellee disclaimed any intention of talcing this building, but the question remained as to whether the taking of the appellants’ distributing system would depreciate the value of the building. It also appeared that some of the additions to the distributing system were constructed at a cost of money and material in excess of the market value of the result achieved, and some portions were unnecessary. The court having instructed the jury to allow to the appellants the market value of the property taken and the decrease, if any, in the market value of the property not taken, its instructions with reference to the aggravation of damages can only be considered as a caution to the jury to refrain from allowing damages by reason of over expenditures where such overexpenditares did not affect the market value of the property taken or remaining. ' This was proper.
The case was fully and fairly tried, both court and counsel gave careful consideration to the various questions of law and evidence presented, and the jury was fully advised by the testimony and instructions as to the question submitted for its decision, and the verdict was well within the estimates of value submitted to them.
Judgment affirmed. | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "utilities". Your task is to determine what subcategory of business best describes this litigant. | This question concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "utilities". What subcategory of business best describes this litigant? | [
"nuclear power plants",
"other producers of power",
"telephone",
"other utilities",
"unclear"
] | [
1
] | songer |
Harold Lee HANKINS, Appellant, v. Thomas FULCOMER, Superintendent, the Attorney General of the State of Pennsylvania, Common Pleas of Crawford County, District Attorney of Crawford County.
No. 90-3766.
United States Court of Appeals, Third Circuit.
Submitted June 25, 1991.
Decided Aug. 13, 1991.
Thomas S. White, Office of Federal Public Defender, Pittsburgh, Pa., for appellant.
Narcy L. Hughes, Office of Dist. Atty., Meadville, Pa., for appellee Dist. Atty. of Crawford County.
Before MANSMANN and SCIRICA, Circuit Judges and POLLAK, District Judge .
The Honorable Louis H. Poliak, United States District Judge for the Eastern District of Pennsylvania, sitting by designation.
OPINION OF THE COURT
SCIRICA, Circuit Judge.
Harold Lee Hankins, a state prisoner, appeals from the dismissal of his petition for a writ of habeas corpus. The district court, adopting the Report and Reeommen-dation of the magistrate judge, dismissed the petition for failure to exhaust state remedies. Hankins contends that the district court erred by failing to find inordinate delay in state proceedings, which would excuse a lack of exhaustion.
We hold that the nearly eleven-year delay by the Court of Common Pleas of Crawford County, Pennsylvania in deciding Han-kins’ post-sentencing motion for withdrawal of guilty plea is inordinate and rendered the state process ineffective to protect Hankins’ rights. Consequently, we will reverse the judgment of the district court and remand for consideration of the merits of Hankins’ constitutional claims.
I.
In May of 1980 Hankins entered a plea of guilty to robbery in the Court of Common Pleas of Crawford County, Pennsylvania. Hankins subsequently received a sentence of ten to twenty years imprisonment. The court-appointed attorney for Hankins filed timely motions for reconsideration of sentence and withdrawal of guilty plea. Argument on the two motions occurred on July 9, 1980 and the motion for reconsideration of sentence was denied on July 18, 1980. The motion for withdrawal of guilty plea has never been decided by the Crawford County Court of Common Pleas.
The court held a second hearing on the motion in August, 1980, after which the first court-appointed attorney withdrew. A second attorney was soon appointed, but withdrew after eight days. The court appointed a third attorney who filed amended petitions for withdrawal of guilty plea in both October and December of 1980. A hearing on the final amended petition was held on December 18 and 19, 1980, but resulted in no disposition by the court.
Several additional actions relating to Hankins’ motion for withdrawal of guilty plea occurred between 1980 and 1985, during which time the court still failed to issue a decision. The third court-appointed attorney withdrew early in 1981. Another attorney was not appointed for almost one year. That attorney, the fourth for Hankins, requested transcripts of the 1980 hearings in August, 1982 and filed a motion for disposition in February, 1985. This motion stated that all the relevant evidence was before the court and asked the court to decide Hankins’ motion for withdrawal of guilty plea.
Hankins himself wrote letters to and filed pro se petitions with the court, requesting information and transcripts. In November, 1984 the court instructed Han-kins to channel all future correspondence and requests through his attorney. According to the record, Hankins has been represented by the fourth court-appointed attorney from 1982 to the present time.
Hankins pursued his motion for withdrawal of guilty plea only in the Crawford County Court of Common Pleas and did not seek relief from the state appellate courts to resolve the delay in deciding this motion. Hankins then sought federal relief through three petitions for a writ of habeas corpus, including this case. The record of these federal cases is confusing. Between 1984 and 1986, Hankins pursued pro se a federal petition for writ, of habeas corpus on a state conviction unrelated to this case. Hankins filed two additional pro se habeas petitions, one in 1985 and the other for this case filed in 1990. The 1985 petition and this case are nearly identical, both involving the issue of delayed disposition of the July, 1980 motion for withdrawal of guilty plea. The district court dismissed the 1985 petition, after concluding (we think incorrectly) that it involved the same state conviction as the 1984 habeas petition. The memorandum order dismissing the 1985 petition is difficult to understand and we believe mistakenly draws the conclusion that the issues raised in that petition were remedied by the court’s disposition of Hankins’ 1984 habeas case. Han-kins did not appeal this judgment. In 1985 and 1986 Hankins appealed the disposition of the 1984 habeas petition to the United States Court of Appeals for the Third Circuit and the United States Supreme Court. There is no indication in the record that Hankins or his court-appointed attorney took any action during the period of 1986 through 1989 in relation to his July, 1980 motion for withdrawal of guilty plea.
On February 26, 1990, Hankins filed this pro se petition for a writ of habeas corpus, his second federal habeas petition involving the July, 1980 motion for withdrawal of guilty plea. Hankins recites several grounds for relief. First, he asserts that the nearly eleven year delay by the Crawford County Court in deciding his motion for withdrawal of guilty plea violated his rights to due process, access to the courts, and a speedy trial. Second, he asserts a violation of the right to effective assistance of counsel. He argues that counsel did not properly advise him of his right against unreasonable search and seizure in connection with his arrest. Hankins also claims his counsel misrepresented that a plea bargain had taken place, thereby inducing his plea of guilty. Finally, Hankins asserts a violation of due process because the court failed to advise him of the right to withdraw his guilty plea prior to sentencing.
After reviewing Hankins’ petition for writ of habeas corpus, the magistrate judge recommended that the petition be dismissed for failure to exhaust state remedies. The magistrate judge’s report also found that Hankins had not shown inordinate delay. On October 30, 1990, the district court adopted the magistrate judge’s Report and Recommendation and denied Hankins’ petition. Hankins filed a timely appeal. We granted a certificate of probable cause and appointed counsel to represent Hankins on appeal.
Our standard of review is plenary, because in a federal habeas corpus proceeding the determination of whether state remedies have been exhausted and whether exhaustion should be excused involves the application and interpretation of legal precepts. Schandelmeier v. Cunningham, 819 F.2d 52, 54 (3d Cir.1986); Sullivan v. Cuyler, 723 F.2d 1077, 1082 (3d Cir.1983).
II.
Generally, federal courts may only grant habeas corpus relief to a state prisoner if available state remedies have been exhausted. 28 U.S.C. § 2254(b) (1988). But Section 2254(b) also provides an exception to the exhaustion requirement when there is: (i) an absence of available state corrective process, or (ii) the existence of circumstances rendering such process ineffective to protect the prisoner’s rights. Under these exceptional circumstances, “the exhaustion requirement of the habeas corpus statute may be excused.” Schandelmeier, 819 F.2d at 54.
A.
The requirement of exhaustion rests upon the principles of comity and judicial economy. The requirement provides state courts with an initial opportunity to consider and correct alleged violations of prisoners’ rights without disruption from the federal courts. Rose v. Lundy, 455 U.S. 509, 518, 102 S.Ct. 1198, 1203, 71 L.Ed.2d 379 (1982). The exhaustion requirement also discourages the filing of premature federal claims and provides for development of a complete factual record to aid the federal courts in any subsequent review. Id. at 518, 519, 102 S.Ct. at 1203, 1204. See also Duckworth v. Serrano, 454 U.S. 1, 4, 102 S.Ct. 18, 19, 70 L.Ed.2d 1 (1981).
A state prisoner has not exhausted state remedies, “if he has the right under the law of the state to raise, by any available procedure, the question presented.” 28 U.S.C. § 2254(e) (1988). This language has been construed so that exhaustion does not generally require the pursuit of extraordinary state remedies. See Castille v. Peoples, 489 U.S. 346, 350, 109 S.Ct. 1056, 1059, 103 L.Ed.2d 380 (1989) (§ 2254(c) does not “mandate recourse to state collateral review whose results have effectively been predetermined” and does not “bar from federal habeas prisoners in states whose post-conviction procedures are technically inexhaustible.”). The exhaustion requirement has been accurately summarized as follows:
The doctrine of exhaustion turns on the availability of state remedies sufficient to allow petitioner to have his federal claims considered as he moves through the state system. If an appropriate remedy does not exist or its utilization is frustrated by the state system, ... [t]he deference, accorded the state judicial process must give way to the primary role of the federal courts to redress constitutional deprivations.
United States ex rel. Hankins v. Wicker, 582 F.Supp. 180, 182 (W.D.Pa.1984), aff'd, 782 F.2d 1028 (3d Cir.1986), cert. denied, 479 U.S. 831, 107 S.Ct. 118, 93 L.Ed.2d 64 (1986).
B.
Although the requirement of exhaustion and its underlying principles form a threshold test to federal claims for habeas relief, they are designed as an “accommodation” rather than an “insuperable barrier.” Wilwording v. Swenson, 404 U.S. 249, 250, 92 S.Ct. 407, 409, 30 L.Ed.2d 418 (1971). The statutory exceptions under Section 2254(b) ensure that the exhaustion requirement is not a “mechanical formula” limiting federal jurisdiction. Codispoti v. Howard, 589 F.2d 135, 140 (3d Cir.1978) (quoting Marino v. Ragen, 332 U.S. 561, 564, 68 S.Ct. 240, 242, 92 L.Ed. 170 (1947) (Rutledge, J., concurring)). If it appears that the prisoner’s rights have become an “empty shell” or that the state process is a “procedural morass” offering no hope of relief, then the federal courts may excuse the prisoner from exhausting state remedies and may directly consider the prisoner’s constitutional claims. Codispoti, 589 F.2d at 140 (quoting Frank v. Mangum, 237 U.S. 309, 346, 35 S.Ct. 582, 594, 59 L.Ed. 969 (1915) (Holmes, J., dissenting) and Marino, 332 U.S. at 564, 68 S.Ct. at 242 (Rutledge, J., concurring)).
Inordinate delay in state procedures is one circumstance that can render state process ineffective to protect a prisoner’s rights and therefore excuse exhaustion. Schandelmeier, 819 F.2d at 54, 55. There is no single, comprehensive test for inordinate delay. But we have previously held that when a state court fails to act in spite of “ample opportunity” to decide a prisoner’s claims, considerations of comity do not necessarily require dismissal for lack of exhaustion. Codispoti, 589 F.2d at 142. To cite the most frequently quoted precept of inordinate delay, “[i]t is the legal issues that are to be exhausted, not the petitioner.” Burkett v. Cunningham, 826 F.2d 1208, 1218 (3d Cir.1987) (citations omitted). We have emphasized that “the exhaustion doctrine is not intended to give the states more than one full chance.” Geisler, 510 F.2d at 892 (quoting Developments in the Law — Federal Habeas Corpus, 83 Harv. L.Rev. 1038 at 1096 (1970)). In addition, “the exhaustion doctrine does not require that the state courts have actually ruled on the merits of the claims, but merely that they have had those contentions presented to them.” Geisler, 510 F.2d at 892.
III.
A.
In our consideration of this petition for writ of habeas corpus, the principle of comity weighs less heavily because the state has had ample opportunity to pass upon the matter and has failed to sufficiently explain its nearly eleven year delay. See Codispoti, 589 F.2d at 141, 142. In July of 1980, Hankins timely filed his motions for reconsideration of sentence and withdrawal of guilty plea. Hankins properly filed the two motions together, in accordance with the comment to Pennsylvania Rule of Criminal Procedure 1410. The comment to Rule 1410 instructs the court to dispose of these motions together. Although the Crawford County Court disposed of the motion for reconsideration within sixteen days of its filing, it has delayed disposition of the motion for withdrawal of guilty plea for nearly eleven years without reasonable explanation.
Several other Pennsylvania procedural rules emphasize the duty of trial courts to act promptly on post-sentencing motions for withdrawal of guilty plea. Under Pennsylvania Rule of Criminal Procedure 321(a) and the comment to Rule 320, any post-sentencing challenge to a guilty plea must be filed with the trial court within ten days of sentencing. The comment to Rule 321 anticipates that “the trial court will make every effort to speedily dispose of motions under this rule.” Pa.R.Crim.P. 321 comment. Pennsylvania Rule of Appellate Procedure 343 requires speedy disposition, because an appeal may not be taken before disposition by the trial court. The note to Rule 343 emphasizes that the defendant will not be held responsible for delay in disposition by the trial court; the time for filing appeal on the motion “does not begin to run until such motion is decided by the lower court.” Pa.R.A.P. 343 note.
The record in this case reflects that Han-kins properly pursued his rights of guilty plea withdrawal. He presented his claims to the trial court in a timely manner. Han-kins may have interpreted quite literally (and we believe properly) the procedural rules requiring motions for withdrawal of guilty plea to be made in trial court and forbidding appeal before disposition by the trial court.
B.
Another potential remedy is collateral relief under the Post Conviction Relief Act (P.C.R.A.), 42 Pa.C.S. § 9541 et seq. (Supp.1988). But collateral appeal under P.C.R.A. is not necessarily available for Hankins. P.C.R.A. permits motions for post-conviction collateral relief for allegations of error, including ineffective assistance of counsel, unlawfully induced guilty pleas, improper obstruction of rights to appeal by Commonwealth officials, and violation of constitutional provisions. Pa. R.Crim.P. 1502 comment. However, the comment to Pa.R.Crim.P. 1501 states that “[t]he motion for post-conviction relief under these rules is not intended to be a substitute for ... any post-trial or post-sentence motions.” See, e.g., Commonwealth v. O’Neil, 393 Pa.Super. 111, 114, 573 A.2d 1112, 1114 (1990) (defendant failed to challenge guilty plea pursuant to Pa.R.Crim.P. 321, thereby waiving his right to P.C.R.A. claims of ineffective assistance of counsel). P.C.R.A. petitions are premature and will be dismissed until all post-sentence motions and direct appeals receive final disposition. Id. at 118, 573 A.2d at 1116. We cannot say that collateral relief under the P.C.R.A. is available to Han-kins.
We need not reach the issue today whether it is necessary to pursue mandamus in order to exhaust state remedies as a pre-condition to pursuing federal habeas corpus relief, because the inordinate delay in this case clearly warrants an exception to the exhaustion requirement. See Schandelmeier v. Cunningham, 819 F.2d 52 (3d Cir.1986).
C.
The Crawford County Court of Common Pleas has not provided a reasonable explanation for the delay in deciding Hankins’ July, 1980 motion for withdrawal of guilty plea. On June 8, 1990, when informed of Hankins’ pending federal habe-as petition, rather than ruling on the outstanding motion, the Crawford County Court of Common Pleas judge explained the delay by setting forth the following in a memorandum to the district court:
Defendant entered a plea of guilty on May 5, 1980 and was sentenced by the undersigned on June 20, 1980 to a minimum term of ten years and a maximum term of twenty years on that plea of guilty to robbery.
Subsequently, the defendant filed a pro se motion for leave to withdraw the plea. Counsel was appointed and a hearing was held on that motion. At some point, new court-appointed counsel was assigned to the case and on February 13, 1985, a motion was lodged with the Clerk of Courts requesting disposition of the original motion to withdraw a guilty plea. No immediate action was taken and thereafter the undersigned recalls being advised that the request to withdraw a guilty plea was being withdrawn. However, the record does not indicate any formal action of that nature. In any event, no disposition was ever made of the request to withdraw a guilty plea because of the court’s understanding that the motion had been withdrawn, which was reinforced by the fact that from 1985 until the recent filing in Federal Court, we had heard nothing further concerning the case.
We believe that the court had a duty to act promptly, barring “formal action” by Hankins to withdraw his motion, under the Pennsylvania Rules of Criminal and Appellate Procedure. We also note that the Pennsylvania courts have refused to penalize defendants when trial courts fail to protect their rights for withdrawal of guilty plea.
Even lengthy delay in a state court action may be insufficient to avoid dismissal of a habeas corpus petition for lack of exhaustion, when the petitioner himself is responsible for the delay. See Wojtczak, 800 F.2d at 356. In Wojtczak we concluded that a three and a half year delay could not be “laid at the feet” of the prisoner, but rather was “attributable to disinterest on the part of the court appointed counsel and to a failure on the part of the court to require them to provide minimally effective representation.” Id. In this case, the record shows no action taken by Hankins or his court-appointed attorney during 1987, 1988 or 1989. Nevertheless, the Crawford County Court of Common Pleas has had ample opportunity since 1980 to issue a decision on Hankins’ motion for withdrawal of guilty plea. It held hearings on this motion on four separate days in 1980. Under Pennsylvania Rules of Criminal Procedure 321(b) and 1410, the court should have disposed of this motion promptly, together with its disposition of Hankins’ motion for reconsideration of sentence. The court was again asked to decide the motion in 1985, when Hankins’ fourth court-appointed attorney moved for disposition. Later in that year, the court still failed to act after Hankins’ first federal habeas corpus petition was dismissed. And finally, the court has been given an additional sixteen months to issue a decision during the consideration and appeal of this present habeas corpus petition. The nearly eleven year delay by the court cannot be attributed to Hankins and excuses the exhaustion requirement under 28 U.S.C. § 2254(b).
IV.
We appreciate the requirements of comity, but as we have held under similar circumstances, further deference to the state courts would be inappropriate and would deny fundamental rights guaranteed to all defendants. Burkett v. Cunningham, 826 F.2d 1208, 1218 (3d Cir.1987) (delay of three and a half years between conviction and sentencing and a further delay of almost two years caused by trial court hindrance of appeal constitutes inordinate delay). Therefore, we hold that the inordinate delay of nearly eleven years in deciding Hankins’ motion for withdrawal of guilty plea has rendered state process ineffective to protect Hankins’ rights.
We will reverse the dismissal of the ha-beas corpus petition, excuse exhaustion of state remedies, and remand to the district court for consideration of the merits of Hankins’ constitutional claims.
. We note that Hankins has been given a tentative parole date of January, 1995. It appears that Hankins completed a term of five to ten years on an unrelated charge before serving the sentence arising from the guilty plea currently under attack. United States ex rel. Hankins v. Wicker, 582 F.Supp. 180, 181 (W.D.Pa.1984), aff’d, 782 F.2d 1028 (3d Cir.1986), cert. denied, 479 U.S. 831, 107 S.Ct. 118, 93 L.Ed.2d 64 (1986).
. The court allowed the attorney to withdraw because the motion for withdrawal of guilty plea was based in part on Hankins’ claim of ineffective assistance of counsel.
. The same district court judge, now deceased, decided both the 1984 and 1985 petitions.
. The district court concluded: "Petitioner has presented another habeas corpus petition which recites the same grievance which he presented at C.A. 84-70 Erie in which we ordered a state court hearing.” Hankins v. Fulcomer, No. C.A. 85-34 Erie (W.D.Pa. Feb. 1, 1985). In C.A. 84-70 the district court ordered a state court hearing, in response to Hankins’ 1984 habeas petition on the unrelated conviction. After some delay, the state court held the required hearing and denied the relief sought.
.No plea bargain appears in the record. The transcript of the colloquy when Hankins entered his guilty plea on May 5, 1980 shows that the judge asked, "Are you aware of any plea bargain in this case?” Hankins’ court-appointed attorney answered, “No.”
. See, e.g., Wojtczak v. Fulcomer, 800 F.2d 353, 355 (3d Cir.1986) (delay of three and a half years in consideration of petition for appeal constitutes inordinate delay); United States ex rel. Geisler v. Walters, 510 F.2d 887, 893 (3d Cir.1975) (delay of three and a half years in disposition of motion for new trial constitutes inordinate delay).
. The comment to Rule 321 explains that a motion for withdrawal of guilty plea must be made initially in the trial court in order to give that court the first opportunity to correct any errors and to provide a full record in case of appeal.
. Hankins stated in his 1985 pro se habeas corpus petition and he repeats in this case that there is "[n]o remedy available without final disposition in [the] lower trial court." Hankins also states: "There is no adequate state remedy available because the lower trial court failed to render final disposition ... and no direct appeal rights exist.” In an “Affidavit in Support” dated February 16, 1990 and sent to the district court along with his habeas corpus petition, Hankins concluded: "To this date, after many inquiries to the presiding judge, no ruling, answer, or opinion to allow me an appeal, if needed, was ever rendered in this matter....”
. P.C.R.A. was formerly named the Post Conviction Hearing Act (P.C.H.A.), 42 Pa.C.S. § 9541 et seq. (repealed in part and renamed on April 13, 1988).
. We also note that state habeas corpus relief is not necessarily available to Hankins. Pennsylvania has established a hierarchy of appeals, under which post-conviction collateral proceedings must ordinarily be pursued before habeas corpus applications are made and motions for withdrawal of guilty plea must be decided before post-conviction collateral relief is sought. 42 Pa.C.S.A. § 6503(b) and Pa.R.Crim.P. 1501 comment. See, e.g., Commonwealth ex rel. Wardrop v. Warden, State Correctional Inst., 237 Pa.Super. 502, 506, 352 A.2d 88, 90 (1975) (petition for writ of habeas corpus is dismissed because "we can find no justification for allowing the appellant to bypass the exclusive, well-defined procedures for presentation of those grievances set forth in the [Post-Conviction Hearing] Act”). The failure of the Crawford County Court to dispose of Hankins’ motion for withdrawal of guilty plea may have effectively prevented the prisoner from climbing this hierarchy of collateral relief. In addition, Pa. R.Crim.Proc. 1701(a) would direct any habeas corpus petition by Hankins to be filed in the same Crawford County Court. Even if the Pennsylvania courts might consider making a specific exception to these general rules for Hankins, the inordinate delay in this case clearly excuses the exhaustion of state remedies.
. See, e.g., Commonwealth v. McNeil, 293 Pa.Super. 310, 316, 439 A.2d 127, 130 (1981) (the lower court took "every possible step" to ensure that defendant’s rights of guilty plea withdrawal were protected, therefore defendant himself waived his rights); Commonwealth v. Carl, 267 Pa.Super. 156, 159, 406 A.2d 566, 567 (1979) (defendant did not waive his rights of guilty plea withdrawal because the lower court failed in its duty to protect those rights).
. See Schandelmeier, 819 F.2d at 55 ("a new gloss would have been put on this case” had there been evidence of “any motion in any state court”). | What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "criminal". | What is the specific issue in the case within the general category of "criminal"? | [
"federal offense",
"state offense",
"not determined whether state or federal offense"
] | [
1
] | songer |
James P. TAYLOR, Appellant, v. UNITED STATES of America, Appellee. James Peter TAYLOR, Appellant, v. UNITED STATES of America, Appellee.
Nos. 16350, 16351.
United States Court of Appeals Eighth Circuit.
July 29, 1960.
John Quinn, St. Louis, Mo., made argument for the appellant.
Fallon Kelly, U. S. Atty., St. Paul, Minn., made argument for the appellee.
Before GARDNER, WOODROUGH and VOGEL, Circuit Judges.
VOGEL, Circuit Judge.
These appeals are from the denial by the United States District Court for the District of Minnesota of appellant’s motions brought under 28 U.S.C.A. § 2255 to vacate and set aside sentences imposed upon him in 1956 following his pleas of guilty to charges of murdering the cashier of the Northern State Bank of Thief River Falls, Minnesota, and transporting in interstate commerce counterfeited and stolen travelers checks. Appellant was sentenced to two terms of ten years and to life imprisonment sentences to run consecutively. His initial motion alleged that he was insane at all times he appeared before the District Court as well as at the time of the crimes alleged. Additionally, he charged that his court-appointed counsel was incompetent and acted in collusion with the United States Attorney. Accompanying appellant’s motion were five exhibits detailing his medical and personal history. Judge Nordbye, before whom all proceedings were held, denied without a hearing the initial motion to vacate on the ground that it was “wholly without merit and substance” so that under the statute “the files and records of the case conclusively show that the prisoner is entitled to no relief”. 28 U.S.C.A. § 2255.
Specifically, as to the claim of insanity, the court relied upon its observation of appellant’s demeanor during the times he appeared before it, upon a detailed statement made by him to agents of the Federal Bureau of Investigation following his pleas of guilty, upon the fact that at no prior time during the disposition of the case did he contend that he was insane or incompetent, and upon a supplemental report filed at the request of the court by psychiatrists who examined him at the time of his trial, which report concluded that he was “mentally competent to be able to understand the proceedings against him and properly to assist in his own defense”.
As to appellant’s assertion that he was denied the assistance of competent counsel and that his counsel acted in collusion with the United States Attorney, the court noted that appellant himself had thanked the court “for appointing me two such conscientious and capable attorneys who have truly demonstrated the American way in spirit as well as in fact”, and explained further that:
“In all my years on the Bench, I have never had a court-appointed attorney who gave more of his time and personal funds to defend an indigent defendant than Mr. Nemerov, and now how ironical it is that he should be charged by Taylor with the fantastic claim of collusion and fraud when counsel gave to this defendant honest, devoted and competent legal services without stint. * * * Such charges of fraud and collusion are as baseless as the charges Taylor makes against the United States Attorney.”
Subsequent to the court’s denial of his initial petition appellant moved for a default judgment thereon upon the ground that the United States had failed to make any answer to the orginal motion and that therefore all its statements-and contentions must be deemed to have been correct. This subsequent motion was denied by the District Court, these decisions appellant appeals. From both
Turning first to the question of whether or not the court erred in denying appellant a hearing on his allegation that he had been denied the effective assistance of counsel, a review of the record indicates conclusively a lack of substance to this charge. Appellant first appeared in court on December 16, 1955, at which time he requested that the court appoint as his counsel one of three named lawyers. Irving Nemerov, one of the three so named, was subsequently appointed. On February 6, 1956, Mr. Nemerov moved that the court appoint counsel to assist him, pursuant to which motion Walter E. Riordan was named. Appellant’s counsel thereafter made and argued sixteen different motions on his behalf, which motions included requests to dismiss all counts of the indictment, to continue the trial, to change its venue, and to order the production of certain documents and lists. Additionally, a supplementary motion for continuance was made, argued and granted. Following the appellant’s pleas of guilty to the charged offenses, counsel requested that the court have him examined by three psychiatrists to determine whether or not he was then suffering from any brain injuries. Counsel also presented to the court by way of mitigation a detailed and comprehensive review of appellant’s entire personal and medical history. Finally, appellant's counsel Nemerov delivered to the court an eloquent and persuasive argument against the imposition of capital punishment.
We have examined in detail the tremendous record in this case. In summary, it reveals that appellant was at all times the beneficiary of outstanding, conscientious and dedicated legal assistance. We know of no instance where the rights of an accused received greater care or consideration. We know of no instance where appointed counsel, working without pay and expending their own funds, or, for that matter, of counsel working for pay, exceeded the thought, the care, the caution as well as the ability exhibited herein. Solid months of time and substantial personal funds went into the defense of this man’s life and his right to be dealt with fairly when facing a criminal charge carrying a possible death penalty.
In support of this conclusion, the record indicates that the trial court stated on April 6, 1956, at which time appellant changed his pleas of not guilty to ones of guilty, that:
“ * * * I want to express my deepest appreciation to Mr. Nemerov and Mr. Riordan for the very efficient, faithful, and loyal service they have rendered at the request of the Court, which has continued now for many months.”
The court again expressed its appreciation to counsel on July 5, 1956, on which day it sentenced appellant, when it declared that it:
“ * * * wishes to express his sincere appreciation to Messrs. Nemerov and Riordan for the efficient and faithful legal services which, without compensation, they have rendered to this defendant under appointment of this Court.”
The defendant himself stated in court that day that:
“I, too, would like to thank His Honor and this Court for appointing me two such conscientious and capable attorneys who have truly demonstrated the American way in spirit as well as in fact. These men have done everything in their power to protect my rights and at the same time to see justice done.”
Appellant’s counsel Nemerov explained, in regard to his defense of appellant, that:
“I knew that I had to become his friend. It took time to become his friend. I felt it was my duty, Your Honor, to check out anything he might tell me, and I did to the best of my ability, and all alone. * * * I checked out everything I could find, and Taylor and I became friends and Taylor and I started to chart our course together long ago.”
Lastly, Mr. Nemerov stated, following the sentencing of appellant:
“This defendant was given every advantage of his right to counsel. In not one instance was he treated differently than he would have been if he had had unlimited funds.”
The Sixth Amendment does not require for its satisfaction that the actions of counsel result in a favorable outcome. Rather, its requirement is met whenever the accused is supplied counsel who exercises that judgment which might be expected of one trained in the law and committed to the diligent application of its principles. Mitchell v. United States, D.C.App.1958, 104 U.S.App.D.C. 57, 259 F.2d 787, certiorari denied 1958, 358 U.S. 850, 79 S.Ct. 81, 3 L.Ed.2d 86. Under this standard of reasonableness, numerous decisions have affirmed the denial of a hearing upon § 2255 claims of ineffective counsel. Mitchell v. United States, supra; United States v. Trumblay, 7 Cir., 1958, 256 F.2d 615, certiorari denied 1959, 358 U.S. 947, 79 S.Ct. 355, 3 L.Ed. 2d 353; Dario Sanchez v. United States, 1 Cir., 1958, 256 F.2d 73; Adams v. United States, D.C.App.1955, 95 U.S.App. D.C. 354, 222 F.2d 45; Pelley v. United States, 7 Cir., 1954, 214 F.2d 597, certiorari denied 1955, 348 U.S. 915, 75 S. Ct. 296, 99 L.Ed. 718. In both Pelley and Trumblay the appellate courts noted, among other factors, that the movant chose his own counsel. In Dario Sanchez and Adams the opinions emphasized that the trial courts had pointedly thanked the movants’ counsel for their diligent efforts. Moreover, in the former decision the court explained that:
“Certainly the judge who presided at the trial, and thus was perfectly well aware of the services rendered by court-appointed counsel, had no obligation to call a hearing on the defendant’s § 2255 motion, in order to waste time while the defendant undertook to make specific his vague general allegations of counsel’s inadequacy.” Dario Sanchez v. United States, supra, 256 F.2d at page 75.
We, therefore, conclude that the trial court correctly ruled that, insofar as the appellant claimed the ineffective assistance of counsel, a hearing was not required because “the files and records of the case conclusively show that the prisoner is entitled to no relief”. 28 U.S.C.A. § 2255.
Appellant’s motion to vacate also alleged that his counsel, Mr. Nemerov, acted in collusion with the United States Attorney. No facts are asserted in support of this conclusion. The only conceivable basis for it is the statement made by Mr. Nemerov at the hearing to determine whether or not a jury should be empaneled to determine appellant’s punishment to the effect that he did not agree with the decision in Durham v. United States, D.C.App.1954, 94 U.S.App.D.C. 228, 214 F.2d 862, 875, 45 A.L.R.2d 1430, in which the Court of Appeals for the District of Columbia held that a criminal was not responsible for his crime if his unlawful act “was the product of mental disease or mental defect”. Counsel, however, further explained that his reason for not urging the adoption of the liberal Durham rule was that appellant did not contend that he was insane at the time of the crime but rather that his mental condition then and during trial should be viewed as a mitigating circumstance in the determination of his punishment. Moreover, an examination of the entire record reveals that all the proceedings involving appellant were adversary in nature. Typical evidence of this fact appears in a statement made by Mr. Nemerov to the effect that:
“I felt it was my duty, Your Honor, to check out anything he might tell me, and I did to the best of my ability, and all alone. I pleaded with the United States Attorney for help at times and got nothing but a sarcastic answer, if not an answer of cold silence; but I checked out everything I could find, * *
In conclusion, there is nothing in the record which controverts the finding of the District Court that:
“Such charges of fraud and collusion are as baseless as the charges Taylor makes against the United States Attorney.”
Considering next the allegation of appellant’s motion that he was insane at the time of the crime, we hold that the trial court again correctly determined that he was not entitled to a hearing thereon. The rule governing this situation is well stated in Bishop v. United States, D.C.App.1955, 96 U.S.App.D.C. 117, 223 F.2d 582, 584, reversed on other grounds 350 U.S. 961, 76 S.Ct. 440, 100 L.Ed. 835, wherein the court explained:
“The issue of insanity as a defense is presentable upon the trial and appealable if error has been made in respect to it, and a motion to vacate under Section 2255 cannot be used as a substitute for an appeal. Therefore an alleged insanity at the time of the commission of a crime cannot be used as a basis for a motion under Section 2255.”
See, also, Hallowell v. Hunter, 10 Cir., 1951, 186 F.2d 873, and Hahn v. United States, 10 Cir., 1949, 178 F.2d 11.
Turning finally to the major import of appellant’s motion — that is, his alleged incompetency at all times during the proceedings against him in the District Court — he asserted that his mother had been committed to a mental institution as a psychopath, that he had suffered a series of severe cerebral concussions which necessitated his hospitalization and which resulted in his progressively more asocial conduct, and that he was discharged from the Navy because of a mental defect. Additionally, appellant alleged that since being sentenced he has been confined on account of his mental illness at the Medical Center for Federal Prisoners at Springfield, Missouri, and that during the Sixth Seminar in Forensic Psychiatry, conducted at the Center in 1957 and sponsored by the Menninger Foundation, he was described as being mentally ill.
Attached to appellant’s motion were five exhibits. Exhibit 1 contained excerpts from his military medical history records. His discharge examination detailed a head injury he received approximately three months prior to enlistment and stated that as a consequence he suffered from headaches, dizziness and sleeplessness. Under the category of “mental status”, the record explained that:
“He has some confusion of thought processes at times, has becoming increasingly irritable for several months, and has definite memory defects * * * At staff conference this date (7/22/43) it was the concensus of opinion that this patient is suffering from the effects of the concussion which he received in 1941 and which was aggravated by a similar injury in 1943.”
Exhibit 2 was excerpts from the proceedings of the Sixth Seminar in Forensic Psychiatry, which conference described appellant as “quite ill”, in an “agitated state of depression”, suffering “manifested paranoid delusions”, showing “psychotic decompensation with chaotic and uncontrolled emotional expression and questionable depersonalization”, and manifesting “schizophrenic reaction, chronic”. Exhibit 3 detailed the first two annual reviews of appellant's mental condition at the Springfield Hospital, which described him as suffering from:
“Schizophrenic reaction, chronic undifferentiated type, manifested by autistic thought, paranoid trends, flatness of affect, defective interpersonal relations, uncontrolled antisocial and homicidal traits.”
Exhibit 4 contained excerpts from the F.B.I.’s pre-sentence investigation of appellant. It established that he had suffered head injuries in 1941, 1942, 1943, and 1948, that he had at several times expressed a desire to receive psychiatric help and had at one time consulted such a physician, and that his conduct generally over a period of years had been erratic and his personality and general health that of a disturbed, mentally unwell person. Exhibit 5 referred to records of the Veterans Administration in regard to appellant’s treatment at various Veterans Hospitals for head injuries. In connection with such treatment, he was in 1949 referred to a psychiatrist and did that same year require physical restraint in order to prevent injury to himself.
Mindful as we are of the fact that the District Court observed the appellant’s demeanor on eight separate occasions and that it examined the detailed statement made by him to agents of the F.B.I., we, nonetheless, conclude that appellant’s initial motion to vacate and the exhibits accompanying it raise a question of fact as to his competency which is not conclusively resolved by the files and records so as to make a hearing thereon unnecessary. This conclusion we believe is amply supported by relevant authority.
In Smith v. United States, 9 Cir., 1959, 267 F.2d 210, the defendant’s motion to vacate on the ground that he was incompetent at trial was denied without a hearing. The allegations of the motion were that he had received a medical discharge from military service on account of mental defects, had previously been a patient of a Veterans Administration psychiatrist, and after conviction had been confined as a mental patient at the federal hospital in Springfield, Missouri. The Court of Appeals noted that the trial judge stated that he had observed the defendant’s demeanor at trial and found him competent. Nonetheless, it reversed the lower court and ordered a hearing on defendant’s motion because the claims therein raised a factual question as to his competency. Similarly, in Gregori v. United States, 5 Cir., 1957, 243 F.2d 48, the Court of Appeals reversed a decision of the trial court denying a § 2255 motion without a hearing, which motion raised the question of defendant’s mental compentency and alleged that he had been medically discharged from the Navy and hospitalized after conviction. In Bishop v. United States, supra, the Court of Appeals affirmed the denial of a § 2255 ineompetency motion without a hearing, relying largely upon the trial court’s observation of defendant’s demeanor and upon a psychiatric examination prior to trial which found him sane. This decision was reversed in a per curiam opinion by the Supreme Court and the cause remanded for a hearing in the District Court, 350 U.S. 961, 76 S.Ct. 440, 100 L.Ed. 835. In Sanders v. United States, 5 Cir., 1953, 205 F.2d 399, the trial court denied a hearing on a § 2255 motion questioning the defendant’s mental competency in part because of its observation of his demeanor. This decision was reversed by the Court of Appeals and a hearing ordered. See, also, Norman v. United States, 9 Cir., 1960, 276 F.2d 377; Bell v. United States, 9 Cir., 1959, 269 F.2d 419; Smith v. United States, 9 Cir., 1958, 259 F.2d 125.
In regard to appellant’s failure to raise the question of his mental competency at any time during the proceedings taken against him, it should be noted that this court in Cain v. United States, 8 Cir., 1959, 271 F.2d 337, 338, stated that the files and records of the case may “conclusively show that the prisoner is entitled to no relief” and thereby justify the denial of a hearing, if those records demonstrate “that the petitioner had prior opportunities to urge the claims of his motion and failed to do so * * Decisions of several courts have held movants not entitled to hearings under § 2255 on their alleged ineompetency for that reason. Cason v. United States, 4 Cir., 1955, 220 F.2d 510, certiorari denied 1955, 349 U.S. 966, 75 S.Ct. 899, 99 L.Ed. 1287; Bistram v. United States, D.C. N.D.1960, 180 F.Supp. 501 ; United States v. Cope, D.C.W.D.Mo.1956, 144 F. Supp. 799. However, in Smith v. United States, 9 Cir., 1959, 267 F.2d 210, the Court of Appeals ordered a hearing upon appellant’s motion despite the fact that the lower court had pointed out that he had had an opportunity to but did not raise the question of his mental competency before it. Similarly, the Court of Appeals’ opinion in Bishop v. United States, supra, which decision was reversed by the Supreme Court, relied upon the fact that the incompetency contention had not been raised before the trial court. Finally, in Sanders v. United States, supra, the Court of Appeals held that the movant’s failure to urge his contention of mental incompetency before the trial court did not prejudice his right to a hearing thereon under § 2255.
The Cain decision of this Circuit did not involve a claim of mental incompetency. It is our conclusion that its rationale and that of other cases applying like reasoning to incompetency contentions does not and should not apply to motions so based, for, if one is mentally incompetent, then, by definition, he cannot be expected to raise that contention before the trial court and thus cannot be prejudiced by his failure to do so.
As to the propriety of the District Court’s reliance on the supplemental report filed by the three psychiatrists, the original examination of appellant by those doctors was made at the request of defense counsel, after the trial judge had indicated his willingness to receive any evidence of mitigating circumstances, in order to determine whether or not appellant was then suffering from a brain injury. That initial report found no evidence of any intercranial injury or other brain damage. It admittedly, however, did not address itself to appellant’s mental competency.. Following appellant’s motion to vacate, the District Court requested the three psychiatrists to file a supplemental report dealing with appellant’s “mental condition” at the time their examination was made. That report states in detail the history which was obtained from appellant at the time of the original examination. Additionally, it explains that at the earlier date the doctors “went over with him the events that led up to his crime”. Under the category of “psychiatric examination”, those doctors stated:
“His attention, perception, was normal. His memory was very good for recent and past events. He was oriented for time, place and person. His mental reflexes were active.
There was no evidence of mental confusion. Sensorium was clear. There was no gross disturbance in his emotions. He comprehended well. There was no evidence of any auditory or visual hallucinations or no evidence of any delusions. .
The psychiatric examination showed nothing unusual.”
Their report concluded that:
“Our contact with James P. Taylor would force us to the conclusion that he was not insane and that he was mentally competent to be able to understand the proceedings against him and properly to assist in his own defense.”
It is established that proceedings following motions to vacate brought under § 2255 must be independent of and separate from the original action. Simmons v. United States, 10 Cir., 1956, 230 F.2d 73, 74, certiorari denied 1956, 351 U.S. 927, 76 S.Ct. 784, 100 L.Ed. 1457; Bruno v. United States, D.C.App.1950, 86 U.S.App.D.C. 118, 180 F.2d 393, 395. Thus, either the “files and records” of the original proceedings must “conclusively show that the prisoner is entitled to no relief” or a hearing must be held which is not ex parte in nature. 28 U.S.C.A. § 2255; United States v. Hayman, 1952, 342 U.S. 205, 72 S.Ct. 263, 96 L.Ed. 232. The supplemental report relied upon by the lower court here admittedly adds only a new conclusion, based upon previously obtained evidence, upon a question not before considered. However, it is literally not part of the “files and records” of the initial proceedings and was arrived at through an ex parte procedure. We, therefore, conclude that it could not properly serve as one of the bases for denying appellant a hearing upon his motion.
Lastly, as to appellant’s subsequent motion for a default judgment on his original claim because the United States failed to reply in the initial proceedings, the District Court’s denial was obviously correct. § 2255 provides that notice of a motion to vacate shall be served upon the United States Attorney “unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief”. The District Court’s holding on the original motion to the effect that a hearing thereon was not required, whether or not that conclusion be affirmed on appeal, made notice to the United States Attorney unnecessary and in the absence of such notice, no response by him can be expected.
In conclusion, then, we hold that the appellant was entitled to a hearing on his motion to vacate insofar as it alleged that he was mentally incompetent during the proceedings against him in the District Court.
No. 16,350 — Reversed and remanded.
No. 16,351 — Affirmed.
. An alternative ground for the holding was that the petition violated the “second or successive motion” limitation of 28 U.S.C.A. § 2255. | 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 "sub-state governments, their agencies, and officials". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. | What is the total number of appellants in the case that fall into the category "sub-state governments, their agencies, and officials"? Answer with a number. | [] | [
0
] | songer |
In the Matter of the Petition of O. L. SCHMIDT BARGE LINES, INC., as owner of the MOTOR VESSEL MARY R, for exoneration from or limitation of liability.
Nos. 71-1498 to 71-1500.
United States Court of Appeals, Seventh Circuit.
Argued Nov. 27, 1972.
Decided March 7, 1973.
Rehearing Denied April 9, 1973.
Paul McCambridge, Philip H. Corboy, Chicago, Ill., for appellant.
Joseph V. McGovern, Michael A. Snyder, Chicago, Ill., for appellee.
Before KILEY and STEVENS, Circuit Judges, and ESCHBACH, District Judge.
District Judge Jesse E. Eschbach of the Northern District of Indiana is sitting by designation.
ESCHBACH, District Judge.
A petition was brought in the district court by O. L. Schmidt Barge Lines, Inc. (“Schmidt”), as owner of the tugboat M/V MARY R, for exoneration from or limitation of liability for loss, damage and injury arising out of a collision on the Little Calumet River between the barge in tow of the MARY R and a motorboat owned and operated by Joseph Moss. Claims for damages for personal injuries were filed in limitation proceedings by Moss and the other occupants of the motorboat who survived the collision (Dean Steglieh, Peter O’Malley and Lawrence Regan). Claims for wrongful death were filed by the Administrator of the Estate of George O’Donnell, Jr., an occupant of the motorboat who was drowned in the accident, against both Schmidt and Moss. After a trial on the issue of liability before the district court sitting in admiralty, a decree was entered exonerating Schmidt from liability for the casualty. Judgment was also entered granting recovery for the decedent’s estate on the issue of liability on its cross-claim against Joseph Moss.
Moss appeals in No. 71-1499 from the judgment of the trial court finding him liable for the collision and, in No. 71-1500, from the decree exonerating Schmidt. The latter appeal originally included claimants Steglieh, O’Malley and Regan, but was later dismissed as to them pursuant to their motion. O’Donnell’s estate appeals only from the decree of exoneration in favor of Schmidt. (No. 71-1498). We affirm.
The collision occurred at about 9:00 P.M. on August 19, 1968, immediately west of the Indiana Avenue Bridge over the Little Calumet River at Chicago, Illinois. The MARY R was proceeding down the river in a westerly direction pushing in front of it Barge No. 26, a 254-foot tank barge which was empty at the time. As the MARY R approached the Indiana Avenue Bridge, its speed was slowed to enable passage of the 50-foot wide barge through the south draw of the bridge, a passage having a width of about 62 feet. The towboat maintained a speed of about three miles per hour until the time of the collision. The pilot of the MARY R used a searchlight to illuminate the banks of the river and the pilings protecting the south draw of the bridge. Gerald Toomey, a deckhand who was acting as lookout, stood on the forward end of the barge with his back to the pilot and gave flashlight signals to guide the barge through the opening. As the head of Barge 26 cleared the east pile clusters of the south draw, Toomey turned and walked aft on the barge to take down a warning flag so that it would not hit the underside of the bridge as the barge passed through the draw.
As the MARY R was descending the river toward the Indiana Avenue Bridge, the 16-foot outboard motorboat which Moss had purchased only two days earlier was docked at the Seaways Marina gas dock which was located on the north bank of the river approximately 130 feet west of the Indiana Avenue Bridge. Moss and his companions had stopped there shortly after 8:00 P.M. to purchase some beer in a tavern at the marina. Moss had never owned a boat prior to August 17, 1968, and had no significant experience operating a boat. He had taken the new boat out on only one prior occasion, on August 18, the day before the accident, and had been through the Indiana Avenue Bridge on one round trip. The boat contained no life preservers or buoyant apparatus of any kind.
Moss and Steglich remained in the boat while O’Malley, Regan and O’Donnell went up to the tavern at Seaways Marina. When the three young men returned some time later, Moss departed from the gas dock and proceeded toward the south draw of the bridge on a course roughly parallel to Indiana Avenue. Prior to the collision, a witness on the north shore near the marina observed the starboard and bow running lights of the barge as it began emerging from the draw of the bridge. The small boat collided with the front of the barge just as the latter was clearing the protective pile cluster at the northwest corner of the bridge draw. The occupants of the motorboat jumped out just prior to contact and all but O’Donnell reached safety.
The trial court found that Moss was guilty of a number of violations of the Rules of the Road for Western Rivers, 33 U.S.C. § 301 et seq., and the Pilot Rules for Western Rivers, 33 C.F.R. § 95.01 et seq. The court found that these violations eonstitituted gross fault in the aggregate and were sufficient in themselves to account for the collision. As to the conduct of the MARY R, the court found no violation of Rule 24(b) of the Rules of the Road, 33 U.S.C. § 349(b), which provides that when a vessel is approaching a blind bend and has a tow ahead of her, “[W]hen the head of such tow is within six hundred yards of the bend . . . [she] shall give a signal by three distinct blasts of her whistle.” It was further found that even if Toomey had been positioned in the most favorable possible place to observe approaching craft as the barge emerged from under the bridge, he could not have seen or warned Moss in time to prevent the collision.
In an admiralty case, as in the ordinary civil case under Rule 52(a) of the Federal Rules of Civil Procedure, the findings of the trial court may not be set aside unless they are clearly erroneous. Commercial Transport Corp. v. Martin Oil Service, Inc., 374 F.2d 813, 817 (7th Cir. 1967); In re Rapp’s Petition, 255 F.2d 628, 632 (7th Cir. 1958). Although appellants challenge a number of the court’s conclusions of law, the main thrust of their argument on appeal is that the evidence at trial did not support the court’s decision as a factual matter. We find nothing in this record to indicate clear error in the findings of the experienced trial judge who heard the evidence and observed the witnesses in this case.
An examination of the record shows that the pilings and center pier of the bridge effectively obstructed the view which a lookout stationed at the head of the barge would have had of the Moss boat until seconds before the collision. The precise amount of time can be estimated at somewhere from one to five seconds on the basis of evidence as to the location at which the collision occurred (five to twenty feet west of the northwest pile cluster) and the testimony of the occupants of the motorboat that they did not see the barge until two to five seconds before the collision. Under these circumstances, the finding that Toomey’s absence from the head of the barge was immaterial and could not have been a contributing cause of the collision is substantially supported by the evidence. Therefore, even if there was a breach of the duty to keep a proper lookout, the fact that a lookout could not have prevented the collision precludes a finding of liability on that basis. Tidewater Associated Oil Co. v. United States, 60 F.Supp. 376 (S.D.Calif.1945); The Bouker No. 2, 254 F. 579 (2d Cir. 1918); The Transfer No. 21, 248 F. 459 (5th Cir. 1918). Appellants contend that a failure to keep a proper lookout is a statutory fault which casts upon Schmidt the burden, under the rule of The Pennsylvania, 19 Wall. 125, 86 U.S. 125, 22 L.Ed. 148 (1874), of showing “not merely that her fault might not have been one of the causes, or that it probably was not, but that it could not have been.” See Ulster Oil Transport Corp. v. The Matton No. 20, 210 F.2d 106 (2d Cir. 1954); Gulf Oil Corp. v. The Socony No. 16, 162 F.2d 869 (2d Cir. 1947). Compare Anthony v. International Paper Company, 289 F.2d 574 (4th Cir. 1961). As indicated above, however, the court specifically found that such a showing had been made by stating that “[e]ven if a lookout were required on the starboard forward corner, he could not have seen or warned Moss in time to prevent the collision.”
Appellants attempt to attribute fault to the MARY R for not sounding a danger signal as required by Rule 24(a) of the Rules of the Road for Western Rivers, 33 U.S.C. § 349(a), or otherwise warning Moss prior to the collision. Rule 24(a) provides as follows:
If, when steam vessels are approaching each other either vessel for any reason fails to understand, or regards as unsafe, the course or intention of the other, the vessel in doubt shall immediately so signify by giving several short and rapid blasts of her whistle, at least four, the danger signal.
We agree with Schmidt that the rule applies only to those situations where a vessel is aware of “the course or intention of the other vessel”. In light of the inability of the MARY R to see the Moss boat until it was too late to avoid the collision, any warning would have been futile and the rule requiring a danger signal is inapplicable.
The trial court found that the MARY R did not violate Rule 24(b), 33 U.S.C. § 349(b), which requires a bend signal to be sounded “within 600 yards” of a blind bend in the river. The court interpreted the rule as not prescribing a minimum distance within which such a signal must be sounded and that the practice of the pilot of the MARY R to sound a bend signal as soon as he cleared the Indiana Avenue Bridge was “both reasonable and prudent”. It is unnecessary, however, to decide whether the trial court’s interpretation of the language “within 600 yards” was correct or whether, given that interpretation, the finding of reasonableness was erroneous. The court in its conclusions of law stated as follows:
There are many cases where the vessels failed to blow a bend signal at all and were found at fault for colliding with vessels rounding bends, but none of these eases is analogous, because this collision did not happen at a bend, and Moss was never around the bend at any time when the Mary R was within 600 yards of the bend. The law did not contemplate the sounding of a signal for the benefit of Moss, only for the benefit of vessels below the bend. (Emphasis supplied.)
We agree that the bend signal rule imposed no duty upon the MARY R with respect to Moss.
The question of the applicability of the bend signal rule to the facts of this case is controlled by principles recently stated by the Supreme Court in Union Oil Company of California v. The Tugboat San Jacinto, 409 U.S. 140, 93 S.Ct. 368, 34 L.Ed.2d 365 (1972). In that case, the SS SANTA MARIA and the tugboat SAN JACINTO were approaching on opposite sides of a well-defined and relatively narrow channel. Although the visibility in the direction in which the SANTA MARIA was headed was almost two miles, there was heavy fog to the left. The SAN JACINTO emerged from the fog bank only 900 feet away; executing a U-turn in front of the SANTA MARIA which caused a barge in the tow of the SAN JACINTO to crash into the bow of the SANTA MARIA. The Court of Appeals held that the SANTA MARIA violated Rule 16 of the Inland Rules of Navigation, 33 U.S.C. § 192, “the half-distance rule” which requires a vessel to travel in conditions of fog at a speed which will enable it to come to a standstill before it would collide with a vessel it could see through the fog. The Supreme Court reversed the judgment for half-damages against the SANTA MARIA which the Ninth Circuit had based on such statutory fault. The Court found implicit in the rule the assumption that vessels can reasonably be expected to be traveling on intersecting courses, and went on to state that:
“There is no evidence in the record suggesting that the speed of the tanker would have prevented her from coming to a complete halt within half the distance of sighting a vessel that was either proceeding on a remotely foreseeable intersecting course or else being overtaken by her. The tug emerged from a fog bank only 900 feet from the tanker on a course and for reasons that no seaman could, under the circumstances, have anticipated.” 93 S.Ct. at 372.
The Court held that “fault based on the half-distance rule must have some relationship to the dangers against which that rule was designed to protect”. Therefore, liability rested on the SAN JACINTO alone.
Likewise, in the instant case, fault based upon the bend signal rule must have some relationship to the dangers against which that rule was designed to protect. The rule clearly applies only to situations in which a steam vessel “is nearing a bend in a channel where, from the height of the banks or other cause, a steam vessel approaching from the other direction cannot be seen for a distance of six hundred yards. . . . ” 33 U.S.C. § 349(b). The rule was designed to protect against the danger of collision- between vessels whose vision of each other is obscured by a bend in the channel. There was no bend in the Little Calumet River which obscured the Moss boat from the view of the MARY R. The obstruction was the Indiana Avenue Bridge. Appellants do not contend that the bend signal rule should be interpreted to require such a signal six hundred yards from every obstruction to a full view of the channel ahead. They assert merely that the signal should have been sounded above the Indiana Avenue Bridge for the bend in the river some 400 yards downstream from the bridge. However, we cannot agree that the failure to timely sound such a signal to warn vessels on the other side of the bend results in fault for collisions with vessels hidden from view by a bridge which is fortuitously situated within 60 yards of the bend. If any duty is owed to approaching vessels which may be hidden by a bridge, the requirement of a signal should not be determined by whether there happens to be a bend in the river nearby. Therefore, the district court was correct in holding that the MARY R was not at fault for not sounding a bend signal before passing under the Indiana Avenue Bridge. Under Union Oil, supra, the collision between the Moss boat and the MARY R had no relationship to the dangers against which the bend signal rule was designed to protect.
Appellants urge that the MARY R should not he exonerated from liability-on the basis of the rule that “where the active fault of one vessel so flagrantly and heavily outweighs the passive faults of omission of the other vessel, the interests of justice are best served by condemning the more culpable vessel completely”. Cia. Maderas, etc. v. The Queenston Heights, 220 F.2d 120, 123 (5th Cir. 1955), cert. denied, 350 U.S. 824, 76 S.Ct. 52, 100 L.Ed. 736 (1955). Accepting appellants’ contention that such a rule, though well-established, must be carefully applied, we find that the evidence supports the trial court’s finding that the fault of Moss was “glaring” and was sufficient in itself to account for the collision. Discussion of the so-called “major-minor fault rule”, however, is unnecessary because there is ample evidence in the record to support the exoneration of Schmidt even under the strictest standards required by the rule of The Pennsylvania, supra. Since there was no fault on the part of the MARY R for not sounding a bend signal, Schmidt was not required to make a showing that such a fault could not have been a cause of the collision. The only remaining faults urged by appellants arise out of the alleged failure of the MARY R to keep a proper lookout. Although the trial court cited the Cia. Maderas case, supra, Judge Marovitz specifically found, on the basis of substantial evidence, that a properly stationed lookout “could not have seen or warned Moss in time to prevent the collision”. Thus, we need not consider whether the lookout was inadequate, or whether an inadequate lookout would constitute a “major” or “minor” fault. Further inquiry is foreclosed by the finding that no causal connection existed between any such fault and the collision. That finding, not being clearly erroneous, satisfies the strict requirements of The Pennsylvania.
The judgments appealed from are affirmed.
Affirmed.
See also Note, The United States Courts of Appeals: 1971-1972 Term Criminal Law and Procedure, 61 Geo.L.J. 275, 379-81 (1972). | 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. | 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. | [] | [
0
] | songer |
CALLWOOD v. KEAN.
No. 10310.
United States Court of Appeals Third Circuit.
Argued Jan. 29, 1951.
Decided April 23, 1951.
Rehearing Denied May 18,1951.
George H. T. Dudley, Charlotte Amalie, ■Virgin Islands, for appellant.
C. G. Thiele and William W. Bailey, both of Charlotte Amalie, Virgin Islands, for ap-pellee.
Before MARIS, GOODRICH and WOODBURY, Circuit Judges.
MARIS, Circuit Judge.
The plaintiff, Else E. Callwood, has appealed from the judgment entered by the District Court of the Virgin Islands in a suit brought by her against the defendant, Osmond Kean, her former agent, for an accounting of his transactions as her agent and to recover certain mortgages and moneys in his possession which she alleges belong to her. The mortgages and moneys in controversy had been derived from the sale of certain real estate in the town of Charlotte Amalie, on the island of St. Thomas. The defendant, pursuant to a preliminary order of the court, furnished the plaintiff with an accounting and deposited the mortgages, other documents and check books in question with the clerk of the court. Thereafter Clifford W. L. Callwood intervened as a party defendant, with leave of court, claiming an interest in the real estate in question. The issue presented to the district court thereupon became one between the plaintiff and the intervening defendant and involved their respective rights in the proceeds of that real estate.
The plaintiff, Else E. Callwood, and the intervening defendant, Clifford W. L. Call-wood, are the widow and son, respectively, of Richard Edgar Clifford Callwood, whom we shall call the testator. It was stated at bar that the testator was born in 1862 in Road Town, on the island of Tortola, one of the British Virgin Islands. At the age of 15 he came to the island of St. Thomas, then one of the Danish West Indies, to work for the Hamburg American Line. He soon became its wharf manager in which capacity he continued until his retirement in 1913. He married the plaintiff in 1905 and they had two children, a daughter Waldfriede born in 1906 and a son Clifford, the intervening defendant, born in 1908. Waldfriede married in 1934. She died on April 25, 1939.
It appears that during his residence in St. Thomas the testator purchased a number of parcels of real estate in Charlotte Amalie, one of which is the subject of this litigation. Title to that real estate was, however, taken in the name of his sister Anna Callwood who subsequently married Jacob Peiffer. Upon his retirement in 1913 the testator and his family left St. Thomas and went to live in Germany. Previously, on April 25, 1911 he and his wife, the plaintiff, had executed a joint will in the presence of Wilh. Jacobsen, a Notary Public of St. Thomas, who recorded it at length in his protocol. The testator died at Biebrich on Rhine, Germany, on January 17, 1917. It appears that the notarial joint will which he and his wife had executed in St. Thomas was opened and published by the district court at Wiesbaden, Germany, on April 25, 1917 and filed with its records. The pertinent provisions of the will are set out in a footnote.
Upon examining the will we see that, relying on a Danish Ordinance of 1845, the testator in paragraph 1 reserved the right, if survivor, to retain the whole joint estate of himself and his wife without dividing it with their children and by paragraph 2 conferred the same right upon his wife, the plaintiff, if she should be the survivor. The will, however, further provided in that paragraph that the right of the plaintiff to retain the joint estate undivided should be exercised under certain restrictions, namely, that she was immediately upon her husband’s death “to deposit all cash-money, Bonds, Shares, and Securities belonging to the joint-estate and only to draw the interest of same.” It was further stipulated that “In case of unforseen events, which will make it necessary to withdraw the money or to make a change of the securities, this can only be done with the consent of Mr. Jacob Peiffer * * *, or in case of his death with the consent of Mr. Otto Zwanziger * * *, or the person to whom the surviving of these gentlemen may transfer the said authority.” It was also provided that the plaintiff, if she survived, should pay certain annuities to Caroline A. Callwood, the testator’s mother, and to Josephine W. Branson, his sister, during their lives. Neither of these two annuitants is now living. As has been said, the testator and his wife, the plaintiff, at the time of the death of the former in 1917 were residing in Germany and so far as appears the plaintiff thereupon took possession of their joint personal estate and dealt with it in accordance with the provisions of the will and the applicable law. We are not concerned with the personal estate in the present litigation, however.
What is of concern to us in this case is the disposition of No. 38 Dronningens Gade, Queen’s Quarter, one of the parcels of real estate situate in the town of Charlotte Amalie, St. Thomas, which is dealt with by paragraph 3 of the will. That paragraph lists 13 parcels of real estate and recites that although the titles to all of them had been recorded in the name of Anna Peiifer, the testator’s sister, “the greater part belongs to us”. Specifically, the will recites that No. 38 Dronningens Gade, Queen’s Quarter, was owned one-half by Mrs. Peiifer and one-half by C. Callwood, that No. 25 Norregade, King’s Quarter, and No. 36 Vestergade, Queen’s Quarter, were owned one-third by Mrs. Peiffer and two-thirds by C. Callwood. The remaining ten properties were recited as belonging to C. Callwood alone. Paragraph 3 further provides that if the plaintiff should be the survivor, Anna Peiffer should have the use and benefit of all these parcels of real estate for life upon condition that she pay an annuity to Iza Call-wood during their joint lives and upon further condition that she “as soon as possible after my death has the properties recorded in the name of Mrs. Elsa E. Call-wood or if she is not taking possession of our joint-estate, as belonging to this, and that she has recorded as a servitude that they may only be sold or mortgaged with the consent of the gentlemen, keeping the power mentioned in Paragraph No. 2.”
Pursuant to the directions of the will and in accord with a written agreement signed by the plaintiff, Anna and Jacob Peiffer before a Notary Public at Wies-baden, Germany, on April 26, 1924, Anna and Jacob Peiffer, by deed dated June 7, 1924, conveyed to the plaintiff the 13 parcels of real estate in Charlotte Amalie mentioned in paragraph 3 of the will. A life estate was reserved by the deed to Anna Peiffer, subject to the payment by her of the annuity to Iza Callwood as specified in the will, and with the proviso that the property could not be sold, mortgaged or otherwise disposed of without the consent of the “trustees” named in the will, Jacob Peiffer and Otto Zwanziger. The life estate thus given to Anna Peiffer by the will and confirmed by the deed was enjoyed by her during the remainder of her life and until her death on July 11, 1947. The annuity to Iza Callwood was settled by the payment of a lump sum to her in July 1923 by the plaintiff as contemplated by paragraph 4 of the will.
The defendant, Osmond Kean, was employed for nearly thirty years by Anna Peiffer as her agent for the collection of the rents and the management of these properties. On February 20, 1942 the plaintiff and the intervening defendant executed a power of attorney appointing Kean as their agent and attorney in fact to manage, lease and sell their real estate in the West Indies. It was stated at bar that in addition to the real estate in St. Thomas to which we have already referred, the testator was the owner of the Arendella and Cane Garden Bay estates on the island of Tortola as well as the whole of Great Thatch Island, all in the British Virgin Islands, which had been owned by his father, Richard Louis Call-wood, who died intestate in 1902, and that Kean was employed by the plaintiff and the intervening defendant in managing these properties.
On May 20, 1946 Kean, as attorney in fact for the plaintiff and with her approval sold No. 38 Dronningens Gade for the sum of $45,000. The deed to the purchaser was signed by Kean as attorney in fact for both the plaintiff and the intervening defendant. The sale price of $45,000 appears from Kean’s account to have been applied by him as as follows:
To the payment of existing mortgages on the property $3,960.21
To commission and expenses of sale 5,174.78
To investment in mortgage loans
to Paiewonsky and Beretta 25,000.00
To investment in 8/45ths undivided interest in No. 87 Kron-prindsens Gade, Charlotte Am-alie 2,075.00
To payments to, or for the account of, the plaintiff 9,052.70
To payments to the intervening
defendant 650.00
$45,912.69
The excess of these payments over the amount of the sale price was made up out of the sum of $3,000 received by Kean as payments on account of the principal of the Paiewonsky mortgage loans, leaving a balance of cash proceeds of the sale of No. 38 Dronningens Gade in his hands at the time he filed his accounting in the district court amounting to $2,087.31. This sum, together with net rents collected by Kean for the plaintiff, appears to be on deposit in a bank account in the Virgin Islands National Bank at Charlotte Amalie styled “Osmond Kean in Trust for Elsa Callwood and C. W. L. Callwood”. The investments which Kean made in the Paie-wonsky and Beretta mortgage loans and in the %5ths undivided interest in No. 87 Kronprindsens Gade were taken in the names of the plaintiff and the intervening defendant jointly. All of the transactions with respect to the sale of No. 38 Dron-ningens Gade and the investment of the proceeds derived therefrom were carried out without the consent of Jacob Peiffer or Otto Zwanziger, the persons named in the will to exercise that power, Zwanziger having died on September 17, 1929 and Jacob Peiffer on February 18, 1942.
After Anna Peiffer, the life tenant, died on July 11, 1947, a question arose between the plaintiff and her son, the intervening defendant, as to their respective rights and interests in the mortgages, deed and cash in the hands of Kean, which, as we have seen, he holds in their joint names. The plaintiff thereupon revoked the authority of Kean to act as her agent and attorney in fact and, believing that she was entitled to possession of the mortgages, deed and cash in controversy, demanded that he turn them over to her and upon his refusal to do so instituted the suit now before us. As has already been stated, the district court made a preliminary order directing the defendant Kean to file an accounting of his transactions for the plaintiff and to turn over to the clerk of the court the mortgages and other documents held by him as agent, and this was done. Thereafter the court proceeded to consider the respective rights of the plaintiff and the intervening defendant. After full hearing the court filed an opinion in which it concluded :
“(1) That the defendant Osmond Kean has no interest in the property held by him, and should deliver any and all property he may have, and submit an accounting, to Mrs. Callwood, who still holds the whole joint estate, with her joint children;
“(2) That Intervenor, Clifford Callwood, has no possessory interest in the estate which his mother, plaintiff herein, now holds as trustee for herself and heirs, he being one of them. In the event his mother, the plaintiff, Else E. Callwood, should marry, the estate is to be divided as provided by the joint will;
“(3) That the Court should appoint someone in its discretion to take the place of the persons named in the will to whom the plaintiff may go in case of unforeseen events as provided in the will; and
“(4) That the proceeds of the sale of the property No. 38 Dronningens Gade, Queen’s Quarter, together with the mortgage or mortgages which were taken thereon, should also be deposited in such bank as the said person named by the Court may determine.”
The district court entered judgment in accordance with these conclusions and appointed D. Victor Bornn, of St. Thomas, as the successor of Jacob Peiffer, deceased, and Otto Zwanziger, deceased, as the person to exercise the authority conferred by paragraph 2 of the will. From this judgment the plaintiff has appealed. She contends that the court erred in deciding that the property in controversy does not belong to her outright and that the court was without power to appoint Mr. Bornn to exercise the power conferred by paragraph 2 of the will upon Jacob Peiffer and Otto Zwanziger.
While the questions raised in this case are common, at least in part, to all 13 of the parcels of real estate in the town of Charlotte Amalie which are dealt with by paragraph 3 of the testator’s will, those questions are directed in this suit solely to the proceeds of the sale of No. 38 Dron-ningens Gade and the investments made by Kean out of those proceeds. There is no question as to the right of the plaintiff to the income from those investments nor as to her right to the rents of the other 12 properties. And since those 12 properties have not yet been sold no question can be presently raised as to their proceeds.
In support of her claim to the proceeds of the sale of No. 38 Dronningens Gade the plaintiff relies upon the fact that legal title thereto was vested in Anna Peiffer and not in the testator at the date of his death. She also relies upon the agreement executed April 26, 1924, before a Notary Public at Wiesbaden, Germany, between herself and Anna and Jacob Peiffer and the deed from Anna and Jacob Peiffer to herself dated June 7, 1924 which was executed pursuant to the agreement. The agreement in question recited that three of the 13 properties dealt with in paragraph 3 of the will were only in part the property of the plaintiff and the testator and were in part the property of Anna Peiffer or the joint property of the Peiffers. The agreement went on to provide that all the properties should nonetheless devolve on the plaintiff as her exclusive property and that “In so far as this has not taken place through the testamentary disposition mentioned above, the husband and wife Peiffer hereby transfer all ownership and other rights, if any, owned by them in respect of the said real properties, to the party mentioned under A. [Else Callwood], who accepts, so that the latter becomes, in any event, the sole owner of all the above real properties or shares of real properties mentioned above.” It was agreed that the parties concerned should take the necessary steps to transfer the properties in accordance with the law prevailing in St. Thomas. It was further provided in the agreement that Anna Peiffer should be entitled to a life interest in the whole of the 13 parcels of real property referred to in the will and the agreement and that upon her death her husband, Jacob Peiffer, should, if he survived her, be entitled to a life interest in No. 38 Dronningens Gade, No. 25 Norregade and No. 36 Vestergade to the extent to which his wife, Anna Peif-fer, owned undivided shares in those properties in her own right.
The plaintiff’s contention is that by virtue of this agreement and the deed which Anna and Jacob Peiffer executed and delivered to her pursuant to it she acquired an absolute title in fee simple to all 13 of the properties mentioned in paragraph 3 of the will subject only to the life estates reserved to Anna and Jacob Peiffer and free and clear of any interest of her husband’s estate therein. She asserts that the proviso in the deed that the properties could not be sold, mortgaged or otherwise disposed of without the consent of the “trustees” named in the will created in reality a mere naked power which is void as involving an unlawful restraint on alienation and which in any event cannot be revived by an appointment by the court after the death of Jacob Peiffer, the surviving individual designated by 'the testator to exercise the power.
We do not think that the agreement and deed were intended to have the effect for which the plaintiff contends. For it is quite clear that the agreement was entered into, in part at least, in acceptance of the testamentary disposition made by the will' of the testator and for the purpose of carrying it out. Indeed, the agreement, following a recital of the provisions of paragraph 3 of the will, contained an express statement to that effect, as follows:
“Since it has now become certain, following the death of Mr. Richard Edgar Clifford Callwood, that his widow, the party-mentioned under A., is the survivor, we, all the Appearers, have accepted the foregoing testamentary disposition of the Testator and are carrying it out as follows: * *
Likewise the deed which was executed pursuant to it contains an equally clear recital to the same effect. And if this were not sufficient to establish the fact, we need only point to the proviso already mentioned that the premises conveyed to the plaintiff cannot be sold, mortgaged or otherwise disposed of by her “without the consent of the trustees named in Mr. Call-wood’s above mentioned will”.
Moreover the plaintiff signed the joint will which recited that the 13 parcels of real estate in Charlotte Amalie, although recorded in her sister-in-law’s name, belonged in greater part to the testator and herself. She also signed the agreement of April 26, 1924, which likewise clearly recited the same fact. She cannot now be heard to assert to the contrary that the testator had no interest in these properties but that they belonged outright to his sister Anna Peiffer who conveyed the fee to her by the deed. We conclude that while the effect of the agreement and deed was to transfer to the plaintiff the legal title to these properties, nonetheless to the extent that Arma Peiffer had held that title for the testator the plaintiff took title to the properties in community with her deceased husband, the testator, and as part of their joint estate to be held by her under the provisions of their joint will. Furthermore we conclude that the provisions of that will and of the deed restraining the plaintiff from disposing of parcels of the joint estate without the consent of Jacob Peiffer or Otto Zwanziger were valid and effective in accordance with their terms and that the district court was fully empowered to appoint Mr. Bornn to act under the will as their successor in this capacity. We shall elaborate our reasons for reaching these conclusions.
Since the will involves the title to real estate in St. Thomas it is to be construed in accordance with the rules of law in force in that island when the will went into effect on January 17, 1917, the date of the testator’s death. At that time the law in force in St. Thomas was that of Denmark. The Danish law in force when the island was one of the Danish West Indies remained in force, after the change of sovereignty, until July 1, 1921 when it was superseded by the Code of Laws of the Municipality of St. Thomas and St. John which substituted for the Danish law rules of law based upon the common law of England as understood in the United States.
Under the Danish law from very early times husband and wife held their property in community, unless otherwise provided by marriage settlement. Moreover one of the provisions of the Danish law was that upon .the death of a spouse the surviving spouse could, under certain circumstances, continue to hold their entire joint estate in community until his or her death or remarriage, thereby postponing the rights of children or other heirs in the community property. This right appears to have been established by, and certainly was recognized by, the Ordinance of May 21, 1845 which was in force in the Danish West Indies. Section 18 of that Ordinance, referred to in the will here in question, provides that a husband after the death of his wife is not obligated to divide the property with their common children, whether they have attained their majority or not, so long as he does not remarry unless marriage contracts or other binding determinants create the necessity for such a division. The section further authorizes the husband by testamentary disposition to confer on his wife the same right to retain the whole property undivided. Section 19 of the Ordinance stipulates that the right of the surviving spouse to remain in community property as authorized by Section 18 ceases when the spouse remarries.
It will be observed that the right thus given by the Danish law to a husband by his will to authorize his widow to remain in possession of their community property or joint estate was exercised by the testator here who, by paragraphs 2 and 3 of the will, expressly authorized his wife, the plaintiff, to retain the whole of their joint estate undivided and to the exclusion of their children until her remarriage. It appears that under the Danish law a surviving spouse who thus retained possession of the community property was entitled to sell or mortgage it or otherwise to deal with and dispose of it as absolute owner, although perhaps under a duty to compensate their children as heirs for any undue diminution in the aggregate value of their inheritance. Accordingly if the testator here had not imposed upon the plaintiff the restrictions upon alienation to which we have already referred, and the validity of which we will presently discuss, she would unquestionably have had the right to sell, mortgage or otherwise dispose of the real estate in St. Thomas belonging to the joint estate of the testator and herself and also the right to take possession of and invest or otherwise dispose of the proceeds, being responsible at the most merely to compensate their children for any undue diminution, as the result of gifts made by her, in the value of their share of the joint estate upon her remarriage or death or the earlier division of the property.
The rights thus given by the Danish law to the surviving spouse who retains the joint estate in community cannot be described in terms -of common law concepts since those rights are quite foreign to the common law. Specifically they cannot be described as those of trustee and beneficiary, as the district court suggested in its opinion. Nor is it necessary for us to attempt to classify them under the common law. It is sufficient to note the rights which the Danish law conferred upon a widow under these circumstances and to point out that these rights vested in the plaintiff upon the death of the testator with respect to the property in St. Thomas which they held in community, subject only to such restrictions as the testator by his will validly imposed upon her.
At this point it becomes necessary to advert to another rule of the Danish law. Under that rule when a surviving spouse takes over the joint estate to the exclusion of the children, the joint estate consists not only of what was actually joint property at the time of the spouse’s death but in addition all property which the surviving spouse later acquires to the extent that it would have been community property if it had been acquired during the marriage.
Under this rule the real estate in St. Thomas with which we are here concerned, to the extent that it belonged in fact to the testator, though held in the name of Anna Peiffer, must be regarded as a part of the joint estate and so treated when the legal title to it was subsequently acquired by the plaintiff by deed. For the testator in the will claimed this real estate as his own, except as to shares in three of the properties which he conceded belonged to Anna Peiffer. His claim of ownership was admitted by Anna Peiffer when she signed the agreement of April 26, 1924 and the deed of June 7, 1924. Unquestionably if Anna Peiffer had given a deed for this real estate in the testator’s lifetime, as by his will he directed her to do after his death, the property would have become a part of the community property of the testator and the plaintiff. Therefore it must be regarded as having become such, when pursuant to his will, title to it was conveyed to his widow, the plaintiff. Accordingly, as to the testator’s interest therein the plaintiff holds it as surviving spouse with the same rights in it as she would have had if legal title had been vested in him prior to his death.
As we have said, under the Danish law, a surviving spouse retaining possession of the community property is ordinarily entitled to sell or mortgage it or otherwise to deal with it as absolute owner. In the present case, however, as we have seen, the testator by his will placed definite restrictions upon the right of the plaintiff as surviving spouse to deal with the property. Thus he provided that it might only be sold or mortgaged with the consent of Jacob Peiffer or Otto Zwanziger and then only in case of unforeseen events which might make it necessary for the plaintiff to use principal or to make a change in the properties in which the joint estate was invested. Moreover he provided that she should deposit in banks to be designated by Jacob Peiffer or Otto Zwanziger all money and securities belonging to the joint estate, including the proceeds of .the sale of any properties.
The plaintiff strongly urges that these restrictions made by the will and incorporated, so far as the restraint on alienation is concerned, in the deed to her, are invalid as constituting an unlawful restraint on alienation and that in any event the power conferred upon Jacob Peiffer and Otto Zwanziger was a personal power which lapsed with their death and which cannot lawfully be revived by the court through the appointment of another person, to exercise it. In support of these contentions the plaintiff has cited numerous common law cases. However, we regard these cases as wholly inapposite since here again the question is to be determined by the Danish law which was in force in St. Thomas when the testator died. We, therefore, turn again to the consideration of that law.
It appears that under the Danish law a husband who by his will conferred upon his surviving wife the right to possession of the community property had also the right to stipulate that she could dispose of .that property only with the consent of an individual who in Danish is called a “Tilsynsvaerge” which may perhaps best be rendered in English as “guardian”. This concept of a guardian to advise a widow in the management of her property is very ancient in the Danish law, and the concept developed in more recent times to the point that a husband was empowered to name such a guardian in his will if by that instrument he authorized his widow to retain possession of their joint estate. Accordingly when .the testator named Ja•cob Peiffer and Otto Zwanziger in his joint will as persons whose consent was required to the sale or other disposition of the joint property by his widow he was exercising a right which the law then in force in St. Thomas gave to him. His appointment of these individuals successively to assume the duties of guardian for his widow was accordingly entirely valid. Under the Danish law a guardianship thus created was subject to termination Iby the appropriate court which might also on application of the widow appoint another guardian for her if necessary. The Danish law conferred this power upon the probate court. In the Virgin Islands the district court has the powers of a probate court. It follows, therefore, that the district court was empowered, in its discretion, to continue the guardianship by the appointment of Mr. Bornn as succeeding guardian for the plaintiff to execute the powers imposed upon the testamentary guardians, Jacob Peiffer and Otto Zwanziger, by the testator’s will.
One further question must be considered. It will be remembered that with respect to three of the parcels of real estate in Charlotte Amalie, the testator claimed only undivided fractional interests therein and admitted in his will that his sister, Anna Peiffer, owned beneficially the remaining interest in those three properties. This was also recited to be the fact in the agreement of April 26, 1924 which the plaintiff and Anna and Jacob Peiffer signed. The interests thus owned beneficially by Anna Peiffer included a one-half interest in No. 38 Dronningens Gade, the property here particularly involved. We think that by the agreement of 1924 it was intended that the undivided interest thus beneficially owned by Anna Peiffer in No. 38 Dronningens Gade and the other two properties should be conveyed in fee simple to the plaintiff in her own independent right and not as surviving spouse in possession of the joint estate of the testator and herself. Accordingly we hold that by the deed of June 7, 1924 which Anna and Jacob Peiffer executed pursuant to the agreement Anna Peif-fer’s undivided beneficial interest in these three properties was conveyed to and vested in the plaintiff individually. It is clear that Anna Peiffer’s undivided interest had never been a part of the community property of the plaintiff and her husband in any sense and that when the agreement and deed were executed in 1924 the interest owned by Anna Peiffer individually was not subject to the Danish law, that law having been superseded in St. Thomas on July 1, 1921 by the rules of the common law.
There remains only to consider the proviso contained in the deed of 1924 to the plaintiff that the premises conveyed thereby cannot be sold, mortgaged or otherwise disposed of by the plaintiff without the consent of Jacob Peiffer and Otto Zwanziger, the “trustees” named in the testator’s will. The plaintiff contends that this restriction is void as a naked power which does not involve a trust but merely operates as an unlawful restraint upon alienation. We cannot agree with the plaintiff’s contention so far as concerns the property which Anna Peiffer held for the testator and which the deed conveyed to the plaintiff as a part of the joint estate under the will. For as to this property the deed, as we have held, was intended merely to carry out the directions of .the testator’s will and the powers granted to Jacob Peiffer and Otto Zwanziger by the will were valid.
The question remains as to whether the restraint upon alienation involved in the proviso contained in the deed is valid as applied to the undivided beneficial interest of Anna Peiffer in No. 38 Dronningens Gade and the other two properties which, as we have held, the deed conveyed to the plaintiff as her own individual property. We do not reach this question, however, since we conclude that the proviso was not intended by the parties to apply to this individual interest of the plaintiff and does not do so. We think it is clear that the proviso was intended to apply only to that interest in the properties acquired by the plaintiff under the deed which was part of the joint estate of the testator and herself and not to Anna Peiffer’s beneficial interest therein which the plaintiff also acquired by the deed. For the proviso refers to Jacob Peiffer and Otto Zwanziger as trustees under testator’s will. It was evidently included pursuant to the direction of paragraph 3 of the will that it should be “recorded as a servitude” when the conveyance was made by Anna Peiffer of the properties which she held for the testator. It was, therefore, we think merely intended to give Jacob Peiffer and Otto Zwanziger the same power which they had under the will. That power was, as we have seen, derived from the Danish law. Under that law the guardian thus appointed for a widow had nothing to do with her own independent separate estate.
We are the more led to this construction of the proviso because of the fact that if it were to be construed as applicable to the interest which the plaintiff acquired individually by the deed from Anna Peif-fer it would seem clearly to be against public policy and invalid as constituting an unlawful restraint on alienation. For the guardianship provided for by the testator in his will had nothing to do with that interest and we can find no authority for imposing such a restraint under the accepted rules of the common law. Indeed, both Jacob Peiffer and Otto Zwanziger being deceased and thus unable to consent, the restraint would now be absolute in view of the fact that the power of Mr. Bornn, the successor guardian appointed by the district court, does not under the Danish law from which he derives his powers extend to individually owned property of the plaintiff. We conclude, therefore, that the plaintiff is entitled to deal with and dispose of the undivided one-half interest in No. 38 Dronningens Gade and its proceeds, which she owns individually, free from any control by a guardian appointed by the testator’s will or by the court.
It will be helpful at this point to summarize our conclusions. Upon the death of Anna Peiffer on July 11, 1947 the plaintiff became entitled to a one-half interest in the proceeds of the sale of No. 38 Dronningens Gade outright. Upon the happening of the same event she became entitled to the other one-half of the proceeds of the sale of No. 38 Dronningens Gade as surviving spouse entitled until her death or remarriage to hold the joint estate of her deceased husband and herself in community to the exclusion of their children, but subject to those provisions of the will which require her, so long as she holds the entire joint estate undivided, to deposit all cash and securities belonging thereto in a bank or banks to be determined by the guardian appointed for her by the court, and which permit her to withdraw principal funds or change investments only with the consent of the guardian so appointed.
The extent of the interest to which the plaintiff would be entitled, either as owner or as heir or devisee of her husband, in what remains of the joint estate upon her death or remarriage or the earlier division of the joint estate, as well as the extent of the interest of the intervening defendant and the heirs of his deceased sister therein at that time, are matters which do not now concern us. They may well involve further difficult questions of the Danish law formerly in force in St. Thomas and we leave them for later decision if and when questions with regard to them arise. Nor are we directly concerned with the rights of the parties in the 12 other parcels of real estate situate in the town of Charlotte Amalie which are described and dealt with by paragraph 3 of the testator’s will. Clearly the plaintiff is entitled to the income of these properties just as she is to the income of the mortgages and real estate purchased with the proceeds of the sale of No. 38 Dronningens Gade. Likewise it would seem that the rights of the parties in these 12 remaining properties will be determined by the same rules which govern their rights in No. 38 Dronningens Gade and its proceeds. It is sufficient for the disposition of this case to point out that the plaintiff is entitled to receive from the defendant Kean one-half of the proceeds of the sale of No. 38 Dronningens Gade, either in cash or securities, less any payments heretofore made to her, and that the other one-half must remain on deposit in a bank or banks designated by Mr. Bornn, the succeeding guardian, and subject to withdrawal or reinvestment only with his consent.
From what has been said it is clear that the intervening defendant has no present right in the proceeds of the sale of No. 38 Dronningens Gade and that he should assign and convey to the plaintiff the undivided interest in the mortgages and real estate purchased from those proceeds which defendant Kean as attorney in fact for the parties caused to be placed of record in his name.
We conclude that the judgment in this case should be in the following terms:
1. That the court appoints D. Victor Bornn of St. Thomas as guardian [Tilsyn-svaerge] for Else E. Callwood, the plaintiff, to succeed Jacob Peiffer, last surviving guardian named in the joint will dated April 25, 1911, of her deceased husband, Richard Edgar Clifford Callwood, and herself, and to exercise the authority conferred upon the said Jacob Peiffer by the said joint will and by the applicable law, subject to the further orders of the court.
2. That the defendant, Osmond Kean, and the intervening defendant, Clifford W. L. Callwood, assign, pay over and deliver to the plaintiff the sum of $17,932.50 (less all sums heretofore paid by the defendant to her or for her account thereout), being one-half of the net proceeds of the sale of No. 38 Dronningens Gade, Queen’s Quarter, in the town of Charlotte Amalie, remaining after the payment by the defendant of $9,134.99 to retire the existing mortgages on the property and for sale’s commissions and other expenses of the sale of the property, and that the remaining one-half, $17,932.51, of the net proceeds of the sale of the said property be assigned by the defendant, Osmond Kean, and the intervening defendant, Clifford W. L. Callwood, to the plaintiff and deposited by them in her name in a bank or banks determined by the guardian appointed by this court for the plaintiff, to be withdrawn from the said bank or banks by the plaintiff or reinvested only with the written consent of such guardian and subject to the further orders of the court.
3. That the distribution of the undistributed net proceeds of the sale of No. 38 Dronningens Gade directed by this judgment to be made, shall be made by the assignment or conveyance and transfer of the mortgages and undivided interest in No. 87 Kronprindsens Gade, Charlotte Amalie, in which such net proceeds are now invested and of any uninvested cash, in accordance with a schedule of distribution to be prepared by the defendant and approved by the court, such schedule to be promptly prepared by the defendant and submitted to the court for its approval.
Since, although an appeal from the District Court of the Virgin Islands in a case arising under the local law of the islands is a trial de novo, the final judgment must necessarily be entered in the district court, the judgment heretofore entered by the district court will be vacated and the cause will be remanded with directions to enter a judgment in the terms indicated in this opinion.
On Motion for Rehearing
The plaintiff asks for rehearing of so much of our decision as approves the appointment of D. Victor Bornn as guardian, for the plaintiff to succeed Jacob Peiffer, last surviving guardian named in the joint will dated April 25, 1911, of her deceased husband, Richard Edgar Clifford Callwood and herself. She again asserts as she did at the original argument that under the joint will which named Jacob Peiffer and Otto Zwanziger in succession as guardians it was contemplated that the guardianship should continue after the death of the last survivor of these individuals only if the survivor of them in his lifetime transferred his authority to another guardian and that this was never , done. Accordingly, she says, the testamentary guardianship lapsed and she strongly urges that under the Danish law it cannot be revived by the district court except on her application. In support of this proposition she cites the excerpt from Bentzon’s treatise, Den Danske Arveret, which appears in footnote 15 to our opinion.
The plaintiff’s contention in this regard is without merit. In the first place we think that it is clear from the testator’s will that he intended that his widow’s retention of their joint estate should be subject to the' guardianship contemplated by the Danish law. By naming a guardian, and a successor guardian and by authorizing the survivor in turn to name his successor the testator took steps which he evidently thought would be adequate to carry out his will in this respect. Certainly there is nothing in the will to indicate any intention on the part of the testator that the guardianship should absolutely terminate if these provisions should fail. He did not exclude the possibility that in such circumstances an appointment might be made by the court.
In the second place the plaintiff is wrong in thinking that under the Danish law the power of the court to appoint a guardian for a widow remaining in possession of the joint estate of her husband and herself in succession to a testamentary guardian who has died is limited to cases in which the widow applies to the court for such an appointment. Indeed the excerpt from Bentzon’s treatise upon which the plaintiff relies itself indicates the contrary by suggesting that the guardianship of a widow in these circumstances is based under the Danish law not only on the needs of the widow but also on those of the living issue. Our examination of the Danish law satisfies us that it authorizes such a guardianship not only for the assistance and protection of a widow who remains in possession of the joint estate, but also for the protection of the testator’s children who are excluded from their inheritance during the widow’s lifetime. Accordingly in case.of the death of a testamentary guardian, for a widow the Danish law confers full power upon the court to appoint a successor guardian if the needs of the widow or the living issue require it and this power is not limited ■ to cases in which application for such appointment is made by the widow.
The petition for rehearing will be denied.
. “Joint Will
* * *
“No. 1.
“I Richard Edgar Clifford Callwood, reserve the right accruing to me as husband in accordance with Royal Ordinance of 21st of May 1845 Chapter 18, Section 1, say to retain, if I am the survivor our whole joint estate undivided with our joint children as long as I do not marry again.
“No. 2.
“I Richard Edgar Clifford Callwood, do hereby give and grant to my said wife, Mrs. Elsa E. Callwood, if she is the survivor, the same right as mentioned sub. No. 1 of retaining our joint estate undivided with our joint-children as long as she does not marry again.
“As however both of us consider it to be the benefit and welfare of all concerned, that the said right of retaining our joint-estate undivided should be given me, Mrs. Elsa B. Callwood, under certain restrictions I, Richard Edgar Clifford Callwood and I, Mrs. Elsa E. Callwood, do hereby decide, that the said right is given with the following restrictions:
“It shall be obligatory for me, Mrs. Elsa E. Callwood immediately at the death of my husband to deposit all cash-money, Bonds, Shares, and Securities belonging to the joint-estate and only to draw the interest of same. In case of unforseen events, which will make it necessary to withdraw the money or to make a change of the securities, this can only be done with the consent of Mr. Jacob Peiffer, living at Bieberick of Rhein, or in case of his death with the consent of Mr. Otto Zwanziger of Bieberick of Rhein or the person to whom the surviving of these gentlemen may transfer the said authority. It shall furthermore be obligatory for me, Mrs. Elsa E. Callwood, to-pay every month the revenues which I receive to Mr. Richard Edgar Clifford' Callwood’s Mother, Mrs. Caroline A. Call-wood, as long as she lives, the amount of Thirty Dollars and to Mrs. Josephine W. Branson of New York as long as she-lives the sum of Fifteen Dollars, these amounts to be paid the first time at the-last day of the month after that in which Mr. Callwood’s death has taken place and afterwards the last day in each month. If the amounts are not paid in due time the Legatees are entitled to claim in stead of the monthly amounts, annuities from a reliable life-insurance Company of respectively 360 Dollars and 180 dollars a Year. Finally, if Mrs. Elsa E. Callwoods retaining of our joint-estate should cease only % say one third part of our whole joint estate shall accrue to me, Mrs. Elsa E. Callwood, while the balance % say two third parts, shall accrue to our joint-children share and share alike, as their paternal inheritance.
“No. 3.
“The properties situated in the Town of Charlotte Amalie, St. Thomas, D. W. I., and which are recorded in Mrs. Peif-fer’s name, but of which the greater part belongs to us, viz:
Property1 No. 38 Dronningensgade and Qtr. — Half to Mrs. Anna R. Peiffer & half to C. Call-wood.
Property No. 25 Norregade, Kgs. Ktr. — One third to Mrs. Anna R. Peiffer and two thirds to C. Callwood.
Property No. 36 Vestergade, Kgs. Ktr. One Third to Mrs. Anna R. Peiffer and two-thirds to C. Callwood.
Property No. 27D Norregade Kgs. Ktr. Belonging to C. Callwood.
Property No. 40A Taarnebjerg sub. No. 11 Ny, Kvtr. Belonging to C. Callwood.
Lot Number 40A A Taarnebjerg sub No. 11 Ny Kvtr. Belonging to C. Callwood,
Property No. 19 Norregade Kgs Kvtr. Belonging to C. Callwood,
Property No. 17 Hospitalsline Kgs Kvtr, “ “ “
Property No. 16 Hospitalsline Kgs Kvtr, ......
Property No. 11D Generalgade, Krps. Kvtr, “ “ “
Property No. 11B Generalgade, Krps. Kvtr, “ “ “
Property No. 58 Prindsensgade, Kgr Kvtr, “ “ “
Property No. 59 Prindsensgade, Kgr Kvtr, “ “ “
concerning these properties it is decided, that if Mrs. Elsa E. Callwood be the survivor Mr. Richard Edgar Clifford Call-wood’s sister, Mrs. Anna R. Peiffer shall after the death of Mr. Richard Edgar Clifford Callwood have the full use and benefit of these including the right to rent them out, with the condition, that she pays all taxes and fulfill all duties incumbent upon the owner against the public, that she keeps the properties in proper repair and insured against fire in a reliable fire insurance company, the policies to be deposited as the cash money etc. mentioned in paragraph No. 2 and further that she pays a monthly amount of Dollars 15 unto Miss Iza Callwood at present at school in New-chatel, Switzerland, as long as both of them are alive. Einally it is a condition that Mrs. Peiffer as soon as possible after my death has the properties recorded in the name of Mrs. Elsa E. Callwood or if she is not taking possession of our joint-estate, as belonging to this, and that she has recorded as a servitude that they may only be sold or mortgaged with the consent of the gentlemen, keeping the power mentioned in Paragraph No. 2. If any of these conditions are not fulfilled for any of the properties, the expenses for the recording to be paid by the joint-estate, she is no more to have the use and benefit of that on these properties, and the gentlemen keeping the above mentioned power is to decide these questions, but if the monthly amounts for Miss Iza Callwood are not paid in due time she may claim an annuity of Dollars 180 a year from a reliable life-insurance company. If these properties should be sold or mortgaged or the fire insurance policies become due the cash proceeds are to be administered as the cash money etc. mentioned in paragraph No. 2 and the payments to Miss Iza Callwood to be continued for her life time from our joint-estate.
“No. 4.
“In case a division of our joint-estate should become necessary, the Legacies are to be paid by Mrs. Elsa E. Callwood and our joint-children proportionately to be the shares each of them should take; but if any of them should not wish to submit himself to this he shall be free to pay once for all the legaties 25 times the yearly amount, which else he should have paid, or to pay for them annuities in a reliable life-insurance company to the same amount as else he should have paid.
“The cash money paid in this way to Miss Iza Callwood or the policy bought for her to be administered as the cash money etc, mentioned in Paragraph No. 2.
“No. 5.
“Bank or Banks for depositing money, Bonds, Shares, Securities, and Policies are to be determined on the gentlemen keeping the power mentioned in Paragraph No. 2.
“No. 6.
“This our joint-will and testament is to be recorded in the Notary Publics Protokol and a copy from this is in all cases to be of same value and consequence as this original dokument. * * *»
. The deed contains the following provisions:
“That it is stipulated in grantor’s title deed that the premises shall not be sold without the consent of the Trustees named in the will of the late husband of the party of the first part, Richard Edgar Clifford Callwood, to wit: Jacob Peiffer and Otto Zwanziger, which said two trustees both have died and that Wilheim Leverick Clifford Callwood, the son and only heir at law of the aforesaid Elsa Emma Callwood and her late husband Clifford (Richard Edgar Clifford Call-wood aforesaid, has joined his mother in this deed.
“That Mrs. Anna Peiffer, the sister of the above named Richard Edgar Clifford Callwood, a resident of Germany, 86 years old, is entitled to the income from the property for her lifetime, and that the party of the first part shall and hereby guarantees that she will satisfy all claims arising out of said life interest.”
. Since Jacob Peiffer did not survive his wife this life estate never took effect and accordingly does not concern us.
. “Know All Men By These Presents That I, Anna R. Peiffer, born Callwood, and I, Jacob Peiffer, hér husband, for and in consideration of one (1) dollar to us paid, and in accordance with the directions contained in the last will and testament made and executed in St. Thomas on April 15, 1911 by the late Richard Edgar Callwood, and his wife Elsa E. Call-wood, have granted and conveyed and by those presents do grant and convey unto Mrs. Elsa E. Callwood, the widow of Richard Edgar Clifford Callwood aforesaid, the ml property known and described as:
. Restatement, Conflict of Laws:
Ҥ 24S. SHARE OF SPOUSE IN LAND UPON TERMINATION OF MARRIAGE.
“(1) The existence and extent of a common law or statutory interest of a surviving spouse in the land of a deceased spouse are determined by the law of the state where the land is.
$ * * :¡: * * *
Ҥ 249. WILL OF LAND.
“The validity and effect of a will of an interest in land are determined by the law of the state where the land is.”
. The Danish laws locally in force in the Virgin Islands on January 17, 1917, when ratifications of the treaty of cession by Denmark to the United States were exchanged, remained in force until otherwise provided by Congress or by the Colonial Council having jurisdiction, pursuant to Section 2 of the Act of March 3,1917, 39 Stat. 1132, 48 U.S.C.A. § 1392.
Rights to property in St. Thomas which vested under the Danish law in force in that island prior to July 1,1021 (see note 7 infra) were not affected by the change of sovereignty or by the substitution on that date of the rules of the common law. Soulard v. United States, 1830, 4 Pet. 511, 29 U.S. 511, 7 L.Ed. 938; United States v. Percheman, 1833, 7 Pet. 51, 32 U.S. 51, 8 L.Ed. 604; Strother v. Lucas, 1838, 12 Pet. 410, 37 U.S. 410, 9 L.Ed. 1137; Leitensdorfer v. Webb, 1857, 20 How. 176, 61 U.S. 176, 15 L.Ed. 891. Accordingly the rules of the Danish law in force when such rights to property vested define those rights today. United States v. Fullard-Leo, 1947, 331 U.S. 256, 67 S.Ct. 1287, 91 L.Ed. 1474. As to the Virgin Islands those Danish rulos are domestic, not foreign, law. Fremont v. United States, 1854, 17 How. 542, 58 U.S. 542, 15 L.Ed. 241; United States v. Perot, 1878, 98 U.S. 428, 25 L.Ed. 251.
. A Code of General and Special Laws for the Municipality of St. Thomas and St. John was enacted by an ordinance of the Colonial Council for St. Thomas and St. John which was approved March 17, 1921 and became effective July 1, 1921. Title II of the Code made provisions different from those of the Danish law with respect to the property rights of husband and wife, their interests in each other’s property after death, their rights of disposition by will and the descent and distribution of real and personal property. The effect was to substitute a system based upon the common law in place of the community property system of the Danish law. Title IV, Chapter 13, Section 6, of the new code provided: “Section 6. The common law of England as adopted and understood in the United States shall be in force in this District, except as modified by this ordinance.”
. The court desires to acknowledge the great assistance it has received in this ease from Dr. Lester B. Orfield, Professor of Law at Temple University, Philadelphia, in examining the relevant Danish statutes and texts and translating them into English for the use of the court. The court has also had the advantage of similar assistance from Dr. Vladimir Gsovski and Dr. Fred Karpf of the Foreign Law Section of the Law Library of Congress in Washington.
. Faurholt and Federspiel, Recent Danish Legislation on the Relation of Husband and Wife, International Law Association, Danish Branch, Copenhagen (1927), p. 9: “Christian V’s Danish Statute Book of 1683 provided for community of property between husband and wife, but only the former was entitled to dispose of the joint estate, married women being under a legal disability in matters of property. Not until 1880 was a femme covert by law granted the right to dispose of what she earned by her own industry, and in 1899 she was invested with the same rights as a femme sole to dispose of, property.”
For an interesting description of the history and development of the law of Denmark, see Orfield, Danish Law, 5 Miami Law Quarterly (1950, 1951), 1, 197.
. Ordinance of May 21, 1845, Concerning certain changes in the Law of Inheritance, §§ 18, 19:
“§ 18. En Hand er, efter sin Kones Dod, ikke plig'tig at skifte med deres faelleds Bern, vaere sig myndige eller umyndige, saalaenge han ikke indlader sig i nyt Aegteskab, medmindre Aegtepagter eller andre gyldige Bestemmelser maatte medfere Nedvendigheden af et saadant Skifte. Ogsaa staaer det til Manden ved en testamentarisk Disposition at tillaegge sin Hustru samme Bet til at beholde det hele Bo undeelt. — Men i Mangel af en saadan Bestemmelse skal i Kjebenhavn Magistraten, og ellers Amtmanden, kunne indromme hende TUladelse til i- sin Enkestand at forblive hensiddende i skifEtet Bo med hendes umyndige Bern, naar hun med paalidelige Attester godtgjor, at hun er en huuslig og for-standig Kvinde. — Denne Erihed kan ogsaa af bemeldte Hvrighed tilstaaes hende, uagtet der ere umyndige Stedbern, naar det, ifelge den fedte Yaerges Erklaering eller andet trovaerdigt Yidnesbyrd, kan antages, at hun tilberlgin vil serge for deres Underholdning og Opdragelse. — En lige Erihed kan og under samme Betin-gelser indremmes den laengstlevende Mand med Hensyn til hans umyndige Stedbern. Hvad myndige Stedbern an-gaaer, da bliver den Laengstlevende plig-tig at skifte med dem, medmindre de selv renuneere paa Skifte. Naar der, imedens den Laengstlevende Hensidder i uskiftet Bo, skulde tilfalde ham eller hende Noget ved en af Boet uafhaengig Adkumst, isaer ved Arv eller Gave, da skal den Laengstlevende vaere berettiget til at holde det saaledes Erhvervede uden-for Boet, under Betingelse af, at Skifte strax forlanges, inden det Erhvervede er indkommet i Boet.
“§ 19. Den i den foregaaende § om-handlede Bet for den laengstlevende Aegtefaelle, til at forblive hensiddende i uskiftet Bo, opherer, naar han eller hun indlader sig i nyt Aegteskab. * # * »
[“§ 18. A husband is, after his wife’s death, not bound to divide with their children, whether they are adult or minor, as long as he does not remarry, or by marriage-contracts or other binding determinants create the necessity for such a division. The husband also has the power by a testamentary disposition to confer on his wife the same right to retain the whole property undivided. But if there be no such determination the Magistracy in Copenhagen, or the governor of the county, may grant her permission in her widowhood to remain in community property with her minor children, if by honest attestations she shows that she is a frugal and intelligent woman. This power may also by the above authorities be given her, although there are minor step-children, if according to the guardian’s declaration or other reliable testimony, it can be ascertained that she will decently care for their support and upbringing. A similar power under the same provisions may be given to a surviving husband as to his minor step-children. As to adult step-children, the surviving spouse must divide with them, unless they themselves renounce a division. If there should occur, while the surviving spouse is continuing in community property, an independent claim to the property, especially as to inheritance or gifts, then the surviving spouse shall be entitled to withhold such acquisition outside the property, with the limitation that division be immediately demanded when the acquisition has come to the property.
“§ 19. The right of the surviving spouse, mentioned in the previous section, to remain in community property ceases when the spouse remarries.”] Samling af endnu gjaeldende Love og Anordninger m.v. af mere almindelig In-teresse, udagiven efter Indenrigsministeri-ets Foranstaltning (Ved Justitsraad O. S. Klein), 1834 — 1848, Kjebenhavn, (1862).
[Collection of the now prevailing Laws and Ordinances of more general nature, handed down after the setting up of the Ministry for the West Indies (By Court Counsellor C. S. Klein), 1834-1848, Copenhagen (1862),] pp. 627-638.
. Eaurholt and Federspiel, Becent Danish Legislation on the Belation of Husband and Wife, ibid. p. 13:
“Formerly the husband was entitled on the death of his wife, on condition that her other heirs were the issue of her marriage with him, to take over their former joint estate being then invested with the right of an owner till his own death or remarriage. The estate was then fo be partitioned, one half being distributed according to the order of succession at the time of the wife’s death, the other half as it was on the husband’s death. Separate estate, however, always had to be distributed at once. The husband could by will confer the same right on his wife, but had he omitted to do so, she could only with the consent of the authorities remain in possession of the joint estate, and each child (resp. grandchild etc.) could claim liquidation of its portion on coming of age. With stepchildren a similar arrangement could be made, but in that ease both husband and wife had to obtain official sanction. With collateral heirs, whose right is not indefeasible, only a will could provide a substitution with the same effect.”
The former law appears to have been codified in this respect in the Danish Law of April 20, 1926, (see footnote 14 infra), section 6 of which provides:
“6. Den laengstlevende Aegtefaelle undever en Ejers Eaadighed over de til Boet herende Midler.
“Hvis Aegtefaellen af Boet har borts-kaenket en Gave, der staar i Misforhold til Boets Eormue, og Gavemodtageren har eller burde have indset dette, kan enhver af Arvingerne kraeve Gaven om-stedt, saafremt Sag til Gavens Omstedel-se rejses inden 3 Maaneder efter, at Ar-vingen er blevet vidende om Gaven, og senest inden 1 Aar efter Gavens Fuld-byrdelse, og Boet ifolge en inden samme Tidsfrist fremsat Begaering tages under Skiftebehandling.
“Har Aegtefaellen ved Misbrug af sin Raadighed over Boet vaesentligt formind-sket dette, kan Arvingerne, naar Faelles-boet skiftes, begaere Vederlag derfor af det beholdne Faellsbo eller i fornodent Fald for Halvdelen af det manglonde Belob af bans Saereje. Som Misbrug betragtes navnlig saadanne Retshandler, der gaar ud paa at skaffe AegtefaeEen selv forogede Indtaegter — f. Elm. Teg-ning af en uforboldsmaessig h©j Livrente —eEer tilsigter en Begunstigelse af den, med kvem Aegtefaellen er forlovet, eEer af enkelte af Arvingerne.”
[“6. The surviving spouse exercises an owner’s right over the estate.
“If the spouse has made a gift of a disproportionately large part of the estate, and the donee was or should have been aware of such disparity, an action to rescind the gift Ees if proceedings are begun within three months of acquiring such knowledge by the heirs to set aside the gift and within a year after the transaction was performed and at the same time an application for immediate partition and distribution of the estate is lodged.
“If by abusing the right to dispose the spouse has materially reduced the value of the estate, the heirs, when the joint estate is divided, may claim compensation out of the remainder and if this is insufficient, then for half out of the surviving spouse’s separate property. Instances of abuses are transactions purporting to increase the survivor’s income as taking out a disproportionately large life-annuity, or showing favor to the surviv- or’s betrothed or any particular heir or heirs.”] Danmarks Love, 1665-1937, Copenhagen (1937), pp. 971-973.
. This rule also has been codified in. the Danish Law of April 20, 1926 (see footnote 14, infra), Section 5 as follows:
“5. I det uskiftede Bo indgaar foruden Faellesvoet alt, hvad den laengstlevende Aegtefaelle senere erhverver, for saa vidt det vilde vaere blevet Eaelleseje, hvis Erhvervelsen var sket under Aegteskabet.
“Arv eller Gave, som tilfalder den laengstlevende, indgaar dog ikke i det uskiftede Bo, saafremt Aegtefaellen be-gaerer Skifte inden 3 Maaneder efter, at han er kommet til Kundskab om Arve-faldet eller Gaven.”
[“5. Into the community property goes besides the joint estate all that the surviving spouse later acquires to the extent that it would have been community property if it had been acquired during the marriage.
“Inheritance or gifts, which accrue to the survivor, however, do not go into the community property, if the spouse demands a partition within three months of the acquisition coming to his knowledge.”] Danmarks Love, 1665-1937, Ibid.
. Code of Christian V, 1683, Book HI, Chap. XVII, Articles 41 and 42:
“41. A widow shall choose one of her Relations, or any other Person of Probity, to be her Guardian; whose Advice she is to follow; and who, in Matters of Moment, shall subscribe jointly with her.
“42. If such Person, chose by a Widow, is litigious, and by his Conduct prejudices her Affairs, the Magistrate shall hinder her from following his Advice, and substitute in his Place some other Person of Prudence and Character.”
The Danish Daws: or, the Code of Christian the Fifth. Faithfully Translated For the Use of the English Inhabitants of the Danish Settlements in America, London (1756), p. 193.
. This right on the part of the husband to designate a guardian to act with his surviving wife in the management and disposition of their community property was expressly provided for by the Danish Law of April 20, 1926, No. 120, which codified and revised the law concerning a spouse’s right of inheritance and community property. That act, of course, was never in force in the Virgin Islands. Its provisions, however, appear to be to a great éxtent a codification of the previously existing Danish law which was in force in the Danish West Indies prior to 1917. Thus the noted Danish authority, Viggo Bentzon, who was chairman of the Danish delegates who participated in the drafting of the act, in Den Danske Arveret, Copenhagen (1931), pp. 55-56, states:
“Loven af 1926 har gennemfort princi-piel LigestiUing for Enkemanden og En-ken med Hensyn til Adgangen til at hensidde i uskiftet Bó. En Undtagelse fra Ligestilletheden betegner dog Reglen i L.s § 2, 2 Stk., 1. Pkt., hvorefter Manden ved Testamente kan bestemme, at Hustruen under sin Hensidden kun kan raade over Faellesboet med Sam-tykke af en Tilsynsvaerge, samt fast-saette, hvem der skal udfore dette Hverv. Reglen Stemmer med aeldre Praksis og er begrundef i den Gennemsnitsbetragt-ning, at Enken, isaer hvor Formuen er ret betydelig, og hun ingen 0velse har vundet i at bestyre en Formue, ofte vil traenge til en saadan Tilsynsvaerge, saavel i egen som i Arvingernes In-teresse; disse Forhold vil derimod saare sjaeldent gaelde Enkemanden.”
[“The 1926 law has achieved a high degree of similarity, as to the widower and widow with respect to the right to continue in community property. An exception to this similarity, however, is revealed in L.s § 2, 2. Stk., 1 Pkt., under which the husband can by will determine that the wife under her continuation can only manage over or dispose of the community property with the consent of a guardian, then appointed, who shall carry out this duty. The rule is in accord with the older practice, and is based on the consideration that the widow, especially where the estate is very considerable, and she has had no experience in managing an estate, often will need such a guardian, both in her own interest and in that of the issue; but this consideration would seldom apply to a widower.”]
. Viggo Bentzon, Den Danske Arveret, ibid., p. 56:
“Efter denne kan Tilsynsvaergemaalet (for Hustruen) straks eller senere af Overevrigheden (med Rekurs til Justits-ministeren) ophaeves, hvor det ikke, eller ikke mere, findes tilstraekkelig begrundet i Hensynet til Enkens eller Livsarvin-gernes Tarv. Skifteretten (i Kebenhavn Magistraten) kan ogsáa ‘paa grundet Begaering’ af Enken beskikke hende en anden Tilsynsvaerge.” [“Under this provision the guardianship (for the wife) may immediately or later be set aside by the Upper Magistrate (with appeal to the Minister of Justice), if it is not now or does not continue to be sufficiently based on the needs of the widow or living issue. The Probate Court (in Copenhagen the Magistracy) may also on a reasonable demand of the widow provide her with another guardian.”]
. See footnote 7, supra.
. Yiggo Bentzon, Den Danske Arveret, ibid., p. 56:
“Tilsynsvaergen bar m. H. t. Midlerne i det uskiftede Bo ifelge B.s § 2, 2. Stk., 2. Pkt. aldeles gennemgaaende (ved lige-frem Henvisning til Paragraffeme i Myn-dhl.) faaet samme Befejelse og Stilling som en Lawaerge ifolge Myndbl.s Kap. 6, jfr. Opregningen af §§ i denne Lovs § 56. Over sit Saereje raader bun uaf-baengig af Tilsynsvaergen.”
[“The guardian has with respect to tbe effects in tbe community property, under L.s § 2, 2. Stk., 2. Pkt., completely (with like reference to tbe paragraphs in tbe Majority Law) obtained tbe same authority and position as a guardian with respect to minority under Chapter 6 of tbe Majority Law * * * § 56. Over her own independent separate interest she manages independently of the guardian.”]
. Prey v. Stanley, 1895, 110 Cal. 423, 42 P. 908; Muhlke v. Tiedenmann, 1899, 177 Ill. 606, 52 N.E. 843; Battin v. Battin, 1923, 94 N.J.Eq. 497, 120 A. 519, 521; Restatement, Property, § 406 and comment h; 41 Arn.Jur., Perpetuities and Restraints on Alienation, § 66.
. Olen v. Jorgensen, 3 Cir., 1920, 265 F. 120, People of Virgin Islands v. Price, 3 Cir., 1950, 181 F.2d 394. | 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. | 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. | [] | [
0
] | songer |
Marvin DALTON, Appellant, v. EMPLOYMENT SECURITY COMMISSION OF NORTH CAROLINA; and North Carolina State Personnel Commission, Appellees.
No. 81-1242.
United States Court of Appeals, Fourth Circuit.
Argued Nov. 3, 1981.
Decided Feb. 25, 1982.
Rehearing and Rehearing En Banc Denied April 21,1982.
Kenneth N. Flaxman, Durham, N. C. (Julius LeVonne Chambers, Chambers, Ferguson, Watt, Wallas, Adkins & Fuller, P. A., Charlotte, N. C., on brief), for appellant.
Norma S. Harrell, Asst. Atty. Gen., Thomas S. Whitaker, Raleigh, N. C. (Rufus L. Edmisten, Atty. Gen., Raleigh, N. C., on brief), for appellees.
Before HAYNSWORTH, Senior Circuit Judge, and RUSSELL and HALL, Circuit Judges.
DONALD RUSSELL, Circuit Judge:
The plaintiff/appellant Marvin Dalton, along with three other plaintiffs, suing individually and as representatives of a proposed class, filed in May, 1975, a discrimination action under Title VII, 42 U.S.C. § 2000e et seq., and § 1981, 42 U.S.C., against the defendant Employment Security Commission of North Carolina, and certain individual defendants. Early in the proceedings the individual defendants were, however, dismissed as parties, by consent.
The action seems to have proceeded haltingly with the plaintiffs seeking class certification only in 1979, about three years after the action was filed. In response to what the defendants urged was plaintiffs’ belated request for class certification, the defendants moved for summary judgment for failure of the plaintiffs to prosecute their action diligently. The district judge refused to grant summary judgment at this stage of the proceedings for failure to prosecute diligently. He construed, though, the § 1981 action against the defendants who remained, (i.e., the two State Departments) as in effect one against the State and held that, under the Eleventh Amendment, the plaintiffs could not recover against those Departments a money judgment but were restricted in remedy to injunctive relief. That ruling is not challenged in this appeal. In the same order the district judge did dismiss three of the plaintiffs, including the plaintiff Dalton, as plaintiffs because of their failure to file a charge with, or to obtain a right-to-sue letter from, the Equal Employment Opportunity Commission before suit. In each instance, however, he authorized the participation of the dismissed plaintiffs as members of the class simultaneously certified with Bailey as a class representative, if they qualified as a member of such class. At the same time a class certification, stated to be tentative and conditional, was approved with Bailey designated as class representative. This tentative class certification, entered on May 7, 1980, was later amended to define the certified class as:
“All black persons employed by the Employment Security Commission of North Carolina on or after May 17, 1973 who were denied promotions, or who were deterred from applying for promotions, because of the promotional testing program used by the Employment Security Commission prior to November, 1975.”
On the eve of trial, some five or six years after the action had been begun, the parties agreed on a “Consent Decree” which expressly stipulated that it was “a final adjudication of all issues raised in this action, excepting that of Walter Bailey.” This Decree was consented to by counsel for the defendants and by the attorneys for the plaintiffs who had filed the action originally on behalf of all four plaintiffs and for whom an allowance of attorneys fees and costs was made. The district judge to whom the Decree was submitted for approval, ordered notice to be given to all interested parties, with opportunity to anyone dissatisfied to object, before determining to approve .it. Such notice was published in some seventeen newspapers located in all parts of the State, including all the leading dailies. There being no objection filed, the Decree was duly entered on November 10, 1980, after a finding by the Court “that this Decree will further the objectives of Title VII, and should be approved pursuant to Rule 23(e) of the Federal Rules of Civil Procedure.” The Court retained “jurisdiction of this matter for the entry of such orders as [might] be necessary.” Primarily, this retention of jurisdiction was to resolve the claim of the plaintiff Walter Bailey. Finally, on January 28, 1980, the Court finding that the “personal claims of plaintiff Walter Bailey [had] been resolved among the parties,” dismissed the action “with prejudice,” adding “that this order shall serve as the final adjudication of all issues raised in this action.” That order was also agreed to by counsel.
The plaintiff Dalton has now appealed from the final decision in this proceeding “insofar as said order made final and appealable a) the order of May 5, 1978 dismissing original plaintiff Dalton as a named plaintiff and b) the order of May 7, 1980 excluding unsuccessful applicants for employment from the plaintiff class.”
The basis for the district court’s order dismissing Dalton as a plaintiff in the Title VII action, which is Dalton’s first assignment of error, was his failure to file a charge with or to receive a right-to-sue letter from the EEOC. It is the position of Dalton that the filing of a charge with the EEOC is not an essential qualification of a plaintiff under Title VII in a multi-plaintiff action. Concededly any Title VII claim of Dalton, had he filed as the sole plaintiff, would have been properly dismissed for failure to file a charge with the EEOC. There is some confusion in the decisions on the treatment to be accorded his claim if he sues along with other plaintiffs who have qualified by filing charges with, and receiving a right-to-sue letter from, the EEOC. Some of the decisions hold categorically that such a plaintiff should be dismissed. That was the rule followed by the district court in this case. In other decisions, the standing of a non-charging plaintiff has been upheld if his claim is “substantially identical” with that of another plaintiff who has standing under Title VII to sue. Though the district court did not advert to this more liberal line of cases, it is obvious that Dalton would not have had a right to remain as a party plaintiff under the rationale of such cases since his claim was not “substantially identical” with that of Bailey, the only plaintiff with standing to maintain a Title VII action. Dalton’s complaint alleged discrimination in hiring; Bailey’s charges were for discriminatory treatment in employment. Dalton’s dismissal as a party plaintiff in the Title VII action was accordingly proper. The conclusion that his dismissal as plaintiff was proper also disposes of Dalton’s second claim on appeal (so far as a Title VII action is concerned) that he was improperly denied the right to represent applicants for employment as a class representative.
But Dalton argued that, even if his dismissal as a plaintiff in the Title VII action and the failure to certify him as a class representative were appropriate, the dismissal of his claim under § 1981 was erroneous, since the filing of a charge with the EEOC is not a condition to the right to maintain a § 1981 action. The position of Dalton on this point is sound. However, he has actually suffered no prejudice by the dismissal of such action. Under the ruling of the district court — not contested by Dalton — Dalton’s remedy in the § 1981 action was limited to injunctive relief. The Consent Decree provides complete injunctive relief against “discriminating on the basis of race, sex or national origin in hiring, promotion, upgrading, training, assignment or discharge or otherwise discriminating against an individual employee with respect to compensation, terms and conditions or privileges of employment because of such individual’s race, sex or national origin.” That provides as much relief as Dalton could have secured had he,continued as a plaintiff in the § 1981 action and had been certified as a class representative. Thus any error in dismissing Dalton as a plaintiff in the § 1981 action and as a class representative was harmless.
Finally, it would seem that the Consent Decree precludes continued assertion of a claim in this proceeding by Dalton. His counsel consented to the Consent Decree. Moreover, the fullest possible public notice of that Decree was given all interested parties, including the plaintiff Dalton. That Decree was expressly declared to be a final resolution of all issues in the case with a single exception in favor of the claim of the plaintiff Bailey. The Decree should be given proper effect. If it is given such effect, there is no basis for appeal herein.
We accordingly find no merit in the appellant’s claim for the reasons assigned and affirm the judgment of the district court.
AFFIRMED.
. On motion of the Employment Security Commission, the State Personnel Commission of North Carolina was added as a defendant.
. Of the four plaintiffs only the plaintiff Bailey had filed charges of discrimination with the EEOC and obtained a right-to-sue letter prior to suit. The plaintiff McLean had filed charges but she had not received a right-to-sue letter. Neither the plaintiff Hubbard nor the plaintiff-appellant Dalton had filed charges of discrimination with the EEOC or obtained a right-to-sue letter.
The claim of discrimination by Bailey was discriminatory treatment as an employee; that by McLean discriminatory denial of promotion, and that by Dalton and Hubbard discriminatory failure to hire after successfully passing the test for applicants. There is, however, in the record an affidavit from the official in charge of the records of the defendant that there is no record that Dalton either ever applied for employment or had taken the test for applicants. This discrepancy between the defendants’ records and the plaintiff Dalton’s claim was not resolved.
. This certification was, oddly enough, different from the actual charges filed by Bailey with the EEOC. Bailey had filed three complaints with the EEOC; the first on November 9, 1973, the second on February 17, 1975, and the third (designated as “Amended”) on October 6, 1975. In his first charge he claimed that he was being required to “spend an hour to an hour and a half [of] my day relieving the receptionist,” despite the fact that this was not “required of the other Employment Counselor who is white.” The second charge complained of harassment “because [he] filed a complaint charging unlawful employment practices with EEOC in November of 1973.” The final, or “Amended,” charge was that the complainant had been “discharged .. . because of [his] race (Negro) and retaliated against because [he] previously filed a charge alleging unlawful employment practices.”
. Inda v. United Air Lines, Inc., 565 F.2d 554, 558-59 (9th Cir. 1977).
. Crawford v. United States Steel Corp., 660 F.2d 663, 665-66 (5th Cir. 1981). | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "state government (includes territories & commonwealths)". Your task is to determine which category of state government best describes this litigant. | This question concerns the first listed respondent. The nature of this litigant falls into the category "state government (includes territories & commonwealths)". Which category of state government best describes this litigant? | [
"legislative",
"executive/administrative",
"bureaucracy providing services",
"bureaucracy in charge of regulation",
"bureaucracy in charge of general administration",
"judicial",
"other"
] | [
4
] | songer |
NATIONAL LABOR RELATIONS BOARD, Petitioner, v. INTERNATIONAL ASSOCIATION OF MACHINISTS, LODGE 942, AFL-CIO, Respondent.
No. 15814.
United States Court of Appeals Ninth Circuit.
April 9, 1959.
See also 9 Cir., 263 F.2d 796.
Jerome D. Fenton, Gen. Counsel, Thomas J. McDermott, Associate Gen. Counsel, Marcel Mallett-Prevost, Asst. Gen. Counsel, Thomas J. Ryan, Norton J. Come, Duane B. Beeson, Attys., N. L. R. B., Washington, D. C., for petitioner.
Plato E. Papps, Chief Counsel, International Ass’n of Machinists, Bernard Dunau, Washington, D. C., for respondent.
Richard W. Axtell, Michael J. O’Brien, Spokane, Wash., amicus curiae.
Before BONE, ORR and BARNES, Circuit Judges.
PER CURIAM.
Respondent, International Association • of Machinists, Lodge 942, AFL-CIO, has moved this Court for an order staying Paragraph 1(a) and Paragraphs 2(a) and (b) of the decree in the above entitled matter pending application for a writ of certiorari and final determination of the cause by the Supreme Court of the United States. In a formal “opposition” filed with us the National Labor Relations Board does not oppose a stay of the notice-posting requirement of the decree as it relates to peaceful picketing but opposes any other stay by this Court.
Paragraph 1(a) of the decree requires that respondent shall cease and desist from:
“Restraining or coercing employees of Alloy Manufacturing Company in the exercise of the rights guaranteed in Section 7 of the National Labor Relations Act, as amended [29 U.S.C.A. § 157], * * by picketing for the purpose of obtaining recognition of Alloy’s employees at a time when it does not represent a majority of them.”
In its motion respondent frankly avows, inter alia, that “should picketing of Alloy’s premises be resumed, its purpose will be confined to (1) persuading the employees of Alloy to join respondent, and/or (2) persuading customers of Alloy not to patronize it.” The sort of picketing (described in Paragraph 1 (a)), as did the prior picketing, would probably inflict business loss on Alloy, which in turn might force it to accede to respondent’s illegal objective.
The Board suggests, and we agree, that to subject Alloy and its employees to this kind of pressure to select an unwanted representative would, if the Board’s view be ultimately sustained, result in a pro tanto impairment of the Act’s policies.
It is ordered by this Court that the portion of that notice which was required by our decree to be posted, a copy of which is attached to the decree and which reads as follows:
“We will not restrain or coerce the employees of Alloy Manufacturing Company, in the exercise of rights guaranteed in Section 7 of the Act, including specifically the right to refrain from engaging in any or all the activities guaranteed thereunder, by picketing for the purpose of obtaining recognition of Alloy’s employees at a time when it does not represent a majority of them.”
be stayed in order to permit respondent to apply for a writ of certiorari, and until final determination of the cause by the Supreme Court of the United States.
In all other respects respondent’s motion is denied. | 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". | 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. | [
"No",
"Yes",
"Mixed answer",
"Issue not discussed"
] | [
3
] | songer |
Vincent K. LEAKE, Appellant, v. J. D. COX, Superintendent of the Virginia State Penitentiary, Appellee.
No. 14227.
United States Court of Appeals, Fourth Circuit.
Argued July 24, 1970.
Decided Oct. 8, 1970.
R. Gordon Smith, Richmond, Va., and H. Lane Kneedler, Charlottesville, Va. (court-assigned), for appellant.
Vann H. Lefcoe, Asst. Atty. Gen. of Va., (Andrew P. Miller, Atty. Gen., and Edward J. White, Asst. Atty. Gen., on brief), for appellee.
Before HAYNSWORTH, Chief Judge, and WINTER and BUTZNER, Circuit Judges.
WINTER, Circuit Judge:
The petitioner, a state prisoner convicted of forging and uttering, sought a writ of habeas corpus on the ground that his constitutional rights were violated when at his trial evidence was adduced that after his a’rrest he refused to give handwriting exemplars or to make an oral statement, and the prosecutor argued to the jury that these refusals constituted evidence of guilt. The district judge accepted a state court determination that the prosecutor’s argument referred only to the refusal to give handwriting exemplars, and he denied the writ. We will assume, without deciding, that the challenged evidence was inadmissible on constitutional grounds. We are satisfied to affirm on the authority of Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), and Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969), irrespective of the interpretation given to the prosecutor’s argument.
I
Petitioner’s trial was held on March 29, 1967. ■ Petitioner’s complaint is that during its course, Detective Phillips, the arresting officer, testified as a prosecution witness with regard to post-arrest events; and in the course of narrative chronology of police involvement, he said:
At the time that he. [petitioner] was arrested, he was advised of his rights. Mr. Lewis, the magistrate of the City of Richmond, advised him of his rights, at 1:05 p. m. while I was present and he said he did not want to make any statement after he had been advised of his rights. I asked him if he would like to give me some hardwriting that I might like to send away to the FBI Laboratory for handwriting analysis, and he said no.
No objection was lodged to this particular testimony after it was given; nor was any motion made to strike any part, although objection was made and overruled with regard to other aspects of the detective’s narrative.
In argument to the jury, the prosecutor made this statement;
Gentlemen, you heard the testimony [of Detective Phillips], on the stand that this man refused to give his handwriting. It is true he did not have to give it. He did not have to give any statement, and he did not do it. But, on the contrary, what is the action of a man who finds himself in that position? You have to decide that. You have to decide that, and that is one of the features of this case.
Objection was lodged to this argument on the ground that it was improper to comment on petitioner’s failure to agree to a handwriting test. The theory of the objection was that petitioner was not required to give his handwriting and there was no evidence that handwriting samples could not be obtained from other sources. The objection was overruled. A subsequent motion for mistrial based upon the same contention was also denied.
The testimony and the argument occurred in the course of a one-day trial. The Commonwealth’s other evidence showed that a forgery ring had operated in the City of Richmond and at least twenty-seven forged cheeks had been drawn on State Planters Bank and paid. The scheme had been perpetrated by obtaining possession of a genuine check drawn by the High Constable of Richmond, countersigned by another authorized signer, to the order of Patricia Stanley, representing the proceeds from the sale of an automobile under judicial process in excess of the amount of the judgment the automobile was sold to satisfy. Having obtained possession of it, petitioner and others took the check to a printer and furnished him with paper and a photographic negative of the check. The printer printed similar blank checks with a plate prepared from the negative and delivered them to petitioner’s apartment. The printer was paid $150 by petitioner for his services.
After the blank checks were delivered, petitioner and a certain Fred Powell took the blank checks and the Stanley check to the apartment of a certain Goldie Bennett. The three sat at the kitchen table and filled them out. Goldie Bennett inserted the names of fictitious payees and supplied the counter signature. Petitioner forged the signature of the High Constable on some of the checks. Petitioner gave Goldie Bennett a driver’s license and a charge plate in the name of one of the payees and directed her to cash the cheeks. Goldie Bennett then toured various branches of the State Planters Bank and cashed the checks. Over $4,000 in aggregate was obtained from between eight and fourteen bank branches. Of this sum, $2,500 went to pay an attorney’s fee for the defense of Powell on other charges. The identity of the group effecting the forging and uttering was apparently uncovered because the bank had photographs of Goldie Bennett cashing checks at its branches. Payment of his fee was corroborated by the attorney for Powell.
The evidence we have summarized was adduced principally from Goldie Bennett and the printer. Both had been charged in connection with the episode. Both had previously committed other crimes, the printer as a juvenile, and Goldie Bennett had other cheek cashing charges pending against her. Petitioner, a previously convicted felon, testified in his own behalf. He offered no alibi, but he denied forging any of the twenty-seven checks in question. He testified to possible bias on the part of Goldie Bennett because of his interference with an illicit relationship between her and Powell. He denied ever meeting the printer and claimed that the printer had given false testimony to obtain leniency in the case pending against him.
Petitioner was found guilty and sentenced to sixteen years in the Virginia State Penitentiary. He appealed to the Virginia Supreme Court of Appeals but his appeal was denied. Leake v. Commonwealth, 208 Va. xc (1967). Certiorari to the Supreme Court of the United States was also denied, Leake v. Virginia, 391 U.S. 953, 88 S.Ct. 1856, 20 L.Ed.2d 866 (1968).
Petitioner has exhausted his available state remedies. He sought a writ of habeas corpus, which was denied after plenary hearing by the Hustings Court for the City of Richmond, Part II, and his petition for a writ of error to the Virginia Supreme Court of Appeals was also denied. Leake v. Peyton, 209 Va. lxix (1969). The Hustings Court ruled that the disputed testimony of Detective Phillips and the argument of the prosecutor referred only to “handwriting.”
When petitioner sought a writ of habeas corpus from the district judge, he concluded that the state court proceedings were adequate under Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963). He accepted the finding of the Hustings Court that the prosecutor’s argument referred only to petitioner’s failure to furnish a handwriting exemplar and not to his decision to remain silent following his arrest. He ruled that, since exemplars were not protected by the fifth amendment guarantee against self-incrimination, there had been no error by the trial court in permitting the prosecutor to comment upon petitioner’s failure to furnish an exemplar.
II
We assume, without deciding, that admission of the evidence that petitioner declined to give an oral statement and that argument that his refusal was evidence of guilt (if, as petitioner contends, the prosecutor’s argument be so interpreted) constituted a violation of constitutional right under Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965), and Miranda v. Arizona, 384 U.S. 436, 468, n. 37, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). We also assume, without deciding, that the same is true with regard to testimony concerning the refusal to give handwriting exemplars and the prosecutor’s argument (if it be interpreted as found by the state habeas judge and the district judge) that this was evidence of guilt. See Schmerber v. California, 384 U.S. 757, 765, n. 9, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). Nevertheless, we cannot read the record as permitting any reasonable doubt that, absent the tainted evidence and argument, fair-minded jurors could not have acquitted petitioner. Viewed as a whole, the incriminating evidentiary value of petitioner’s refusal to make an oral or written statement and his refusal to give handwriting exemplars was merely cumulative of the overwhelming evidence of his guilt. Argument based thereon was minimal. We are thus constrained to conclude that the tainted evidence and argument, if any, constituted harmless error. Chapman v. California, supra; Harrington v. California, supra; see also Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); Note, Harmless Constitutional Error; A Reappraisal, 83 Harv.L.Rev. 814 (1970).
Affirmed. | 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 | What is the nature of the counsel for the appellant? | [
"none (pro se)",
"court appointed",
"legal aid or public defender",
"private",
"government - US",
"government - state or local",
"interest group, union, professional group",
"other or not ascertained"
] | [
1
] | songer |
CURTIS v. PRUDENTIAL INS. CO. OF AMERICA.
No. 3197.
Circuit Court of Appeals, Fourth Circuit.
Jan. 12, 1932.
Joe W. Ervin, of Charlotte, N. C. (John M. Robinson and Guy T. Carswell, both of Charlotte, N. C., on the brief), for appellant.
C. W. Tillett, Jr., of Charlotte, N. C., and James H. Pou, of Raleigh, N. C. (Ralph W. Hyatt, of Newark, N. J., Pou & Pou, of Raleigh, N. C., and Tillett, Tillett & Kennedy, of Charlotte, N. C., on the brief), for appellee.
Before PARKER, NORTHCOTT, and SOPER, Circuit Judges.
NORTHCOTT, Circuit Judge.
This action at law was instituted in the superior court of Mecklenburg county, N. C., by Mrs. Charles H. Curtis, appellant, seeking to recover on a policy of' insurance alleged to have been issued by appellee, the Prudential Insurance Company of America, defendant below, on the life of complainant’s husband, Charles H. Curtis, in the sum of $5,000. The plaintiff was named as beneficiary in the policy*
On petition of appellee, the cause was removed to the District Court of the United States for the Western District of North Carolina. In the court below, at the conclusion of the plaintiff’s evidence, the attorneys for the defendant' demurred to the evidence, which motion the court below sustained, and entered a judgment of nonsuit. From this judgment, the plaintiff brought this appeal.
Under date of October 5, 1928, the plaintiff’s husband, Charles H.- Curtis, applied, in writing, for a $5,000 life insurance policy with double indemnity in the event of accidental death; C. F. Hancock being the soliciting agent. Upon this application, the company wrote out a? policy, dated October 13, 1928, which was transmitted to soliciting agent Hancock. The premium was payable quarterly, and amounted to $17.55 per quarter. Curtis paid $2.50 on account when he signed the application, and between that time and his death, which occurred January 15, 1929, there were paid to Hancock in several payments sums aggregating $7, so that when Curtis died only $9.50 of the first premium had been paid, and the policy had never been delivered.
The application was signed by the insured, and contained the following clause: “I 'further agree that the policy herein applied for shall be accepted subject to the privileges and provisions therein contained and that Unless the full first premium is paid by me at the time of making this application, the policy shall not take effect until issued by the company and received by me and the full first premium thereon is paid, while my health, habits and occupation are the same as described in this application.”
Under the language of the policy, the application was made a part of the contract, and the policy also contained a clause to the effect that the policy, together with the application, constituted the entire contract between the parties. At the time of the application for the policy, the Curtis family was carrying industrial insurance with the defendant company on two young children and the life of the plaintiff, for which policies the local agent, Hancock, was collecting weekly payments.
Agent Hancock agreed that the premium on the policy in suit could be paid weekly, and plaintiff began making weekly payments of $1.25 per week upon the policy. Agent Hancock raised the weekly rate of payment $1 per week shortly after the payments were begun, and plaintiff testified that, because of that fact, she ceased making the payments from some time in November until January 7, when an additional $2 was paid, making a total paid on the policy of $9.50. In the meantime, during the Christmas week, the agent called on insured and explained why it was necessary to raise the weekly payment, and the insured agreed to continue paying.
On the Thursday before January 14, 1929, the plaintiff received from the defendant company a notice and demand for payment of the second quarter premium due January 13, 1929. Agent Hancock called at the Curtis home on January 14, and plaintiff testified that she offered to pay him the balance due on the first quarter, but that the agent told plaintiff that her husband’s policy was in force and that there was no use to worry about it, and that it would be in force another month under the payments already made.
On January 15. 1929, the insured was killed.
At the trial, the policy in question was produced by the defendant pursuant to a notice served on it by the plaintiff, and was introduced in evidence by the plaintiff. The word “Canceled” in perforations was stamped over the signatures of the president and secretary of the company on the policy. The contention of the defendant below, which was sustained by the action of the trial judge, is that there never was any contract of insurance; first, because the policy was never delivered, and second, because the' first premium was never paid.
The plaintiff contends that the policy was in full force and effect at the time of insured’s death; there having been a constructive delivery of the policy or a waiver of delivery, and the first premium having been paid or waived.
The validity of the provisions in the application and the policy is unquestioned. Similar provisions have been passed upon by the courts, and, so far as we can find, have been uniformly approved.
In MacKelvie v. Mutual Ben. Life Ins. Co. (C. C. A.) 287 F. 660, 663, it is held: “The law is settled in this court that, when a life insurance policy contains, as this one did, the provision that it ‘will not take effect, unless the first premium or agreed installment thereof shall be actually paid during the lifetime of the insured,’ the provision means exactly what it says and will bo enforced. And if the policy contains, as this one did, the express provision that ‘agents are not authorized to make, alter or discharge contracts,’ the waiver relied on must be one by the company itself, and no attempted waiver by an agent will be treated as its equivalent. In Pennsylvania Casualty Co. v. Bacon, 133 F. 907, 67 C. C. A. 497, a policy of insurance stated that it was not to take effect ‘unless the premium is actually paid previous to any accident upon which claim is made,’ and it provided that no waiver should be binding on the insurer unless indorsed on the policy and signed by the president or secretary of the company. This court held that a subagent had no authority to accept a note in lieu of cash for the first premium, and to thereby waive the provisions of the policy. The decisions of the Supreme Court in Northern Assurance Co. v. Grand View Building Association, 183 U. S. 318, 22 S. Ct. 133, 46 L. Ed. 213; Penman v. St. Paul Fire & Marine Ins. Co., 216 U. S. 311, 30 S. Ct. 312, 54 L. Ed. 493; Ætna Life Insurance Co. v. Moore, 231 U. S. 543, 34 S. Ct. 186, 58 L. Ed. 356; Lumber Underwriters v. Rife, 237 U. S. 605, 35 S. Ct. 717, 59 L. Ed. 1140; Mutual Life Ins. Co. v. Hilton-Green, 241 U. S. 613, 36 S. Ct. 676, 60 L. Ed. 1202 — support the same doctrine. The provisions that a policy of life insurance shall not take effect unless the first premium is actually paid in cash during the lifetime of the person insured is valid and will be enforced according to its terms.” See, also, Sturgill v. New York Life Ins. Co., 195 N. C. 34, 36, 141 S. E. 280.
We believe this to be a wholesome rule, because it is clearly apparent that the business of life insurance, which is so important a part of our civilization in this latter-day •world, could not be carried on were the insurance companies bound by every act or statement of a local agent; especially one whose duty is mainly that of soliciting or collecting. If it were otherwise, great injustice would follow, and a groat loss be imposed upon holders of life insurance policies, because of the increased burden upon the companies that would result. While the courts are careful, in every way, to protect the interest of beneficiaries under insurance policies, yet there is a limit which should not be exceeded. The reasonableness of the respective contentions should be the yardstick with which to measure the justice of the matter.
The notice in question contained the following provision: “Notice to Policyholders as to Powers of Agents. — No Agent has power on behalf of the Company to make or modify any contract of insurance or waive any provision thereof, to extend the time for paying a premium, to waive any forfeiture, or to bind the company by making any promise, or making or receiving any representation or information.”
This provision, coupled with the previous statement in the application, with which the insured must be presumed to be familiar, leads us to the conclusion that there never was in this ease any valid contract of insurance that would bind the defendant company.
The first payment was never made, nor was the local agent authorized to deliver the policy until such payment had been made, and there is no contention that the policy was ever actually delivered.
While we recognize the force of the contention made on behalf of the plaintiff that forfeitures are not favored at law, yet where there has been no contract there can be no forfeiture of a contract, and we think this is a case of no contract. None of the conditions precedent especially stipulated as necessary before the contract became binding was ever, properly waived by any one having authority. Slocum v. New York Life Ins. Co., 228 U. S. 364, 33 S. Ct. 523, 57 L. Ed. 879; New York Life Ins. Co. v. Fletcher, 117 U. S. 519, 6 S. Ct. 837, 29 L. Ed. 934; Hoffman v. John Hancock Mutual Life Ins. Co., 92 U. S. 161, 23 L. Ed. 539; Philadelphia Life Ins. Co. v. Hayworth (C. C. A.) 296 F. 339; Ætna Life Ins. Co. v. Johnson (C. C. A.) 13 F.(2d) 824; Dodd v. Ætna Life Ins. Co. (C. C. A.) 35 F.(2d) 673; Bradley v. New York Life Ins. Co. (C. C. A.) 275 F. 657.
This seems to be the rule supported by the great weight of authorities in- the federal courts, and the questions here involved, being questions of general jurisprudence, are to be determined by the federal rule. Ætna Life Ins. Co. v. Moore, 231 U. S. 543, 34 S. Ct. 186, 58 L. Ed. 356; MacKelvie v. Mutual Ben. Life Ins. Co. (C. C. A.) 287 F. 660, 663; Pilot L. Ins. Co. v. Owen (C. C. A.) 31 F.(2d) 862.
However, the North Carolina rule seems to be the same as the federal rule on this point. Thompson v. Equitable Life Assurance Society, 199 N. C. 59, 154 S. E. 21; Sturgill v. New York Life Ins. Co., 195 N. C. 34, 141 S. E. 230; Turlington v. Metropolitan Life Ins. Co., 193 N. C. 481, 137 S. E. 422; Perry v. Security Life & Annuity Co., 150 N. C. 143, 63 S. E. 679; Ormond v. Mutual Life Association, 96 N. C. 158, 1 S. E. 796; Whitley v. Peidmont & Arlington Life Ins. Co., 71 N. C. 480; Clifton v. Mutual Life Ins. Co., 168 N. C. 499, 84 S. E. 817.
We have examined the authorities. cited on behalf of plaintiff, but find them distinguishable, in that they deal with questions of waiver after the contract had admittedly become effective.
The contention that the notice given of the payment due for the second quarter was a waiver of all conditions that existed, with reference to the first payment, is, we think, without merit. A notice of the second quarter’s payment was issued from the home office of the company, and was a mere matter of routine carried out in compliance with the North Carolina law requiring notices to be sent out at a certain stated time before the due date. Certainly the purely mechanical act of sending out a notice by one department of a large insurance company having that duty to perform with respect to thousands of policies could not be considered to constitute a waiver of the two conditions that were here necessary to be performed before any contract existed; that is, payment of the first premium and the delivery of the policy. Under some circumstances, such a notice might be held to prevent the forfeiture of a contract already in effect, but certainly cannot be held to give life to a contract that never existed.
There is no evidence whatever that the officials of the company had any notice that the local agent was collecting weekly installments from the insured, or that the agent remitted same or any part thereof to the company. Had there been any such evidence, and had the company had notice of the situation as it actually was, an entirely different .case would be presented for our consideration.
For the reasons above given, the judgment of the court below is accordingly affirmed. | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
Your task is to determine the nature of the counsel for the respondent. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party | What is the nature of the counsel for the respondent? | [
"none (pro se)",
"court appointed",
"legal aid or public defender",
"private",
"government - US",
"government - state or local",
"interest group, union, professional group",
"other or not ascertained"
] | [
3
] | songer |
Marvin Leroy “Roy” LONG, Plaintiff-Appellant, v. June Dean HANK, Defendant-Appellee.
No. 424-70.
United States Court of Appeals, Tenth Circuit.
March 24, 1972.
Joseph A. Sharp, of Best, Sharp, Thomas & Glass, Tulsa, Okl., for plaintiff-appellant.
Bert McElroy, of Sanders & McElroy, Tulsa, Okl. (Richard L. Carpenter, Jr., Tulsa, Okl., with him on the brief), for defendant-appellee.
Before JONES and HOLLOWAY, Circuit Judges, and BRATTON, District Judge.
Of the Fifth Circuit, sitting by designation.
Of the District of New Mexico, sitting by designation.
HOLLOWAY, Circuit Judge.
This personal injury action arose from a rear end collision near Muskogee, Oklahoma. After a diversity removal, a jury trial resulted in a verdict for the defendant-appellee, Mrs. Hank. This appeal by plaintiff-appellant, Mr. Long, raises only questions concerning the giving of instructions on sudden emergency, unavoidable accident and contributory negligence, which he says should not have been given. We feel there was no reversible error and affirm.
In examining the facts we must consider the record from the standpoint of whether there was sufficient evidence admitted to warrant submission of the theories in the instructions. See Flentie v. American Community Stores Corp., 389 F.2d 80 (8th Cir.); Hasselbrink v. Speelman, 246 F.2d 34 (6th Cir.); and Oklahoma Transportation Co. v. Green, 344 P.2d 660 (Okl.). From this viewpoint there was proof admitted to show the following facts.
When the accident occurred in January, 1966, Mr. Long was a passenger in a car driven by his wife, traveling south on U.S. Highway #69, just out of Muskogee. They were en route to Arlington, Texas, to return their grandson to his home. As they neared the Wayside Bridge, they were traveling in a string of cars at about 50 to 55 miles an hour, with several vehicles in front and several behind them.
There was testimony that there were three or four cars ahead of the Longs and that the lead vehicle had trouble on the bridge and stopped or slowed down so that it did not appear to be moving. When Mrs. Long became aware that the car in front of her was braking, she looked ahead and saw the line had stopped on the bridge, hit the brakes and pulled to the right hand side of the road, coming to a stop. The Longs’ car was immediately struck from the rear by the car driven by Mrs. Hank. Mr. and Mrs. Long were rendered temporarily unconscious by the impact and their injuries were the subject of Mr. Long’s claims.
Mrs. Hank testified that she was driving behind the Longs. It had been misting in the early morning hours, but this had turned to rain outside of Muskogee by the time she approached the bridge about 1:00 p. m. She said she was five or six car lengths behind the Longs when she noticed that their car had begun to “fishtail.” Thinking that the Long car was out of control, Mrs. Hank let up on the gas and began applying her brakes lightly. She also called a passenger’s attention to the car ahead. She said that at no time did she observe any brake lights on the Long vehicle; the next thing she knew her car was going and the Long car wasn’t. She hit the brakes hard, but slid into the rear of the Long car.
First, appellant Long argues that it was error to instruct on sudden emergency at all. Among other things, he says that the proof was undisputed that Mrs. Hank was negligent by her talking to her passenger with her attention being diverted, and by otherwise not keeping a proper lookout and control of her car, so that she was not entitled to the sudden emergency instruction. Appellant Long relies on Bernardy v. O. K. Furniture and Rug Co., 385 P.2d 909 (Okl.), and Graves v. Harrington, 177 Okl. 448, 60 P.2d 622.
The Court’s instruction on sudden emergency in substance was that where a person finds himself confronted with a sudden emergency which was not brought about by his own negligence, such person has a legal right to do what it appears that he should do, and that so long as he acts as a reasonable and prudent person as others would have done under similar circumstances to avoid injury, he will not be deemed negligent although it might thereafter appear that some other course of action would have been safer. The charge was in substantial accord with the sudden emergency instruction that is proper under Oklahoma law. See Feuquay v. Ecker, 195 Okl. 285, 157 P.2d 745, 747, and Rosamond v. Reed Roller Bit Co., 292 P.2d 373 (Okl.). It is true, as appellant Long says, that the instruction is not available where the defendant was clearly guilty of negligence in creating the situation, as the Feuquay and Rosamond cases state. However, the record before us contains proof under which the jury might have found appellee Hank free of negligence, concluding that the cause of the emergency was the trouble the lead vehicle had, the road and traffic conditions, and the sudden stopping of the line of traffic. See McIntosh v. Smith, 445 P.2d 790, 791 (Okl.). Thus we are satisfied that there was sufficient proof to justify the sudden emergency instruction. See Harris v. Clark, 251 Iowa 807, 103 N.W.2d 215.
Secondly, appellant Long says the trial court erred in submitting instructions on unavoidable accident, relying on Cabe v. Langley, 348 P.2d 316 (Okl.); Huey v. Stephens, 275 P.2d 254 (Okl.); and Kelly v. Employers Casualty Co., 202 Okl. 437, 214 P.2d 925, overruled in part on other issues, Nipp v. Harding, 475 P.2d 177, 180 (Okl.). His argument is that the evidence clearly shows that the accident could not have happened unless either or both drivers were negligent so that the unavoidable accident theory was not properly submitted.
We feel that the eases relied on by appellant Long are distinguishable. They involved circumstances where the proof showed that the accident unquestionably resulted from the defendant’s negligence and could have been avoided by common prudence. Here, we cannot agree that the evidence was conclusive that Mrs. Hank, or Mrs. Long, was negligent. Moreover, there was proof concerning the weather conditions on a cold rainy day, the difficulty of the lead vehicle on the bridge, and the “fishtailing” of the Long vehicle. In view of these circumstances the trial court instructed that if the jury found that the injury resulted from an unavoidable accident, not caused by the defendant’s negligence, that no party should recover; and that an unavoidable accident was a casualty which occurs without negligence of either party, and when all means which common prudence suggests have been used to prevent it. We are satisfied that the instruction was justified under the proof and in accord with Oklahoma law. See Wofford v. Lewis, 377 P.2d 37 (Okl.); and Huey v. Stephens, supra.
Third, appellant Long argues that the trial court erred in instructing on contributory negligence. He says there was no proof of any contributory negligence on his part and no support for the allegations that he failed to remain alert and warn the driver of dangerous conditions existing, relying on Mouser v. Talley, 375 P.2d 968 (Okl.), and Kelly v. Employers Casualty Co., supra. The Mouser case does hold that it is reversible error to instruct on contributory negligence where there is no proof to support the defense.
The Court did charge that if the plaintiff was found guilty of negligence that was a contributing proximate cause of the accident, the verdict must be for the defendant. The jury was also instructed that a passenger is obligated to use ordinary care for his own safety, to keep a reasonable lookout and to warn the driver of approaching danger, and to warn and remonstrate concerning any negligent operation of the vehicle. Such duties do rest on the passenger and their violation may constitute contributory negligence. See Bagley v. Blue Flame Propane Co., 418 P.2d 333 (Okl.); and Wilson v. Oklahoma Ry. Co., 207 Okl. 204, 248 P.2d 1014.
There was no direct testimony concerning Mr. Long’s actions or comments just prior to the accident. However, from the narrative testimony by both Mr. and Mrs. Long, on events just before the collision, there was no reference to any warning or comment by him, and it might be reasonably inferred that Mrs. Long’s first awareness of conditions on the bridge came from her own observations and not from any warning by Mr. Long. While the proof is weak, we cannot say it was error to submit the instruction, considering the evidence and reasonable inferences from it. See Flentie v. American Community Stores Corp., supra; and Bagley v. Blue Flame Propane Co., supra, 418 P.2d at 336. Although there was no objection to the instruction, as required by Rule 51 F.R. Civ.P., we are satisfied that there was no reversible error committed and that the judgment should not be disturbed on this or the other grounds argued.
Affirmed. | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "the federal government, its agencies, and officials". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. | What is the total number of appellants in the case that fall into the category "the federal government, its agencies, and officialss"? Answer with a number. | [] | [
0
] | songer |
G. Claude' PIKE, Appellant, v. UNITED STATES of America.
No. 8918.
Circuit Court of Appeals, Eighth Circuit.
May 3, 1930.
Sam M. Wear, Charles Newman, and P. W. Barrett, all of Springfield, Mo., for appellant.
William L. Vandeventer, U. S. Atty., of Kansas City, Mo.
PER CURIAM.
Appeal docketed and dismissed without costs to either party in this court, pursuant to stipulation of parties. | What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of court which made the original decision. Code cases removed from a state court as originating in federal district court. For "State court", include habeas corpus petitions after conviction in state court and petitions from courts of territories other than the U.S. District Courts. For "Special DC court", include courts other than the US District Court for DC. For "Other", include courts such as the Tax Court and a court martial. | What type of court made the original decision? | [
"Federal district court (single judge)",
"3 judge district court",
"State court",
"Bankruptcy court, referee in bankruptcy, special master",
"Federal magistrate",
"Federal administrative agency",
"Special DC court",
"Other ",
"Not ascertained"
] | [
8
] | songer |
Harry L. O’NEAL, Libelant Appellant, v. UNITED STATES, Respondent Appellee.
(Circuit Court of Appeals, Second Circuit.
March 19, 1926.)
No. 294.
Appeal from the District Court of the United States for the .Eastern District of New York.
Silas B. Axtell, of New York City, for appellant.
Horace T. Atkins, of New York City, for the United States.
Before HOUGH, MANTON, and HAND, Circuit Judges.
PER CURIAM.
Decree (11 F.[2d] 869) affirmed. | What follows is an opinion from a United States Court of Appeals. Your task is to identify the forum that heard this case immediately before the case came to the court of appeals. | What forum heard this case immediately before the case came to the court of appeals? | [
"Federal district court (single judge)",
"3 judge district court",
"State court",
"Bankruptcy court, referee in bankruptcy, special master",
"Federal magistrate",
"Federal administrative agency",
"Court of Customs & Patent Appeals",
"Court of Claims",
"Court of Military Appeals",
"Tax Court or Tax Board",
"Administrative law judge",
"U.S. Supreme Court (remand)",
"Special DC court (not the US District Court for DC)",
"Earlier appeals court panel",
"Other",
"Not ascertained"
] | [
15
] | songer |
HAGEMEYER CHEMICAL CO., Inc., William C. Hagemeyer, James C. Noyes and Meredith J. Beirne v. INSECT-O-LITE CO., Inc.
No. 14211.
United States Court of Appeals Sixth Circuit.
June 20, 1961.
See also, 151 F.Supp. 829.
William E. Wehrman, Covington, Ky.„ for James C. Noyes.
William O. Ware, Ware & Ware, Covington, Ky., for William C. Hagemeyer, Meredith J. Beirne and Hagemeyer Chemical Co., Inc.
Roy F. Schaeperklaus, James W. Pearce, Pearce & Schaeperklaus, Cincinnati, Ohio, for William C. Hagemeyer, James C. Noyes, Meredith J. Beirne and Hagemeyer Chemical Co., Inc.
J. Warren Kinney, Jr., Cincinnati,. Ohio, for appellee.
Before CECIL and O’SULLIVAN, Circuit Judges, and KALBFLEISCH, District Judge.
PER CURIAM.
Plaintiff-appellee, the Insect-O-Lite Co., Inc. (referred to herein as plaintiff), sued defendants-appellants, William C. Hagemeyer, James C. Noyes, Meredith J. Beirne and Hagemeyer Chemical Co., Inc., a corporation (hereinafter referred to as defendants) to obtain an injunction and damages for alleged infringement. of plsiintiff’s registered trade-mark, “Insect-O-Lite” and for unfair competition. The product involved was a vapor lamp •containing insecticide crystals.
“The function and purpose of this article is to attract and destroy in.sects in homes and places of business. It is a relatively small item made of a plastic and composition material to be hung on the wall and .attached by cord to an electric * * plug.” (District Judge’s opinion.) [151 F.Supp. 831.]
On trial without a jury, the district .■judge found all defendants guilty of unfair competition, but held that plaintiff had failed to establish a case of trademark infringement. He awarded plaintiff $10,000 as compensatory damages, .$5,000 exemplary damages, and attorney fees of $4,500. Judgment ran against the individual defendants, Hagemeyer, Noyes and Beirne, as well as the corporate defendant Hagemeyer Chemical Co., Inc.
For some years prior to the events complained of, plaintiff had marketed the insecticide device under the trade name •of Insect-O-Lite. At one period during that time, defendants Noyes and Beirne, as partners operating under the name ■of Midwest Brokerage Company, were sales representatives for plaintiff’s Insect-O-Lite. Later such connection was terminated and defendant Beirne went to work for plaintiff as its salesman. Beirne continued as such an employee until some time in 1954. In September, 1954, defendants Hagemeyer, Noyes and Beirne organized the defendant corporation, Hagemeyer Chemical Co., Inc., for the purpose of manufacturing and marketing a product, found by the district .judge to be “a competitive vaporizer substantially identical in all physical and functional aspects with plaintiff’s Insect-O-Lite vaporizer.” The individual defendants were shareholders and officers of defendant Hagemeyer Chemical Co- ; Inc., which marketed its product under,' the trade name of Insect Light. After; Hagemeyer Chemical Co., Inc., had pur-', sued its competition with plaintiff for a few months, the complaint in this case was filed in the District Court for the Eastern District of Kentucky on April 15, 1955. A preliminary injunction to enjoin further prosecution of such business by defendants was denied by the district judge, which denial was affirmed in this court on November 10, 1955. (Insect-O-Lite Company, Inc. v. Hagemeyer et al., 6 Cir., 226 F.2d 580).
On May 17, 1957, the district judge, after taking of testimony on the question of liability, filed an Opinion and Findings of Fact and Conclusions of Law. In such decision, he exonerated the defendants of the charged infringement of plaintiff’s trade-mark Insect-O-Lite, but found all defendants guilty of unfair competition and ordered that plaintiff should receive its damages therefor. In an order of May 20, 1957, the district judge recited that by agreement of the parties, “the matter of damages was deferred until the rights of the parties on the matter of trade-mark infringement and unfair competition was determined as to both fact and law” and concluded such order by saying, “This case is set down for consideration of and entry of further orders at Covington, Kentucky, on May 27, 1957.” Thereafter, both parties employed various procedural steps, followed by the taking of evidence on damages. On February 23, 1960, the district judge filed a final Memorandum, with Findings of Fact and Conclusions of Law, upon which Judgment was entered. We recite the foregoing to dispose of appellee’s contention here that the district judge’s Opinion, Findings of Fact and Conclusions of Law, entered May 17, 1957, amounted to a final appealable order on all questions of liability, and that on the instant appeal, appellants are limited to an attack upon the amount of damages and costs awarded. We are satisfied that the foregoing review of the procedural stages of this litigation demonstrates .that the judgment of February 23, 1960, .was the only appealable order entered in this case subsequent to the district judge’s denial of a preliminary injunction to plaintiff. All questions raised by appellants on this appeal are properly before us.
Appellants’ statement of questions involved presents their claim of six grounds for reversal. The first five of these deal with the amount of damages awarded, a challenge to the court’s jurisdiction, the weight of evidence, denial of their motion to introduce newly discovered evidence, and the denial of their motion to file certain additional counterclaims. After a review of the record on appeal, we find no merit in any of these contentions and a discussion of them would serve no purpose here. Except on the subject hereinafter discussed, the district judge’s Findings of Fact are not clearly erroneous. We find no abuse in discretionary matters. The amount of the awards of damages and attorney fees were within limits permitted by the evidence and, except as hereinafter stated, we do not disagree with the district judge’s decisions of law. We come, then, to our point of disagreement with the district court.
For the sixth claim of error, defendants Noyes and Hagemeyer charge that personal judgments should not have been entered against either of them. We agree. There is no question but that these defendants joined defendant Beirne in a plan to organize a corporation to manufacture and market, in competition with plaintiff, a product which in appearance, function and trade name was substantially a copy of plaintiff’s product. However, as to any illegality in such conduct, the district judge said, in part [151 F.Supp. 832] :
“I am of the opinion that plaintiff’s trade-mark was not infringed. The adoption by one manufacturer of the features of another’s product, common to articles of that class, does not of itself amount to unfair competition. Rathbone, Sard & Co. v. Champion Steel Range Co., 6 Cir., 189 F. 26, 37 L.R.A.,N.S., 258; West Point Manufacturing Co. v. Detroit Stamping Co., supra, [6 Cir., 222 F.2d 581, certiorari denied 350 U.S. 840, 76 S.Ct. 80, 100 L.Ed. 749].
******
“The size, shape, color, and descriptive words Insect Light on the defendants’ vapor lamp were all functional and with the exception of the color, which might have been different, about the only design that could have been followed to accomplish the purposes intended. There was nothing novel or distinctive, aside from the functional uses, to which either the plaintiff’s or the defendants’ lamp could lay claim. Numerous other vapor lamps had been in existence. While the term Insecfc-O-Lite has been subjected to trade-mark, there is nothing so unusual or singular in the phrase that a court of equity should permit it to pre-empt the field to which it seeks to adapt itself. It had been in use for only a few months and could not be said to have become identified in the mind of the purchasing public to such an extent that the name had acquired a secondary meaning.
******
“7 must hold that the defendants had a right to produce and sell the item identified as Insect Light as represented by plaintiff’s Exhibit 12.” (Defendants’ product.)
Although he determined that there was no illegality in the defendants’ plan to compete with plaintiff in such manner, the district judge did find unfairness in the methods thereafter employed to further such competition. The evidence supportive of such finding consisted of proof that defendant Beirne who, alone of the individual defendants, was the sales representative of Hagemeyer Chemical Co., visited customers of plaintiff and by direct statement, innuendo and conduct, created in the minds of such customers the belief that plaintiff had gone, or was about to go, out of business; that Beirne’s company was taking over the business of plaintiff and that Beirne’s product, Insect Light, was the successor to Insect-O-Lite. There was sufficient evidence from which to find unfair competition on the part of defendant Beirne, justifying a judgment against his corporate principal and himself, individually, for such tortious conduct. We, however, have been unable to find any evidence in the record whereby to charge the defendants Noyes or Hagemeyer with personal liability for Beirne’s misconduct. The district judge emphasized that Beirne’s conduct led to his finding of unfair competition. His Opinion of May 17, 1957, says in part,
“The decision of this case rests primarily upon the acts and conduct of one individual, the defendant Meredith J. Beirne.”
Wherein the Opinion and Findings of Fact make reference to specific acts, they refer to acts of Beirne, alone. To the extent that the time of these acts was fixed, they occurred sometime after the first of January of 1955, and prior to the commencement of suit on April 15, 1955. It was undisputed on the record that defendant Noyes had, prior to the occurrence of any of Beirne’s acts, described above, severed all connection with defendant Hagemeyer Chemical Co., Inc. During the period of Beirne’s said activities, defendant William G. Hagemeyer was an officer and shareholder of the corporate defendant. He testified that his only activity with the company, aside from investing money in it, was the placing of shipping labels on cartons of the Insect Lights (defendants’ product) and shipping them out from the place where Hagemeyer carried on his own separate lumber business. Some of the Insect Lights of defendants were warehoused there. There was no evidence of any connection of Hagemeyer with the sale activities of Beirne. We find no evidence in the record from which a finding could be made that either Noyes or Hagemeyer participated in, knew of, planned or approved the activities of Beirne which the district judge found to constitute unfair competition. Plaintiff’s President expressed a conclusional opinion that the individual defendants conspired to carry on such activities of Beirne, but his opinion was wholly without factual support.
To the extent that the district judge’s Findings of Fact found that defendants Noyes and Hagemeyer participated in, had knowledge of, or were responsible for, the tortious conduct of defendant Beirne, we conclude that such findings were erroneous (Rule 52[a], Federal Rules of Civil Procedure, 28 U.S.C.A.). Officers, directors or shareholders of a corporation are not personally liable for wrongful or tortious conduct of the corporation or its other agents, unless there can be found some active or passive participation in such wrongful conduct by such persons. Phelps Dodge Refining Corp. v. Federal Trade Commission, 2 Cir., 1943, 139 F.2d 393, 397; Leonard v. St. Joseph Lead Co. 8 Cir., 1935, 75 F.2d 390, 395; Lobato v. Pay Less Drug Stores, Inc., 10 Cir., 1958, 261 F.2d 406, 409; 3 Fletcher Cyc., Corporations, § 1137; 13 Am.Jur. “Corporations” §§ 1086, 1087; Washington Gaslight Company v. Lansden, 172 U.S. 534, 549, 19 S.Ct. 296, 43 L.Ed. 543, 549 (1899). A like rule has been applied in patent infringement cases, D’Arcy Spring Co. et al. v. Marshall Ventilated Mattress Co., 6 Cir., 1919, 259 F. 236, 242; Western Electric Co. v. North Electric Co., 6 Cir., 1905, 135 F. 79, 89; Proudfit Loose Leaf Co. v. Kalamazoo Loose Leaf Binder Co., 6 Cir., 1916, 230 F. 120, 140; National Cash Register Co. v. Leland, 1 Cir., 1899, 94 F. 502, 508.
We conclude that no cause of action against the defendants Noyes and Hagemeyer as individuals was made out. The judgment of the district court to the extent it awards compensatory and exemplary damages and attorney fees against the defendants William C. Hagemeyer and James C. Noyes, is reversed. Such judgment is otherwise affirmed. | What follows is an opinion from a United States Court of Appeals.
Your task is to determine whether the case was an appeal of a decision by the district court on a petition for habeas corpus. A state habeas corpus case is one in which a state inmate has petitioned the federal courts. | Was the case an appeal of a decision by the district court on a petition for habeas corpus? | [
"no",
"yes, state habeas corpus (criminal)",
"yes, federal habeas corpus (criminal)",
"yes, federal habeas corpus relating to deportation"
] | [
0
] | songer |
Courtland PITTS v. James VAUGHN, Wilber Kee, Walter Redman, George Pippin, James Williams, William Hoosier and Bernard Williams. Appeal of Courtland C. PITTS.
No. 81-1989.
United States Court of Appeals, Third Circuit.
Submitted under Third Circuit Rule 12(6) May 3, 1982.
Decided May 26, 1982.
Courtland C. Pitts, appellant pro se.
John J. Polk, Deputy Atty. Gen., Dept, of Justice, Wilmington, Del., for appellee Wilber Kee.
Before ADAMS, VAN DUSEN and WEIS, Circuit Judges.
OPINION OF THE COURT
VAN DUSEN, Senior Circuit Judge.
Courtland C. Pitts, who is not an attorney, appeared pro se in his successful civil rights suit for damages and injunctive relief. He now appeals from the district court’s denial of his motion for attorney’s fees under 42 U.S.C. § 1988 (1976 & Supp. IV). We hold that a non-lawyer, pro se litigant is not entitled to attorney’s fees under § 1988, and we affirm the district court’s denial of this motion.
I.
Courtland Pitts, an inmate at the Delaware Correctional Center, filed this civil rights action under 42 U.S.C. § 1983 (1976 & Supp. IV) in the United States District Court for the District of Delaware. He alleged that his federal constitutional rights were violated when he was held in the isolation section of the Correctional Center without the opportunity to be heard within a reasonable period of time. Before the trial, Pitts filed a motion for appointed counsel, but this motion was denied by the district court. Proceeding pro se, Pitts proved at the trial that his Fourteenth Amendment due process rights had been violated. The district court granted Pitts an injunction barring similar violations of his rights in the future, and awarded Pitts $180.00 in compensatory damages and $500.00 in punitive damages.
Pitts then filed a motion for reasonable attorney’s fees pursuant to 42 U.S.C. § 1988 (1976 & Supp. IV). The district court denied the motion, and Pitts appeals on the sole issue of whether he is entitled to attorney’s fees under § 1988 as a prevailing pro se litigant.
II.
The Civil Rights Attorney’s Fees Award Act of 1976, as amended, 42 U.S.C. § 1988 (1976 & Supp. IV) (“the Act”), was passed in response to the Supreme Court’s decision in Alyeska Pipeline Co. v. Wilderness Society, 421 U.S. 240, 257, 95 S.Ct. 1612, 1621, 44 L.Ed.2d 141 (1975), which emphasized that “absent statute or enforceable contract, litigants pay their own attorneys’ fees.” The Act explicitly created the remedy of awarding attorney’s fees to successful litigants in civil rights cases, such as those brought under 42 U.S.C. §§ 1981, 1982, 1983, 1984 and 1985. In doing so, the Act “remedie[d] gaps in the language of these civil rights laws by providing the specific authorization required by the Court in Alyeska, and makes our civil rights laws consistent.” S.Rep.No.94-1011, 94th Cong., 2d Sess. 4, reprinted in [1976] U.S.Code Cong, and Ad. News 5908, 5912.
The issue before us is whether Congress intended the provisions of this Act to enable successful pro se litigants to recover an equivalent of attorney’s fees. The United States Courts of Appeal for the First, Fifth, and Eighth Circuits have held that Congress did not intend to reward litigants who choose to represent themselves. See Lovell v. Snow, 637 F.2d 170 (1st Cir. 1981); Cofield v. City of Atlanta, 648 F.2d 986 (5th Cir. 1981); Davis v. Parratt, 608 F.2d 717 (8th Cir. 1979). Their conclusion is supported by the wording of § 1988: “[T]he court, in its discretion, may allow the prevailing party ... a reasonable attorney’s fee as part of the costs.” 42 U.S.C. § 1988 (1976 & Supp. IV). The use of the words “attorney’s fees” presupposes that the prevailing party has been represented by an attorney. See Cunningham v. F. B. I., 664 F.2d 383 (3d Cir. 1981).
The legislative history of § 1988 supports this position that Congress did not intend to award non-lawyer, pro se litigants an equivalent of attorney’s fees. Instead, Congress was concerned with reimbursing prevailing parties for the actual expenses of representation by an attorney because it recognized that attorney’s fee awards are often essential to enable private citizens to protect their civil rights in the courts. As explained in the Senate Report on the Civil Rights Attorney’s Fees Award Act:
“All of these civil rights laws depend heavily upon private enforcement, and fee awards have proved an essential remedy if private citizens are to have a meaningful opportunity to vindicate the important Congressional policies which these laws contain.
“In many eases arising under our civil rights laws, the citizen who must sue to enforce the law has little or no money with which to hire a lawyer. If private citizens are to be able to assert their civil rights, and if those who violate the Nation’s fundamental laws are not to proceed with impunity, then citizens must have the opportunity to recover what it costs them to vindicate these rights in court.”
S.Rep.No.94 — 1011, 94th Cong., 2d Sess. 2, reprinted in [1976] U.S.Code Cong, and Ad. News 5908, 5910. See Davis v. Parratt, 608 F.2d 717, 718 (8th Cir. 1979); Owens-El v. Robinson, 498 F.Supp. 877, 879 (W.D.Pa.1980).
Recently, in Cunningham v. F. B. L, 664 F.2d 383 (3d Cir. 1981), this court held that a non-lawyer, pro se litigant may not receive attorney’s fees under another statute, the Freedom of Information Act (FOIA), 5 U.S.C. § 552(a)(4)(E) (1976). There, we examined three differences between pro se litigants and those litigants represented by an attorney — differences which suggest that Congress did not intend to provide the equivalent of attorney’s fees to pro se litigants. First, we noted that proceeding pro se does not necessarily involve “the same sorts of financial burdens and obstacles as those inherent in retaining a lawyer.” 664 F.2d at 386. Second, pro se litigation under special legislation permitting attorney’s fees may not serve the aims of the legislation to the same extent as litigation conducted by an attorney. We observed that “self-representation does not supply the objectivity and detachment that an outside attorney can provide as a check against groundless or unnecessary litigation.” Id. Finally, compensation of pro se litigants leads to difficult valuation problems not present when determining the costs of representation by an attorney. Because “there is neither an accepted market value nor a cost to serve as a baseline, any value selected will likely be arbitrary.” Id. In Cunningham, we concluded that these three factors, considered together, “suggest hesitation in extending the meaning of the phrase ‘attorney fees’ beyond its natural domain.” Id. Although Cunningham was an FOIA case, these same factors support the conclusion that Congress did not intend to permit a pro se litigant to recover attorney’s fees under § 1988.
III.
In light of this legislative history and our consideration of the rationale of Cunningham, we conclude that Congress’ purpose in enacting § 1988 was not to provide an additional reward to pro se litigants but to enable litigants to obtain professional legal representation. We hold that 42 U.S.C. § 1988 (1976 & Supp. IV) does not entitle a non-lawyer, pro se litigant to attorney’s fees, and we will affirm the judgment of the district court.
. In order for this court to exercise appellate jurisdiction under 28 U.S.C. § 1291 (1976), the appeal must have been taken from a final order. Pitts’ appeal from the district court’s April 18, 1981, denial of attorney’s fees was filed on May 18, 1981. The district court’s final order in the case, however, which entered judgment in favor of Pitts and granted him damages and injunctive relief, was not filed until June 30, 1981.
Despite this premature appeal, this court has jurisdiction under Richerson v. Jones, 551 F.2d 918 (3d Cir. 1977). In Richerson, we concluded that “a premature appeal taken from an order which is not final but which is followed by an order that is final may be regarded as an appeal from the final order in the absence of a showing of prejudice to the other party.” Id. at 922. Because the appellee’s brief indicates recognition that the appeal was premature, but does not allege any prejudice, see Appellee’s Answering Brief at 1, we consider Pitts’ appeal as having been taken from the June 30, 1981, final order.
. The Act provides in relevant part:
“In any action or proceeding to enforce a provision of sections 1981, 1982, 1983, 1985, and 1986 of this title, title IX of Public Law 92-318, or title VI of the Civil Rights Act of 1964, the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs.”
42 U.S.C. § 1988 (1976 & Supp. IV).
. Accord Barrett v. Bureau of Customs, 651 F.2d 1087 (5th Cir. 1981); Crooker v. United States Dept, of Justice, 632 F.2d 916 (1st Cir. 1980); Burke v. United States Department of Justice, 559 F.2d 1182 (10th Cir. 1977). But see Crooker v. U. S. Dept, of Treasury, 663 F.2d 140 (D.C.Cir.1980); Crooker v. U. S. Dept, of Treasury, 634 F.2d 48 (2d Cir. 1980). | 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". | 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. | [
"No",
"Yes",
"Mixed answer",
"Issue not discussed"
] | [
3
] | songer |
Nancy E. ELDER and Joseph C. Elder, Appellees, v. CRAWLEY BOOK MACHINERY COMPANY, a corporation, Appellant.
No. 19001.
United States Court of Appeals, Third Circuit.
Argued Jan. 5, 1971.
Decided March 1, 1971.
As Amended April 19, 1971.
Rehearing Denied May 24, 1971.
William C. Walker, Dickie, McCamey & Chilcote, Pittsburgh, Pa., for appellant.
Paul E. Moses, Evans, Ivory & Evans, Pittsburgh, Pa., for appellees.
Before GANEY and ADAMS, Circuit Judges, and WEIS, District Judge.
OPINION OF THE COURT
WEIS, District Judge.
While a layman might be inclined to minimize the question involved in this appeal as an exercise in semantics, the case demonstrates how a shading in meaning of a single word may have a significant effect in a trial.
This is a suit for personal injuries brought under the theory of strict liability as defined by § 402A of the Restatement of Torts 2d. The defendant vigorously pressed the defense of assumption of risk and it is in this context that the meaning of the word “voluntary” became an issue. The Restatement provides that conduct on the part of the plaintiff “in voluntarily and unreasonably proceeding to encounter a known danger” is a bar to recovery.
The trial judge charged the jury that “voluntarily” means “done by design or intention, intentional, proposed, intended or not accidental. The plaintiffs contend that the injury was accidental. Accidental means happening by chance or unexpectedly, taking place not according to the usual course of things.” The defendant excepted to this portion of the charge, contending that “voluntary” is not synonymous with “intentional.”
A review of the facts is necessary for an appreciation of the defendant’s contention and the trial court's instructions to the jury.
The defendant had manufactured and sold a so-called “Building-In Machine” to the plaintiff’s employer some years before the accident which occurred on June 20, 1966. The machine was employed in the final fabrication of a large hard back catalogue of many pages by utilizing hydraulic pressure to perform flattening and creasing (“nipping”) functions.
The book would be placed upon the machine on the “bottom platen” (a flat plate), after which the “top platen” would descend and exert pressure on the catalogue, compressing it and smoothing the pages. Thereafter a blade-like device called “an upper nipper” would descend and put a crease in the binding while at the same time a bottom “nipper blade,” which was fixed in place like the lower platen, would perform a similar function on the underside of the book. The crease was necessary to allow the cover of the catalogue to be opened easily.
On the return cycle, the nipper blade ascended first and then the top platen would rise slowly in preparation for the next cycle. The upper platen and the upper nipper blade were side by side and operated in parallel planes.
Whenever the machine was idle overnight, the absence of hydraulic pressure caused the top platen to descend onto the lower one. In order to prevent the two surfaces from adhering to each other, the operators of the machine had developed a practice of inserting a small magazine between the two platens. The upper nipper blade, however, remained in place and while the machine was in the shutdown condition, a gap of about a half inch existed between the top of the upper platen and the bottom of the nipper blade. This aperture appeared only when the machine was idle because when a large catalogue was being processed, its thickness prevented the upper platen from descending to a position where the half inch opening would appear.
The plaintiff’s injury occurred as she was preparing the machine for the day’s work. After turning on the power, she began to remove the small magazine with her hands, and in some manner the ring and little fingers of her left hand went into the half inch slit between the upper nipped blade and the top of the upper platen. The platen proceeded upwards, severing her fingers in the scissoring action.
The plaintiff’s contention that this was an unreasonably dangerous design was accepted by the jury which rendered a verdict in her favor in the amount of $10,000 which the trial court refused to disturb. The defendant does not now contest the jury’s resolution of the factual issue of design but confines its appeal to alleged error in the court’s interpretation of assumption of risk.
This is a diversity case and the law of Pennsylvania is applicable. In Ferraro v. Ford Motor Company, 423 Pa. 324, 327, 223 A.2d 746, 748, the Supreme Court of that state said:
“After studied consideration, it appears to us that if the buyer knows of the defect and voluntarily and unreasonably proceeds to use the product or encounter a known danger, this should preclude recovery and constitute a complete defense to the action even in cases of strict liability.”
The court’s language was tracking Comment n of § 402A which states :
“Contributory negligence of the plaintiff is not a defense when such negligence consists merely in a failure to discover the defect in a product, or to guard against the possibility of its existence. On the other hand the form of contributory negligence which consists in voluntarily and unreasonably proceeding to encounter a known danger, and commonly passes under the name of assumption of risk is a defense under this section * * * ”
Defendant argues that in the case sub judice the fact that the injury occurred is proof beyond doubt that the plaintiff’s finger had been inserted into the dangerous opening, albeit the plaintiff on several occasions denied that she knew how it came to be there. On cross-examination of the plaintiff, the following exchange took place:
“Q. Mrs. Edler, will you concede that what happened was that in a moment of carelessness and thoughtlessness, that you put your fingers into a place where they were not supposed to be, didn’t you ?
A. No, I wouldn’t do that deliberately, stick my hand in there.
Q. Well, of course you didn’t do it deliberately, but you did it in a moment, a split-second of thoughtlessness and carelessness, didn’t you ?
A. No.
Q. Well, how did you do it? Why did you do it?
A. I don’t know, It happened instantly.
Q. You did do it, didn’t you?
A. It happened.”
Defendant argues that since the plaintiff’s fingers were in the aperture and no outside force placed them there, it follows that there had to have been a “voluntary” act on her part. Defendant’s interpretation of the word appears to be similar to that in use in physiology where activities regulated by the autonomic nervous system are compared with those considered voluntary, e. g., the automatic beating of the heart as contrasted with the movement of an arm or leg. We must reject such an interpretation of the word as having application to the theory of assumption of risk.
In defining the doctrine, the Restatement makes it clear that the law envisions a conscious appreciation of danger and willingness to risk it. Thus Comment d, § 496A says:
“In theory the distinction between the two [contributory negligence and assumption of risk] is that assumption of risk rests upon the voluntary consent of the plaintiff 'to encounter the risk and take his chances * * * A subjective standard is applied to assumption of the risk, in determining whether the plaintiff knows, understands, and appreciates the risk.”
Comment e, § 496C:
“ * * * assumption of risk is a matter of what the plaintiff knows, understands, and is willing to accept.”
Comment c, § 496D:
“The standard to be applied is a subjective one, of what the particular plaintiff in fact sees, knows, understands and appreciates * * * If by reason of age, or lack of information, experience, intelligence, or judgment, the plaintiff does not understand the risk involved in a known situation, he will not be taken to assume the risk, although it may still be found that his conduct is contributory negligence * * *X* t>
See also Green v. Sanitary Scale, 431 F.2d 371 (3rd Cir. 1970), Cf. Bartkewich v. Billinger, 432 Pa. 351, 247 A.2d 603, Tort Defenses to Strict Products Liability, 20 Syracuse L.Rev. 924 (1968-69).
We conclude, therefore, that if the plaintiff’s fingers became placed in a dangerous position in the machine by reason of inadvertence, momentary inattention or diversion of attention, that this would not amount to assumption of the risk.
This construction of the defense is consistent with the philosophy of the Restatement which permits the injured consumer to recover from the manufacturer who is held responsible for a defect in the product even without negligence on his part. This theory of concern for the user, however, is not unfairly frustrated by sanctioning a defense against the claim of a person who knows of the defect but chooses to use the product nevertheless. It is fair to state in such a situation that the manufacturer’s obligation to furnish a safe product has been waived by the consumer’s considered choice to chance the danger involved in the defect.
The judgment of the District Court will be affirmed.
. Pennsylvania adopted § 402A of the Restatement in Webb v. Zern, 422 Pa. 424, 220 A.2d 853.
. While Bartkewich v. Billinger has been cited as being concerned with assumption of risk, careful reading will show that the opinion holds, not that the plaintiff was guilty of assumption of risk by placing his hand in a machine, but that there was a failure to prove that the machine itself was in a defective condition because of lack of a guard which would have prevented the plaintiff from voluntarily placing his person in danger of injury. The case therefore stands for the proposition that the plaintiff failed to prove that the machine was dangerously defective, not that the defendant proved assumption of risk on the part of the plaintiff. | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "natural persons". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. | What is the total number of respondents in the case that fall into the category "natural persons"? Answer with a number. | [] | [
2
] | songer |
SPAULDING v. SANFORD et al.
No. 10966.
Circuit Court of Appeals, Fifth Circuit.
May 9, 1944.
John O. Spaulding, in pro. per.
M. Neil Andrews, U. S. Atty., and Harvey H. Tisinger, Asst. U. S. Atty., both of Atlanta, Ga., for appellee.
Before -SIBLEY, McCORD, and LEE,. Circuit Judges.
PER CURIAM.
Spaulding in his trial attacked' the sufficiency of each count of the indictment and was overruled, United States v. Spaulding, D.C., 16 F.Supp. 407, and the judgment was affirmed by the Circuit Court of Appeals. Spaulding v. United States, 6 Cir., 96 F.2d 734. The propriety of his conviction and sentence is res judicata. The question of whether service of his-sentence began at once or was suspended! during his appeal is not now for decision' on habeas corpus, since in neither event, would he be entitled presently to release. McNally v. Hill, Warden, 293 U.S. 131, 55 S.Ct. 24, 79 L.Ed. 238.
Judgment affirmed. | What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to some threshold issue at the appeals court level. That is, it is conceded that the trial court properly reached the merits, but the issue is whether, in spite of that concession, the appellant has a right to an appeals court decision on the merits (e.g., the issue became moot after the trial). The issue is: "Did the court refuse to rule on the merits of the appeal because of some threshhold issue other than timeliness or frivolousness that was relevant on appeal but not at the original trial? (e.g., the case became moot after the original trial)" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". | Did the court refuse to rule on the merits of the appeal because of some threshhold issue other than timeliness or frivolousness that was relevant on appeal but not at the original trial? | [
"No",
"Yes",
"Mixed answer",
"Issue not discussed"
] | [
1
] | songer |
ROSENKOFF v. MARIANI.
No. 11643.
United States Court of Appeals District of Columbia Circuit.
Argued May 22, 1953.
Decided Sept. 24, 1953.
Mr. George B. Bronfen, Washington, D. C., with whom Mr. John B. Letterman, Washington, D. C., was on the brief, for appellant.
Mr. Fred M. Vinson, Jr., Washington, D. C., with whom Messrs. James M. Earnest and Philip Goldstein, Washington, D. C., were on the brief, for appellee.
Before EDGERTON, CLARK and PRETTYMAN, Circuit Judges.
PER CURIAM.
In Rosenkoff v. Finkelstein, 90 U.S. App.D.C. 263, 195 F.2d 203, appellant Rosenkoff sued persons who, he said, had given him an oral option to buy their land and had afterwards sold the land to a man he introduced to them. We denied recovery. We said: “Since appellant had no contract with [the sellers] or with the purchaser there has been no interference with contract rights.” 90 U.S.App.D.C. at page 264, 195 F.2d at page 204.
Appellant now asserts a claim against the purchaser, alleging nearly the same facts as before. He says he had “an oral option to purchase * * * ” jn jts context, we take this assertion to mean only that the owners promised they would sell him the land if he decided to buy it. He does not suggest that he gave consideration for their promise. In other words he alleges no contract, either oral or written. Though he says the sellers and the buyer joined in a “conspiracy” to deprive him of profit he states no claim on which relief can be granted. It is elementary, and we held on the previous appeal, that an owner incurs no liability by failing to perform a mere promise to sell land to a particular person. It is also elementary that a third person who wants the land incurs no liability by buying it in disregard of such a promise. Since there was no contract, the question whether liability is incurred by inducing breach of a contract that fails to comply with the Statute of Frauds does not arise.
Affirmed. | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine which of these categories best describes the income of the litigant. Consider the following categories: "not ascertained", "poor + wards of state" (e.g., patients at state mental hospital; not prisoner unless specific indication that poor), "presumed poor" (e.g., migrant farm worker), "presumed wealthy" (e.g., high status job - like medical doctors, executives of corporations that are national in scope, professional athletes in the NBA or NFL; upper 1/5 of income bracket), "clear indication of wealth in opinion", "other - above poverty line but not clearly wealthy" (e.g., public school teachers, federal government employees)." Note that "poor" means below the federal poverty line; e.g., welfare or food stamp recipients. There must be some specific indication in the opinion that you can point to before anyone is classified anything other than "not ascertained". Prisoners filing "pro se" were classified as poor, but litigants in civil cases who proceed pro se were not presumed to be poor. Wealth obtained from the crime at issue in a criminal case was not counted when determining the wealth of the criminal defendant (e.g., drug dealers). | This question concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Which of these categories best describes the income of the litigant? | [
"not ascertained",
"poor + wards of state",
"presumed poor",
"presumed wealthy",
"clear indication of wealth in opinion",
"other - above poverty line but not clearly wealthy"
] | [
5
] | songer |
UNITED STATES of America, Plaintiff-Appellant, v. Charles FOCHT, an Individual, and Mark Focht, an Individual, Doing Business Under the Name Liberty Industries, Defendants-Appellees.
No. 88-3781.
United States Court of Appeals, Third Circuit.
Argued July 27, 1989.
Decided Aug. 8, 1989.
Charles D. Sheehy, Acting U.S. Atty., Bonnie R. Schlueter (Argued), Barbara M. Carlin, Asst. U.S. Attys., for plaintiff-appellant.
Louis Pomerico, (Argued), New Castle, Pa., Nancilee Burzachechi, Ellwood City, Pa., for defendants-appellees.
Before GIBBONS, Chief Judge, HUTCHINSON, Circuit Judge, and REED, District Judge.
Honorable Lowell A. Reed, Jr., District Court Judge for the Eastern District of Pennsylvania, sitting by designation.
OPINION OF THE COURT
GIBBONS, Chief Judge:
The United States Consumer Products Safety Commission appeals from a denial of its motion to the court under 15 U.S.C. § 1263(a) to preliminarily enjoin Charles and Mark Focht, doing business as Liberty Industries, from distributing firework components in interstate commerce. The Government contends that the district court misconstrued the statute to require application of a subjective standard to the Fochts’ actions. We will reverse.
I.
Charles and Mark Focht own and operate Liberty Industries, located in Slippery Rock, Pennsylvania. Liberty sells component parts used to assemble fireworks. Liberty markets its goods nationally using a catalog. The catalog not only lists Liberty’s components but also offers “how-to” books and is sent with a list of chemical suppliers bearing the note: “We hope this list helps you to fill your chemical needs, while Liberty continues to serve all of your other needs!” App. 168, 268.
The Consumer Product Safety Commission (“CPSC”) began to investigate Liberty in March, 1987. Between March and July of that year, five CPSC employees from various parts of the country requested and received catalogs from Liberty. The catalogs contained referral cards to Chemco of Virginia. App. 272-73, 338-39, 379-82, 441-42, 483-84. Six CPSC employees then each placed an order for tubes, twice as many end plugs, and fuses. App. 289, 318, 365, 425, 458, 517. Liberty filled the orders.
Based on the sales to its employees, the government filed a complaint against Liberty on May 27, 1988 seeking to enjoin Liberty’s interstate sale of tubes, end plugs, and fuses. The complaint theorizes that the sales violated 15 U.S.C. § 1261 because the components shipped were intended for use in illegal fireworks. It raises a question of first impression.
The district court held a hearing on the motion on September 13, 1988. There the government introduced the testimony of two experts; Liberty presented the testimony of one. All three agreed that traditional filling of the number 12 tube sold by Liberty would result in a firework over 1,000 times more powerful than allowed by law. The government witness conceded that the same tube also could be used to assemble a less powerful firework by displacing the end plugs. He also testified that the components could be used to manufacture legitimate Class C fireworks, which are sold to the general public. Both sides agreed that the tubes also could be used to construct mortars to loft stars or other fireworks, another legitimate use. After the hearing, the district court consolidated the government’s requests for preliminary and permanent injunctions pursuant to Fed.R.Civ.P. 65(a).
The court rendered its decision in a memorandum opinion and order entered September 26, 1988. United States v. Focht, 694 F.Supp. 1199 (W.D.Pa.1988) [hereinafter Dist. Ct. Op.]. It found that the components could be used to assemble legal firecrackers and fireworks. Therefore, the goods per se did not violate the Act. Holding that the regulatory language prohibiting sale of components intended to be used in banned fireworks contemplates the subjective, rather than the objective, intent of the purchaser, the district court denied the government’s motion and entered judgment for Liberty. Based on its finding that no statutory violation had occurred, it never examined whether recurrent violations were likely, the second half of the statutory injunction test. See Commodity Futures Trading Comm’n v. British Am. Commodity Options Corp., 560 F.2d 135, 141 (2d Cir.1977), cert. denied, 438 U.S. 905, 98 S.Ct. 3123, 57 L.Ed.2d 1147 (1978). On appeal, the government asserts the district court misconstrued 16 C.F.R. § 1500.17(a)(3), (8) when it held the regulation’s “intended to produce” language imposes a subjective consumer standard on sales of fireworks components to determine whether a violation has occurred. Our review of this question of law is plenary. Dent v. Cunningham, 786 F.2d 173, 175 (3d Cir.1986).
II.
The Federal Hazardous Substances Act, (“FHSA” or “the Act”), 15 U.S.C. §§ 1261-77 (1982 & Supp. V 1987), makes illegal “[t]he introduction or delivery for introduction into interstate commerce of any ... banned hazardous substance.” 15 U.S.C. § 1263(a) (1982); see also id. at § 1264 (penalties; exceptions); United States v. Scharstein, 531 F.Supp. 460, 465 (E.D.Ky.1982) (FHSA meant “to protect the general public ... from extremely hazardous products”). Neither the parties nor the district court disputes this. The Act contains the following definition of “banned hazardous substance”:
(q)(l) The term “banned hazardous substance” means (A) any toy, or other article intended for use by children, which is a hazardous substance, or which bears or contains a hazardous substance in such manner as to be susceptible of access by a child to whom such toy or other article is entrusted; or (B) any hazardous substance intended, or packaged in a form suitable, for use in the household, which the Secretary by regulation classifies as a “banned hazardous substance” on the basis of a finding that, notwithstanding such cautionary labeling as is or may be required under this chapter for that substance, the degree or nature of the hazard involved in the presence or use of such substance in households is such that the objective of the protection of the public health and safety can be adequately served only by keeping such substance, when so intended or packaged, out of the channels of interstate commerce: Provided, That the Secretary, by regulation, ... (ii) shall exempt from clause (A), and provide for the labeling of, common fireworks (including toy paper caps, cone fountains, cylinder fountains, whistles without report, and sparklers) to the extent that he determines that such articles can be adequately labeled to protect the purchasers and users thereof.
15 U.S.C. § 1261(q)(l) (1982).
The statute grants the Secretary of Health, Education, and Welfare broad regulatory powers. See 15 U.S.C. §§ 1261(f)(1)(B), 1262 (1982). Section 1261(q)(l)(B) expressly instructs the Secretary to make determinations and then ban any substance that cannot be made safe through labeling. Id. § 1261(q)(l)(B); 16 C.F.R. § 1500.17(a) (1988). A ban on two kinds of fireworks has resulted. One applies to aerial fireworks:
Fireworks devices intended to produce audible effects (including but not limited to cherry bombs, M-80 salutes, silver salutes, and other large firecrackers, aerial bombs, and other fireworks designed to produce audible effects, and including kits and components intended to produce such fireworks) if the audible effect is produced by a charge of more than 2 grains of pyrotechnic composition....
16 C.F.R. § 1500.17(a)(3) (1988). The other applies stricter standards to firecrackers exploding on the ground:
Firecrackers designed to produce audible effects, if the audible effect is produced by a charge of more than 50 milligrams (.772 grains) of pyrotechnic composition (not including firecrackers included as components of a rocket), aerial bombs, and devices that may be confused with candy or other foods, such as “dragon eggs,” and “cracker balls” (also known as “ball-type caps”), and including kits and components intended to produce such fireworks....
Id. at § 1500.17(a)(8). Thus, the “components intended to produce” language at issue is regulatory.
The district court found this language difficult — perhaps even impossible — to construe. Dist.Ct.Op. at 8. We have no such difficulty. The regulations clearly contemplate an objective seller standard.
The starting point of our analysis must be the regulatory language itself. Pursuant to 15 U.S.C. § 1261(q)(l)(B). Section 1500.17 bans certain hazardous substances because they are so dangerous that adequate labeling cannot be devised, and therefore “the public health and safety can be served only by keeping such articles out of interstate commerce.” 16 C.F.R. § 1500.17(a) (1988); see R.B. Jarts, Inc. v. Richardson, 438 F.2d 846, 848-49 (2d Cir.1981), United States v. Chalaire, 316 F.Supp. 543, 546 (E.D.La.1982). The regulation borrows this quoted material almost verbatim from section 1261(q)(1)(B).
This language tells us three things. First, it tells us the regulation prohibits certain substances from entry into interstate commerce. Second it tells us that an extreme problem, justifying an extreme response, exists. Third, it tells us that Congress expressly authorized such a response. See 15 U.S.C. § 1261(q)(l)(B) (1982); see also H.R.Rep. No. 2166, 89th Cong., 2d Sess., reprinted in 1966 U.S. Code Cong. & Admin.News 4095, 4095, 4096, 4099-4100.
Subsections (a)(3) and (a)(8) each bans a particular type of firework, “including kits and components intended to produce such fireworks.” 16 C.F.R. § 1500.17(a)(3), (8) (1988). Taken in context, this language calls for application of an objective seller standard. Congress intended the ban to keep certain items out of commerce; it intended the ban to prevent such goods from ever entering American homes. 15 C.F.R. § 1261(q)(l)(B) (1982). The regulations adopt the statutory language and attempt to effectuate its purpose. See 16 C.F.R. § 1500.17(a) (1988). They identify an item posing a certain type of danger, and then insert catch-all language to trap components or kits that will have the same effect.
The district court reached the unnecessary conclusion that the components, with their multitudinous possible legal uses per se were not banned hazardous substances. This is clear from the regulations’ wording, which bans components only when their intended use is to produce banned fireworks. Still, the Fochts attempt to build on this finding by stating that their harmless paper and plastic products could not be deemed hazardous under any test. Case law has shown that even the most innocuous items may be converted into dangerous instrumentalities. See, e.g., United States v. Morrow, 717 F.2d 800, 802 (3d Cir.1983), cert. denied, 464 U.S. 1069, 104 S.Ct. 975, 79 L.Ed.2d 213 (1984) (building as bomb); United States v. Agrillo-Ladlad, 675 F.2d 905, 911 (7th Cir.), cert. denied, 459 U.S. 829, 103 S.Ct. 66, 74 L.Ed.2d 67 (1982) (newspapers and naptha as bomb).
The district court’s subjective consumer standard undermines the statute’s purpose because it allows the components into the home and, worse still, requires that they be assembled into a banned firework before a violation arises. See Dist. Ct. Op. at 8. The only way to meet the congressional goal of preventing these goods from being introduced into the home is to apply an objective standard at the time of shipment.
Furthermore, the regulation uses the “intended to produce” language in subsection (a)(3) to describe assembled fireworks. Such usage necessarily contemplates the manufacturer’s intent in producing the firework or the seller’s intent in marketing it. Thus, a consistent reading would require an objective standard for components as well. In addition, since the regulation uses the components and kits language as a catch-all to snare all shipments that will have the prohibited intended effect, this objective standard also must carry over to the component parts. The district court’s reading would allow the pieces to enter, when the whole is banned. This anomalous result cannot stand.
The statute also contains another indication in addition to its general purpose of barring from interstate commerce banned hazardous substances that objective intent should govern. Section 1261(f)(1), which defines “hazardous substance,” uses traditional foreseeability language. 15 U.S.C. § 1261(f)(1)(A) (1982) (defining “hazardous substance” as “[a]ny substance or mixture of substances which ... is flammable or combustible, or ... generates pressure through decomposition, heat, or other means, if [it] may cause substantial personal injury or substantial illness during or as a proximate result of any customary or foreseeable handling or use”).
Intended use (including foreseeable misuse, see, e.g., Suchomajcz v. Hummel Chemical Co., 524 F.2d 19 (3d Cir.1975)), objectively defined, necessarily encompasses foreseeability. Thus mitigated, the standard achieves a fair result. Contrary to the district court and the Fochts’ position, the test does not cast the statute’s net too broadly because surrounding circumstances mitigate the result.
While Liberty’s merchandise may be used to construct legal fireworks, the government presented expert testimony that “90% of those individuals who order a tube, 2 end caps, and a fuse or who order similar proportions of these items in quantity, will use these items to make illegal fireworks.” Dist.Ct.Op. at 7. The same expert testified that if one of the tubes in question were filled in the traditional manner, it would contain over 1,000 times the legal limit of explosive. Id. at 5-6. This testimony, accepted by the district court, makes it foreseeable that the components in question will be used to build banned fireworks. Such knowledge must be attributed to the Fochts. Thus, the objective test, the regulation, and the statutory purpose are satisfied.
Contrary to the district court’s opinion, such a test does not work an injustice upon Liberty. First, application of the objective intent standard does not result in a total ban of sales of the goods in question. As the government suggests, Liberty may avoid violation by policing the orders it receives and refusing to fill those that suggest the components will be put to banned uses. Liberty has chosen to traffic in highly regulated goods. It is common knowledge that doing business in a regulated area brings with it added costs. Having chosen to enter such an area, the Fochts cannot now complain about bearing that cost. It is not “unrealistic to require [Liberty] to examine each order” to determine whether the proportions and types of goods ordered likely will be used to produce banned fireworks. Id. at 7. They must read the order to fill it. Nor is it unreasonable to expect them to check recent orders by the same customer.
In the alternative, the Fochts simply may stop selling those goods likely to find their way into banned fireworks, or they may limit their sale to licensed manufacturers. Liberty cannot rely on statements by the orderer that he or she is of age and intends to use the goods only for legal purposes to evade the statute. United States v. Christie Indus., Inc., 465 F.2d 1002, 1008 (3d Cir.1972). Therefore, imposition of an objective standard strikes a fair balance between the Fochts’ business interests and the statutory goals.
In sharp contrast, the district court’s rule does violence to the statutory purpose. It would allow the Fochts to ship to homes all the components of illegal fireworks without violating the regulations. A seller’s subjective intent standard would provoke the same result: any good faith belief — such as the Fochts’ claim here — that their goods would not be used, or were not intended to be used, in banned fireworks would insulate the shipment. Cf. United States v. Articles of Banned Hazardous Substances, 614 F.Supp. 226, 232 (E.D.N.Y.1985).
III.
The district court denied the government’s motion for a preliminary injunction and entered a judgment for the Fochts based on its finding that the challenged goods are not banned hazardous substances. Since we hold that they are, we will reverse the district court’s judgment and remand for a determination by the district court whether recurrent violations are likely and what form of injunction is appropriate.
.These parts include paper containers, plastic shells, bases, fuses, end glue, spiral wound tubes, and end plugs.
. These books are: The Chemistry of Powder and Explosives, Fireworks Principles and Practice, and Pyrotechnics, App. 264.
. Under previous ownership, Liberty sold the chemical, as well as the structural, components of fireworks. App. 162; see App. 265.
. Some of the employees’ catalog requests and or orders were made after the complaint was filed. App. 351, 365, 518.
. The government brief also includes some facts about an incident involving a fourteen-year-old boy who manufactured banned fireworks in his home using Liberty materials. These events occurred in October 1987, several months after the CPSC filed its complaint.
. Specifically, the government asked the district court to enjoin Liberty from future interstate deliveries of banned substances in violation of 15 U.S.C. § 1263(a), pursuant to 15 U.S.C. § 1261(q)(l)(B) and 16 C.F.R. § 1500.17(a)(3), (8); to maintain records of all orders received and all shipments made; to submit a written plan to ensure compliance with section 1263(a); and to permit the CPSC to copy and inspect Liberty’s records to monitor compliance. App. 582-83. The government also asked to recover costs, App. 583, and moved for a preliminary injunction.
.Robert Winokur, Liberty’s expert also testified the tubes could be used to make any other multitube device, such as "birthday cakes,” smoke devices, roman candles, and whistles.
. The Fochts contend that only the legislature can impose an absolute ban on materials used as components of fireworks. This argument fails, both because Congress expressly empowered and instructed the Secretary to ban substances (s)he determines to be hazardous under the guidelines set forth by Congress, and because the regulation does not prohibit all Liberty sales. Instead it forbids only shipment in interstate commerce of those components intended to produce banned fireworks.
. The Fochts maintain that their goods neither are intended for children, nor for use in the household. Brief for the Appellees at 12. This court previously has noted the likely combination of children and fireworks. See Suchomajcz v. Hummel Chem. Co., 524 F.2d 19, 26 (3d Cir.1975). Furthermore, the statute itself treats fireworks as toys. See 15 U.S.C. § 1261(q)(l) (1982) (exempting from the § 1261(q)(l)(A) ban any common fireworks to the extent the Secretary deems adequate labels can be devised). It should be noted, however, that the Secretary promulgated the bans on fireworks pursuant to 15 U.S.C. § 1261(q)(l)(B), not pursuant to (q)(1)(A). See 16 C.F.R. § 1500.17(a) (1988). Therefore, they ban fireworks that have been deemed a threat to society at large. Id. Any focus upon children is misplaced. Since the Fochts ship their products to households, their second argument is disingenuous.
. At least one other court has applied an objective seller standard to an FHSA case. United States v. Articles of Banned Hazardous Substances, 614 F.Supp. 226 (E.D.N.Y.1985). The facts of that case required the district court to construe 15 U.S.C. § 1261(f)(1)(D), which defines as a hazardous substance "any toy intended for use by children which the Commission by regulation determines ... presents [certain] risk[s].” Id. at 229 (emphasis added). It concluded that only an objective standard would advance the goals of the FHSA. Id. at 231-32.
. The Fochts analogize their paper and plastic goods to a car — an object that is not inherently dangerous yet may be put to innumerable illegal and unpredictable and unintended uses — to support application of a subjective intent standard. Here, however, the facts sufficiently narrow the possibilities to make the analogy invalid. Liberty advertises its goods as fireworks materials. Given the dimensions of certain of its products, and the composition of certain orders, illegal uses become extremely predictable. See infra at 60.
. This court previously has held that within the specific confines of particular preliminary injunction, shipment of separate components did not violate the injunction. United States v. Christie Indus., Inc., 465 F.2d 1002, 1007 (3d Cir.1972). This holding in no way binds us here.
. After they purchased Liberty, the Fochts wrote to the CPSC for an opinion on the legality of shipping the items listed in their catalog. A CPSC attorney suggested that they delete all the tubes on page 2 and the tubes and bases at the top of page 5, as well as the cherry cup sets, items CS-1 and CS-2. App. 207-09, 256, 258, 261. These deletions appear to leave the Fochts with plenty to market.
. We do not mean to imply that a balancing of interests is appropriate in an exercise of police power such as this. We merely respond to the district court’s express concern that anything but a subjective consumer standard is unfair to the Fochts and others like them.
. Having conceded the appropriateness of the court’s result in United States v. Articles of Banned Hazardous Substances, 614 F.Supp. 226 (E.D.N.Y.1985), the Fochts attempt to distinguish the instant case. There, the court applied an objective standard to rattle regulations promulgated pursuant to the Act. Fireworks cases offer a sharp contrast, the Fochts argue, because no reasonable adult intends fireworks to be used by children. This turns the test inside-out. It also ignores the fact that § 1261(q)(l)(B) is not targeted at children alone, but at the general population. See United States v. Scharstein, 531 F.Supp. 460, 465 (E.D.Ky.1982); 15 U.S.C. § 1261(q)(1)(B) (1982); H.R.Rep. No. 2166, 89th Cong., 2d Sess., reprinted in 1966 U.S.Code Cong. & Admin.News 4095, 4095, 4096, 4099-4100. | 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 15. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA". | 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 15? Answer with a number. | [] | [
1261
] | songer |
NATIONAL LABOR RELATIONS BOARD, Petitioner, v. UNITED HATTERS, CAP & MILLINERY WORKERS INTERNATIONAL UNION, AFL-CIO, Respondent.
No. 14287.
United States Court of Appeals Sixth Circuit.
April 6, 1962.
Marcel Mallet-Prevost, Asst. General Counsel, National Labor Relations Board, Washington, D. C., John C. Getreu, Director 9th Region, N. L. R. B., Cincinnati, Ohio, Duane B. Beeson and Joseph C. Thackery, Washington, D. C., for appellant.
Herbert L. Segal, Louisville, Ky., Isadore Katz, Lieberman, Katz & Aronson, New York City, for appellee.
Before CECIL and O’SULLIVAN, Circuit Judges, and KALBFLEISCH, District Judge.
ORDER.
It appearing to the Court that by order of June 6, 1961, 6 Cir., 290 F.2d 591, the Court struck from its order of March 17, 1961, 6 Cir., 288 F.2d 436, the following language: “Upon the objection of the respondent to the use of the words ‘or any other employer’ as used in the order, the Court finds that the respondent made no specific objection to the board to the use of these words in the examiner’s interim report, and that the question cannot now be raised in this Court. Section 160(e), Title 29 U.S.C.”; and by said order of June 6, 1961, held in abeyance pending the decision of the Supreme Court, in National Labor Relations Board v. Ochoa Fertilizer Corporation et al., the questions of modification of the order of the board by striking the phrase “or any other employer” and whether or not proper objection was made;
And it further appearing to the Court that the case of National Labor Relations Board v. Ochoa Fertilizer Corporation et al. has now been decided (368 U.S. 318, 82 S.Ct. 344, 7 L.Ed.2d 312), it is hereby ordered that the objection to the phrase “or any other employer” be overruled for the reason hereinbefore stated in the order of March 17, 1961, and that said phrase remain in the order as heretofore enforced by the original order of this Court. National Labor Relations Board v. Cheney California Lumber Co., 327 U.S. 385, 389, 66 S.Ct. 553, 90 L.Ed. 739. | 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. | Did the interpretation of federal rule of procedures, judicial doctrine, or case law by the court favor the appellant? | [
"No",
"Yes",
"Mixed answer",
"Issue not discussed"
] | [
0
] | songer |
Application of Michael REYNOLDS for a Writ of Habeas Corpus, Michael Reynolds, Appellant. Application of Martin REYNOLDS for a Writ of Habeas Corpus, Martin Reynolds, Appellant.
Nos. 16664, 16665.
United States Court of Appeals Third Circuit.
Argued April 5, 1968.
Decided July 2, 1968.
Ganey, Circuit Judge, dissented.
Richard M. Glassner, Newark, N. J., for appellant in No. 16664.
Philip J. Mylod, Mylod & Feinberg, Newark, N. J., for appellant in No. 16665.
Alan Silber, Newark, N. J., for appellee (Joseph P. Lordi, County Pros, of Essex County, Newark, N. J., James R. Zazzali, Asst. Pros., of counsel and on the brief), for plaintiff-respondent.
Before KALODNER, GANEY and VAN DUSEN, Circuit Judges.
VAN DUSEN, Circuit Judge.
This appeal is from the denial of appellants’, Michael Reynolds (Michael) and Martin Reynolds (Martin), petitions for writs of habeas corpus (Civil Actions Nos. 244-65' arid 255-65, respectively), sought pursuant to 28 U.S.C. § 2241(a), (c) (3) et seq. The District Court summarized the facts in its opinion of March 14, 1967, 287 F.Supp. 666:
“Petitioners were indicted by an Essex County Grand Jury on July 23, 1962 for the murder of Fred Garcia, the owner of a store located at 938 Bergen Street, Newark, New Jersey. Mr. Garcia died as a consequence of a bullet wound inflicted by Martin Reynolds [19] on April 1, 1962 while he and his brother, Michael Reynolds [23], were robbing the store. Petitioners were prosecuted by indictment pursuant to the provisions of N.J.S.A. 2A: 113-2 whereby a person engaged in the commission of a felony during which the death of another occurs is guilty of murder in the first degree. It is further provided by N.J.S.A. 2A: 113-4 that ‘every person convicted of murder in the first degree, his aiders, abettors, counselors, or procurers shall suffer death unless the jury by its verdict, and as a part thereof, shall, after consideration of all of the evidence, recommend life imprisonment in which case this and no greater punishment shall be imposed.’ (Emphasis supplied)
“A jury found each petitioner guilty of murder in the first degree without recommendation of life imprisonment. Thereupon each of petitioners was sentenced to death on November 10, 1962.”
We agree that the District Court properly denied the petitions but point out our particular reasons for affirmance with respect to certain of the numerous contentions pressed both below and on this appeal.
As the District Court emphasized, the trial of appellants had the particular posture of being a trial solely on the issue of the possible recommendation of life imprisonment. Accordingly, the extent of the sentence, life imprisonment or the death penalty, was all the jury had to determine. This singular purpose of the trial is made abundantly clear in the statements of defense counsel quoted at length in the able opinion of the District Court.
I-
As grounds for granting their writs of habeas corpus, the appellants argue vigorously that their death sentences are constitutionally infirm because their written and oral confessions given to the police were coerced and involuntary. Appellants contend they were neither advised of their rights nor allowed to have counsel prior to making oral confessions to the police, followed by signed written statements. This contention we find without merit because the state court record clearly shows that appellants’ counsel deliberately, unequivocally, and reasonably waived any objection to such confessions and their admission into evidence. It was not feasible to have the confessions admitted solely with 'respect to the issue of appellants’ admitted “guilt”, yet with constitutional objections reserved with respect to the issue of the possible recommendation of life imprisonment. The waiver in this case was complete, with a specific statement of “no objection” from each of appellants’ counsel with respect to the admissibility of each of the two written confessions (Exhibits S-20 and S-21). In addition, as the District Judge pointed out, counsel for the appellants also conceded in unequivocal terms that both confessions were voluntary.
By the above-mentioned reiterated explanations to the jury both that guilt was admitted and that the contents of Exhibits S-20 and S-21 were voluntarily given, counsel made an intelligent waiver of any constitutional objections to the confessions or their use as evidence that satisfies the standard of Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938): “an intentional relinquishment or abandonment of a known right or privilege,” as that standard has been explained and made applicable to habeas corpus determinations in Fay v. Noia, 372 U.S. 391, 438-439, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963) ; cf. Henry v. State of Mississippi, 379 U.S. 443, 451-452, 85 S.Ct. 564, 13 L.Ed. 2d 408 (1965). Particularly are we convinced that the extensive waiver constituted deliberate trial tactics in light of the opening remarks and summations of both defense counsel quoted in part above. The waiver was part of their case from the outset, obviously noticed by appellants even if they had not been consulted beforehand, and part of a reasonable strategy in view of the many witnesses in the store at the time of the robbery and shooting whose testimony would probably have made such confessions superfluous had guilt been contested. A reading of the record as a whole convinces us that the waiver was part of a plan to have appellants make as favorable an impression as possible upon the jury in order to secure their mercy. It would obviously help their cause with the jury the fewer factual problems they presented that concerned the shooting of a 69-year-old man and that demanded a jury assessment of their credibility or lack of it. As such, and in light of the clarity of counsel’s position, the waiver in this case more than equals the effective waiver outlined in Henry v. State of Mississippi, supra, at 451, 85 S.Ct. 564. Since, as to certain doctors’ statements discussed below, defense counsel made later objections to other evidence on the grounds of involuntariness, there is no doubt in this case that the right waived to object to S-20 and S-21 was “knowingly” waived.
II.
The appellants’ second main contention of constitutional infirmity concerns the testimony of two doctors who testified for the prosecution. The most vigorous arguments concern the testimony of Dr. Kesselman, a psychiatrist who examined both appellants for the state. Although, at the time of the trial, counsel objected only on the grounds of lack of proper foundation and improper rebuttal, appellants here contend that the details of the crime, as recounted in Dr. Kesselman’s “history” of the appellants taken when they were examined, should not have been admitted by the court because the doctor failed to advise or warn appellants of their constitutional rights before they gave their version of the crime to him. It is further argued that, because the doctor’s testimony revealed a different series of events surrounding the shots, and where each appellant was at those times, and because the testimony suggested that Martin deliberately shot Garcia and knew he had wounded him, the doctor’s “history” contradicted the testimony of the appellants given earlier on the stand. In the appellants’ case, their testimony maintained that Martin tried to shoot the knife from Garcia’s hand to protect his brother and that after Michael ran out of the store, the gun discharged a second time while Martin wrestled with Garcia, who tried to block his escape from the store. Since Dr. Kesselman’s version of the crime contradicted the appellants’ testimony, the appellants contend that the inadmissible testimony of their “history” prejudiced their chance to get a “life” recommendation from the jury.
Our examination of the record and a comparison of the written statements given to the police with the version of the crime given to Dr. Kesselman and repeated by him on the stand, convinces us “beyond a reasonable doubt” that appellants were not prejudiced in any way by the doctor’s testimony of the appellants’ description of the events in the store on April 1, 1962. Dr. Kesselman’s version of the appellants’ story — the number of shots, the position of the appellants at each shot, the knowledge of Martin that he hit Garcia, etc. — do not vary from the version of the crime given to the police and allowed into evidence without objection, as outlined above. Any contradictions, whether prejudicial or not, result solely from the variations in the details given by the appellants in their testimony at the trial and a contradiction between the statements (S-20 and S-21) of the two brothers. Dr. Kesselman’s testimony added nothing to the confessions admitted earlier in the trial, as to which appellants fully waived all objection.
The same lack of prejudice is even clearer with regard to Dr. Greifinger’s testimony.
III.
We concur with the opinions of the New Jersey Supreme Court [State v. Reynolds, 43 N.J. 597, 206 A.2d 750, 754 (1965)] and of the District Court (pp. 8-10 of 3/14/67 Opinion in D.N.J., Civ. 244-65 and 255-65) that the charge on the subject of the jury’s right to recommend life imprisonment did not violate any guarantee of the Constitution of the United States. Andres v. United States, 333 U.S. 740, 747-749, 68 S.Ct. 880, 92 L.Ed. 1055 (1948), relied on by appellants, was based on the interpretation of a. Congressional statute (The Act of January 15, 1897, 29 Stat. 487, as later incorporated in 18 U.S.C. § 567 as worded in 1943), which contained different language than that contained in N.J.S.A. 2A: 113-4. Similarly, the language before the court in Frady v. United States, 121 U.S.App.D.C. 78, 348 F.2d 84 (1965), which is contained in 22 D.C.Code § 2404 (Supp. IV, 1965), is quite different from the above-cited New Jersey statute. Furthermore, the only majority opinion in that case was a two-sentence Per Curiam Opinion (p. 85 of 348 F.2d) and the quotations relied on in appellant Michael Reynolds’ brief are from various separate opinions filed.
It is noted that Judge McGowan’s opinion (348 F.2d at 91-95) would apparently approve the procedure of remanding a case, under circumstances such as this where guilt was admitted, for retrial on the issue of the possible recommendation of life imprisonment only, even if a new trial were required. Cf. State v. Laws, 50 N.J. 159, 233 A.2d 633, 648 (1967) and 51 N.J. 494, 242 A.2d 333. (opinion of May/6/68); United States ex rel. Rivers v. Myers, 384 F.2d 737, 743 (3rd Cir. 1968).
IV.
The appellants’ several other contentions are fully discussed and correctly answered by the above-mentioned able opinion of the District Court judge dated March 14, 1967.
Accordingly, the order of the District Court, denying the applications for writs of habeas corpus, will be affirmed.
. As the District Court added:
“Petitioners appealed their conviction in the New Jersey Supreme Court where it was affirmed. State v. Reynolds, 41 N.J. 163, 195 A.2d 449 [1 A.L. R.3d 1438] (1963). Thereafter, certification [sic — certiorari] was denied by the United States Supreme Court, 377 U.S. 1000 [84 S.Ct. 1930, 1934, 12 L.Ed.2d 1050] (1963) and rehearing denied 379 U.S. 873 [85 S.Ct. 22, 13 L. Ed.2d 80, 81] (1964). Petition for post conviction relief and stay of execution was denied by the Essex County Court on November 13, 1964. The Supreme Court affirmed. State v. Reynolds, 43 N.J. 597, 206 A.2d 750 (1965).”
Appellants, having thus exhausted their state remedies, then sought relief in the District Court.
. Counsel for Martin Reynolds stated in his opening:
“Now, you notice I did not say that these defendants would be entitled to an acquittal at your hands. And that very statement is something that I have never said before. I have really delivered the life of the defendant Martin Reynolds, I have handed it up. We do not deny our guilt of an intent to commit a robbery. Martin Reynolds went into that store. Martin Reynolds squeezed the trigger that sent that bullet into the body of Frederick Garcia. But we do deny — and that’s why we are here — that this was a wilful, felonious killing, cold, ruthless killing with malice aforethought. And so we are here to test solely the issues of penalty, of punishment. You ladies and gentlemen are the arbiters of the facts in this case. You are the judge of the facts, all of the facts in this case, including the ultimate fact of guilt or innocence, and the still more ultimate fact — if there can be any more ultimate fact— of the awful judgment. You are to determine whether, insofar as my client Martin Reynolds is concerned, whether it is going to be life or death. Now, I can’t place it on the line any fairer or any squarer than I have.”
Counsel for Michael Reynolds stated in his opening:
“The question of punishment is a question of the degree of our sin, the degree of evil, which is a slang way of saying the same thing. We admit that at sundown, Sunday, April 1, 1962, Michael Reynolds entered the premises at 938 Bergen Street in concert with his brother Martin for the purpose of robbing that place. Martin went in first. Martin had a gun. Michael went in second. Michael did not have a gun. Michael knew that Martin had a gun, but Michael did not know that the gun would be used for any but the purpose of intimidation. Even if a shot were fired he did not contemplate that that would be done but for the purpose of intimidation.”
Counsel for Michael Reynolds reiterated in summation that the only issue was the question of whether life imprisonment or death should be imposed:
“On April the 1st of this year an innocent man was invaded in his humble place of business, a man who worked two days for a day and seven days for five, lived in a few rooms in the hack and earned his humble subsistence. This man was robbed. This man was murdered. And yet this is the end of the second week in which we are trying that case. Exactly what are we trying? Certainly, we are not trying to find out whether the defendants are guilty or innocent. We start with that. They are guilty. They wilfully, knowingly entered the premises for the purpose of robbing. A death has resulted during this adventure and it does not matter legally whether the death was intended, and I admit that his Honor will so charge you. It would not matter even if the death were accidental or even of a fellow-defendant — or rather a fellow robber.”
. The record discloses the following statements made by Mr. Glassner, counsel for Michael Reynolds and by Mr. Mylod, counsel for Martin Reynolds:
“Mb. Glassnee: I wish to state that the statement was voluntarily given.
Mb. Lobdi: I understand there is an admission.
Me. Glassnee: Yes sir.
Mb. Lobdi: This is with respect to the statement of Michael.
Mb. Glassnee: Yes, sir. It was voluntarily given.”
* Hi * * *
“Q. During all this time were any promises or offers of reward made to induce Michael or Martin Reynolds to sign each other’s statements?
Mb. Mylod: We will concede on behalf of Martin that there were no threats, promises or force.
Mb. Lobdi: That is on behalf of Martin.
Mb. Glassnee: The same.
Mb. Lobdi: The same on behalf of Michael?
Mb. Glassnee: Michael.”
In view of our decision, we do not have to reach the adequacy of the pre-statement warning of rights actually given to each appellant, a warning which concededly might bo inadequate under normal circumstances.
. The record has no indication of any kind that the individual defendants-appellants did not join in the waiver or that the factual circumstances of this case in any way impugn the effectiveness of counsels’ waiver in behalf of their clients. Cf. Brookhart v. Janis, 384 U.S. 1, 4-7, S6 S.Ct. 1245, 16 L.Ed.2d 314 (1966).
. Those who actually did testify were the victim’s daughter, and three customers in the store at the time of the shooting. The testimony of these witnesses conformed substantially to the written confessions but some testimony contradicted certain details as to whether Michael was still in .the store at the time of the first shot, whether Garcia picked up a knife, and whether it was immediately apparent from the blood appearing on Garcia’s shirt that he had been struck in the back or shoulder by the first bullet.
. In the District Court, the appellants argued that the prejudice in Dr. Kesselman’s testimony came from references in the “history” to the appellants’ prior and present criminal records. The District Court correctly rejected this contention on the grounds that Dr. Kesselman’s testimony was proper rebuttal to the appellants’ case which contained extensive references to the appellants’ past juvenile delinquency and anti-social behavior (Opinion of 3/14/67, p. 6).
. In considering appellants’ contentions we have reviewed thoroughly the trial transcript, extracting and placing side by side the appellants’ signed statements of the details of the crime (S-20 and S-21, read to the jury), the appellants’ testimony concerning this subject, and the testimony of Dr. Kesselman relating such details as told to him over two months after the crime. Dr. Kesselman’s testimony added no factual data or sequence of events not already presented to the jury and fully developed earlier in the trial.
. See Chapman v. State of California, 386 U.S. 18, 24 (1967), where the court noted at 21-22, 87 S.Ct. 824, at 827, 17 L.Ed.2d 705:
“We are urged by petitioners to hold that all federal constitutional errors, regardless of the facts and circumstances, must always be deemed harmful. * * * We decline to adopt any such rule. * * * We conclude that there may be some constitutional errors which in tlie setting of a particular case are so unimportant and insignificant that they may, consistent with the Federal Constitution, be deemed harmless, not requiring the automatic reversal of the conviction.”
See, also, Spencer v. State of Texas, 385 U.S. 554, 562-566, 87 S.Ct. 648, 17 L.Ed. 2d 606 (1967).
. The appellants’ objection that Dr. Kesselman’s testimony was not proper rebuttal was correctly overruled. Dr. Kesselman did not testify during the State’s case and was called in rebuttal after the appellants had offered the testimony of two doctors, a psychologist and a psychiatrist, who testified as to their conclusions drawn from the appellants’ past anti-social behavior, family background, problems with the law, etc. The appellants’ doctors testified as to the brothers’ personality disorders and low emotional age, Martin’s being two to three years. Dr. Kesselman was called on rebuttal to testify to more normal behavioral patterns of the appellants, including a mental age of 13 or 14 for Martin and 14 to 16 for Michael (as opposed to 7 to 9 year's by Dr. Smith, and 8 years by Dr. Latimer).
. The testimony of Dr. Greifinger, the police surgeon who examined the appellants immediately after they signed their confessions, is similarly devoid of any prejudice, regardless of the question of voluntariness. Dr. Greifinger’s “history” contained three short, allegedly prejudicial sentences:
“Martin Reynolds told me that on April 1st, 1962 he robbed a store on Bergen Street. A man grabbed a knife and tried to stab his brother who was with him on the robbery. Martin Reynolds then told me that he shot the man and the man died.”
This skeleton story does not differ from the written confession of Martin admitted into evidence without objection. Moreover, the trial court asked the jury to withdraw, heard arguments, on the inadmissibility of the doctor’s “history,” and then recalled the jury and instructed them carefully on voluntariness before allowing these three sentences of testimony. This argument, and the findings made by the trial judge that no pressure was used by the doctor, that the defendants’ will was not overcome, and that the answers were given voluntarily, answered the objection that there was no foundation for Dr. Greifinger’s testimony. It is also noted that the trial judge repeated again at this time that the statement of one appellant to the doctor was not admissible against the other appellant.
. This opinion adopts the relevant portion of the previous State v. Reynolds, 41 N.J. 163, 195 A.2d 449, 460-462, 1 A.L.R. 3d 1438 (1963), cert. den. 377 U.S. 1000, 84 S.Ct. 1930, 1934, 12 L.Ed.2d 1050 (1963).
. It is also noted that both opinions in the Andres case relied on a construction of the 1897 statutory language by a previous Federal Court decision [Smith v. United States, 47 F.2d 518 (9tli Cir. 1931)]. See 333 U.S. at 749 and 764, 68 S.Ot. 880. | What follows is an opinion from a United States Court of Appeals.
Your task is to determine whether the case was an appeal of a decision by the district court on a petition for habeas corpus. A state habeas corpus case is one in which a state inmate has petitioned the federal courts. | Was the case an appeal of a decision by the district court on a petition for habeas corpus? | [
"no",
"yes, state habeas corpus (criminal)",
"yes, federal habeas corpus (criminal)",
"yes, federal habeas corpus relating to deportation"
] | [
1
] | songer |
Jane DOE and Herbert F. Sandmire, M.D., Plaintiffs-Appellees, v. BELLIN MEMORIAL HOSPITAL et al., Defendants-Appellants.
No. 73-1396.
United States Court of Appeals, Seventh Circuit.
Argued May 30, 1973.
Decided June 1, 1973.
Alexander R. Grant, Gregory B. Conway, Green Bay, Wis., for defendants-appellants.
Paul L. Jonjak, Sturgeon Bay, Wis., for plaintiffs-appellees.
Before KILEY, PELL and STEVENS, Circuit Judges.
STEVENS, Circuit Judge.
The district court ordered the defendant hospital to make its facilities and staff available to the plaintiff doctor for the immediate performance of an abortion on the plaintiff, Jane Doe. We stayed that order and expedited defendants’ appeal. The ultimate issue is whether the defendants, who are regulated by the State of Wisconsin and have accepted financial support pursuant to the Hill-Burton Act, 42 U.S.C. § 291, may refuse to perform abortions without offending the Civil Rights Act, 42 U.S.C. § 1983. We hold that they may, since the record does not indicate that their refusal was directly or indirectly influenced by the State or by persons acting under color of State law.
On April 26, 1973, plaintiff filed a verified complaint, together with the affidavit of Dr. Sandmire, plaintiff Doe’s attending physician and a member of the staff of the defendant hospital. For purposes of decision we accept the facts as stated in those documents notwithstanding defendants’ objection to the district court’s refusal to hear their witnesses. These facts are fairly summarized in plaintiffs’ brief from which we quote:
“This case arises from Beilin Memorial Hospital’s refusal to permit use of its facilities for an abortion for Jane Doe and its enforcement of abortion-restricting rules.
“Jane Doe, a resident of Shawano County, Wisconsin, became pregnant on February 4, 1973, and was scheduled for an abortion in a Madison, Wisconsin, clinic on April 4, 1973, but could not keep the appointment because of a severe snow storm. Her pregnancy had advanced too far to permit a clinic abortion, so Jane Doe’s personal physician referred her to Dr. Herbert F. Sandmire, who performed an examination on April 19, 1973. Dr. Sandmire determined, after consultation with his patient, that in his medical judgment, the patient’s pregnancy should be terminated in a hospital.
“Practical considerations, such as time, distance, and expense, normally limit Dr. Sandmire’s practice to Green Bay hospitals and he has practiced his profession at Beilin Memorial Hospital for a number of years. He contacted St. Vincent Hospital, St. Mary’s Hospital, and Beilin Memorial Hospital, the only Green Bay hospitals with suitable facilities, to request their use for the operation, but in each instance his request was refused.
“Bellin Memorial Hospital informed Dr. Sandmire it was enforcing rules restricting abortions to cases where pregnancy would: seriously threaten the health or life of the mother, or re-suit in delivery of an infant with grave and irreparable physical deformity or mental retardation, or if the pregnancy has resulted from legally established rape or incest. These rules make no provision for seeking consent from a putative father. All abortions are to be reviewed by a medical committee which then reports to the staff and Board of Directors.
“Beilin Memorial Hospital is regulated by the state, has received funding under the Hill-Burton Act from the federal government and has been an agency through which the State of Wisconsin and the United States Government have provided medical services for residents of Northeastern Wisconsin, but the hospital is now denying Jane Doe and Dr. Sandmire use of its facilities by enforcing abortion-restricting rules virtually identical to those [required by portions of the Georgia statute] declared unconstitutional [in Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201, on January 22, 1973]. In the past it has denied Dr. Sandmire use of its facilities for an abortion restricted by these rules, it has denied the facilities for Jane' Doe because of these rules, and apparently it intends to continue to enforce these rules against Dr. Sand-mire’s patients in the future.
“Every passing day increases the medical risk to Jane Doe and at the time of Dr. Sandmire’s examination, she was nearing the end of her first trimester of pregnancy on May 4, 1973, at which point medical risks increase dramatically.
“Dr. Sandmire and Jane Doe, therefore, brought this action against Bel-lin Memorial Hospital and certain of its officials and agents seeking: [an injunction restraining defendants from denying the use of their facilities for an abortion to be performed on Jane Doe or any other patients of Dr. Sandmire in the future, and for certain other relief].”
On May 2, 1973, the district court granted a preliminary injunction. Because we seriously doubted that plaintiffs would ultimately succeed on the merits, and saw a practical risk that immediate performance of the abortion might result in a termination of the litigation in advance of appellate review, we granted defendants’ application for a stay on May 3. We now reverse.
I.
Defendants argue that we should pot reach the merits because plaintiffs have failed (a) to join the putative father as a party, or (b) to establish irreparable harm. We are not persuaded by either of these arguments^
In Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), the Supreme Court held that the right to make the “abortion decision” is an aspect of “liberty” protected by the Due Process Clause of the Fourteenth Amendment. In both Mr. Justice Blackmun’s opinion for the Court and Mr. Justice Stewart’s concurring opinion, the possessor of that right is plainly identified as the woman; no reference is made to the putative father. The analysis in Eisenstadt v. Baird, 405 U.S. 438, 453, 92 S. Ct. 1029, 31 L.Ed.2d 349 from which Mr. Justice Stewart quoted, plainly indicates that the constitutionally protected right of privacy is an individual rather than a joint right. He stated:
“As recently as last Term, in Eisenstadt v. Baird, 405 U.S. 438, 453, [92 S.Ct. 1029, 1038, 31 L.Ed.2d 349], we recognized ‘the right of the individual married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.’ That right necessarily includes the right of a woman to decide whether or not to terminate her pregnancy.
-!v vr X *X* vr X
“Clearly, therefore, the Court today is correct in holding that the right asserted by Jane Roe is embraced within the personal liberty protected by the Due Process Clause of the Fourteenth Amendment.” 410 U.S. at 169, 93 S.Ct. at 735 (Mr. Justice Stewart concurring).
We find nothing in these opinions to support the suggestion that the woman’s right to make the abortion decision is conditioned on the consent of the putative father. In fact, the conclusion that the word “person,” as used in the Fourteenth Amendment, does not include the unborn (at p. 729), points in the other direction and serves to distinguish Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551, on which defendants rely. The putative father, whoever he may be, is not an indispensable party.
Defendants argue that plaintiff has not proved irreparable injury because the record does not foreclose the possibility that she could travel to another community and obtain the care she needs. But if she has a federal right to have the operation performed in Bel-lin Memorial Hospital, where her doctor is a member of the staff, and if, as her doctor has attested, there are increasingly serious hazards associated with the performance of the abortion, it is doubtful that the recovery of purely monetary damages would provide her with an adequate remedy. The quality, rather than the magnitude, of the potential risks supports the district court’s evaluation of the character of her possible injury as “irreparable”. In view of the sensitive interests at stake, we are persuaded that the record contains an adequate showing of the element of irreparable damage needed for preliminary injunc-tive purposes. We therefore turn to the merits.
II.
A woman’s right to make the abortion decision is protected by the Fourteenth Amendment from deprivation by a state. For that reason a statute which makes the performance of an abortion a crime, Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 1471 (1973), or which requires the medical profession to observe unnecessary abortion-restricting rules, Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973), is invalid. The rationale of those cases has also been applied to rules adopted by the Worcester City Hospital, Hathaway v. Worcester City Hospital, 475 F.2d 701 (1st Cir. 1973), and by the New York Commissioner of Social Services, Klein, et al. v. Nassau County Medical Center, et al., 347 F.Supp. 496 (E. D.N.Y.1972).
The rationale of those cases is, however, inapplicable to private institutions. There is no constitutional objection to the decision by a purely private hospital that it will not permit its facilities to be used for the performance of abortions. We think it is also clear that if a state is completely neutral on the question whether private hospitals shall perform abortions, the state may expressly authorize such hospitals to answer that question for themselves.
The Georgia abortion statute which was reviewed in detail in Doe v. Bolton, supra, contained such a provision. The Supreme Court did not expressly pass on the validity of that provision, but since it was attacked in one of the amicus briefs, and since the Court reviewed the entire statute in such detail, it is reasonable to infer that it considered such' authorization unobjectionable. After summarizing the other provisions of the Georgia statute, the Court noted:
“There is also a provision (subsection (e) ) giving a hospital the right not to admit an abortion patient and giving any physician and any hospital employee or staff member the right, on moral or religious grounds not to participate in the procedure.” 410 U. S. at 184, 93 S.Ct. at 743.
And in connection with its discussion of the statutory requirement of approval for abortions by a hospital committee, the Court stated:
“We are not cited to any other surgical procedure made subject to committee approval as a matter of state criminal law. The woman’s right to receive medical care in accordance with her licensed physician’s best judgment and the physician’s right to administer it are substantially limited by this statutorily imposed overview. And the hospital itself is otherwise fully protected. Under § 26-1202(e) the hospital is free not to admit a patient for an abortion. It is even free not to have an abortion committee. Further, a physician or any other employee has the right to refrain, for moral or religious reasons, from participating in the abortion procedure. These provisions obviously are in the statute in order to afford appropriate protection to the individual and to the denominational hospital. Section 26-1202(e) affords adequate protection to the hospital and little more is provided by the committee prescribed by § 26-1202(b)(5).” 410 U.S. 197, 93 S.Ct. 750.
Thus, we assume that there is no constitutional objection to a state statute or policy which leaves a private hospital free to decide for itself whether or not it will admit abortion patients or to determine the conditions on which such patients will be accepted. Plaintiffs contend, however, that the hospital’s right to make that decision has been limited by two federal statutes, the Hill-Burton Act and § 1 of the Civil Rights Act of 1871, now 42 U.S.C. § 1983. We are not persuaded that either of those statutes, or the two in combination, have that effect.
No doubt the defendant hospital agreed to abide by a variety of regulatory terms related both to its operations and to the use of the Hill-Burton funds in connection with its acceptance of benefits under that Act. There is no evidence, however, that any condition related to the performance or non-performance of abortions was imposed upon the hospital. Unlike the fact situation in Simkins v. Moses H. Cone Memorial Hospital, 323 F.2d 959 (4th Cir. 1963), on which plaintiffs place heavy reliance, this record does not reflect any governmental involvement in the very activity which is being challenged. We find no basis for concluding that by accepting Hill-Burton funds the hospital unwittingly surrendered the right it otherwise possessed to determine whether it would accept abortion patients.
Nor do we believe that the implementation of defendant’s own rules relating to abortions is action “under color of” state law within the meaning of § 1983. The State of Wisconsin is not a beneficiary of those rules and cannot be characterized as a “joint participant” in their adoption or enforcement. Cf. Burton v. Wilmington Parking Authority, 365 U.S. 715, 724-725, 81 S.Ct. 856, 6 L.Ed.2d 45. There is no claim that the state has sought to influence hospital policy respecting abortions, either by direct regulation or by discriminatory application of its powers or its benefits. Insofar as action of the State of Wisconsin or its agents is disclosed by the record, the State has exercised no influence whatsoever on the decision of the defendants which plaintiffs challenge in this litigation.
The facts that defendants have accepted financial support, as alleged, from both the federal and state governments, and that the hospital is subject to detailed regulation by the State, do not justify the conclusion that its conduct, which is unaffected by such support or such regulation, is governed by § 1983. In Lucas v. Wisconsin Electric Power Co., 466 F.2d 638 (7th Cir. 1972), we rejected a stronger argument for application of that statute to a public utility. We stated:
“The ‘under color of’ provision encompasses only such private conduct as is supported by state action. That support may take various forms, but it is quite clear that a private person does not act under color of state law unless he derives some ‘aid, comfort, or incentive,’ either real or apparent, from the state. Absent such affirmative support, the statute is inapplicable to private conduct.
“We believe that affirmative support must be significant, measured either by its contribution to the effectiveness of defendant’s conduct, or perhaps by its defiance of conflicting national policy, to bring the statute into play. There is no such significant affirmative state support of Wisconsin Electric’s proposed termination of plaintiff’s service.” 466 F.2d at 654-656.
See also Bright v. Isenbarger, 445 F. 2d 412 (7th Cir. 1971); Powe v. Miles, 407 F.2d 73, 81 (2d Cir. 1968); Mulvihill v. Butterfield Mem. Hosp., 329 F. Supp. 1020 (S.D.N.Y.1971). Contra, Citta v. Delaware Valley Hosp., 313 F. Supp. 301 (E.D.Pa.1970).
Plaintiffs argue that if Hill-Burton funds had not been allocated to defendant and other private hospitals, those funds would have been used to expand or construct public facilities which could not refuse to admit abortion patients. Even if this be true, the availability of alternate public hospitals would not vindicate the right plaintiff asserts in this case. She claims, in essence, the right to compel Beilin Memorial Hospital to make its facilities available to her. Her claim of irreparable injury forecloses any assumption that a hypothetical substitute would be adequate to serve her needs. Her claimed right to have the •abortion performed at the hospital of her choice has not been impaired by that hospital’s acceptance of Hill-Burton funds.
The order of the district court is Reversed.
. We assume that the witnesses tendered by the defendants would have amplified or explained plaintiffs’ version of the facts, but since they did not submit any affidavits of their own, and we find no offer of proof contradicting the plaintiffs’ statements, we conclude that defendants were not prejudiced by the abbreviated character of the record. The question is whether the record which plaintiffs made is adequate to support the injunc-tive relief granted by the district court.
. We have supplied the bracketed words.
. On May 4, the United States Supreme Court denied appellees’ motion to vacate the stay.
. “This right of privacy whether it be founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.
“We therefore conclude that the right of personal privacy includes the abortion decision, but that this right is not unqualified and must be considered against important state interests in regulation.” 410 U.S. at 153, 93 S.Ct. at 727.
. We note, however, that the Supreme Court expressly reserved decision on any question relating to rights of the putative father, “if any exist in the constitutional context.” See Roe v. Wade, 410 U.S. 113, at 165, 93 S.Ct. 705, at 733. 35 L.Ed.2d 1471.
. We note in this connection that plaintiff Jane Doe intended to go to Madison on April 4 for a clinic abortion but was unable to do so because of the. weather. There is nothing in the record indicating that she could not now travel to Madison or some other city containing adequate hospital facilities.
. Brief amici curiae on behalf of National Legal Program on Health Problems of the Poor, pp. 48-52.
. The full text of subsection (») reads as follows:
“(e) Nothing in this section shall require a hospital to admit any patient under the provisions hereof for the purpose of performing an abortion, nor shall any hospital be required to appoint a committee such as contemplated under subsection (b) (5). A physician, or any other person who is a member of or .associated with the staff of a hospital, or any employee of a hospital in which an abortion has been authorized, who shall state in writing an objection to such abortion on moral or religious grounds shall not be required to participate in the medical procedures which will result in the abortion, and the refusal of any such person to participate therein shall not form the basis of any claim for damages on account of such refusal or for any disciplinary or recriminatory action against such person.
. 42 U.S.C. §§ 291-29lz.
. Section 1983 provides:
“Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Consitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.”
. In that case the Fourth Circuit pointed out:
“Significant duties are imposed on the Surgeon General with respect to the ‘Non-Discrimination Report.’ 42 C.F.R. § 53.112 provides that a state agency’s findings must be approved by the Surgeon General. Consequently, the Surgeon General has the duty of determining whether the state agency has properly applied the ‘separate-but-equal’ formula, i. e., whether the state’s plan actually makes ‘equitable provision’ for all population groups. The ‘Non-Discrimination Report’ submitted by the North Carolina Medical Care Commission on January 3, 1962, was approved by the Surgeon General on January 22, 1962.
“The point of present interest is not the equality or lack of equality ‘separate-but-equal,’ but the degree of participation by the national and state governments in the geographical proration of hospital facilities throughout the state.
* * * * *
“Moreover, the Government’s argument stresses the fact that the challenged discrimination has been affirmatively sanctioned by both the state and the federal government pursuant to federal law and regulation. 42 U.S.C.A. § 291e(f) ; 42 C.F.R. § 53.112. It is settled that governmental sanction need not reach the level of compulsion to clothe what is otherwise private discrimination with ‘state action.’ ” 323 F.2d at 965, 968.
. Judge Friendly there stated :
“The contention that New York’s regulation of educational standards in private schools, colleges and universities, e. g., Education Law §§ 207, 215, 305(2), makes their acts in curtailing protest and disciplining students the acts of the State is equally unpersuasive. It overlooks the essential point — that the state must be involved not simply with some activity of the institution alleged to have inflicted injury upon a plaintiff but with the activity that caused the injury. Putting the point another way, the state action, not the private action, must be the subject of complaint. See Burton v. Wilmington Parking Authority, supra, 365 U.S. at 725, 81 S.Ct. 856, 6 L.Ed.2d 45; Grossner v. Trustees of Columbia University, 287 F.Supp. 535, 548 (S.D. N.Y.1968). When the state bans a subject from the curriculum of a private school, as in Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923), its responsibility needs no elucidation. State action would be similarly present here with respect to all the students if New York had undertaken to set policy for the control of demonstrations in all private universities or in universities containing contract colleges. Cf. Public Utilities Comm’n of District of Columbia v. Pollak, 343 U.S. 451, 461-463, 72 S.Ct. [813] 96 (sic) L.Ed. 1068 (1952). But the fact that New York has exercised some regulatory powers over the standard of education offered by Alfred University does not implicate it generally in Alfred’s policies toward demonstrations and discipline.” | 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. | What is the nature of the first listed respondent? | [
"private business (including criminal enterprises)",
"private organization or association",
"federal government (including DC)",
"sub-state government (e.g., county, local, special district)",
"state government (includes territories & commonwealths)",
"government - level not ascertained",
"natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)",
"miscellaneous",
"not ascertained"
] | [
6
] | songer |
BUD ANTLE, INC., Plaintiff-Appellant, v. UNITED STATES of America, Interstate Commerce Commission, Robert W. Meserve, Paul W. Cherington and Charles W. Bartlett, Trustees of the property of Boston & Maine Corporation, a corporation, debtor, Delaware & Hudson Railway Company, a corporation, Thomas F. Patton and Ralph S. Tyler, Jr., trustees of the property of Erie Lackawanna Railway Company, a corporation, debtor, George P. Baker, Richard C. Bond, Jervis Langdon, Jr., and Willard Wirtz, trustees of the property of Penn Central Transportation Company, a corporation, debtor, Southern Pacific Transportation Company, a corporation, and Atchison, Topeka & Santa Fe Railway Company, a corporation, Defendants-Appellees.
No. 76-1777.
United States Court of Appeals, Ninth Circuit.
March 21, 1979.
Richard D. Maltzman (argued), of Titch-ell, Maltzman, Mark, Bass & Ohleyer, San Francisco, Cal., for plaintiff-appellant.
A. J. Thiemann (argued), Dept, of Justice, Washington, D. C., John A. Daily (argued), Philadelphia, Pa., for defendants-appellees.
Before BROWNING, CARTER and ANDERSON, Circuit Judges.
J. BLAINE ANDERSON, Circuit Judge:
Appellant Bud Antle, Inc. (Antle) appeals from a judgment of the district court affirming an order of the Interstate Commerce Commission (Commission) dismissing Antle’s complaint for reparations and other relief against appellee railroads. Jurisdiction existed in the district court under 49 U.S.C. § 17(9) and 28 U.S.C. § 1336
Antle claims that both the Commission and the district court erred as a matter of law in denying its claim for reparations and must be revérsed. For the reasons set forth below, we agree.
BACKGROUND
Antle is a large shipper of fresh produce from origins in California and Arizona to destinations in eastern states. Appellees Southern Pacific Transportation Company (SP) and Atchison, Topeka & Santa Fe Railway Company (Santa Fe), the “originating carriers,” transport Antle’s produce from the West for transfer to the remaining appellee railroads, the “connecting carriers,” at interchange points in the Midwest for continued transportation and delivery to the East.
During the period in question, Antle utilized refrigerated trailers on flatcars (TOFC), otherwise known as “piggyback” service, to ship large quantities of perishables on the through routes and at rates established and concurred in by the appellee railroads in Transcontinental Freight Bureau Tariff 64r-N (Tariff 64-N). Under the applicable TOFC service plan, the trailers were to be supplied by the carrier from the point of origin. Because the originating carriers furnished the trailers, the connecting carriers separately compensated those carriers for the use and possession of that equipment while on their respective lines.
In an effort to alleviate the impact of existing and anticipated shortages of refrigerated trailers, Antle undertook to augment the carrier supply of trailers by the acquisition and operation of its own trailers. In October 1968, Antle and Southern Pacific, the principal originating carrier, entered into an agreement for the use of Antle’s trailers on SP lines. In accordance with the agreement, Southern Pacific published a per diem allowance, effective December 11, 1968, for the use of any trailers furnished, at the railroad’s option, by shippers. Santa Fe later established a similar allowance, effective March 1, 1970.
Antle began shipping its produce in its own trailers (with its “reporting mark” BUDZ) in January 1969. Because the published allowances applied only to use of the trailers on the lines of the originating carriers, Antle endeavored to secure similar allowances from the connecting carriers. The connecting carriers accepted the Antle-supplied trailers at the interchange points at all relevant times, but delayed or refused to publish allowances for the use of the trailers.
Antle then requested the originating carriers to place their own “reporting marks” on the trailers and collect allowances from the connecting carriers on Antle’s behalf. The originating carriers refused to do so, insisting that it was Antle’s responsibility to make arrangements with the connecting carriers for compensation.
In October 1970, Antle filed a complaint with the Commission, alleging that the refusal or failure of the connecting carriers to publish an allowance for the use of its trailers constituted an unjust and unreasonable practice and resulted in an undue advantage to Antle’s competitors in violation of certain sections of the Interstate Commerce Act. Antle requested the Commission to require the connecting carriers to publish allowances and to reimburse Antle for the use of its trailers during the time when no allowance had been published. Alternatively, Antle asked that the originating carriers be required to place their reporting marks on Antle’s trailers and be held liable for their failure to collect allowances from the connecting carriers on Antle’s behalf.
The Hearing Examiner concluded that Antle was entitled to reparations from the connecting carriers, but not to other relief sought. His decision was approved by Review Board 4, but was subsequently reversed in pertinent part by Division 2 of the Commission. The district court affirmed the Commission’s order dismissing Antle’s complaint.
Antle now requests this court to set aside the Commission’s decision and remand this case to the Commission with appropriate directions. Primarily at issue here is the application and effect of § 15(13), now § 15(15), of the Interstate Commerce Act. That section provides in relevant part as follows:
“If the owner of property transported under this chapter directly or indirectly renders any service connected with such transportation, or furnishes any instrumentality used therein, the charge and allowance therefor shall be published in tariffs or schedules filed . . . and shall be no more than is just and reasonable, and the Commission may, after hearing on a complaint or on its own initiative, determine what is a reasonable charge as the maximum to be paid by the carrier or carriers for the services so rendered or for the use of the instrumentality so furnished, and fix the same by appropriate order . . .”
STANDARD OF REVIEW
Review of orders of the Interstate Commerce Commission is limited. Under the Administrative Procedures Act, the reviewing court may only
“(2) hold unlawful and set aside agency action, findings, and conclusions found to be—
(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, [or]
(E) unsupported by substantial evidence . . . ”
5 U.S.C. § 706. See Bowman Transp. v. Arkansas-Best Freight, 419 U.S. 281, 284, 95 S.Ct. 438, 42 L.Ed.2d 447 (1974); Widing Transp., Inc. v. Interstate Commerce Commission, 545 F.2d 652, 658 (9th Cir. 1976).
The reviewing court ought not to weigh the evidence and should “inquire into the soundness of the reasoning by which the Commission reaches its conclusions only to ascertain that the latter are rationally supported.” United States v. Allegheny-Ludlum Steel Corp., 406 U.S. 742, 749, 92 S.Ct. 1941, 1946, 32 L.Ed.2d 453 (1972). But we are not precluded from intervening if the Commission has failed to exercise its authority or discretion by an improper application of the law to the established facts. United States v. Interstate Commerce Commission, 91 U.S.App.D.C. 178, 188, 198 F.2d 958, 968 (1951); United States ex rel. Members of Waste Merchants’ Ass’n of New York v. Interstate Commerce Commission, 51 App.D.C. 136, 140, 277 F. 538, 542 (1921), rev’d on other grounds, 260 U.S. 32, 43 S.Ct. 6, 67 L.Ed. 112 (1922).
Because of its construction of § 15(13) of the Act, the Commission maintains it was not empowered to require the payment of past allowances or the publication of future allowances. Antle contends that § 15(13) presents no such obstacle. Our principal concern in this case, therefore, is the application of the proper legal standard to the factual circumstances.
PRIOR PROCEEDINGS
Upon submission of the evidence by modified procedure, the Hearing Examiner found that the Commission could not direct a carrier to publish an allowance under § 15(13), but that in appropriate circumstances, it may so order as an implicit part of its power to enforce the railroad’s duty to furnish adequate car service. He declined, however, to issue a formal order requiring publication because of practical problems involved in leaving the carriers the option to furnish the equipment and because such remedial action did not appear necessary at that time.
With respect to compensation for the past use of Antle’s trailers, the Hearing Examiner determined that § 15(13) of the Act did not authorize reparations or “retroactive allowances” because it was intended only to prevent payment of excessive allowances. He noted, however, that in spite of § 15(13), the Commission had awarded reparations in the past to shippers and concluded that the basis for such orders could be found in § 1 of the Act.
In resolving the question whether the connecting carriers had acted unreasonably, the Hearing Examiner took particular notice of Erie’s assertion that it had a supply of trailers available, that it had never been advised by the originating carriers of their inability to supply trailers, and that it had not received any request from Antle to provide railroad-owned trailers. But the Hearing Examiner questioned the availability of the trailers because of the practical difficulties geographically in providing a dependable supply of trailers to a West Coast shipper and because there was no evidence that any of the connecting carriers had ever furnished trailers under Tariff 64-N. Finally, although recognizing mitigating circumstances for the refusal of the connecting carriers to provide allowances, the Hearing Examiner nevertheless concluded that those circumstances did not justify the refusal to adopt Antle’s “concrete” and “reasonable” proposal for an allowance. The connecting carriers’ failure to publish an allowance was therefore found by the Hearing Examiner to be an unreasonable practice entitling Antle to reparations.
The Commission, in reversing that finding, interpreted § 15(13) as a limitation of its power to award reparations when a shipper has rendered services or furnished instrumentalities before an allowance has been published. In support of its conclusion that Antle was not entitled to reparations, the Commission stated:
“[I]t is apparent that complainant voluntarily furnished its trailers to the originating carriers without regard to the rights obligations [sic] of the connecting carriers, and that complainant knew that the connecting carriers had no tariff provision on file with respect to the payment of the allowance.”
The Commission ultimately found that in the absence of a published allowance, which, the Commission also noted, it had no authority under § 15(13) to compel, the refusal of the connecting carriers to pay an allowance was not an unreasonable or unjust practice in violation of § 1 of the Act.
The district court affirmed the Commission’s order dismissing Antle’s complaint, but suggested that § 15(13) did not necessarily preclude reparations under § 1 of the Act if the shipper was forced to perform transportation services because the carrier had defaulted in its statutory duty to provide those services. The district court understood Antle’s contention to be that the connecting carriers had so defaulted; it found the contention untenable in the absence of any demand by Antle that the connecting carriers supply trailers and of any consequent refusal by those carriers to do so.
PAYMENT OF REPARATIONS
Antle claims that it is entitled to reparations because the connecting carriers’ refusal to publish an allowance for use of its trailers was an unreasonable practice in violation of section 1 of the Act.
Section 1 of the Act, 49 U.S.C. § 1, imposes certain duties on the railroads. Generally, the railroads must furnish transportation and facilities, establish reasonable through routes and just rates, and provide for reasonable compensation to those entitled, section 1(4); make just and reasonable charges for services rendered, section 1(5); establish and enforce just and reasonable classifications of property for transportation, section 1(6); and furnish safe and adequate car service, section 1(11).
The railroads have not only the obligation to furnish, upon reasonable demand, the transportation services, facilities and instrumentalities required by law, but conversely the right to insist on the shippers’ use of those services the carriers are willing and able to provide. General American Tank Car Corp. v. El Dorado Terminal Co., 308 U.S. 422, 428, 60 S.Ct. 325, 84 L.Ed. 361 (1940); Atchison, Topeka & Santa Fe Railway Co. v. United States, 232 U.S. 199, 214-15, 34 S.Ct. 291, 58 L.Ed. 568 (1914); Southern Pacific Co. v. United States, 298 F.Supp. 971, 972 (N.D.Cal.1969); Use of Privately Owned Refrigerator Cars, 201 I.C.C. 323, 373 (1934). This corollary right is a matter of economic necessity; otherwise railroad investments would not be sufficiently protected. Atchison, Topeka & Santa Fe Railway Co. v. United States, 232 U.S. at 215, 34 S.Ct. 291.
Under § 15(13) and by general practice, however, the railroads, at their option, may, in lieu of furnishing services or instrumentalities within their obligation, employ or permit the owner of property transported to provide the service and pay an allowance therefor. General American Tank Car Corp. v. El Dorado Terminal Co., 308 U.S. at 428-30, 60 S.Ct. 325; Interstate Commerce Commission v. Diffenbaugh, 222 U.S. 42, 46, 32 S.Ct. 22, 56 L.Ed. 83 (1911); Cancellation of Private Car Allowances, 322 I.C.C. 565, 570 (1964); Mumby Lumber & Shingle Co. v. Chicago, M., St. P. & P. R. R. Co., 200 I.C.C. 261, 263 (1934); Cambria Steel Co. v. Director General, 64 I.C.C. 737, 740 (1921). Cf. United States v. Baltimore & Ohio Railroad Co., 231 U.S. 274, 34 S.Ct. 75, 58 L.Ed. 218 (1910). Thus, if a shipper legitimately performs a service, it is “entitled, under the plain terms of § 15(13), to be paid by the carrier a just and reasonable allowance . . . .” General American Tank Car Corp. v. El Dorado Terminal Co., 308 U.S. at 431, 60 S.Ct. at 330. That the carrier will pay for the services rendered is “taken for granted in § 15(13).” Interstate Commerce Commission v. Diffenbaugh, 222 U.S. at 46-7, 32 S.Ct. 22.
By agreement the originating carriers here opted not to perform their obligation under Tariff 64-N to supply refrigerated trailers but to permit Antle to furnish its own trailers for transportation of its produce. In a published tariff, these carriers provided for a per diem allowance to be paid Antle for the use of its trailers on their lines. Because the connecting carriers initially refused to publish similar allowances, however, Antle was not compensated for the use of its cars on their lines. When Antle sought compensation by complaint to the Commission, the connecting carriers responded that they were under no compulsion to pay an allowance, and could not be required by the Commission to do so, because Antle never established that the connecting carriers had been unable or had refused to supply Antle with the trailers required.
The Commission adopted the position that Antle was not entitled to reparations because allowances could not be paid without prior publication in a tariff as required by § 15(13). Because the condition of publication was not met and because Antle knew that no published allowance was in effect, Antle was precluded, according to the Commission, from recovering compensatory damages from the connecting carriers for the use of the trailers furnished during the time the allowance was not published.
However, to the extent that the Commission (and the connecting carriers in reliance thereon) considers recovery by Antle to be barred by the publication requirement of § 15(13), it is mistaken, not only by the terms and intent of the statute, but by case law and its own authority.
The provisions of § 15(13) were not initially included in the Interstate Commerce Act of 1887 but were added in 1906 in substantially their present form. In response to public outcry and shipper complaints about oppressive rates and secret rebates, Congress undertook to invest the Commission with power not only to fix maximum rates but to determine reasonable allowances, as a maximum, to be paid by carriers for services rendered by shippers. See H.Rep. No. 591, 59th Cong., 1st Sess. 4-5 (1906). Congress contemplated that the railroads would either provide a transportation service or pay for the performance of that service, “the only restriction being that [the carrier] shall pay no more than is reasonable, and the only permissive element being that the Commission may determine the maximum in case there is complaint (or now upon its own motion Interstate Commerce Commission v. Diffenbaugh, 222 U.S. at 46-47, 32 S.Ct. at 24.
The language specifically requiring publication of allowances was included in 1940 merely “to sanction the present requirement of the Commission that allowances must be published.” S.Rep. No. 433, 76th Cong., 2d Sess. 16 (1939). The change was therefore cosmetic; it neither enlarged nor circumscribed the powers of the Commission.
The Commission infers from the terms of the statute that it has no authority to act until publication of an allowance, and that, upon publication, its authority is limited solely to a determination of the maximum permissible to be paid. See e. g., Rutherford-Brede Co. v. Director General, 61 I.C.C. 515, 517 (1921). The Commission also insists that the statute is intended to guard against excessive rebates and nothing more. See e. g., Allowances for Use of Trailers, 299 I.C.C. 513, 514-15 (1956). But the terms of the statute are not restrictive; nor was the intent of the legislation so narrow. Congress acted generally to enlarge the powers of the Commission; it sought in particular to rectify the abuses prevalent at that time with respect to the payment of secret allowances to some shippers to the detriment of others. But it did not bar the payment of allowances to shippers. There is nothing to suggest that Congress intended to relieve the railroads of their general duty to either provide transportation services or pay for the performance of those services, or to preclude complaint to the Commission for enforcement of that obligation by the Commission. The Commission has once again engaged in “leaping from a particular authorization to a pervasive prohibition without justification.” American Trucking Ass’n v. Atchison, Topeka & Santa Fe Railway Co., 387 U.S. 397, 411, 87 S.Ct. 1608, 18 L.Ed.2d 847 (1967).
In addition, the Supreme Court has recognized that if a shipper permissibly performs services the carrier is bound to render, but is not paid because the amount and conditions of payment of such allowance have not been published, the proper recourse is by complaint to the Commission. General American Tank Corp. v. El Dorado Terminal Co., 308 U.S. at 430, 60 S.Ct. 325. The Supreme Court later confirmed that, in accordance with its opinion in General American Tank Corp., as well as the Interstate Commerce Act, the Commission was authorized to determine the reasonableness and legality of compensation for the shipper’s past performance of services, such determinations being “matters which Congress had entrusted to the Commission.” El Dorado Oil Works v. United States, 328 U.S. 12, 15-16, 66 S.Ct. 843, 845, 90 L.Ed. 1053 (1945). More recently, the Eighth Circuit reiterated that in the absence of a published allowance, the Commission “may provide for an allowance if requested.” Chicago & Northwestern R. Co. v. Union Packing Co., 514 F.2d 30, 33 n. 3 (8th Cir. 1975) (citing General American Tank Corp., supra).
Finally, the Commission itself has found on occasion that, even in the absence of a published allowance, a shipper may be entitled to allowances or, more appropriately, damages for its provision of services or instrumentalities. See, e. g., Paragon Refining Co. v. Alton & Southern Railroad, 118 I.C.C. 166 (1926); Borden’s Farm Products Co. v. N. Y., N. H. & H. R. R. Co., 92 I.C.C. 270 (1924); Colorado & Utah Coal Co. v. Denver & Salt Lake R. Co., 85 I.C.C. 545 (1923); United Chemical & Organic Products Co. v. Director General, 73 I.C.C. 100 (1922); Lehigh Coal & Navigation Co. v. Penn. R. Co., 50 I.C.C. 543 (1918); W. C. Sterling & Son Co. v. Michigan Central R. R. Co., 21 I.C.C. 451 (1911).
In summary, there is sufficient authority to find that the Commission’s construction of § 15(13) is misconceived and erroneous. Neither the terms of the statute nor the legislative history supports the Commission’s position that § 15(13) operates, in the absence of a published allowance, to bar recovery for uncompensated services legitimately performed by a shipper. However, this does not resolve the matter because the question then presented is whether Antle legitimately supplied its trailers so as to be entitled to compensation by the connecting carriers.
The Commission suggested in its decision that recovery would be foreclosed in any event because of Antle’s “voluntary” furnishing of the transportation instrumentalities involved. The Commission correspondingly embraces on appeal the district court’s conclusion that Antle was not entitled to reparations in the absence of a demand on and consequent refusal of the connecting carriers to provide the refrigerated trailers before undertaking to supply the equipment itself. Thus, we must determine whether the connecting carriers’ general obligation to pay an allowance in lieu of their furnishing the trailers was discharged under the applicable legal standard.
Simply because a shipper’s undertaking to perform services or to furnish instrumentalities is voluntary, or to its advantage, or for its convenience does not necessarily excuse the carrier’s obligation to make an allowance. See Interstate Commerce Commission v. Diffenbaugh, 222 U.S. at 45, 32 S.Ct. 22; United States v. Interstate Commerce Commission, 91 U.S.App.D.C. at 190, 198 F.2d at 970; United States ex rel. Members of Waste Merchants’ Ass’n of New York v. Interstate Commerce Commission, 277 F. at 542. The proper inquiry appears to be not whether the shipper voluntarily performed transportation services but whether the shipper insisted on the right to perform or otherwise intervened so as to prevent performance by a willing carrier. See Atchison, Topeka & Santa Fe Railway Co. v. United States, 232 U.S. at 216, 34 S.Ct. 291; United States v. Interstate Commerce Commission, 91 U.S.App. D.C. at 189, 198 F.2d at 969; United States ex rel. Members of Waste Merchants’ Ass’n of New York v. Interstate Commerce Commission, 277 F. at 541—42. Cf. Borden’s Farm Products Co. v. N. Y., N. H. & H. R. R. Co., 92 I.C.C. at 272-73; United Chemical & Organic Products Co. v. Director General, 73 I.C.C. at 102-03.
We find no evidence to substantiate the proposition that Antle prevented the connecting carriers from supplying trailers for transport of Antle’s produce. Under the applicable tariff, the originating carriers assumed the responsibility of furnishing trailers for the transportation of freight from the shipper’s dock. As the Hearing Examiner found below, the connecting carriers never furnished trailers for transport of Antle’s produce; they accepted the carrier-supplied trailers at the interchange points and compensated the originating carriers for the use of those trailers while on their lines, as they must. See Clinchfield R. Co. v. Boston & Maine Corp., 258 F.Supp. 467 (S.D.N.Y.1968). The originating carriers provided for payment of an allowance when, at their option, Antle furnished the trailers for its shipments of produce. Antle sought a similar arrangement with the connecting carriers. Those carriers thereafter had notice that the trailers transporting Antle’s produce were supplied by Antle and not the originating carriers, but they never protested the use of those trailers. On the contrary, they accepted Antle’s trailers at the interchange point and treated them in the same manner as those trailers supplied by the originating carriers. In considering and finally refusing Antle’s request for an allowance, the connecting carriers only expressed their concern about the amount and the practical and legal effects of an allowance, but never asserted their ability and willingness to provide the trailers or objected to the supposed usurpation of their right to do so. Moreover, under Antle’s proposal, the connecting carriers could have retained the option, as the originating carriers did, to furnish the trailers when they elected to do so. Thus, the connecting carriers were not and would not have been prevented in any manner from exercising their right to supply the trailers for shipment of Antle’s produce. The carriers we re not unwillingly relieved of their duties here.
In addition, while the connecting carriers may have a statutory obligation to generally furnish instrumentalities of transportation, under the tariff their obligation appears to be nothing more than the acceptance of the trailers at the interchange points for transportation and delivery to their destination. They never supplied trailers for transport of Antle’s produce nor, apparently, did they consider themselves obligated under the tariff to do so. Thus, the substitution of Antle’s trailers for the trailers previously supplied by the originating carriers did not interfere with the performance of the interchange function by the connecting carriers nor impose any additional burden which they could not have reasonably anticipated or met.
The Commission has also recognized the propriety of making an award in a case where the circumstances are not readily distinguishable from those here. In Paragon Refining Co. v. Alton & Southern Railroad, 118 I.C.C. at 166-168, an intermediate line refused to provide by tariff provision for payment of a mileage allowance for the use of an owner’s tank cars moving over its lines. The line haul carrier paid the owner for the use of the cars over its own lines, but the switching line would not, even though it had paid an allowance on the cars supplied by the carriers. The Commission concluded that the refusal to pay the same allowance as was paid to the line haul carrier was an unreasonable practice. It not only awarded damages in the amount of allowances that should have been received but also set an allowance for the future.
Regardless of whether Antle “voluntarily” furnished the trailers here, there was no showing that Antle had prevented the connecting carriers from furnishing the trailers themselves or had acted inconsistently with the functions of the connecting carriers under the tariff. Consequently, we agree with the Hearing Examiner that the refusal to publish an allowance was an unreasonable practice in violation of § 1.
We conclude that Antle was entitled to an award of reparations. The Commission erred as a matter of law in dismissing Antle’s complaint for reparations. To hold otherwise would result in an unjustifiable windfall to the connecting carriers. Finding that Antle was entitled to reparations under the applicable standard, we remand to the Commission for the fixing of the appropriate amount of reparations due Antle from each of the connecting carriers involved.
PUBLICATION OF ALLOWANCES
The Commission has also asserted that it does not have the authority to compel the connecting carriers to publish an allowance for the future. It maintains that its power with respect to allowances is limited by § 15(13) only to determining and fixing the maximum allowance permissible.
When the Interstate Commerce Act was amended in 1906 to enlarge the powers of the Commission, Congress specifically denied any intention to authorize the Commission to initiate rates. However, to rectify the oppressive rates being charged then, the Commission was authorized to establish the maximum rate that might be enacted by the carriers. Similarly, Congress empowered the Commission to set maximum reasonable allowances to control excessive rebates prevalent at that time. The word “maximum” was used, according to Congress, to give flexibility and to permit the carriers to charge or pay less than the amount fixed by the Commission as a maximum. See H.Rep. No. 591, 59th Cong., 1st Sess. 5 (1906). Thus, Congress apparently did not anticipate the initiation of allowances by the Commission. But Antle has not requested that the Commission fix an allowance for the future. Instead it has asked only that the Commission require the connecting carriers to publish an allowance, the amount still to be determined by the carriers.
Compelling the connecting carriers here to publish an allowance neither exceeds nór is incompatible with the power granted to the Commission, but is inherent in its prescribed functions. In General American Tank Car Corp. v. El Dorado Terminal Co., 308 U.S. 422, 60 S.Ct. 325, 84 L.Ed. 361 (1940), the Supreme Court observed that if a carrier does not provide for and publish an allowance, the shipper “may complain to the Commission, to the end that a proper allowance be ascertained and made effective by a schedule duly published.” 308 U.S. at 430, 60 S.Ct. at 330. We agree that application to the Commission for this purpose is proper. We are further persuaded by the knowledge that the Commission itself has engaged to fix future as well as past allowances under circumstances where the railroad unreasonably refused to publish an allowance. See, e. g., Roach Creek Coal Mines, Inc. v. Ann Arbor Co., 157 I.C.C. 103, 109 (1927); Paragon Refining Co. v. Alton & Southern Railroad, 118 I.C.C. at 168. Moreover, we are not unmindful of the power granted the Commission in 1917 to enforce the railroad’s duty to furnish safe and adequate car service. Section 1(14) of the Act provides in pertinent part:
“The Commission may, after hearing, on a complaint or upon its own initiative without complaint, establish reasonable rules, regulations, and practices with respect to car service by common carriers by railroad subject to this chapter, including the compensation to be paid . for the use of any locomotive, car, or other vehicle not owned by the carrier using it (and whether or not owned by another carrier), and the penalties or other sanctions for nonobservance of such rules, regulations, or practices.”
We concur with the Hearing Examiner’s suggestion that the power to require publication of an allowance may be implied from the power granted the Commission under § 1(14). See Paragon Refining Co. v. Alton & Southern Railroad, 118 I.C.C. at 166.
We therefore find that the Commission has the authority to order the connecting carriers that have not already done so to publish an allowance. To preserve the carrier’s option to provide the trailers, the Commission may condition its order accordingly. See e. g., Roach Creek Coal Mines, Inc. v. Ann Arbor Car Co., 157 I.C.C. at 109. We see no necessity to decide at this time whether the Commission may fix the future allowance in its order compelling publication, but find no objection to the Commission offering guidelines to the carriers on the allowance to be set.
With respect to Antle’s other contentions, we find that the Commission properly dismissed for lack of evidence Antle’s charges of discriminatory practices in violation of § 3 of the Act. We also concur with the Commission’s finding that the originating carriers could not be required to place their reporting marks upon Antle’s trailers or to collect on Antle’s behalf the rentals from the connecting carriers. Finally, we agree with the district court that the issue whether the originating carriers breached their duty to supply adequate car service was never litigated before the Commission and therefore cannot now be considered on appeal.
The judgment of the district court, to the extent that it relieved the connecting carriers of liability to Antle, is reversed. We remand to the Commission with directions to ascertain the amount of compensation due Antle and to compel any carrier that has not done so to publish an allowance.
REVERSED and REMANDED.
. The Commission’s decision is reported at 343 I.C.C. 351 (1973).
. A three-judge district court was initially convened to hear the case pursuant to 28 U.S.C. § 2325 (now repealed), with appeal directly to the Supreme Court under 28 U.S.C. § 1253. The district court subsequently concluded that the matter could be properly determined by a one-judge tribunal. We agree. See United States v. Interstate Commerce Commission, 337 U.S. 426, 440-43, 69 S.Ct. 1410, 93 L.Ed. 1451 (1949) (judicial review of an ICC order denying reparations does not require a three-judge court).
. Those railroads are the Erie Lackawanna Railway Company (Erie), the Delaware & Hudson Railway Company (D & H), the Boston & Maine Corporation (B & M), and the Penn Central Transportation Company (Penn Central).
. Tariff 64-N, the only tariff under which Antle could ship its produce at the time in controversy, provides in relevant part:
“Item 1080 Circle Reference (2)
Rates apply only when consignee accepts delivery of loaded trailers at railroad ramp at destination, performs a delivery service including unloading of freight from trailers and returns empty trailers to carrier at same location. .
[and]
Item 120
Rates published in this tariff apply only on freight in or on trailers or demountable trailer bodies supplied and transported by carrier from consignor’s dock . . . Such service will be furnished by carrier only upon reasonable request therefor. . . . ”
. The TOFC plan offered under Tariff 64 — N was a variation of TOFC Plan II where the carrier supplies pickup, as in this case, or delivery service but not both, as Plan II provides. For a description of the different TOFC service plans, see American Trucking Ass'ns v. Atchison, Topeka & Santa Fe Railway Co., 387 U.S. 397, 403, 87 S.Ct. 1608, 18 L.Ed.2d 847 (1967); Cooper-Jarrett, Inc. v. United States, 226 F.Supp. 318, 320-21 (W.D.Mo.1964); Ex parte 230, Substituted Service (Piggyback Service), 322 I.C.C. 301, 304-05, 309-311 (1969).
. The growth of TOFC service has been explosive. American Trucking Ass’ns v. Atchison, Topeka & Santa Fe Railway Co., 387 U.S. at 401-03, 87 S.Ct. 1608. Congress has acknowledged that chronic shortages of cars presents a serious problem to shippers in the transport of agricultural products. H.Rep.No.1183, 89th Cong., 2d Sess. 1, reprinted in [1966] U.S.Code Cong. & Admin.News, pp. 2227, 2228. See United States v. Allegheny-Ludlum Steel Corp., 406 U.S. 742, 748-51, 92 S.Ct. 1941, 32 L.Ed.2d 453 (1972).
. The agreement provides in relevant part;
“1. Antle trailers, and containers and bogies, containing shipments of Antle, referred to herein collectively as ‘equipment,’ or accepted by Railroad in interchange or otherwise, may be used in transportation service by Railroad
“2. Said equipment shall be considered in possession of or under control of Railroad and under the provisions of this agreement from the time it reaches Railroad in interchange with another railroad, or from the time said equipment is otherwise delivered to and Railroad accepts same, until delivered by Railroad to a connecting line haul railroad, or released to Antle at railroad ramp, or, constructively, by notification to Antle of availability at ramp.
“3. Rental charges to be paid by Railroad to Antle, in accordance with applicable AAR Rules, for each calendar day, Sundays and holidays included, that each unit of equipment is in possession or under control of Railroad shall be:
Trailers or Containers:
$12.00 per calendar day, when loaded with perishable commodities.
$8.00 per calendar day, when not loaded with perishable commodities.
“12. It is understood and agreed that equipment may be interchanged freely by Railroad with other line haul railroads and in such event Antle shall arrange with other line haul railroads rental charges for equipment.”
. Southern Pacific’s tariff provides in relevant part:
“When at railroad’s option shipper furnishes a refrigerated trailer or container and bogie capable of maintaining controlled temperature to accommodate his shipment, an allowance will be paid to the shipper for the time his trailer is in possession of this carrier.
. Erie, the principal connecting carrier, eventually published an allowance effective September 26, 1970. It provides in relevant part:
“When a shipper-owned refrigerated trailer, or container and bogie, capable of maintaining controlled temperature to accommodate his shipment . . . is received in interchange, on the car, from connecting Railroads . . ., an allowance will be paid to the shipper for the time his trailer or container and bogie is in possession of this carrier . . ”
It is our understanding that all appellee railroads but the D & H have now published allowances. Because D & H has still not published an allowance (at least we have not been informed otherwise), the issue whether the Commission may compel a carrier to publish an allowance is not moot.
. 49 U.S.C. §§ 1(4), 1(5), 1(6), 1(11), 3(1), 3(4) and 15(13), now 15(15) (Supp.1978).
. To avoid confusion, we will refer to § 15(15) by its previous numerical designation: § 15(13).
. 49 C.F.R. §§ 1100.43 — 1100.52 (1977). Essentially, the modified procedure permits the disposition of a complaint without an oral hearing if it appears that “substantially all important issues of material fact may be resolved by means of written materials.” The parties are required to file a verified statement of facts, arguments and exhibits upon which the party relies. We do not find this procedure particularly satisfactory in this case as the record is not as complete as we would prefer. We believe, however, that we can proceed on the record before us and need not remand for an oral hearing.
. More fully, these sections provide in relevant part:
Ҥ 1, par. (4). Duty to furnish transportation and establish through routes; division of joint rates. It shall be the duty of every common carrier subject to this chapter to provide and furnish transportation upon reasonable request therefor, and to establish reasonable through routes with other such carriers, and just and reasonable rates, fares, charges, and classifications applicable thereto ... It shall be the duty of every such common carrier establishing through routes to provide reasonable facilities for operating such routes and to make reasonable rules and regulations with respect to their operation, and providing for reasonable compensation to those entitled thereto; and in case of joint rates, fares, or charges, to establish just, reasonable, and equitable divisions thereof, which shall not unduly prefer or prejudice any of such participating carriers.
Ҥ 1, par. (5). Just and reasonable charges; applicability; criteria for determination
(a) All charges made for any service rendered or to be rendered in the transportation of passengers or property as aforesaid, or in connection therewith, shall be just and reasonable, and every unjust and unreasonable charge for such service or any part thereof is prohibited and declared to be unlawful. The provisions of this subdivision shall not apply to common carriers by railroad subject to this part.
(b) Each rate for any service rendered or to be rendered in the transportation of persons or property by any common carrier by railroad subject to this chapter shall be just and reasonable. A rate that is unjust or unreasonable is prohibited and unlawful .
Ҥ 1, par. (6). Classification of property for transportation; regulations and practices; demurrage charges
It is made the duty of all common carriers subject to the provisions of this chapter to establish, observe, and enforce just and reasonable classifications of property for transportation . and every unjust and unreasonable classification, regulation, and practice is prohibited and declared to be unlawful. Demurrage charges shall be computed, and rules and regulations relating to such charges shall be established, in such a manner as to fulfill the national needs with respect to (a) freight car utilization and distribution, and (b) maintenance of an adequate freight car supply available for transportation of property.
“§ 1, par. (11). Duty to furnish car service; rules and regulations. It shall be the duty of every carrier by railroad subject to this chapter to furnish safe and adequate car service and to establish, observe, and enforce just and reasonable rules, regulations, and practices with respect to car service; and every unjust and unreasonable rule, regulation, and practice with respect to car service is prohibited and declared to be unlawful.”
. Erie finally asserted its ability and willingness to furnish the trailers in response to Antle’s complaint. It did not provide any evidence in support of that assertion. As the Hearing Examiner noted, the credibility of Erie’s claim is subject to question. | What follows is an opinion from a United States Court of Appeals.
Your task is to identify the number of the section from the title of the second most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 49. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA". | What is the number of the section from the title of the second most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 49? Answer with a number. | [] | [
1
] | songer |
LOCAL NO. 380 INTERNATIONAL UNION, ALLIED INDUSTRIAL WORKERS OF AMERICA, AFL-CIO, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, and Flambeau Plastics Corporation, Intervenor.
No. 17104.
United States Court of Appeals Seventh Circuit.
June 9, 1969.
Kenneth R. Loebel, Goldberg, Previant & Uelmen, Milwaukee, Wis., for petitioner.
Walter S. Davis, Russ R. Mueller, Davis, Kuelthau, Vergeront & Stover, Milwaukee, Wis., for intervenor.
Marcel Mallet-Prevost, Asst. Gen. Counsel, Charles N. Steele, Atty., N.L. R.B., Washington, D. C., Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Assoc. Gen. Counsel, Nancy M. Sherman, Atty., N.L.R.B., for respondent.
Before KNOCH, Senior Circuit Judge, and KILEY and FAIRCHILD, Circuit Judges.
KNOCH, Senior Circuit Judge.
Petitioner, Local 380, International Union, Allied Industrial Workers of America, AFL-CIO, seeks review and revocation of an Order of the National Labor Relations Board issued June 27, 1968, reported at 172 NLRB No. 33, dismissing an unfair labor practice complaint against the intervenor, Flambeau Plasties Corporation. This Court has jurisdiction under § 10(f) of the National Labor Relations Act, as amended, Title 29 U.S.C. § 151 et seq. The alleged unfair labor practice occurred in Bara-boo, Wisconsin, at the intervenor’s plant there.
The facts are largely stipulated. The petitioner was certified as the collective bargaining representative of the production and maintenance workers at inter-venor’s plant in March, 1963. In May, 1965, after a number of unfair labor practices by intervenor, it entered into a one-year contract with the petitioner.
Prior to and during negotiations for a successor agreement, intervenor committed further unfair labor practices. On September 15, 1966, the intervenor withdrew recognition from petitioner asserting a good faith doubt as to the petitioner’s continued majority.
Meanwhile a strike had begun on June 15, 1966.
On May 25, 1967, the Trial Examiner found that the intervenor had violated § 8(a) (5). The Board’s Order adopting the Examiner’s decision was entered October 13, 1967. In its opinion, filed August 2, 1968, in Flambeau Plastics Corporation, petitioner, v. NLRB, respondent, and Local 380, International Union, Allied Industrial Workers of America, AFL-CIO, intervenor, 7 Cir., 401 F.2d 128, cert. den. January 13, 1969, 393 U.S. 1019, 89 S.Ct. 625, 21 L.Ed.2d 563, this Court ordered enforcement of the Board’s direction that intervenor bargain with petitioner, and on application offer reinstatement to their former or substantially equivalent positions to all strikers, dismissing, if necessary, persons hired after the strike began.
Prior to the filing of the Board’s Order of October 12, 1967, on July 18, 1967, petitioner wrote intervenor that the strike would be “terminated” on July 20, 1967, and demanded resumption of bargaining on the basis of the decision made two months before by the trial examiner whose recommendation was adopted in the Board Order described above.
On July 20, 1967, sixty-one of the strikers sent individual but identical applications for reinstatement to the in-tervenor. These included the following statement:
Further, I make this application for reinstatement with the understanding that Flambeau Plastics will continue to recognize and commence bargaining with my duly designated bargaining representative * * * in regard to my wages, hours and other terms and conditions of employment. * * * I am no longer striking, but on the contrary I am willing and available to return to work, but not if it means that I must subsidize an employer who imposes unlawful conditions upon my reinstatement.
On July 24, 1967, intervenor replied to the petitioner that it continued to doubt its majority and to the applicants for reinstatement that it was “prepared to consider an unconditional offer * * * to return to regular, full-time employment * * * ” and setting a time for such application at the personnel office.
July 26, 1967, fifty-eight of the applicants wrote again stating:
[Y]ou are conditioning any consideration of my reinstatement on my foregoing my right to presently engage in collective bargaining, which right the National Labor Relations Act affords to me. * * * I am willing to return to work with all the rights that the law affords to me including the right to bargain collectively * * * I have not insisted on any conditions * * * other than those * * * conditions imposed by virtue of law. As to the conditions imposed by law, I believe I have the right to insist on their present enforcement.
On July 31, 1967, intervenor answered that:
You should understand clearly that Flambeau asks you to waive no rights guaranteed to you under Federal or State law as a condition to your returning to work. By the same token, you cannot demand Flambeau to waive any rights guaranteed to it by Federal or State law as a condition to your returning to work. We fully intend to comply with the processes which you invoked to assert what you believed to be your rights.
The majority of the Board found that these requests for reinstatement conditioned return to work on agreement to resume bargaining with the union, and no unconditional application having been made, the intervenor had not committed a violation of § 8(a) (3) and (1) of the Act in rejecting these applications. We agree.
A request for reinstatement demanding that the employer remedy the unfair labor practice which the strike protests is a conditional request and the employer is not required to reinstate the applicant. Golay & Co., Inc. v. NLRB, 7 Cir., 1966, 371 F.2d 259, cert. den. 387 U.S. 944, 87 S.Ct. 2079, 18 L.Ed.2d 1332.
Whatever may be said of the numerous unfair labor practices in its history, the intervenor did assert its willingness • to leave the determination of the validity of its conduct to the processes of the Act and announced its intention to comply with the decision ultimately reached through these processes, an event which occurred after all the briefs had been filed in this appeal. The intervenor did not ask returning employees to forego their right of representation.
We have studied the cases on which the petitioner relies and find them distinguished on their facts. For example, it was the employer who imposed conditions to reinstatement in Phelps Dodge Corporation v. NLRB, 1941, 313 U.S. 177, 61 S.Ct. 845, 85 L.Ed. 1271 and Portage Plastics Co., 1967, 163 NLRB No. 102.
We find reasonable the Board’s refusal to distinguish between employees’ continuing to strike in protest against a refusal to bargain which occurs during an unfair labor practice strike and a new strike to protest the new unfair labor practice.
We agree with the Board that it did not reach the issue in NLRB v. Fleet-wood Trailer Co., 1967, 389 U.S. 375, 88 S.Ct. 543, 19 L.Ed.2d 614 which petitioner cites as setting down guidelines. The offers to return in Fleetwood were evidently conceded to be unconditional. The Court there held that the rejection of such offers could be supported by legitimate and substantial business justifications but that the burden of such a defense was on the employer and that he did not sustain it by a mere showing that jobs were unavailable on the precise date of the applications. The intervenor here based his rejection of the offers on the nature of the offers themselves. We do not agree with the petitioner that the Board was unduly technical in its view of the offers to return to work. The exchange of correspondence made it clear that the employer would reinstate on an unconditional application leaving the ultimate decision to the “processes of the Act.”
The petition for review is denied.
Denied. | What follows is an opinion from a United States Court of Appeals.
The most frequently cited title of the U.S. Code in the headnotes to this case is 29. Your task is to identify the second most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if fewer than two U.S. Code titles are cited. To choose the second title, the following rule was used: If two or more titles of USC or USCA are cited, choose the second most frequently cited title, even if there are other sections of the title already coded which are mentioned more frequently. If the title already coded is the only title cited in the headnotes, choose the section of that title which is cited the second greatest number of times. | The most frequently cited title of the U.S. Code in the headnotes to this case is 29. What is the second most frequently cited title of this U.S. Code in the headnotes to this case? Answer with a number. | [] | [
29
] | songer |
UNITED STATES of America ex rel. Charles “Chuck” MILLER, Petitioner-Appellant, v. James GREER, Warden, Menard Correctional Center, Respondent-Appellee.
No. 84-2679.
United States Court of Appeals, Seventh Circuit.
Argued Feb. 5, 1986.
Decided April 9, 1986.
Cummings, Chief Judge filed dissenting opinion, in which Harlington Wood, Jr. and Coffey, Circuit Judges joined.
Easterbrook, Circuit Judge filed dissenting opinion.
Daniel D. Yuhas, Office of State Appellate Defender, Judith N. Kirby, Springfield, Ill., for petitioner-appellant.
Marie Quinlivan Czech, Atty. Gen. Office, Chicago, Ill., for respondent-appellee.
Before CUMMINGS, Chief Judge, and BAUER, WOOD, CUDAHY, POSNER, COFFEY, FLAUM, EASTERBROOK, and RIPPLE, Circuit Judges.
FLAUM, Circuit Judge, with whom BAUER, CUDAHY, POSNER, and RIPPLE, Circuit Judges,
join.
Petitioner Charles Miller appeals the district court’s denial of his petition for writ of habeas corpus, contending that his constitutional rights were violated when the prosecutor improperly commented on his post-arrest silence during his trial in state court for murder, kidnapping, and robbery. This court reversed the district court in a panel opinion issued August 27, 1985. Rehearing en banc was granted on November 14, 1985 and the original decision vacated. We reverse the district court’s denial of the writ.
I.
This case involves the brutal kidnapping, murder, and robbery of Neil Gorsuch during the early morning hours of February 9, 1980, in Morgan County, Illinois. Miller was indicted for the crimes on February 11, 1980, along with Clarence Armstrong and Randy Williams. Williams entered into a plea agreement with the state whereby the murder, aggravated kidnapping, and robbery charges against him were dropped in exchange for his guilty plea to one count of kidnapping and his testimony in the separate trials of Miller and Armstrong.
Randy Williams testified at trial as follows: he, his brother Rick, and Armstrong met Gorsuch in a tavern on the evening of February 8. The four men left together at about 1:30 a.m. the following morning, Armstrong having offered to give Gorsuch a ride back to his motel. After taking Rick home, Williams started driving to Gor-such’s motel. En route, Armstrong began beating Gorsuch in the back seat. Armstrong then told Williams to drive to Williams’s house, where Armstrong again beat Gorsuch and got Williams’s twelve-gauge shotgun out of the bedroom. The three men then got back into the car and drove to the trailer home where Miller was staying. While Williams and Gorsuch waited in the car, Armstrong went in and talked briefly to Miller. Armstrong and Miller then left the trailer and got into the car. Williams drove to a bridge in an isolated rural area, where Armstrong removed Gorsuch from the car and stood him up against the bridge railing. Williams, Armstrong, and Miller then each shot Gorsuch once in the head with the shotgun, and Armstrong pushed the body over the railing into the creek below.
Charles Miller testified that Armstrong came to his trailer in the early morning hours of February 9 and said that he needed to talk to Miller because he and Williams had killed somebody. Miller went with Armstrong to Williams’s house and talked to the two men for awhile. He and Williams then took Armstrong home and had breakfast at Dottie’s Cafe, which was run by Williams’s mother. After breakfast, Miller returned to the trailer. He and Williams were arrested that night at a gas station on their way home from a party.
Other witnesses testified that Gorsuch left the tavern on the morning of February 9 in the company of the two Williams brothers and Armstrong. The people in the trailer where Miller was staying that night testified that Armstrong arrived at the trailer during the early morning hours of February 9 (estimates varied from 4:15 a.m. to 6:30 a.m.) and left with Miller after a short conversation. Williams’s mother testified that Williams and Miller arrived at her cafe for breakfast at approximately 6:15 a.m. Shotgun shells, other evidence found near the bridge, and the autopsy reports indicated that the murder had taken place essentially as Williams described.
After Miller testified, the prosecutor began his cross-examination by asking:
Prosecutor: Mr. Miller, how old are you?
Defendant: Twenty-three.
Prosecutor: Why didn’t you tell this story to anybody when you got arrested?
Defense counsel immediately objected and, out of the presence of the jury, asked for a mistrial. The judge denied the motion and instructed the jury to “ignore that last question for the time being.” The judge did not further instruct the jury on the prosecutor’s reference to Miller’s post-arrest silence.
The jury found Miller guilty of robbery, kidnapping, aggravated kidnapping, and murder. He was found not guilty of armed robbery. Miller was sentenced to concurrent terms of eighty years for murder, thirty years for aggravated kidnapping, and seven years for robbery.
On direct appeal, a unanimous panel of the Illinois Appellate Court reversed Miller’s conviction and remanded for a new trial. People v. Miller, 104 Ill.App.3d 57, 59 Ill.Dec. 864, 432 N.E.2d 650 (1982). The appellate court held that the prosecutor’s reference to Miller’s post-arrest silence directly violated Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), and that the trial court’s attempt to cure the error was insufficient. 104 Ill.App.3d at 61, 59 Ill.Dec. at 867-68, 432 N.E.2d at 653-54. The appellate court found that the evidence against Miller was not overwhelming:
[Tjhere is corroboration for the testimony of the accomplice, Randy Williams. However, nothing except Williams’ testimony directly links Miller with the crimes.
The trial was essentially a credibility contest between defendant Miller and Randy Williams. The reference to post-arrest silence cast aspersions on Miller’s credibility and may have irreparably prejudiced him in the eyes of the jury. Thus, reversal is required.
Id. at 61, 59 Ill.Dec. at 868, 432 N.E.2d at 654.
The Illinois Supreme Court granted leave to appeal and reversed the appellate court’s decision. People v. Miller, 96 Ill.2d 385, 70 Ill.Dec. 879, 450 N.E.2d 322 (1983). The majority held that although the prosecutor’s comment violated Doyle, the error was harmless because the comment was a single, isolated reference during the course of a lengthy trial, because Randy Williams s testimony was corroborated in many respects, and because the jury was instructed to disregard the comment. Id. at 396, 70 Ill.Dec. at 884, 450 N.E.2d at 327. In dissent, Justice Simon pointed out that accomplice testimony is inherently unreliable and that the judge’s allegedly curative instruction was insufficient. Id. at 397-99, 70 Ill.Dec. at 885-86, 450 N.E.2d at 328-29.
Charles Miller filed a petition for a writ of habeas corpus in the United States District Court on August 22,1983, pursuant to 28 U.S.C. § 2254 (1982). On August 27, 1984, the district court entered an order granting the state’s motion for summary judgment and denying the petition for the writ. United States ex rel. Miller v. Greer, No. 83-3254 (C.D. Ill. Aug. 27, 1984). The district court essentially adopted the Illinois Supreme Court’s analysis, holding that the state’s violation of Doyle was harmless beyond a reasonable doubt.
II.
The Supreme Court held in Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), that “the use for impeachment purposes of [a] petitioner's] silence, at the time of arrest and after receiving Miranda warnings, violate[s] the Due Process Clause of the Fourteenth Amendment.” Id. at 619, 96 S.Ct. at 2245. The state’s first argument in response to Miller’s appeal is that, despite the fact that the Illinois Appellate Court, the Illinois Supreme Court, the United States District Court, and this court’s original panel all held otherwise, there was no Doyle violation in this case.
Charles Miller was not given Miranda warnings when he and Williams were arrested at a gas station in the early morning hours of February 10, 1980, for unlawful use of weapons (a handgun was found under the seat of the car that they were driving). Later that day, Williams gave a formal statement to the police implicating himself, Armstrong, and Miller in Gor-such’s murder. Immediately following Williams’s statement, at 2:57 p.m., Miller was given Miranda warnings and arrested for the murder, kidnapping, and robbery of Neil Gorsuch.
The state concedes that Miller was given Miranda warnings at the time of his arrest for the instant offenses and that any comment referring to his silence after that arrest would be improper. It nevertheless argues that the prosecutor’s reference to Miller’s post-arrest silence could be construed as referring to the period between Miller’s arrest on the weapons charge, when no Miranda warnings were given, and his arrest on the murder charge and receipt of Miranda warnings later that afternoon, and that the prosecutor’s comment therefore did not violate Miller’s due process rights. See Fletcher v. Weir, 455 U.S. 603, 607, 102 S.Ct. 1309, 1312, 71 L.Ed.2d 490 (1982) (not improper to comment on post-arrest silence in the absence of Miranda warnings, which affirmatively assure a defendant that he has the right to remain silent); Feela v. Israel, 727 F.2d 151, 157 (7th Cir.1984) (same). The state asserts that it would have been natural for Miller to have attempted to exculpate himself from any involvement in the Gorsuch murder during the period following his initial arrest because he was arrested with Williams and knew of Williams’s involvement in the crime.
We cannot agree with the respondent’s contentions. Although the prosecutor’s question may have been intended to refer in part to Miller’s silence following his arrest on the weapons charge, it cannot seriously be maintained that the prosecutor intended no reference to Miller’s silence after his arrest for Neil Gorsuch’s murder. From the jury’s standpoint, the only reasonable inference to be drawn from the prosecutor’s question — “Why didn’t you tell this story to anybody when you got arrested?” — is that Miller was silent at the time of his arrest for the offenses for which he was then on trial.
The respondent asserts that it would have been “natural” for Miller to attempt to exculpate himself when he was arrested on the weapons charge merely because he was with Randy Williams. Although Williams may already have been a suspect in the murder because he had been seen leaving the tavern with Gorsuch, Miller was never even implicated in the crime until Williams gave his formal statement to the police later that day. It is not in the least bit “natural” for a person to try to exculpate himself of a crime of which he has not been accused. Indeed, the statement — “I did not kill anybody” — upon being arrested for unlawful use of weapons, drunken driving, or running a red light, would tend only to inculpate, rather than exculpate, the ar-restee.
We conclude, as did the courts before us, that Miller was advised of his right to remain silent for purposes of Doyle when he was given the Miranda warnings at the time of his arrest for the offenses charged at trial. See People v. Miller, 96 Ill.2d at 394, 70 Ill.Dec. at 883, 450 N.E.2d at 326. The prosecutor’s reference to Miller’s silence at the time of his arrest therefore violated his constitutional right to a fair trial. Id.
III.
The conclusion that there was a Doyle violation in this case does not end the inquiry, however, since constitutional trial errors of this sort can in certain circumstances constitute harmless error. See Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967). The Supreme Court has imposed on the government the burden of proving “beyond a reasonable doubt that the [constitutional] error complained of did not contribute to the verdict obtained.” Chapman, 386 U.S. at 24, 87 S.Ct. at 828. The circuits universally apply this “harmless beyond a reasonable doubt” standard to Doyle violations. See, e.g., United States v. Elkins, 774 F.2d 530, 539 (1st Cir.1985); Hawkins v. LeFevre, 758 F.2d 866, 877 (2d Cir.1985); United States v. Cummiskey, 728 F.2d 200, 204 (3d Cir.1984), cert. denied, — U.S. —, 105 S.Ct. 1869, 85 L.Ed.2d 162 (1985); Williams v. Zahradnick, 632 F.2d 353, 360 (4th Cir.1980); Chapman v. United States, 547 F.2d 1240, 1248 (5th Cir.), cert. denied, 431 U.S. 908, 97 S.Ct. 1705, 52 L.Ed.2d 393 (1977); Martin v. Foltz, 773 F.2d 711, 715 (6th Cir.1985); United States v. Disbrow, 768 F.2d 976, 980 (8th Cir. 1985); United States v. Ortiz, 776 F.2d 864, 865 (9th Cir.1985); United States v. Remigio, 767 F.2d 730, 735 (10th Cir.1985); United States v. Ruz-Salazar, 764 F.2d 1433, 1437 (11th Cir.1985).
This circuit is no exception, see, e.g., United States v. Shue, 766 F.2d 1122, 1133 (7th Cir.1985) (Wood, J.). In this circuit alone, however, the possibility has been raised that a less stringent harmless error standard may be appropriate to Doyle situations. Concurring opinions to our en banc decision in Phelps v. Duckworth addressed the issue, although the majority there expressly declined to reach it. 722 F.2d 1410, 1414 (7th Cir.1985). Moreover, the state pressed this position during oral argument in this case, as does Judge East-erbrook in his dissent. Proponents of the lesser standard make several arguments. First, they urge that the Supreme Court in Donnelly v. DeChristoforo, 416 U.S. 637, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974), adopted a two-level harmless error standard: the Chapman standard for direct violations of rights specifically enumerated in the Bill of Rights, and a standard requiring the defendant to demonstrate that the violation had a substantial influence on the trial for fourteenth amendment violations. As a variant of this position, it has been suggested that the latter standard is applicable because Doyle is not an innocence-protecting rule but, rather, a prophylactic rule designed only to buttress Miranda, another prophylactic doctrine. A third variant argues that, no matter what the standard applied to direct appeals of Doyle violations, constitutional rules are enforced less strictly on habeas corpus review.
Analysis of these arguments is aided by the Supreme Court’s recent pronouncement in Wainwright v. Greenfield, — U.S. —, 106 S.Ct. 634, 88 L.Ed.2d 623 (1986). There, in its review of a habeas petition, the Court affirmed the Eleventh Circuit’s decision that Doyle is violated when a prosecutor uses post-Miranda warnings silence as evidence of sanity. Although the harmless error issue was not before the Court, Greenfield is particularly notable for its strong affirmation of Doyle’s constitutional underpinnings and for the twice-mentioned assumption in Justice Rehnquist’s concurrence that the Chapman standard applies to habeas review of Doyle violations. See Rehnquist, J., concurring (joined by Burger, C.J.). Guided by this and other precedent discussed below, we conclude that the “harmless beyond a reasonable doubt” standard remains the law to which we must adhere, and that the state’s position and its variants are misguided.
First, a careful reading of Donnelly and other cases reveals that the Supreme Court does not vary the harmless error standard with the kind of constitutional right at issue. Rather, the Court prescribes one standard — the Chapman standard — for determining harmlessness in the context of constitutional trial error and another standard for determining whether ordinarily nonconstitutional trial error, for example, prosecutorial misconduct, is so prejudicial as to rise to the level of a due process violation. Once the trial error has been identified as one of constitutional magnitude, then the Chapman standard is applied to determine whether the conviction must be reversed. For a recent explanation of this distinction, see United States v. Mazzone, 782 F.2d 757, 763 (7th Cir.1986) (Posner, J.). See also United States v. Young, — U.S.-, 105 S.Ct. 1038, 1045 n.10, 84 L.Ed.2d 1 (1985).
Donnelly itself made clear this scheme, explaining that the habeas petitioner there could point to nothing in his trial that specifically violated the constitution, such as prosecutorial comments on his right to remain silent. 416 U.S. at 643, 94 S.Ct. at 1871. Instead, the petitioner complained of the prosecutor’s expression of personal opinion as to guilt, an error that would not implicate the petitioner’s fourteenth amendment right to due process unless it actually “infected the trial with unfairness.” Id. Thus, the petitioner has an uphill battle when he seeks to establish general trial error as constitutional error. But where the violation at trial is one of constitutional magnitude, then the government bears the “more onerous” burden of Chapman. See United States v. Lane, — U.S. —, 106 S.Ct. 725, 730 n.9, 88 L.Ed.2d 814 (1986) (Burger, C.J.) (“the standard for harmless-error analysis adopted in Chapman concerning constitutional errors is considerably more onerous than the standard for nonconstitutional errors adopted in Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946)”). In United States v. Bagley, the Court was urged to reverse automatically or apply the Chapman standard to the government’s failure to disclose impeachment material to the defendant. — U.S. —, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985). The Court explained that a threshold inquiry first had to be undertaken to determine whether the nondisclosure amounted to a constitutional violation: “such suppression of. evidence amounts to a constitutional violation only if it deprives the defendant of a fair trial.” 105 S.Ct. at 3381. Justice Marshall argued in dissent that any suppression of impeachment evidence should be considered constitutional error and thus urged the Court to “apply our normal constitutional error test and reverse unless it is clear beyond a reasonable doubt that the withheld evidence would not have affected the outcome of the trial.” 105 S.Ct. at 3394-95 (Marshall, J.). The express underpinning of Bagley was United States v. Agurs, 427 U.S. 97, 108, 96 S.Ct. 2392, 2400, 49 L.Ed.2d 342 (1976): “to reiterate a critical point, the prosecutor will not have violated his constitutional duty of disclosure unless his omission is of sufficient significance to result in the denial of the defendant’s right to a fair trial.”
Thus, the Court to date never has differentiated for harmless error standard purposes between Bill of Rights and fourteenth amendment violations, or between Doyle and other constitutional trial violations, or between direct and collateral review of constitutional violations. Indeed, the Court continues to manifest its complete adherence to a unitary standard of harmless error for constitutional trial violations. For example, the Court recently reaffirmed the constitutional/nonconstitu-tional distinction and the viability of Chapman as the analysis for constitutional trial errors, see the language from Lane, supra p. 9. Regarding Doyle specifically, its constitutional importance was reiterated by the Court in Greenfield. That opinion makes clear that Doyle is not of “secondary” constitutional status and is not merely a rule designed to increase adherence to Miranda. Instead, the court emphasized that drawing attention to post-Miranda warnings silence is fundamentally unfair and constitutes a direct, wholly independent violation of the due process clause of the fourteenth amendment. 106 S.Ct. at 638-39. See, e.g., South Dakota v. Neville, 459 U.S. 553, 565, 103 S.Ct. 916, 923, 74 L.Ed.2d 748 (1983); Fletcher v. Weir, 455 U.S. 603, 604-05, 102 S.Ct. 1309, 1311, 71 L.Ed.2d 490 (1982).
Finally, Justice Rehnquist’s assumption in Greenfield that the Chapman standard would apply there, 106 S.Ct. at 641, 644, is an additional entry in a long list of evidence that leads to the conclusion that Chapman is the law for Doyle violations in the context of habeas review. Although Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976), precluded collateral review of exclusionary rule claims litigated in state proceedings, we can find nothing to indicate that where collateral review is permitted, the Court has prescribed a different standard for determining harmlessness. The Stone doctrine, moreover, depends on the peculiar nature of the exclusionary rule as a “judicially created remedy rather than a personal constitutional right,” 428 U.S. at 495 n.37, 96 S.Ct. at 3052 n. 37. In an exclusionary rule situation, the constitutional violation occurs pre-trial and the rule operates to discourage law enforcement officials from future infidelity to the constitutional strictures. Id. at 492, 96 S.Ct. at 3051. Thus, the Court reasonably could conduct a cost/benefit analysis and conclude that collateral review there is unnecessarily costly, since there is no “reason to assume that any specific disincentive already created by the risk of exclusion of evidence at trial or the reversal of convictions on direct review would be enhanced if there were the further risk” of overturning convictions in federal habeas proceedings. Id. at 493, 96 S.Ct. at 3052. By contrast, the violation at issue in a Doyle situation is constitutional and personal to the petitioner. It occurs when the post-warnings silence is used at trial, and it offends due process. It denies the petitioner a fair trial, unless, and only unless, it can be said that the petitioner beyond reasonable doubt would have been convicted in the absence of the violation. Unless we are to conduct our own cost/benefit analysis and declare habeas relief from constitutional violations a thing of the past, this inquiry remains our responsibility. Accordingly, the Doyle violation must be examined in the context of petitioner Miller’s trial in order to determine whether it was harmless beyond a reasonable doubt.
IV.
The Illinois Supreme Court based its conclusion that the prosecutor’s improper comment was harmless error on three factors: the comment was a single, isolated reference during the course of a lengthy trial, Williams’s testimony was corroborated in many respects, and the trial judge gave a curative instruction. We cannot agree with the Illinois Supreme Court’s reliance on these factors. Beginning with the court’s observation that the prosecutor’s improper comment was but a single, isolated reference to Miller’s post-arrest silence during the course of a week-long trial, we believe that the timing of the comment overshadows its singularity. No matter how many days a trial may have lasted or how many witnesses may have appeared, the jury will pay close attention when a defendant accused of crimes as horrible as these takes the stand. That attention undoubtedly is heightened when the prosecutor rises to attack the defendant’s story on cross-examination. When one of the first questions from the prosecutor is “Why didn’t you tell this story to anybody when you got arrested?”, the comment cannot be so easily dismissed as a single, isolated reference.
Turning to the corroboration of Randy Williams’s testimony, the bulk of the testimony and physical evidence cited by the Illinois Supreme Court corroborated portions of Randy Williams’s testimony that Miller did not even dispute: (1) that Williams, his brother Rick, Armstrong, and Gorsuch left the tavern together at approximately 1:30 a.m. on the morning of February 9; (2) that Gorsuch was beaten and then killed on the bridge by several shotgun blasts to the head; (3) that Armstrong went to the trailer where Miller was staying sometime that morning, talked to him briefly, and then left with him; and (4) that Williams and Miller had breakfast together near daybreak that morning at Dottie’s Cafe.
With regard to the crucial part of Williams’s testimony — his assertion that Miller took part in the murder of Neil Gorsuch — there was no direct corroborative evidence and Miller denied being present when the murder was committed. There was no reason to find Miller’s testimony particularly incredible or Randy Williams’s testimony particularly credible on this point, especially since accomplice testimony of this kind is inherently unreliable, often motivated by factors such as malice toward the accused and a promise of leniency or immunity. In short, this evidence does not approach the overwhelming evidence necessary to overcome constitutional error such as a Doyle violation. Compare United States v. Hasting, 461 U.S. 499, 511-12, 103 S.Ct. 1974, 1981-82, 76 L.Ed.2d 96 (1983) (finding harmless error where victims promptly picked the defendants out of a line-up, neutral witnesses corroborated critical aspects of the victims’ testimony, property of the victims was found in one of the defendant’s possession, and there was identification of the car used and one of the defendant’s fingerprints); Feela v. Israel, 727 F.2d 151, 157 (7th Cir.1984) (finding harmless error where defendant had an implausible alibi and was arrested near the scene of the robbery with the vest, gloves, and handgun used by the robber); United States v. Wilkins, 659 F.2d 769, 774 (7th Cir.) (finding harmless error where defendant was arrested in the getaway car with the stolen money and guns several blocks from the bank), cert. denied, 454 U.S. 1102, 102 S.Ct. 681, 70 L.Ed.2d 646 (1981). The crux of this trial was whether the jury believed the Williamses or believed Miller. The prosecutor’s improper inquiry, magnified by coming at a time when the jury’s attention was focused on Miller, cast substantial doubt on Miller’s credibility. We simply cannot assume beyond a reasonable doubt that the prosecutor’s comment had no effect on the jury’s assessment of Miller’s credibility, and hence on the jury’s verdict. See, e.g., Velarde v. Shulsen, 757 F.2d 1093, 1095 (10th Cir.1985) (where case comes down to the word of defendant against the word of key prosecution witness, Doyle violation can never be harmless); United States v. Harp, 536 F.2d 601, 603 (5th Cir.1976) (where Doyle-violative remark strikes at the “jugular” of defendant’s story, error cannot be classified as harmless).
Finally, in regard to the allegedly curative instruction given by the trial judge, we believe that the judge’s admonition to ignore the prosecutor’s reference to Miller’s post-arrest silence “for the time being” was simply too ambiguous in the setting of a clear-cut Doyle violation to cure the effect of the prosecutor’s improper comment. The record reflects that the judge was apparently unaware that the prosecutor’s question was a violation of Doyle. At the side bar conference following defense counsel’s objection to the prosecutor’s comment, the judge stated: “I will do some checking during the time he is on the witness stand on Cross Examination and if I find where he can, I will let him ask the question.” Thus, the instruction that the judge gave to the jury reflected what he apparently was thinking at the time, which was that the jury might be able to consider the prosecutor’s comment and the implications arising therefrom at some point in the future. Because of the important fourteenth amendment guarantees protected by Doyle, we hesitate to hold that anything other than a clear, immediate, and unambiguous cautionary instruction can be sufficient to cure a Doyle violation. See United States ex rel. Burke v. Greer, 756 F.2d 1295, 1303 (7th Cir.1985) (final jury instructions ordinarily not sufficient to cure constitutional errors). Even if we were willing to consider a flawed cautionary instruction sufficient under certain circumstances, we could not conclude that the Doyle violation in the circumstances of this case was rendered harmless by the trial judge’s obscure instruction.
In sum, we hold that the state has not met its burden of proving that the prosecutor’s clear violation of Doyle was harmless beyond a reasonable doubt. In reaching this conclusion, we are not unmindful of the appropriateness of deferring to the state courts’ assessment of the impact of prosecutorial error on state trials. However, we are respectfully unable to accept the Illinois Supreme Court’s analysis in this case, although our conclusions track closely those of the unanimous Illinois Appellate Court. Because the crucial issue at trial was credibility, the Doyle violation went to the heart of the truth-seeking process. The evidence against Miller was not overwhelming, his story was not implausible, and the trial court's cautionary instruction was insufficient to cure the error. In these circumstances, we must conclude that it is not clear beyond a reasonable doubt that, absent the prosecutor’s improper comment, the jury would have found Miller guilty of the crimes for which he was convicted.
V.
The district court’s judgment denying a petition for a writ of habeas corpus is accordingly reversed, and the matter remanded with instructions to order Miller’s release from custody unless the state retries him within the 120-day time limit.
. The trial court vacated Miller’s kidnapping conviction because kidnapping is a lesser-in-eluded offense of aggravated kidnapping.
. There may also be a different approach to constitutional errors that do not affect trials. The Supreme Court in Morris v. Mathews, — U.S. —, 106 S.Ct. 1032, 89 L.Ed.2d 187 (1986), held that in the double jeopardy context, once a jeopardy-barred conviction is removed and a lesser-included offense conviction substituted, the defendant bears the burden of demonstrating that the jury would not have convicted him of the lesser-included offense. The majority in Morris stressed the distinction between double jeopardy cases and cases involving constitutional trial errors, stating that "this [Morris ] is not a 'harmless error’ case.” Id. at 1037. Thus, the Morris approach does not pertain to our analysis.
. In any event, it may be inappropriate to do so since all Bill of Rights provisions are enforced against the states as fourteenth amendment rights.
. It may taint the truth-seeking process as well. Silence after a state authority has promised that any statement one makes may be used at trial surely has questionable probative value. The Supreme Court suggested as much in United States v. Hale, 422 U.S. 171, 180, 95 S.Ct. 2133, 2138, 45 L.Ed.2d 99 (1975), and the difference in probative value between post-warnings silence and silence without warnings formed part of the Court’s rationale in Fletcher v. Weir for holding that only post-warnings silence implicates Doyle. 455 U.S. 603, 604-06, 102 S.Ct. at 1310-11 (1982).
. Any confusion on this point may be engendered by a possible misreading of Henderson v. Kibbe, 431 U.S. 145, 97 S.Ct. 1730, 52 L.Ed.2d 203 (1977). In Henderson, the Court reversed a grant of the writ because it found that the petitioner’s due process rights had not been violated by deficient jury instructions. The Court noted that the petitioner’s burden in making a collateral attack on constitutionality was greater than in seeking direct review, because the question on direct review in the state court was merely whether the instruction was “undesirable, erroneous, or even universally condemned.” Id. at 154, 97 S.Ct. at 1737.
. Rick Williams testified that on the evening following Gorsuch’s murder, Randy Williams and Miller told Rick that they had killed Gor-such and that Rick should keep quiet about it if the police began asking questions. Miller denied being present when this conversation took place. At most, this testimony provides indirect evidence that Miller was involved in the murder. Moreover, Rick Williams knew at the time of his testimony that his brother Randy had been promised leniency in exchange for testifying at trial. Thus Rick’s credibility is questionable, since his testimony in no way endangered his brother and in fact may have been helpful in making Randy’s version of the murder more attractive to the state.
. Counsel for the state represented during oral argument that the state had agreed prior to Miller’s trial to drop all charges against Williams except for kidnapping, in return for his testimony. After Miller’s conviction, Williams was sentenced on the kidnapping charge to two years of probation. Miller and Armstrong each were sentenced to eighty years in prison. | What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "criminal". | What is the specific issue in the case within the general category of "criminal"? | [
"federal offense",
"state offense",
"not determined whether state or federal offense"
] | [
1
] | songer |
UNITED STATES of America, Petitioner-Appellee, v. Fannye Jenkins BENFORD, Respondent-Appellant, v. Fred T. MACKEY, Intervenor-Appellant.
No. 16771.
United States Court of Appeals Seventh Circuit.
Feb. 11, 1969.
F. Laurence Anderson, Jr., Gary, Ind., for respondent-appellant Fannye Jenkins Benford.
Robert J. Downing, William M. Ward, Chicago, Ill., for intervenor-appellant Fred T. Mackey. Raskin, Downing & Dammann, Chicago, Ill., of counsel.
Alfred W. Moellering, Fort Wayne, Ind., Mitchell Rogovin, John P. Burke, Atty., Tax Division, U. S. Dept. of Justice, Washington, D. C., Lee A. Jackson, Joseph M. Howard, Attys., Dept. of Justice, Washington, D. C., for appellee. Alfred R. Uzis, Asst. U. S. Atty., of counsel.
Before FAIRCHILD, CUMMINGS and KERNER, Circuit Judges.
FAIRCHILD, Circuit Judge.
Proceeding to compel attendance, testimony, and production of records pursuant to summonses under the internal revenue laws. One of the taxpayers who are the subjects of the investigation has appealed from an order denying leave to intervene. The person summoned has appealed from an order requiring her to appear, testify, and produce records.
Fannye Jenkins Benford is treasurer of three corporations, Gibraltar Industrial Life Insurance Co., Gibraltar Mutual Life Insurance Company, and M. W. E. & S. Investment Co., Inc. Internal Revenue Service summonses were served upon her requiring her to appear before an agent and produce the “books and records, cancelled checks, minute books and stock transfer books” relating to the operation of each corporation for the years 1961 to 1965, inclusive. Each summons was issued in the matter of the tax liability of Fred and Ella Mackey. A general idea of the relationship between the corporations and the Mackeys during the earlier years, 1956 to 1960, inclusive, can be gained from the opinion of this court in United States v. Mackey.
Mrs. Benford wholly failed to comply, and this proceeding was commenced by petition and order to show cause.
Taxpayer Fred Mackey’s amended motion to intervene was denied. After a hearing, Mrs. Benford was ordered to comply with the summonses. The order has been stayed, pending appeal.
Intervention by taxpayer.
Fred Mackey’s amended motion asserted that his opportunity for discussion with counsel was impaired because he was in custody under sentence in United States v. Mackey, already referred to. He submitted an answer which put in issue the averments of the agent’s petition as to the agent’s authority, the relationship of the desired records to Mackey’s income tax liability, and the service of the summonses. As affirmative defenses, he averred that the purpose of the investigation is to obtain evidence for use in a criminal prosecution and that the summonses were issued either to harass him or put pressure on him to settle litigation concerning his tax liability for 1956-1960.
The district court, in an able opinion, concluded (1) that Mackey had shown no proprietary or other special interest in the records to be produced and (2) that his being the taxpayer whose liability is under scrutiny is not, standing alone, a sufficient basis for intervention. The district court denied intervention holding that the Reisman and Powell decisions of the Supreme Court of the United States do not require a different result.
If the import of Reisman and Powell were closely confined to their facts, we could well agree with the district court.
In Reisman, where the Court said that the taxpayers could intervene in a proceeding to secure compliance with summons, the persons summoned were accountants, employed by taxpayers’ lawyers; the documents sought were alleged to be the work product and trial preparations of the attorneys; and taxpayers’ relationship to the documents was claimed to be such that seizure would be unreasonable, would require the taxpayers to incriminate themselves, and would deprive them of effective assistance of counsel.
In Powell, where the Court said the taxpayer is entitled to an adversary hearing before enforcement is ordered, the taxpayer was a corporation, the records to be produced belonged to it, and the person summoned to produce them was its president. It was also an instance where the taxpayer’s records for the years in question had been previously examined and 26 U.S.C. sec. 7605(b) required written notice to the taxpayer for that reason.
Thus, in both Reisman and Powell, the taxpayers could spell out such relationship with the records sought that compulsion of disclosure might arguably impair taxpayers’ constitutional or other legally protected rights. In each case, the taxpayer’s basis for intervention was a demonstrated “interest” more specific and palpable than his concern that the evidence might aid the government in increasing his liability for taxes.
But the opinions did not qualify the broad statements that “both parties summoned and those affected by a disclosure may appear or intervene before the District Court and challenge the summons by asserting their constitutional or other claims”;1 *** that “In addition, third parties might intervene to protect their interests, or in the event the taxpayer is not a party to the summons before the hearing officer, he, too, may intervene”; that “This does not make meaningless the adversary hearing to which the taxpayer is entitled before enforcement is ordered.” The opinions did not expressly, and, as we read them, did not impliedly, limit the taxpayer’s right to intervene in enforcement proceedings to situations where a legally protected interest in the records could be shown. Had the Court intended simply to hold that the particular interests of the taxpayers involved in those cases were sufficient bases for intervention, the opinions would doubtless have made that evident. We interpret them as adopting the judicial policy with respect to I.R.S. inquisitorial summonses that the person whose tax liability is the subject of the investigation can intervene and challenge enforcement if he sees fit.
The rule that the taxpayer may intervene and is entitled to an adversary hearing before enforcement is ordered does not, in our opinion, extend carte blanche to obstruct and delay the enforcement proceeding. Rule 81(a) (8) F.R.Civ.P. contemplates that in any particular enforcement proceeding the court may modify or limit the applicability of the federal rules. Mr. Mackey has called our attention to district court decisions holding that a respondent in an enforcement proceeding is entitled to conduct pretrial discovery. Both of those decisions recognized that under Rule 81(a) (3) there would be cases where it would not be an abuse of discretion to bar discovery, and both recognized that the court could limit the scope of and time for taking depositions. The standard, as we see it, is that taxpayer must be afforded a meaningful adversary hearing of legitimate challenges.
We conclude that Mackey should have been permitted to intervene, and that the proceeding must be reopened sufficiently to give him his day in court on the issues raised by his answer.
Enforcement against Mrs. Benford.
The summonses, served August 11, 1967, required Mrs. Benford to appear and produce the books and records, can-celled checks, minute books and stock transfer books of the three corporations August 23. She did not comply. The place of appearance was the business office of the three corporations, and the production of the records presented no physical problem. The opinion in United States v. Mackey indicates the close relationship between Mackey and the corporations during the preceding five years.
The district court’s order required Mrs. Benford to show cause November 16, 1967. Her counsel entered an appearance November 30. The hearing was adjourned several times, and held March 18, 1968. She filed no answer nor affidavit in response to the order to show cause.
On March 18, her counsel orally challenged the summonses on the ground they were too broad and oppressive. The district court declined to permit inquiry into those grounds because nothing had been filed on her behalf in response to the order to show cause.
Under all the circumstances, we think the district court did not abuse its discretion in foreclosing inquiry into those grounds at the hearing. Although the order requiring her to comply must be vacated to permit Mackey to intervene and be heard, the district court need not, unless in its discretion it sees fit, reopen the hearing to permit Mrs. Benford to advance objections.
The order entered March 8, 1968 denying Fred Mackey’s motion to intervene is reversed. The order entered March 18, 1968 is vacated. The cause is remanded for further proceedings consistent with this opinion.
. 26 U.S.C. secs. 7402(b) and 7604(a).
. (7th Cir. 1965), 345 F.2d 499.
. Rule 24, N.D.Ind., provides for this form of procedure. See Rule 81(a) (3) F.R.Civ.P.
. Reisman v. Caplin (1964),, 375 U.S. 440, 84 S.Ct. 508, 11 L.Ed.2d 459; United States v. Powell (1964), 379 U.S. 48, 85 S.Ct. 248, 13 L.Ed.2d 112.
. Reisman, 375 U.S. p. 445, 84 S.Ct. p. 511.
. Reisman, 375 U.S. p. 449, 84 S.Ct. p. 513.
. Powell, 379 U.S. p. 58, 85 S.Ct. p. 255.
. See 1946 Committee Note, 7 Moore’s Federal Practice p. 4413.
. Kennedy v. Rubin (N.D.Ill.1966), 254 F.Supp. 190; United States v. Moriarty (E.D.Wis.1967), 278 F.Supp. 187.
. Supra, footnote 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.
Your task is to determine whether one or more individuals or groups sought to formally intervene in the appeals court consideration of the case. | Did one or more individuals or groups seek to formally intervene in the appeals court consideration of the case? | [
"no intervenor in case",
"intervenor = appellant",
"intervenor = respondent",
"yes, both appellant & respondent",
"not applicable"
] | [
1
] | songer |
DULUTH SUPERIOR EXCURSIONS, INC., and Flamingo Excursions, Inc., Appellants, v. Joseph MAKELA, Appellee.
No. 79-2034.
United States Court of Appeals, Eighth Circuit.
Submitted April 17, 1980.
Decided May 29, 1980.
Gene W. Halverson (on brief), Halverson, Watters, Bye, Downs & Maki, Duluth, Minn., for appellants; Jeanne M. Forneris, Duluth, Minn., on brief.
Laura S. Underkuffler (on brief), Meagher, Geer, Markham, Anderson, Adamson, Flaskamp & Brennan, Minneapolis, Minn., for appellee.
Before LAY, Chief Judge and BRIGHT and ROSS, Circuit Judges.
BRIGHT, Circuit Judge.
Duluth Superior Excursions, Inc. and Flamingo Excursions, Inc. (collectively, Excursions) brought this action in federal court seeking to limit their potential liability to Joseph Makela under the Shipowner’s Limitation of Liability Act, 46 U.S.C. §§ 181-189 (1976). The district court dismissed the action, holding that Excursions had failed to establish federal admiralty jurisdiction under 28 U.S.C § 1333(1) (1976). For the reasons set forth below, we con-elude that this determination was erroneous. Accordingly, we reverse.
I. Background.
On the night of August 12, 1977, Joseph Makela was struck and seriously injured by a car while crossing Harbor Drive in Duluth, Minnesota. The driver of the car was allegedly intoxicated. Both Makela and the car’s driver had just disembarked from the S.S. Flamingo after a three-hour privately chartered cruise around the Duluth-Superi- or harbor. The organizers of the charter cruise, having advertised it as a “booze cruise,” had brought several kegs of beer on board. The Flamingo was owned by appellant Flamingo Excursions, Inc., and operated by appellant Duluth Superior Excursions, Inc.
In September 1977, Makela’s attorney notified Excursions that a tort claim would be filed against them. Excursions responded by filing the present action in federal court on February 10, 1978, seeking to limit their potential liability to the value of the S.S. Flamingo, her equipment, and any pending freight as of August 12, 1977. See 46 U.S.C. § 183(a) (1976). Excursions offered an ad interim stipulation for value in the sum of $51,000, alleging that this sum exceeded the aggregate value of their interest in the vessel.
In October 1978, Makela filed a tort action in Minnesota state court, naming as defendants the driver of the car that struck him, the driver’s father, the cruise organizers, and Excursions. Makela’s claim against Excursions was that Excursions inadequately supervised the passengers aboard the Flamingo, who consequently became illegally intoxicated, and that Excursions failed to provide a safe means of exit for these passengers. The federal action brought by Excursions against Makela was dismissed for want of jurisdiction on November 8, 1979.
II. Analysis.
In Executive Jet Aviation v. City of Cleveland, 409 U.S. 249, 93 S.Ct. 493, 34 L.Ed.2d 454 (1972), the Supreme Court recounted the history of maritime tort jurisdiction. Traditionally, the test of jurisdiction was whether the tort was “located” on navigable waters. E. g., The Plymouth, 70 U.S. (3 Wall.) 20, 18 L.Ed. 125 (1866). Because this test has proven unsatisfactory in many cases, the Court in Executive Jet placed its imprimatur on the more modern test of whether the alleged wrong is related to traditional maritime activity. See id. at 261, 93 S.Ct. at 501.
In the case at hand, there is little question that the wrongs allegedly committed by Excursions took place on navigable waters. The district court held, however, that Excursions failed to show the requisite relationship between these wrongs and traditional maritime activities. The district court based this holding upon its conclusion that inadequate supervision, illegal intoxication, and failure to provide a safe exit are not traditional maritime acts.
The district court may well have been correct in this surmise. The question before the court, however, was whether these alleged acts were related to (i. e., occurred in connection with) traditional maritime activities. Carrying passengers for hire is undoubtedly a traditional maritime activity, and suits in tort for personal injuries to passengers are clearly included in admiralty jurisdiction. E. g., St. Hilaire Moye v. Henderson, 496 F.2d 973 (8th Cir.), cert. denied, 419 U.S. 884, 95 S.Ct. 151, 42 L.Ed.2d 125 (1974). See G. Gilmore and C. Black, The Law of Admiralty 23 & 23 n. 77 (2d ed. 1975). The nature of the allegedly negligent acts underlying Makela’s claims against appellants is largely irrelevant. It is sufficient for purposes of admiralty jurisdiction in this ease that a passenger is suing for personal injuries allegedly due to the negligence of the vessel’s owners and crew on navigable waters. See Kermarec v. Compagnie Generale, 358 U.S. 625, 79 S.Ct. 406, 3 L.Ed.2d 550 (1959); Gibboney v. Wright, 517 F.2d 1054, 1059 (5th Cir. 1975).
To be sure, the accident that injured Makela occurred on dry land. Under the terms of the Admiralty Extension Act, 46 U.S.C. § 740 (1976), however, this circumstance does not destroy admiralty jurisdiction over Makela’s claims against the appellants. The Admiralty Extension Act provides in pertinent part:
The admiralty and maritime jurisdiction of the United States shall extend to and include all cases of damage or injury, to person or property, caused by a vessel on navigable water, notwithstanding that such damage or injury be done or consummated on land.
In Gutierrez v. Waterman S.S. Corp., 373 U.S. 206, 210, 83 S.Ct. 1185, 1188, 10 L.Ed.2d 297 (1963), the Supreme Court held that the Admiralty Extension Act applies not only to injuries caused by the impact of a vessel itself, but also to those due to alleged acts of negligence by a vessel’s crew. In that ease, a longshoreman was injured when he slipped on loose beans that had been spilled on the dock from defective bags in the course of unloading. The defendant argued that the federal courts lacked jurisdiction to hear the longshoreman’s claims. The Court held, however, that admiralty jurisdiction is established when
it is alleged that the shipowner commits a tort while or before the ship is being unloaded, and the impact of which is felt ashore at a time and place not remote from the wrongful act. [Id. at 210, 83 S.Ct. at 1188 (footnote omitted).]
These conditions for admiralty jurisdiction are fully satisfied in the present case. Cf. Tullis v. Fidelity and Casualty Co. of New York, 397 F.2d 22, 23-24 (5th Cir. 1968) (admiralty jurisdiction established by a crew boat passenger’s allegation that defendant boat owner failed to provide a reasonably safe means of debarking).
Makela cites a number of cases in support of the district court’s holding that it lacked jurisdiction. In our view, all of these cases are dissimilar in crucial respects from the case at hand. For example, in Peytavin v. Government Employees Ins. Co., 453 F.2d 1121 (5th Cir. 1972), the plaintiff sued for whiplash injuries sustained when he was struck from behind by another automobile while parked on a floating pontoon at a ferry landing. The court held that the plaintiff’s claim did not come within federal admiralty jurisdiction, observing that neither the conduct of the parties (apart from their use of the pontoon), nor the nature or apparent cause of the accident, nor the injury sustained demonstrated a connection with maritime activities or interests. Id. at 1126-27.
Notwithstanding this language, the very factors that led the court in Peytavin to distinguish its earlier decision in Byrd v. Napolean Ave. Ferry Co., Inc., 227 F.2d 958 (5th Cir. 1955), aff’g per curiam 125 F.Supp. 573 (E.D.La. 1954), cert. denied, 351 U.S. 925, 76 S.Ct. 783, 100 L.Ed. 1455 (1956) (upholding admiralty jurisdiction), support our determination that jurisdiction exists here. See Peytavin v. Government Employees Ins. Co., supra, 453 F.2d at 1127. Here, Mr. Makela, like the plaintiff in Byrd, was a passenger aboard a commercial vessel and the defendants are its owners and operators. Their alleged negligence, unlike that of the defendant driver in Peytavin, involves their performance of maritime duties in caring for their passengers. Cf. St. Hilaire Moye v. Henderson, supra (admiralty defendants found negligent in their operation of a pleasure boat). Finally, we note that the sequence of causal events alleged in this case started on board the vessel and ended on land, calling into play the Admiralty Extension Act. None of the cases cited by Makela shares this last critical feature. Nor do they address the duties of vessel owners or operators to their passengers, a traditional maritime concern.
We conclude, then, that Makela’s claim against Excursions comes within the admiralty jurisdiction of the federal courts. We reverse the decision of the district court dismissing the appellants’ action, and remand the case for further proceedings consistent with this opinion.
. 46 U.S.C. § 183(a) provides in pertinent part as follows:
(a) The liability of the owner of any vessel, whether American or foreign, for any * * * act, matter, or thing, loss, damage, or forfeiture, done, occasioned, or incurred, without the privity or knowledge of such owner or owners, shall not, except in the cases provided for in subsection (b) of this section, exceed the amount or value of the interest of such owner in such vessel, and her freight then pending.
The district court did not reach the issue of whether this statute applies here; neither do we.
. The parties have informed us that this lawsuit has not yet gone to trial.
. At issue in Executive Jet was a claim for property damage to an airplane that crashed and sank in Lake Erie. The Court in that case held specifically that, absent either a showing of a significant relationship between the wrong and traditional maritime activity or legislation to the contrary, claims arising from airplane accidents over navigable waters are not cognizable in admiralty. Id at 268, 93 S.Ct. at 504.
. It is true, as Makela notes, that the injury he suffered was consummated on dry land. That fact, however, does not change the locale of appellants’ alleged wrongs, nor does it destroy admiralty jurisdiction in this case. See text at note 5 infra.
. Although it might be argued that Makela’s injury is remote from the wrongful act, the accident occurred some six minutes after the S.S. Flamingo docked, on a street that adjoins the dock. In our view, this is not sufficiently remote in time and space to destroy admiralty jurisdiction. We intimate no view as to whether Makela’s injury was remote in the sense of not having been proximately caused by the appellants’ alleged acts of negligence. That issue remains for the trier of fact to decide. But cf. Pryor v. American President Lines, 520 F.2d 974 (4th Cir. 1975), cert. denied, 423 U.S. 1055, 96 S.Ct. 787, 46 L.Ed.2d 644 (1976), and cases there cited (requiring proximate cause to invoke the Admiralty Extension Act where the only permissible inference is that the vessel did not proximately cause the injury).
. In Gutierrez v. Waterman S.S. Corp., supra, the Supreme Court not only found admiralty jurisdiction, but also held that the defendant shipowner was negligent towards the plaintiff longshoreman and strictly liable for breach of its warranty of seaworthiness. The Court restricted the scope of this latter holding in Victory Carriers, Inc. v. Law, 404 U.S. 202, 92 S.Ct. 418, 30 L.Ed.2d 383 (1971), another longshoreman suit for dockside injuries, this time caused by equipment owned and operated by the stevedore. After observing that “in Gutierrez, supra, federal admiralty jurisdiction was clearly present since the Admiralty Extension Act on its face reached the injury there involved[,]” the Court stated:
The decision in Gutierrez turned, not on the “function” the stevedore was performing at the time of his injury, but, rather, upon the fact that his injury was caused by an appurtenance of a ship, the defective cargo containers, which the Court held to be an “injury, to person . . . caused by a vessel on navigable water” which was consummated ashore under 46 U.S.C. § 740. The Court has never approved an unseaworthiness recovery for an injury sustained on land merely because the injured longshoreman was engaged in the process of “loading” or “unloading.” [Id. at 210-11, 92 S.Ct. at 424. (footnote omitted).]
Since Victory Carriers, courts faced with onshore seaworthiness claims have typically attempted to ascertain whether the allegedly defective piece of equipment causing the injury was, at the time of the accident, an appurtenance of a vessel. See, e. g., Kinsella v. Zim Israel Navigation Co., Ltd., 513 F.2d 701 (1st Cir. 1975). In the case at hand, however, this issue does not arise, as there is no claim of unseaworthiness. Makela simply alleges that the appellants were negligent in operating the S.S. Flamingo on navigable waters and in providing a safe means of exit for its passengers.
See generally 7A Moore's Federal Practice 11,325[4] (2d ed. 1979).
. Makela points out that his injuries, like those of the whiplash victim in Peytavin, show no particular maritime character. The same thing is true, however, of the fall on spilled beans suffered by the plaintiff longshoreman in Gutierrez, supra. Cf. The Admiral Peoples, 295 U.S. 649, 55 S.Ct. 885, 79 L.Ed. 1633 (1935) (admiralty plaintiff who fell off a step at the end of a gangplank onto the dock recovered damages). We do not consider the nature of the plaintiffs injury to be critical in determining the scope of admiralty jurisdiction.
. The issue of whether the district court has jurisdiction to entertain Makela’s claims against the other parties named in his state court action is not before us. See generally Maryland Port Administration v. S.S. American Legend, 453 F.Supp. 584, 587-89 (D.Md.1978), and cases there cited. | 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. | What is the ideological directionality of the court of appeals decision? | [
"conservative",
"liberal",
"mixed",
"not ascertained"
] | [
0
] | songer |
James M. FILES, Arlene Magnuson, Leonard Green & George Didier, Plaintiffs-Appellants, v. CITY OF ROCKFORD, City of Rockford Board of Election Commissioners, Andrew J. Doyle, Marshall R. Wedman & Richard A. Reese, as members of the Board of Election Commissioners, John A. Anderson, Alderman 6th Ward, City of Rockford, Benjamin T. Schleicher, Mayor of Rockford, Phillip Reinhard, State’s Attorney, County of Winnebago, and Richard H. Lyford, Defendants-Appellees.
No. 18234.
United States Court of Appeals, Seventh Circuit.
March 8, 1971.
William E. Schirger, Knight, Ingrassia & Schirger, Rockford, Ill., for plaintiffs-appellants.
William J. Scott, Atty. Gen., Donald J. Veverka, Asst. Atty. Gen., Chicago, Ill., Philip G. Reinhard, Stanley H. Guyer, Rockford, Ill., for defendants-appellees; Francis T. Crowe, Asst. Atty. Gen., of counsel.
Before KILEY, PELL and STEVENS, Circuit Judges.
PELL, Circuit Judge.
This is an appeal by the plaintiffs from the district court’s dismissal of their amended four count complaint.
Counts I, II and III alleged generally that certain violations of the Illinois Election Code occurred during the city election held in Rockford, Illinois on April 1, 1969. The alleged violations, as well as other alleged improprieties in connection with the election, are charged to most of the defendants in their capacities as various officials of the City of Rockford. Jurisdiction is claimed under 28 U.S.C. § 1343 based on alleged violations of 42 U.S.C. §§ 1983, 1985 and 1986.
Count IV is by the plaintiff, Didier, against the defendant Reinhard, State’s Attorney of Winnebago County, Illinois, and defendant Lyford, successful alder-manic candidate in the challenged election. Didier seeks an injunction against pending state prosecution brought against him for a claimed violation of Illinois Revised Statutes, Chapter 46, § 26-1 (1967).
The threshold contention of the defendants is that this court is without jurisdiction to entertain the appeal because notice of appeal was not timely filed by the plaintiffs.
The factual situation with regard to this question is as follows.
The order dismissing the complaint in this cause was entered October 6, 1969 in open court. All parties were present in court by counsel. There is no contention that the clerk failed to give notice of the entry of said order to attorneys for all parties. See Rule 77(d), Fed.R. Civ.P.
On November 10, 1969, the plaintiffs, with advance notice to the defendants, filed their motion for an order extending the time for filing the record and docketing the appeal in the office of the clerk of this court to and including December 5, 1969. The motion stated that the reason for the requested extension was “that there are numerous parties involved in this case and that there are attorneys from Chicago, Northern Illinois, and Indiana, working on this case and it is difficult to make arrangements for the scheduling of briefs and conferences, * * *” On November 14, 1969, the district court extended the time for docketing the record on appeal to December 5, 1969. No request was made in the motion filed on November 10, 1969 for an extension of time within which to file the notice of appeal although more than thirty days had expired since the entry of the order of dismissal from which presumably plaintiffs intended to appeal.
On December 4, 1969, plaintiffs, again with advance notice to defendants, filed their motion, moving the court to vacate its order of November 14, 1969 and enter an order extending the time for filing the record and docketing the appeal in the cause to and including January 30, 1970 and for leave to file instanter their notice of appeal.
The only reference in the motion to a reason in support thereof was the following statement, “The reason for the requested extension is that there are numerous parties involved in this ease and that there are attorneys from Chicago, Northern Illinois, and Indiana, working on this case and it is difficult to make arrangements for the scheduling of briefs and conferences, * * * ” The motion contained no supporting reasons in terms for permitting the filing of the notice of appeal on an instanter basis.
Although the district court’s memorandum order of December 4, 1969, in response to plaintiff’s motion, contained only the words “Enter order,” apparently the motion was granted as prayed. No indication was given therein of any reason supporting permission for instanter filing of the notice of appeal.
On February 17, 1970, the defendants filed in this court their motion to dismiss the appeal on the ground that no excusable neglect had been shown pursuant to Rule 4(a), Fed.R.App.P., and that therefore notice of appeal was not timely filed.
A single judge of this court denied the motion at the time and the matter presented by the motion to dismiss, as well as other points raised on the appeal, were briefed and heard by a regular three judge panel of this court.
Rule 3(a), Fed.R.App.P., provides in part as follows:
“An appeal permitted by law as of right from a district court to a court of appeals shall be taken by filing a notice of appeal with the clerk of the district court within the time allowed by Rule 4. Failure of an appellant to take any step other than the timely filing of a notice of appeal does not affect the validity of the appeal, but is ground only for such action as the court of appeals deems appropriate, which may include dismissal of the appeal.” (Emphasis supplied.)
Rule 4(a), Fed.R.App.P., provides that the notice of apeal required by Rule 3 shall be filed with the clerk of the district court within thirty days of the date of the entry of the judgment order appealed from. This rule also provides the following:
“Upon a showing of excusable neglect, the district court may extend the time for filing the notice of appeal by any party for a period not to exceed 30 days from the expiration of the time otherwise prescribed by this subdivision. Such an extension may be granted before or after the time otherwise prescribed by this subdivision has expired; but if a request for an extension is made after such time has expired, it shall be made by motion with such notice as the court shall deem appropriate.” (Emphasis supplied.)
Rule 4(a), Fed.R.App.P., which was effective July 1, 1968, was, according to the Advisory Committee’s note, derived from Rule 73(a), Fed.R.Civ.P., without any change of substance.
The history of the development of rules pertaining to the time of appeal is traced in 9 Moore’s Federal Practice U203.21 et seq. (2d ed. 1970). The original Rule 73 as promulgated in 1937 contained no time limitation, that being regulated at the time in the case of civil appeals by statute. In 1946, Rule 73(a) was amended to include the present thirty days which shortened the time formerly allowed for most appeals. The amendment also provided, “* * * except that upon a showing of excusable neglect based on a failure of a party to learn of the entry of the judgment the district court in any action may extend the time for appeal not exceeding 30 days from the expiration of the original time herein prescribed.” Id., j[203.24 [2], at 773.
In the 1966 amendment the phrase “based upon a failure of a party to learn of the entry of the judgment” was eliminated. According to the committee note, this “empowers the district court to extend the time upon a showing of excusable neglect of any kind. In view of the ease with which an appeal may be perfected, no reason other than failure to learn of the entry of judgment should ordinarily excuse a party from the requirement that the notice be timely filed. But the district court should have authority to permit the notice to be filed out of time in extraordinary cases where injustice would otherwise result.” (Emphasis supplied.) Id., p03.25[3], at 783.
Compliance with the time requirement on appeal has repeatedly been held to be mandatory and jurisdictional and if notice is not filed within the time provided, the right to appeal is lost. Howard v. Local 74, 208 F.2d 930, 932 (7th Cir. 1953). See also United States v. Robinson, 361 U.S. 220, 80 S.Ct. 282, 4 L.Ed.2d 259 (1960); and Winchell v. Lortscher, 377 F.2d 247 (8th Cir. 1967).
Rule 73 was intended to. expedite appeals and guard against dilatory tactics and should be liberally construed to accomplish this purpose. However, an extremely important provision of Rule 73(a) “makes only the timely filing of the extremely simple notice of appeal a ‘jurisdictional’ step.” 3A Barron & Holtzoff-Wright, Federal Practice & Procedure § 1551, at 54 (1961).
The basic rationale for insistence upon timely filing is the necessity for providing a precisely ascertainable point of time at which litigation comes to an end.
An apparent exception to strict application in this area is found in what has been termed “unique circumstances.” This is discussed in 4 Wright & Miller, Federal Practice & Procedure § 1168, at 636 (1969). The principle of unique circumstances in connection with appeal time was first enunciated by the Supreme Court in the case of Harris Truck Lines, Inc. v. Cherry Meat Packers, Inc., 371 U.S. 215, 83 S.Ct. 283, 9 L.Ed.2d 261 (1962). Other cases reaching a similar result, including Eady v. Foerder, 381 F.2d 980 (7th Cir. 1967), are discussed in 4 Wright & Miller, supra, § 1168. An examination of the cases, however, indicates that the unique circumstances concept is based on a theory similar to estoppel. Thus in Harris, the appellant requested and received an extension of time before the expiration of the original time in which to file the notice of appeal. If the extension had been denied he could still have filed the simple notice of appeal. The Supreme Court held that having relied upon the trial judge’s finding of excusable neglect prior to the expiration of the thirty day period, he should not suffer reversal of the finding on appeal. The record, stated the court, contained a showing of unique circumstances sufficient that the court of appeals ought not to have disturbed the motion judge’s ruling. 371 U.S. at 217, 83 S.Ct. 283. As pointed out in 4 Wright & Miller, supra, at 639, when viewed in the estoppel perspective, modification of the rule undoubtedly serves the interests of justice.
In the case before us we find no unique circumstances and our determination must be confined to whether there was any showing of excusable neglect.
The matter of what constitutes excusable neglect is discussed in 9 Moore’s Federal Practice f[204.13[l], at 971-974 (2d ed. 1970), as follows:
“The Advisory Committee Note to the 1966 amendment to former Rule 73(a) does not indicate what grounds other than failure to learn of entry of judgment will support a finding of excusable neglect, noting only that the district court should be empowered to extend the time for other reasons ‘in extraordinary cases where injustice would otherwise result.’ The Committee Note to a corresponding change to former Rule 37(a) (2) of the Federal Rules of Criminal Procedure, which for the first time authorized the district court to extend the time for appeal in a criminal case, gives some indication of the circumstances under which extension of time may, in the discretion of the district court, be granted in civil cases as well. The cases referred to in the Committee Note accompanying former Rule 37(a) (2) as illustrative of the need for limited authority in the district court to extend the time for appeal involve disability of the person to whom the notice had been entrusted for filing by reason of sudden illness, and unusual and uncontrollable delay in transmission by mail. Other grounds which suggest themselves are the death of a party entitled to appeal before the appeal is taken, or the death or disability of the attorney for a party, under circumstances which prevent the timely filing of a notice of appeal. But it must be emphasized that in the terms of the Committee Note, ‘no reason other than failure to learn of the entry of judgment should ordinarily excuse a party,’ and that in cases not involving failure to learn of entry of judgment, the district courts may and should restrict extensions of time for filing the notice of appeal in civil cases to ‘extraordinary cases where injustice would otherwise result.’
The relatively few cases that have thus far interpreted the excusable neglect provision now found in Rule 4(a) shed some light on it. Predictably, it has been held that the heavy work load of counsel that caused him to overlook the time for appeal does not constitute excusable neglect. Nor is counsel’s unfamiliarity with local practice excusable neglect.” (Footnotes omitted.)
An examination of the record in the matter before us fails to show any basis whatsoever for excusable neglect. The only reason conceivably advanced in support of the motion for filing the notice of appeal instanter was that there were numerous parties involved in the case and that there were attorneys from several areas working on the case and that it was difficult to make arrangements for the scheduling of briefs and conferences. As a matter of fact, this reason, if it be such, would apparently have pertained only to the extension requested for filing the record and docketing the appeal, as the motion to file the notice of appeal was to file it instanter. The reason advanced was “for the requested extension” and thus it appears that no reason was given whatsoever for the filing of the notice of appeal instanter.
Also, while the amended complaint purported to state a class action, there were only four named plaintiffs. Further, two attorneys, apparently partners in the practice of law at Rockford, were the only attorneys filing pleadings, the later motion for extension and the briefs in this court. We have hereinbefore referred several times to the fact that a notice of appeal is an extremely simple instrument to prepare and file and if it is subsequently ascertained that an appeal should not be pursued it can be dismissed. 9 Moore’s Federal Practice 11204.13[3], at 978 (2d ed. 1970).
Even if the motion filed November 10, 1969 were to be construed as being a notice of appeal, it failed to show any excusable neglect and itself was not filed within the thirty days after the entry of the order.
Further, we note that Rule 4(a), Fed. R.App.P., requires that when an extension is requested following the expiration of the initial thirty day period, it must be by motion which brings into play Rule 7(b) (1), Fed.R.Civ.P., to the effect that a motion “* * * shall state with particularity the grounds therefor, * * * ”
If the court were to assume jurisdiction here on the basis of the record before us, we would in effect be amending Rule 4(a), Fed.R.App.P., so as to provide an automatic sixty day period within which to file the notice of appeal. This is not our province nor indeed is it our ability to do so.
Casting this substantial doubt on the finality of judgments would increase the burdens of an already overloaded federal judiciary. 9 Moore’s, supra, ff204.13[2], at 978.
Harris Lines v. Cherry Meat Packers, supra, 371 U.S. at 217, 83 S.Ct. 283, requires that in a matter of this sort great deference should be given to the district court. This plus our own desire wherever reasonably possible to determine matters on the merits has caused us to give the consideration we have to the threshold contentions of the defendants. Inasmuch as it appears to us that no showing has been made by the plaintiffs justifying their belated appeal, we must perforce find that the district court in granting the motion to file the notice of appeal did exceed the wide latitude which we feel should be accorded to the district court in determining excusable neglect.
We therefore upon reconsideration of the motion to dismiss heretofore filed, now finding that we are without jurisdiction, sustain said motion to dismiss.
We think it not inappropriate to observe, however, that we have examined the other matters raised on this appeal and do note the conclusory nature of the allegations of Counts I, II and III. With regard to Count IV, we note that 28 U.S.C. § 2283 prohibits federal courts from restraining already instituted state proceedings except as authorized by Congress or where necessary in aid of the court’s jurisdiction or to protect or effectuate its judgment. This court has held that the Civil Rights Act, 42 U.S.C. § 1981 et seq., does not suspend or modify the anti-injunction statute. Boyle v. Landry, 422 F.2d 631, 634 (7th Cir. 1970). During oral argument, counsel for the state’s attorney indicated that prosecution of Didier for the alleged violation of Ill.Rev.Stat. ch. 46, § 26-1 (1967), would be initiated promptly. Under these circumstances it would not appear that the state prosecution would cause irreparable harm by an extensive chilling of free exercise of First Amendment rights sufficient to justify federal intervention.
Because of the disposition of this attempted appeal on the grounds hereinbefore set out, it is not necessary for us to give other or further consideration to the additional points raised in the briefs. Appeal dismissed.
. At the time this opinion was in the process of final preparation, the Supreme Court in several allied decisions, Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669; Boyle v. Landry, etc., 401 U.S. 77, 91 S.Ct. 758, 27 L.Ed.2d 696 (1971), made it clear the relief sought in Count IV was not one properly a basis for federal jurisdiction. | 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. | What is the general category of issues discussed in the opinion of the court? | [
"criminal and prisoner petitions",
"civil - government",
"diversity of citizenship",
"civil - private",
"other, not applicable",
"not ascertained"
] | [
1
] | songer |
GATEWAY COMPANY, INC., Defendant and Third Party Plaintiff, Appellant, v. CHARLOTTE THEATRES, INC. et al., Appellees.
No. 5833.
United States Court of Appeals First Circuit.
Dec. 8, 1961.
Jerome Medalie, Boston, Mass., Cohn, Riemer & Pollack, Boston, Mass., on the brief, for appellant.
Harold R. Matroni, Springfield, Mass., Nicholas Zeo, Jr., and Theodore E. Di~ maurio, Springfield, Mass., on the brief, for Charlotte Theatres, Inc., appellee.
S. Thomas Martinelli, Springfield, Mass., on the brief for Valley Electric & Heating Service, Inc., appellee.
Before WOODBURY, Chief Judge, and HARTIGAN and ALDRICH, Circuit Judges.
ALDRICH, Circuit Judge.
In the fall of 1958 plaintiff-appellee Charlotte leased from the defendant-appellant Gateway, for a period of ten years, a moving picture theatre in West-field, Massachusetts. The lease provided that Gateway would install air conditioning, at its expense, by May 1, 1959. On April 23 Charlotte reminded Gateway of its obligation. From then until June 4 Gateway misrepresented to Charlotte what it had been and was doing, which in actual fact was very little. Finally, on June 4 Gateway orally negotiated, and on June 5 signed, an agreement with Valley, the third party defendant-appellee, to do the work, and so notified Charlotte. Thereafter it continued to ply Charlotte with misinformation as to allegedly expected immediate completion. There was no such expectation. The equipment, which had to be ordered specially, arrived at the theatre on July 21 and July 27, and was operational on August 7. Gateway was inexcusably in default for fourteen weeks.
In the meantime, according to Charlotte’s own testimony, Charlotte had decided no later than early in June that it was going to treat the failure to install the air conditioning as a total breach and was going to elect to terminate the lease. However, thereafter, on June 18, it brought suit not for termination, but for damages. Not until August 4, after Gateway had spent $15,500 at Charlotte’s demand, and when it was apparent that the breach was about to be rectified, did Charlotte indicate any intention to terminate. Even then it did so only by filing a suit in equity of which Gateway received no notice until August 12. Both of Charlotte’s actions were brought in the state court and removed to the district court for the district of Massachusetts. That court, without jury, made the above findings, ordered termination of the lease, and assessed damages. Gateway appeals.
There was no equity in the second suit. Assuming the delay in failure to install the air conditioning could ever be regarded as a constructive eviction, Charlotte could not sit by until the default was remedied at very considerable expense (nearly two years’ rent) and then elect to rely on it. The court, in holding to the contrary, cited no case, and we have found none. A claim of constructive eviction, in landlord-tenant language, is but an election to terminate for breach. At the time Charlotte “elected” the breach had been cured. (The election was upon receipt of notice. Whitehouse Restaurant, Inc. v. Hoffman, 1946, 320 Mass. 183, 68 N.E.2d 686. The court confused eases where the tenant waited for the lessor to repair the breach until it became discouraged, Westland Housing Corp. v. Scott, 1942, 312 Mass. 375, 44 N.E.2d 959; Charles E. Burt, Inc. v. Seven Grand Corp., supra, and the ease at bar where the lessor had made the awaited cure.
The judgment terminating the lease must be set aside. There must also be a further trial or finding with respect to Charlotte’s claim for damages for delay in the installation. The court’s determination of gross damages was within permissible limits. But while the court found the loss of receipts attributable to Gateway’s default, it overlooked the fact that from this there must be deducted the percentage thereof which would have had to be paid as additional rental for the films. Charlotte is merely entitled to be made whole. Nor, of course, may it now recover certain items which were conditioned upon a right to terminate the lease.
We find nothing in defendant’s claim of accord and satisfaction. Defendant contends that the parties agreed to settle all claims on either one basis or another, and that the court should have ascertained which, and hence found an accord and satisfaction. It was open to the court to conclude that because of this dispute the parties never reached agreement. Defendant’s extensive argument on this subject is specious.
We turn to the third party complaint. On June 4 Gateway and Valley orally negotiated the terms of an installation contract. Valley reduced them to writing and forwarded two signed copies for Gateway to sign and return one. Gateway signed, but inserted a provision that, the work was to be “fully completed” by June 22. It mailed this copy back to Valley with a covering letter stating, “It is my understanding that this installation is to be completed so that it is in full operation by June 22.” The letter made no reference to the added provision in Valley’s document. Valley made no reply, but immediately upon receipt ordered the special equipment. Gateway contends that Valley was obligated to complete by June 22. The court disagreed.
The court did not say why there was no contract in accordance with Gateway’s modification, except to say that in point of fact there had been no such prior understanding and consequently Gateway’s act was unauthorized. As to the insertion in the document itself, in view of the fact that it was not discovered, this may well have been a sufficient answer. In the absence of actual knowledge, the test is whether there was reason for Valley to suppose that such addition might have been made. Absent the letter, the case would seem more like Kidder v. Greenman, 1933, 283 Mass. 601, 187 N.E. 42, 88 A.L.R. 1370, than Long v. Agricultural Ins. Co., 1926, 257 Mass. 240, 153 N.E. 792, and Johnson v. New York, N. H. & H. R. Co., 1914, 217 Mass. 203, 104 N.E. 445. But the covering letter creates a more serious problem. Valley could not disclaim knowledge of its contents. A covering letter may be part of the total agreement. Rodriguez v. Secretary of the Treasury of Puerto Rico, 1 Cir., 1960, 276 F.2d 344. The advice of Wm. Randolph Hearst, “Throw [it], in the wastebasket. Every letter answers itself in a couple of weeks,” Koenigsberg, King News, 273 (1941), is not a safe legal principle.
When Gateway executed and returned the paper drafted by Valley, one of several situations obtained. Either there was an agreement reached without a completion date, but a request for such, or Gateway’s conduct constituted a rejection of Valley’s proposal and a counteroffer. At the least there was an apparent expression of understanding, or misunderstanding, of Valley’s obligation. In no event was this comparable to a proposal from a stranger that, as matter of law, could be safely ignored. This issue should have been considered. Possibly the court might have found that Gateway made the purported modification solely as part of its campaign to mislead Charlotte as to early completion, knowing all the while that completion by June 22 was a physical impossibility. In that case it could not reasonably have regarded Valley’s failure to reply as an assent. But the court might have found that Valley’s going ahead without replying to the letter was reasonably understood as a manifestation of an assent thereto. If there was already a completed agreement, this does not as matter of law mean that there might not be assent to a modification. There was no problem as to consideration. Mass. Gen. Laws Ann. ch. 106, § 2-209(1). The case must accordingly be remanded for further findings or for a new trial of the third party complaint.
Judgment will be entered vacating the judgments of the District Court and remanding the actions for further proceedings not inconsistent herewith.
. Charlotte’s witness testified that its decisions and timing were not affected by Gateway’s misrepresentations.
. We have considerable doubt as to this. While air conditioning was described by one witness as “important,” no one testified that it was “essential to the enjoyment of the leased premises,” Shindler v. Milden, 1933, 282 Mass. 32, 34, 184 N.E. 673, 674, and the record with respect to patronage indicates the opposite. Charlotte grossed almost as much in July when it did not have air conditioning as in August and September when it did, and as much or more in June as it grossed in any month between October and the following March, inclusive. A breach to constitute a constructive eviction must be of a fundamnetal nature, not just something that costs some money. A. W. Banister Co. v. P. J. W. Moodie Lumber Corp., 1934, 286 Mass. 424, 190 N.E. 727. Moreover, it must be “permanent.” Shindler v. Milden, at supra. We do not reach the question of when delay can be construed as permanent, see, e. g., Charles E. Burt, Inc. v. Seven Grand Corp., 1959, 340 Mass. 124, 163 N.E.2d 4, because here it was cured before it was asserted.
. Seven Grand is a decision of some interest. While the court recognized the principle that a tenant asserting constructive eviction must vacate within a reasonable time, it held this period to be suspended if the tenant brought an equitable action to obtain a decree of termination. It is, of course, true that a tenant who moves out, asserting he has been constructively evicted, stands a chance of losing a subsequent lawsuit. We see merit in allowing him to avoid so exposing himself. But by the same token, if the tenant seeks equity to permit him to suspend decision, he should afford the landlord the same flexibility. If, after a tenant vacated, the landlord offered to repair the breach it would doubtless be too late. McCall v. New York Life Ins. Co., 1909, 201 Mass. 223, 226, 87 N.E. 582, 21 L. R.A.,N.S., 38. The tenant cannot be required to hold himself in readiness to move back whenever the breach is remedied. Cf. Parker v. Russell, 1882, 133 Mass. 74, 76. But equity acts in praesenti, and if the tenant postpones taking a final position, the landlord should have the same privilege. In the ease at bar the tenant not only did not cast the die by vacating, it did not even commence its equitable action until the breach was quite evidently about to be repaired. There could be no equity in such a procedure.
. The letter was but two sentences long. While it was viewed only by a secretary, it was not addressed to her, cf. Exchange Realty Co. v. Bines, 1939, 302 Mass. 93, 18 N.E.2d 425, but to Valley, attention of its president, who had executed the original document. If he did not choose to read his mail, but delegated his secretary to attend to it, then as matter of law her knowledge was the corporation’s knowledge. We cannot conceive how business could be done in any other manner.
. There are two ways by which a completed agreement might be found. It may be that the parties had made a binding agreement on June 4, cf. Murphy v. Chichetto, 1948, 323 Mass. 11. 79 N.E.2d 898; Coan v. Holbrook, 1951, 327 Mass. 221, 97 N.E.2d 649, as distinguished from an understanding that there was to be no agreement until the terms had been reduced to writing and signed, cf. Lizza & Sons, Inc., v. D’Onfro, 1 Cir., 1960, 282 F.2d 175. This was a question of fact not resolved by the court. Alternatively, although we do not decide, since this was a contract for sale of specific goods there may have been a completed agreement upon the execution of Valley’s document, with a proposal for additional terms, by virtue of Mass.Gen.Laws Ann. ch. 106, § 2-207 (1958). | 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. | 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. | [] | [
0
] | songer |
UNITED STATES of America, Plaintiff-Appellee, v. Mance E. TRICE, Defendant-Appellant.
No. 18934.
United States Court of Appeals Sixth Circuit.
June 17, 1969.
J. William Rutherford, Nashville, Tenn., for appellant.
Martha C. Daughtrey, Nashville, Tenn., Gilbert S. Merritt, Jr., U. S. Atty., Kent Sandidge, III, Asst. U. S. Atty., Nashville, Tenn., on brief, for appellee.
Before PHILLIPS, McCREE and COMBS, Circuit Judges
PER CURIAM.
This is a direct appeal from a conviction on two counts of an indictment charging unlawful possession of a check stolen from the United States mail and embezzlement of the proceeds of the check, in violation of 18 U.S.C. §§ 1702 and 1708. The jury found the defendant not guilty of the first count charging the taking of the envelope and its contents from the mail.
Two issues are presented on the appeal: (1) whether there was sufficient evidence to support the verdict of the jury; and (2) whether the District Judge committed reversible error at the time of sentencing by refusing to permit counsel for defendant to inspect a memorandum prepared by counsel for co-defendant and delivered by him to the probation officer. The United States Attorney stated that an “unusual circumstance” had come to his attention in that the probation officer had a report from the co-defendant’s counsel, who was in the courtroom. The United States Attorney commented that “I think it is apropos on the matter of sentencing. * * * ” Thereupon he handed the report or memorandum to the District Judge, who read it and commented that “I’m going to give him exactly the same sentence I was going to give him before I read this because this is not controlling on the sentence matter.” The attorney for appellant asserted that he had a right to see the report, but this request was denied. The District Court proceeded to sentence defendant to the custody of the Attorney General for a period of one year and six months on the second and third counts of the indictment, the sentences to run concurrently.
The refusal of the District Court to apprise defendant of the nature or content of the document was one of the grounds of defendant’s motion for a new trial. This motion was overruled.
Upon a study of the briefs and transcript and after hearing oral argument, we conclude that there is sufficient evidence in the record to support the conviction. The second question, concerning the refusal to inform counsel for defendant of the nature and content of the document which was furnished to and read by the District Judge immediately prior to sentencing, presents a more serious issue.
As a general rule when any communication is made to the District Judge by the prosecutor or a co-defendant at the time of sentencing for the purpose of influencing the sentence, other than through the probation officer in time for investigation, evaluation and report, we think its content should be disclosed to counsel for defendant upon his request.
After oral argument on the present appeal, this Court has obtained from the clerk of the District Court for in camera inspection the original of the document in question. Every member' of the panel has read this document. We think it would have been better practice for the District Judge to have disclosed the contents of this document to counsel for defendant, either in chambers or in open court. However, since the District Judge stated affirmatively that this document had no effect on sentencing and there is nothing about the sentence to indicate the contrary, we conclude that refusal to divulge the contents of the document to counsel for defendant did not constitute reversible error under the facts and circumstances of the present case.
Affirmed. | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
Your task is to determine whether or not the formally listed appellants in the case are the "real parties." That is, are they the parties whose real interests are most directly at stake? (e.g., in some appeals of adverse habeas corpus petition decisions, the respondent is listed as the judge who denied the petition, but the real parties are the prisoner and the warden of the prison) (another example would be "Jones v A 1990 Rolls Royce" where Jones is a drug agent trying to seize a car which was transporting drugs - the real party would be the owner of the car). For cases in which an independent regulatory agency is the listed appellant, the following rule was adopted: If the agency initiated the action to enforce a federal rule or the agency was sued by a litigant contesting an agency action, then the agency was coded as a real party. However, if the agency initially only acted as a forum to settle a dispute between two other litigants, and the agency is only listed as a party because its ruling in that dispute is at issue, then the agency is considered not to be a real party. For example, if a union files an unfair labor practices charge against a corporation, the NLRB hears the dispute and rules for the union, and then the NLRB petitions the court of appeals for enforcement of its ruling in an appeal entitled "NLRB v Widget Manufacturing, INC." the NLRB would be coded as not a real party. Note that under these definitions, trustees are usually "real parties" and parents suing on behalf of their children and a spouse suing on behalf of their injured or dead spouse are also "real parties." | Are the formally listed appellants in the case the "real parties", that is, are they the parties whose real interests are most directly at stake? | [
"both 1st and 2nd listed appellants are real parties (or only one appellant, and that appellant is a real party)",
"the 1st appellant is not a real party",
"the 2nd appellant is not a real party",
"neither the 1st nor the 2nd appellants are real parties",
"not ascertained"
] | [
1
] | songer |
BRUNSWICK CORPORATION, Plaintiff, and Floyd Corporation, d/b/a Pleasant Lanes, Defendant, v. J. C. LONG, Alberta S. Long, and the Beach Co., a corporation, Appellants.
No. 11376.
United States Court of Appeals Fourth Circuit.
Argued Nov. 10, 1967.
Decided Feb. 2, 1968.
Certiorari Denied June 3, 1968.
See 88 S.Ct. 2036.
Charles S. Way, Jr., and Edward D. Buckley, Charleston, S. C. (Bailey & Buckley, Charleston, S. C., on brief), for appellants.
Augustine T. Smythe, Charleston, S. C. (Buist, Buist, Smythe & Smythe, Charleston, S. C., and Robert T. Mc-Naney, Chicago, 111., on brief), for appellees.
Before HAYNSWORTH, Chief Judge, WINTER, Circuit Judge, and WOODROW W. JONES, District Judge.
WINTER, Circuit Judge:
The primary issue which we are called upon to decide in this case is the extent, under South Carolina law as applied to the particular lease agreement in question, of the priority of a landlord’s claim to rent over the claim of a chattel mortgagee to mortgaged property placed upon the leased premises. The district court ruled, against the contention of the landlord that it was entitled to recover the total amount of rent due throughout the term of the lease, that the landlord’s claim had priority only to the extent that it was for rent unpaid during the period which tenant had actually occupied the premises. We affirm.
There is substantial agreement between the parties as to the facts. Brunswick Corporation (“Brunswick”) originally sold ten bowling lanes and pinsetters to one Raymond W. Floyd and his partner Swindal, taking a chattel mortgage on the property to secure the unpaid balance of the purchase price. When a default under this mortgage occurred Brunswick repossessed the lanes and pinsetters. Subsequently, Brunswick agreed to sell this equipment to Floyd for the balance due on the original mortgage. Floyd then organized the Floyd Corporation and entered into a ten-year lease, later assigned to The Beach Co. (“Beach”), which provided that the landlord would construct a building suitable for the installation of bowling alleys. The lease further provided that:
"Floyd agrees to pay Beach Co. for the original ten year term of this lease, a guaranteed minimum rental of $128,-557.20 payable in advance in One Hundred and Twenty (120) equal monthly installments of $1,071.31 on or before the 10th day of each month and every month during the ten year term hereof and the additional five year term if exercised by the tenant and at the same rate.” (emphasis added)
The lease was executed on February 22, 1962, and, in “short form,” recorded on March 3, 1962.
In March, 1962, Brunswick executed a sales order with Floyd Corporation for certain miscellaneous equipment, and agreed to install the lanes and pinsetters in the building to be constructed by the landlord. After Beach had constructed the building in accordance with the terms of the lease, the bowling equipment was installed, and Floyd Corporation opened for business on September 15, 1962. It was not until October 24, 1962 that a conditional sales contract between Brunswick and Floyd Corporation was executed on the lanes and pinsetters. Although the conditional sales contract on the miscellaneous equipment was executed on August 17, 1962, Brunswick offered no proof before the district court to show that this document was executed before the equipment had been installed. Brunswick’s conditional contracts of sale were recorded on August 20, 1962 and January 21, 1963, respectively.
The bowling operation never seems to have been financially successful, and Floyd Corporation was unable to pay any substantial amount under the conditional sales contracts to Brunswick. On the other hand, it was able to make rental payments with some degree of regularity, and Beach took no legal action to enforce payment of the rent until January 22, 1965. On that date Beach distrained certain property of Floyd Corporation situate upon the leased premises — other than that subject to Brunswick’s chattel mortgages — for the purpose of collecting rent payments of $2,086.41, then in arrears. This amount was reduced shortly thereafter by Floyd Corporation’s partial payment of $600.00.
On February 3, 1965 Brunswick brought the present action against Floyd Corporation seeking a recovery of the mortgaged property — both that subject to the August 17, 1962 conditional sales contract and that subject to the October 24, 1962 conditional sales contract — arid a money judgment for the amount due on its various accounts. Upon posting the statutory bond, Brunswick had the United States Marshal seize the mortgaged chattels. Beach intervened, claiming that it had a prior right to apply the mortgaged property against not only the amount of rent actually in arrears, but the entire sum due for the balance of the ten-year term. Beach also counterclaimed for actual and punitive damages totalling $50,000.00, alleging that Brunswick had intentionally and wrongfully invaded its priority rights by seizing the chattels.
Floyd Corporation did not appear in the proceedings, and the district court gave Brunswick judgment against it for the balances due under the conditional contracts of sale. The district court dismissed Beach’s counterclaim; and as to the question of priority, found that although Beach had priority rights under the Statute of Anne, S.C.Code § 41-205, for the rent payments actually in arrears which had accumulated during the preceding year, it had no priority as to the rent for the balance of the ten-year term. From these rulings Beach appealed. In this Court it makes the further contention that Brunswick forfeited its right to possession of the mortgaged property by taking a money judgment against Floyd Corporation.
I
Beach relies strongly upon Legget & Co. v. Orangeburg Piggly Wiggly Co., 176 S.C. 449, 180 S.E. 483 (1935), in support of its contention that it is entitled to recover the total amount of rent contracted for in the lease. Unlike the landlord in Piggly Wiggly, Beach did not distrain upon the property which it seeks to make subject to its claim. However, under South Carolina law a court will preserve the priority of the landlord’s claim when the property is in custodia legis, Ex parte Stackley, 161 S.C. 278, 159 S.E. 622 (1931); and although the priority protected in the Stackley case was only to the extent of one year’s rent in accordance with the Statute of Anne, we believe that a court should exercise its power to protect the landlord’s priority to whatever extent it may have been asserted under the process of distraint. Otherwise, a chattel mortgagee, who concededly had lost his priority over the landlord by his failure to record his mortgage, could regain this priority by the simple expedient of bringing a claim and delivery action before the landlord has distrained.
Thus, appellant’s rights are to be measured by its right of distraint, as defined by South Carolina law, and we turn to a consideration of Leggett & Co. v. Orangeburg Piggly Wiggly Co., supra. In that case, after a lease — which provided that all the rent for the entire five-year term was due from the date of the lease — had been entered into and recorded, the premises were renovated and mortgaged property was placed thereon. The relevant mortgages were not recorded until approximately one month later. Almost two years thereafter, receivership ensued, at a time when there remained a substantial amount unpaid on the mortgage debt as well as on the rent, which the tenant had not paid during the latter part of the preceding year. On these facts the Supreme Court of South Carolina held that by virtue of the clause of the lease providing that all the rent was due at the beginning of the term, the landlord was a creditor of the tenant for that amount by the time the mortgages were recorded and the landlord had the right to distrain for such sum.
One aspect of Piggly Wiggly which is different from the case at bar appears on its face to make that case all the stonger authority for Beach, the landlord herein: In Piggly Wiggly the chattel mortgages were at least executed, though not recorded, before the chattels were placed upon the leased premises. In some situations this distinction might well be of significance, as is indicated by the recent case of Frady v. Smith, 247 S.C. 353, 147 S.E.2d 412 (1966), in which it was held that the landlord’s actual notice of a chattel mortgage which had been executed after the mortgaged property was placed upon the leased premises could not deprive the landlord of his right to distrain for unpaid rent which at least partially accrued after he had acquired notice of the mortgage. How-ever, Brunswick, unlike the mortgagee in Frady, is not arguing that it possesses statutory priority which abrogates the landlord’s right to distrain; rather, conceding Beach’s priority, Brunswick contends that the landlord’s right to distrain is limited to the rent which had already been earned by the tenant’s actual occupation of the premises. Thus, we regard the fact that Brunswick’s mortgages were not executed until after the chattels were installed in the building constructed by Beach as not defeating Brunswick’s rights after Beach’s right to accrued and unpaid rent was satisfied.
In allowing Beach to recover only for the amount of rent which had actually been earned, the district court distinguished Piggly Wiggly on the ground that the lease involved here did not in fact provide that the total amount of the rent should be due at the beginning of the term. He reasoned that the term providing that the rent shall be “payable in advance in One Hundred and Twenty (120) equal monthly installments * * on or before the 10th day of each month” meant only that each monthly payment is payable in advance for each month. He cited several other clauses in the lease, such as that providing that Floyd Corporation “shall not be obligated for any payment of rental until such time as the sum of $3,000.00 [a credit given by the landlord for certain equipment supplied by Floyd Corporation] shall have been consumed” and another providing that the same credit shall “be made by granting to Floyd a credit on the first rents coming due under the terms of this lease,” to show that the parties had intended that the rent was to become due monthly. Moreover, he pointed out that Beach itself had acted consistently with this interpretation of the lease when on January 22, 1965 it distrained certain property of Floyd Corporation and claimed only those monthly rentals which were then in default.
We find the reasoning of the district judge convincing and his conclusion sound. We agree that Piggly Wiggly does not control. Indeed, our examination of the case law of South Carolina suggests strongly that either Piggly Wiggly has been overruled sub silentio, or that the Supreme Court of South Carolina would not apply its holding to the case at bar.
Five years after Piggly Wiggly was decided, the State Supreme Court was presented with the question which it phrased as whether “an acceleration clause [in a lease] * * * authorize [s] a landlord to distrain for rent which * * * [has] not been earned or accrued.” Gentry v. Recreation, Inc., 192 S.C. 429, 7 S.E.2d 63, 128 A.L.R. 743 (1940). Without mentioning Piggly Wiggly, the court answered this question in the negative. It recited as factors influencing its decision: (1) the hesitancy of courts in many jurisdictions to hold such acceleration clauses valid for any purpose whatsoever since they are in the nature of a penalty; (2) the fact that such acceleration clauses were alien to the common law, from which the remedy of distraint emerged; (3) language from Fidelity Trust & Mortgage Co. v. Davis, 158 S.C. 400, 155 S.E. 622 (1930), which, significantly, before being revived in Gentry had been overruled by a line of cases culminating in Piggly Wiggly, that distraint is appropriate only “when the rent is in arrears;” and (4) then § 8822 of the South Carolina Code, which provided that if a tenant vacated the premises before his term had expired, the rent for the balance of the month in which the tenant left became immediately due and the landlord could distrain therefore.
Without equivocation, the South Carolina Supreme Court concluded in Gentry that “we are definitely of the opinion that the lessors were not entitled to the remedy of distress for such unearned future rent.” 7 S.E.2d at 66. In light of this flat statement and the fact that the reasons given by the court for its decision are equally applicable to the lease provision purporting to make the total rent due at the beginning of the term as to one purporting to accelerate future rent in the event of default, we feel that if the South Carolina Supreme Court were now presented with the instant case, it would not distinguish Gentry on the ground that Gentry concerned an acceleration clause and would hold that the landlord is entitled only to recover that rent which had been earned by the tenant’s actual occupation of the premises. We are aware that § 8822 of the 1932 South Carolina Code, upon which the court partially relied in Gentry, was repealed in 1946. However, the significance of the repeal is elusive. The repeal could mean either that parties are now free to include acceleration clauses, or their equivalent, in leases in order to broaden the landlord’s right of distraint, or that a landlord has now been stripped of even the limited acceleration right which had previously been given him by statute and can distrain only for that amount which was actually due at the time the tenant vacated the premises. Because of the demonstrated tendency of the Supreme Court of South Carolina to interpret relevant legislative action as limiting the landlord’s distraint rights, see footnote 7, supra, it is probable that that Court would adopt the latter interpretation of the repeal.
II
Affirmance of the district court’s dismissal of Beach’s counterclaim necessarily follows from our resolution of the principal issue in the case. For it is clear that Beach is not entitled to recover damages resulting from an intentional trespass upon priority rights, if in fact it possessed no such rights. The cases cited by appellant are distinguishable on this ground. See, e. g., Webber v. Farmers Chevrolet Co., 186 S.C. 111, 195 S.E. 139 (1938); Bingham v. Harby, 91 S.C. 121, 74 S.E. 369 (1912).
Beach is, of course, entitled to recover all of the unpaid rent which had accrued up to the time of the seizure of the chattels under the Statute of Anne, S.C. Code § 41-205, since the period for which the rent was due did not exceed one year. But Brunswick has not interfered with this priority in any manner and has not even contested Beach’s right to recover this amount.
III
We also find no merit in Beach’s contention that Brunswick forfeited its right to possession of the chattels on which it held mortgages by taking a money judgment against Floyd Corporation. It is true that the South Carolina claim and delivery action affords a restricted remedy to a successful plaintiff, i. e., he is entitled only to a judgment for possession of the chattel which he sought to recover, or, if return of the property is impossible, to a money judgment for its value. S.C.Code § 10-2516; Wilkins v. Willimon, 128 S.C. 509, 122 S.E. 503 (1924). But the action brought by Brunswick was not merely for claim and delivery. In its complaint Brunswick requested possession of the chattels and a money judgment against Floyd Corporation, both remedies being available to it as a mortgagee. Speizman v. Guill, 202 S.C. 498, 25 S.E.2d 731 (1943). It would be unreasonable to hold that by obtaining a money judgment against his debtor, a creditor cannot reach the principal asset available to enforce that judgment especially when a lien on this asset was bargained for as security for the extension of credit.
Beach seeks to distinguish the Speizman case on the ground that the plaintiff there foreclosed the mortgage without following the claim and delivery procedure and, therefore, was not able to gain possession of the mortgaged chattel before obtaining his judgment. We find this distinction unconvincing. In Stokes v. Liverpool & London & Globe Ins. Co., 130 S.C. 521, 126 S.E. 649 (1925), relied on by the Court in Speizman, it was pointed out that claim and delivery is one of several methods by which foreclosure can be accomplished, and no suggestion was made in that case that by choosing to follow this procedure a mortgagee is precluded from obtaining both a judgment on his mortgage debt and possession of the mortgaged chattel to satisfy that debt. Nor do we perceive any reason to achieve such a result. Protection against the abuse to which the immediate possession provision of the claim and delivery action is subject is provided by the requirement that the party invoking the procedure post bond or subject himself to the risk of punitive damages. S.C.Code § 10-2516. There is no necessity for the additional safeguard of forcing a mortgagee, who desires to avail himself of the claim and delivery action in order to foreclose a mortgage, to sacrifice remedies otherwise available to him. Accordingly, the district court committed no error in granting Brunswick the right to remove the chattels in accordance with its conditional sales contracts.
Affirmed.
. If the landlord’s contention were accepted, it would be entitled to $130,256.-40; the district court awarded the landlord only $1,486.41.
. The parties disagree on whether Floyd Corporation represented to the landlord that the bowling equipment which was to be installed on the premises was free and clear of liens. However, we do not believe that resolution of this dispute is essential to the disposition of the case.
. Brunswick has argued on appeal that the short form of the lease, being the only recorded document, did not give subsequent creditors notice of the terms of the full lease. This contention seems inconsistent with the statement of Brunswick’s counsel before the district judge that “Jt is all one lease, except the short lease is just evidence of the long lease. That is what it amounts to.” However, we do not need to reach the question whether Brunswick was given notice of the long lease by the recordation of the short lease, but may assume so arguendo.
. Under South Carolina law, a “conditional sales contract” is in legal effect a “chattel mortgage.” Speizman v. Guill, 202 S.C. 498, 25 S.E.2d 731 (1943). In this opinion the terms are used interchangeably.
. Compare Mather-James Co. v. Wilson, 172 S.C. 387, 174 S.E. 265 (1934), in which the court said that where a chattel mortgage, although executed before the mortgaged chattels are placed upon the leased premises, is not recorded until after, the chattel mortgagee’s claim is prior to the landlord’s to the extent that a default in the rent payments did not occur until after recording of the mortgage. Similarly, in Haverty Furniture Co. v. Worthy, 241 S.C. 369, 128 S.E.2d 707 (1962), it was held that a landlord’s actual knowledge of a chattel mortgage which was not recorded until after the landlord had distrained the mortgaged chattel, but which was executed before the chattel was placed upon the leased premises, prevented the landlord from having priority over the chattel mortgagee in his claim for rent.
Thus, it seems that although a chattel mortgagee who obtains a mortgage before the chattels are placed upon the leased premises, but does not record it until after, does not come within the protection of § 41-155 of the South Carolina Code, he does have any additional priority rights over the landlord which the general lien statutes grant to him. On the other hand, under the Frady case, it appears that where the
chattel mortgage is not only not recorded, but also not executed until after the mortgaged property has been placed upon the leased premises, the landlord’s right to distrain has priority over the claim of the chattel mortgagee regardless of whether the landlord has notice, constructive or actual, of the mortgage at the time the rent goes into arrears.
. In other words, as we understand Brunswick’s position, it admits that the landlord would have a right to distrain for all rent which was due, whether it accrued before or after Brunswick’s recording of its mortgages.
. The statutory section cited by the court was not necessarily support for the view that the legislature intended to restrict the landlord’s right of distraint to recovery for only one month’s rent in the event that the tenant vacated the premises. The court could have reasoned with equal logic that § 8822 did not prohibit the parties to a lease from providing for acceleration of rent for a greater term than one month, but only prescribed that in the absence of such agreement, acceleration of one month’s rent would be effected as a matter of law.
. Appellee has also drawn our attention to the fact that the South Carolina Supreme Court has never once cited the Piggly Wiggly case in the more than thirty years since it was decided.
. We also recognize that in Gentry since the lease in question was not recorded, the Court’s statements concerning the inability of the acceleration clause to broaden the landlord’s right of distraint was at most an alternative ground for the decision. Thus the Court said: “We are, therefore, of opinion from the record in this case that the respondent stands in the impregnable position of a wholly innocent third party, and hence would not be bound by the acceleration clause in the lease, even if it could be construed as conferring the right of distress.” 7 S.E.2d at 67.
That the portion of the Gentry decision upon which we rely is only an alternative holding, or even only dictum, does not persuade us that we should ignore it, however. Our function in applying state law under Erie R.R. Co. v. Tomkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), is to attempt to decide the case before us in the same manner as would the state courts. Clearly, we would not be exercising this function if our approach was to restrict all of the state precedents to their own facts and to make nice distinctions between holdings and dicta, while failing to take into account all relevant indications of the state of the law of the state. Indeed, the fact that a state court has reached a question which it was not necessary for it to reach may be the surest guide as to how it would decide future cases raising similar issues. | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. | What is the total number of appellants in the case that fall into the category "private business and its executives"? Answer with a number. | [] | [
3
] | songer |
UNITED MILK PRODUCERS OF NEW JERSEY et al., Appellants, v. Ezra Taft BENSON, Secretary of Agriculture of the United States, Appellee.
No. 12464.
United States Court of Appeals District of Columbia Circuit.
Argued May 25, 1955.
Decided June 23, 1955.
Mr. Robert Henry O’Brien, New York City, of the bar of the Court of Appeals of New York, pro hac vice, by special leave of Court, with whom Mr. William P. Murray, New York City, was on the brief, for appellants. Mr. Michael F. X. Dolan, Washington, D. C., also entered an appearance for appellants.
Mr. Neil Brooks, Sp. Asst. to Atty. Gen., United States Department of Justice, with whom Messrs. J. Stephen Doyle, Jr., Sp. Asst. to Atty. Gen., United States Department of Justice, and Donald A. Campbell, Attorney, United States Department of Agriculture, were on the brief, for appellee. Messrs. Leo A. Rover, U. S. Atty., and Lewis Carroll, Asst. U. S. Atty., also entered appearances for appellee.
Mr. Keith L. Seegmiller,. Washington, D. C., filed a brief on behalf of Daniel J. Carey, Commissioner of Agriculture and Markets of the State of New York, as amicus curise, urging affirmance.
Messrs. Frederic P. Lee and Ralph A. Gilchrist, Washington, D. C., filed a brief on behalf of Metropolitan Milk Producers Bargaining Agency, Inc., and Mutual Federation of Independent Cooperatives, Inc., as amici curise, urging af-firmance.
Before PRETTYMAN, FAHY and DANAHER, Circuit Judges.
FAHY, Circuit Judge.
Plaintiffs appeal from an order of the District Court dismissing their complaint on motion of defendant, the Secretary of Agriculture, for lack of standing on their part to maintain the action. We affirm.
Plaintiffs are corporate and individual producers and sellers of milk in the State of New Jersey. They compete with producers located out-of-State who sell to distributors who in turn transport the milk into New Jersey and sell it there. Defendant has responsibility for the administration of the Agricultural Marketing Agreement Act of 1937, 50 Stat. 246, as amended, 7 U.S.C.A. § 601 et seq. Relying upon this statute the Secretary on August 5, 1938, issued Order No. 27 for the New York metropolitan milk marketing area, 7 CFR § 927.1-927.89 (Rev.1952). The Order as amended establishes a formula under which distributors of milk thereby regulated account to producers at a minimum price which varies according to the geographical area in which the milk is delivered to the purchaser by the distributor. There are three area classifications, known as Class I A, Class I B and Class I C, but all the milk in the three classes is of the same grade and quality. Milk that the distributor sells in the New York metropolitan milk marketing area is designated Class I A, and is paid for by the distributor and accounted for to the producer at a higher minimum price than for Class I C milk, which the distributor sells in non-Federal milk marketing areas, including New Jersey. See 7 CFR § 927.37(a), (c) (Rev.1952). The complaint alleges that these are the only differences between Class I A and Class I C milk insofar as Order No. 27 is concerned.' Plaintiffs aver that the statute does not permit defendant Secretary to establish such price differences in these two classes of milk of the same grade and quality; that as a consequence of the allegedly unlawful price differences, plaintiffs receive substantially lower prices for the fluid milk they sell to distributors than otherwise would be the case; that this is due to the fact that the distributors purchase fluid milk outside New Jersey, paying for it at substantially lower prices than must be paid for Class I A, transport it into New Jersey as Class I C and resell it there. Plaintiffs allege that except for this situation, they, as producers, would be able to sell more of their own fluid milk to the distributors, and would need to sell less of their milk at lower prices as surplus. The corporate plaintiff alleges further that it is losing the dues of its members who are being continually forced out of business by the loss of markets for their milk. All plaintiffs claim irreparable injury, loss and damage to their business and property.
The prayers in substance are that the Secretary and his successors in office be permanently enjoined from fixing a price by a Federal marketing order to be paid producers for Class I C fluid milk which is lower than the price to be'paid producers for Class I A fluid milk, and to declare illegal and void the provisions of Order No. 27 which permit this.
The order complained of is one of a number of milk marketing orders applicable in many parts of the United States, formulated and administered pursuant to the authority of the statute. Their basic purpose is to stabilize the price of milk, in aid of both producers and distributors or handlers, and to maintain orderly marketing conditions. The validity of the statute and of particular marketing orders made under its terms has been upheld in opinions which elaborate the legal and economic aspects of the program. United States v. Rock Royal Co-op, 307 U.S. 533, 59 S.Ct. 993, 83 L.Ed. 1446; H. P. Hood & Sons v. United States, 307 U.S. 588, 59 S.Ct. 1019, 83 L.Ed. 1478.
Plaintiffs do not rely upon any provision of the Act itself as affording them standing to attack Order No. 27. Furthermore, they claim no standing by reason of the Administrative Procedure Act, 5 U.S.C.A. § 1009 (1952). We pass, then, to their contention that, though they do not claim a legal right to be free of the competition of distributors who are regulated by the Order, they acquire standing by reason of the fact that the competition becomes especially injurious to them due to the allegedly illegal action of the defendant in formulating and issuing the Order. We think their contention is foreclosed by Tennessee Electric Power Co. v. T. V. A., 306 U.S. 118, 59 S.Ct. 366, 83 L.Ed. 543, and our recent decision in Kansas City Power & Light Co. v. McKay, 96 U.S.App.D.C.-, 225 F.2d 924. See, also, Alabama Power Co. v. Ickes, 302 U.S. 464, 58 S.Ct. 300, 82 L.Ed. 374, and Perkins v. Lukens Steel Co., 310 U.S. 113, 60 S.Ct. 869, 84 L.Ed. 1108.
The decisions referred to make clear (1) that injury from lawful competition is damnum absque injuria and affords no standing to the party damaged to seek judicial relief therefrom, absent statutory aid to standing; (2) that competition otherwise lawful is not unlawful because made more injurious by governmental action assumed to be invalid, with possible exceptions not here relevant, so long as no legal right of the party injuriously affected is invaded, see Tennessee Power Co. v. T. V. A., supra, 306 U.S. at pages 139, 140, 59 S.Ct. at page 370; and (3) that no legal right of one in a situation comparable in all material respects to plaintiffs’ is invaded by lawful competition that is facilitated by such governmental action, and thereby made more economically injurious than otherwise would be the case.
Affirmed.
. Pursuant to certain of its own provisions the Order did not take immediate effect. See 3 Fed.Reg. 1945, 1951, 2100, 2102 (1938).
. § 927.37(c) was amended subsequent to the filing of the complaint in this case. See 19 Fed.Reg. 557 (1954), 7 CFR § 927.37(e) (Supp. 1954).
. The complaint does not allege that plaintiffs are in any way bound or regulated by the Order, or that the milk they sell is or should be priced- under the Order.
. Their complaint as well as their brief is silent on the Administrative Procedure Act, and in oral argument before this court their counsel explicitly disclaimed reliance upon that Act. Accordingly we do not consider it. See Lehker v. Joyce, 51 App.D.C. 35, 36, 273 F. 763, 764; Kirk v. St. Joseph Stock Yards Co., 8 Cir., 206 F.2d 283, 287; World Fire & Marine Ins. Co. v. Carolina Mills Dist. Co., 8 Cir., 169 F.2d 826, 829, 4 A.L.R.2d 523.
. Neither Stark v. Wickard, 321 U.S. 288, 64 S.Ct. 559, 88 L.Ed. 733, nor Brannan v. Stark, 342 U.S. 451, 72 S.Ct. 433, 96 L.Ed. 497, are exceptions to the principles stated. Plaintiffs in those cases were permitted to attack an order regulating the marketing of milk in the greater Boston area. But they claimed an interest in funds alleged to be unlawfully diverted by the Secretary in administering the order. And in Chicago Junction Case, 264 U.S. 258, 44 S.Ct. 317, 68 L.Ed. 667, also relied upon by plaintiffs, standing was rested upon the violation of a right of plaintiffs granted by statute. See Alabama Power Co. v. Ickes, 302 U.S. 464, 483-484, 58 S.Ct. 300, 82 L.Ed. 374. Furthermore, the plaintiffs there were parties to the order they attacked. | What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in civil law issues involving government actors. The issue is: "Did the court's interpretation of the substantial evidence rule support the government? For example, "such evidence as a reasonable mind might accept as adequate to support a conclusion" or "more than a mere scintilla". This issue is present only when the court indicates that it is using this doctrine, rather than when the court is merely discussing the evidence to determine whether the evidence supports the position of the appellant or respondent." Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". | Did the court's interpretation of the substantial evidence rule support the government? For example, "such evidence as a reasonable mind might accept as adequate to support a conclusion" or "more than a mere scintilla". This issue is present only when the court indicates that it is using this doctrine, rather than when the court is merely discussing the evidence to determine whether the evidence supports the position of the appellant or respondent. | [
"No",
"Yes",
"Mixed answer",
"Issue not discussed"
] | [
3
] | songer |
FRIO ICE, S.A., Plaintiff-Appellant, v. SUNFRUIT, INC., John R. Plana, Jr., Oswaldo P. Rodriguez, Defendants-Appellees.
No. 89-6258.
United States Court of Appeals, Eleventh Circuit.
Nov. 30, 1990.
Stephen P. McCarron, Steven A. Rafkin, Silver Spring, Md., Guy Motzer, Miami, Fla., for plaintiff-appellant.
Ellen R. Hornstein, U.S. Dept, of Agriculture, Washington, D.C., amicus curiae, for plaintiff-appellant.
Howard M. Camerik, Glenn E. Goldstein, Miami, Fla., for defendants-appellees.
Before FAY and JOHNSON, Circuit Judges, and ALLGOOD , Senior District Judge.
Honorable Clarence W. Allgood, Senior U.S. District Judge for the Northern District of Alabama, sitting by designation.
JOHNSON, Circuit Judge:
Plaintiff Frio Ice, S.A. (“the plaintiff”) appeals the district court’s Memorandum Order holding that the court did not have jurisdiction under the Perishable Agricultural Commodities Act (“PACA”) to entertain injunctive actions by private parties to enforce payment from a statutory trust established under Section 5(c) of PACA, 7 U.S.C.A. § 499e(c) (West Supp.1990).
I. STATEMENT OF THE CASE
A. Background Facts
Congress enacted PACA in 1930 to encourage fair trading practices in the marketing of perishable commodities. H.R. Rep. No. 543, 98th Cong., 2d Sess. 3, re printed in 1984 U.S.Code Cong. & Admin. News 405, 406. Under PACA, the Secretary of Agriculture (“the Secretary”) must license all commission merchants, dealers, and brokers (hereinafter collectively “produce dealers”) of perishable agricultural commodities placed in interstate or international commerce. 7 U.S.C.A. § 499c (West 1980). PACA also requires produce dealers to make “full payment promptly” for any produce they purchase. 7 U.S.C.A. § 499b(4) (West Supp.1990).
In the early 1980s, Congress determined that the increase in non-payment and delinquent payment by produce dealers threatened the financial stability of produce growers. Congress was particularly troubled by the practice by which produce dealers granted their lenders security interests in the produce on which they had accepted delivery even though the dealers had not yet paid for these commodities. See 7 U.S. C.A. § 499e(c)(l) (West Supp.1990).
In response, Congress amended PACA in 1984 to establish a nonsegregated statutory trust under which a produce dealer holds its produce-related assets as a fiduciary until full payment is made to the produce seller. 7 U.S.C.A. § 499e(c) (West Supp.1990). The trust automatically arises in favor of a produce seller upon delivery of produce. 7 U.S.C.A. § 499e(c)(2) (West Supp.1990). An unpaid seller loses the benefits of the trust unless it files written notice of its intent to preserve its rights with the United States Department of Agriculture and the produce dealer. 7 U.S.C.A. § 499e(c)(3) (West Supp.1990). For produce sellers, a principal benefit of the trust is that they are placed first in line among creditors for all produce-related assets if the produce dealer declares bankruptcy.
During December 1988 and January 1989, the plaintiff supplied nineteen shipments of asparagus to the defendant, Sun-fruit, Inc. (“Sunfruit”). The plaintiff served and filed the notices of intent required to preserve its trust benefits. Sun-fruit failed to pay for the produce.
B. Procedural History
On June 16, 1989, the plaintiff filed a complaint against Sunfruit, John R. Plana, Jr., and Oswaldo P. Rodriguez to enforce payment of $229,831.13 from the trust. The plaintiff filed a motion for a preliminary injunction requesting that Sunfruit segregate this amount in a court-supervised trust account pending resolution of the suit. The plaintiff also sought a court order requiring Plana and Rodriguez to fund any shortfall not funded by Sunfruit.
On July 7, 1989, after a hearing on the motion, the district court found that the plaintiff was a trust beneficiary of Sunfruit in the amount of $229,831.14. It ordered Sunfruit to segregate that amount in a bank account under court supervision during the pendency of the action. The court withheld its ruling on the plaintiffs motion that it order Plana and Rodriguez to fund the trust to the extent there was any shortfall not funded by Sunfruit until the parties briefed the issue.
On November 6, 1989, the district court, sua sponte, vacated its preliminary injunction. Frio Ice, S.A. v. Sunfruit, Inc., 724 F.Supp. 1373 (S.D.Fla.1989). The court concluded that it did not have jurisdiction under Section 499e(c) to entertain injunc-tive actions by private parties. Id. at 1378. It also decided that, even if it had such jurisdiction, it could not order Sunfruit to segregate trust assets through the establishment of a separate trust account under court supervision. Id. at 1376-77. The district court subsequently denied the plaintiff’s motion to reinstate the injunction pending reconsideration, and this appeal followed. On this appeal, we consider the following three issues: (1) whether federal courts have jurisdiction to entertain injunc-tive actions by trust beneficiaries to prevent dissipation of a trust established pursuant to 7 U.S.C.A. § 499e(c) (West Supp. 1990); (2) if federal courts have such jurisdiction, whether they have the authority to order segregation of the assets in the trust to implement an injunction to prevent dissipation; and (3) assuming federal courts have such jurisdiction, whether the district court is precluded from issuing a preliminary injunction against Rodriguez.
II. ANALYSIS
The interpretation of a statute by a district court is subject to de novo review by this Court. Centel Cable Television Co. of Fla. v. Thos. J. White Development Corp., 902 F.2d 905, 908 (11th Cir.1990).
A. Jurisdiction Over Injunctive Actions by Private Parties
Absent a clear congressional command to the contrary, federal courts retain their authority to issue injunctive relief in actions over which they have jurisdiction. Califano v. Yamasaki, 442 U.S. 682, 705, 99 S.Ct. 2545, 2559, 61 L.Ed.2d 176 (1978); see also Porter v. Warner Holding Co., 328 U.S. 395, 398, 66 S.Ct. 1086, 1089, 90 L.Ed. 1332 (1946) (“Unless a statute in so many words, or by a necessary and inescapable inference, restricts the court’s jurisdiction in equity, the full scope of that jurisdiction is to be recognized and applied.”); Huie v. Bowen, 788 F.2d 698, 704 (11th Cir.1986). This Court resolves any ambiguities in the statute in favor of the interpretation that permits federal courts to exercise fully their traditional equity powers. Huie, 788 F.2d at 705 (citing Hecht Co. v. Bowles, 321 U.S. 321, 330, 64 S.Ct. 587, 592, 88 L.Ed. 754 (1944)).
Section 499e(c)(4) of Title 7 states:
The several district courts of the United States are vested with jurisdiction specifically to entertain (i) actions by trust beneficiaries to enforce payment from the trust, and (ii) actions by the Secretary to prevent and restrain dissipation of the trust.
7 U.S.C.A. § 499e(c)(4) (West Supp.1990). In analyzing its jurisdictional authority under the statute, the district court stated that jurisdictional provisions of federal statutes are to be strictly construed. Frio Ice, 724 F.Supp. at 1378 (citing Hardin v. City Title & Escrow Co., 797 F.2d 1037, 1040 (D.C.Cir.1986); In re Carter, 618 F.2d 1093, 1098 (5th Cir.1980)). The district court found that Section 499e(c)(4) granted it jurisdiction to consider injunctive actions only when such actions are brought by the Secretary. Id. The court claimed support for this reading based on the statute’s language and on its legislative history, which specifically discussed injunctive actions only in relation to actions by the Secretary. Id.; See H.R.Rep. No. 543, 98th Cong., 2d Sess. 7, reprinted in 1984 U.S.Code Cong. 6 Admin.News 405, 410.
The plaintiff contends that the district court has read Section 499e(c)(4) erroneously. Specifically, it argues that the district court applied the wrong test to determine whether Congress limited the authority of federal courts to grant injunctive relief to trust beneficiaries. It claims that the proper test focuses on whether the statute or its legislative history clearly states that Congress intended to preclude such relief to private parties.
Contrary to the district court’s conclusion, neither Section 499e(c)(4) nor PACA’s legislative history directly or inferentially restricts the district court’s jurisdiction to entertain injunctive suits by trust beneficiaries. On its face, the statute does not limit a federal court’s jurisdiction over actions by private parties. Subsection (i) explicitly grants district courts the jurisdiction to entertain “actions by trust beneficiaries to enforce payment from the trust.” 7 U.S.C.A. § 499e(c)(4)(i) (West Supp.1990). Although the statute does not define the term “actions,” since the merger of law and equity, there is only one form of action, a civil action. See Fed.R.Civ.P. 2. By using the term “actions” without any restrictions, Congress thus intended the federal courts to entertain claims for both legal and equitable relief by trust beneficiaries. Moreover, the language of subsection (ii) does not change this conclusion. Rather, subsection (ii) may be read as simply granting to the Secretary standing to bring Section 499e(c)(4) suits to prevent dissipation of trust assets. Finally, this Court resolves ambiguities in favor of the interpretation that permits federal courts to exercise fully their traditional equity powers. Huie, 788 F.2d at 705. Thus, the language of the statute supports the conclusion that the district court has jurisdiction to entertain injunctive actions by private parties.
The district court noted correctly that the legislative history discusses injunctive suits only in relation to actions by the Secretary. The legislative history states that upon discovering that a produce dealer is in financial difficulty, the Secretary, acting on behalf of the trust beneficiaries, should seek an injunction to freeze the trust assets until the Secretary has advised the beneficiaries of the situation, thereby giving them the opportunity to protect their interests. Id. at 411. Congress gave this authority to the Secretary in order to protect trust beneficiaries, who frequently cannot protect themselves because they lack the necessary information. Id. at 410-11. Thus, when the legislative history is read in its entirety, it is clear that Congress is discussing only how it foresees the Secretary fulfilling his responsibilities under the statute. There is no language in the legislative history that limits the remedies available to trust beneficiaries. See H.Rep. No. 543, 98th Cong., 2d Sess. 7, reprinted in 1984 U.S.Code Cong. & Admin.News 405, 410.
Neither the statute nor the legislative history contains a clear congressional command limiting the remedies available to private beneficiaries. Accordingly, we find the district court’s interpretation of Section 499e(c)(4), as limiting injunctive relief to suits brought by the Secretary, to be incorrect.
B. The District Court’s Authority to Order Segregation of Trust Assets
The district court also held that Section 499e(c) did not authorize federal courts to order PACA defendants to create segregated trust accounts in order to enforce payments to trust beneficiaries. Frio Ice, 724 F.Supp. at 1376-77. The district court relied on the decisions in Fresh Western Marketing v. M & L Food Center, 707 F.Supp. 515, 516 (S.D.Fla.1989); DeBruyn Produce Co. v. Victory Foods, Inc., 674 F.Supp. 1405 (E.D.Mo.1987).
The district court’s reliance on DeBruyn is mistaken. The DeBruyn court adopted the wrong test for determining the scope of a federal court’s authority to fashion equitable relief. The DeBruyn court refused to segregate trust assets into a court-supervised account because it could find no positive grant of authority to do so from either the statute or the legislative history. Id. at 1409.
As noted in 11(A) supra, the proper test for finding restrictions on the equitable powers of federal courts is a clear congressional command to preclude such relief. Califano, 442 U.S. at 705, 99 S.Ct. at 2559. No such restriction can be found in the statute or its legislative history. It is true that Congress sought to minimize the burden of the PACA trust on produce dealers. That is why the statute permits a PACA trust to exist as a nonsegregated floating trust that permitted commingling of assets. H.Rep. No. 543, 98th Cong., 2d Sess. 4, reprinted in 1984 U.S.Code Cong. & Admin.News 405, 407; See also 7 C.F.R. § 46.46(c). At the same time, the central purpose of Section 499e(c) is to ensure payment to trust beneficiaries. Segregation often may be the only means by which a federal court can prevent dissipation. H.Rep. No. 543, 98th Cong., 2d Sess. 4, reprinted in 1984 U.S.Code Cong. & Admin.News 405, 407. The legislative history noted that once the trust is dissipated it is almost impossible for a beneficiary to obtain recovery. Id. at 411. Congress recognized that dissipation of trust assets would undermine PACA and made such dissipation a violation of the statute. 7 U.S.C.A. § 499b(4) (West Supp.1990). Thus, preventing dissipation of the trust is a key purpose of PACA. Segregation of trust assets is an important tool for achieving that purpose. For these reasons, the district court’s finding that it did not have the authority to segregate trust assets is erroneous.
In the instant litigation, however, the plaintiff sought only the segregation of sufficient trust funds to cover its claims against Sunfruit. Segregation of only part of the trust solely to accommodate a beneficiary’s singular interest is inappropriate because the statutory trust exists for the benefit of all unpaid produce suppliers. See 7 U.S.C.A. § 499e(c)(2) (West Supp. 1990). Upon a showing that the trust is being dissipated or threatened with dissipation, a district court should require the PACA debtor to escrow its proceeds from produce sales, identify its receivables, and inventory its assets. It should then require the PACA debtor to separate and maintain these produce-related assets as the PACA trust for the benefit of all unpaid sellers having a bona fide claim. 7 U.S.C.A. § 499e(c)(3). Each beneficiary would then be entitled to its pro rata share.
C. Extension of the Preliminary Injunction to Rodriguez
The issuance of a preliminary injunction falls within the sound discretion of the district court. Cunningham v. Adams, 808 F.2d 815, 819 (11th Cir.1987). A district court should grant a preliminary injunction only if the moving party clearly shows: (1) a substantial likelihood that it will succeed on the merits; (2) that it will suffer irreparable harm unless the injunction issues; (3) that the potential injury outweighs possible harm to the opposing party; and, (4) that the injunction would not be adverse to the public interest. Id.
In the proceeding below, the district court vacated its preliminary injunction against Sunfruit and denied the plaintiff’s request to extend the injunction to Plana and Rodriguez. Rodriguez argues that even if the district court erred regarding its equity powers, the plaintiff is not entitled to a preliminary injunction against Rodriguez personally. He contends that at the hearing on July 7,1989, after which the district court issued the injunction, the plaintiff failed to establish likelihood of success on the merits that Rodriguez was personally liable for the trust funds or that he possessed these funds.
Because the district court ruled that it did not have jurisdiction to issue an injunction in the instant case, it made no findings on any of these factors regarding the personal liability of Rodriguez for the trust funds. Accordingly, it would be premature for this Court to determine this issue at this time.
III. CONCLUSION
For the foregoing reasons, we REVERSE the district court’s Memorandum Order and REMAND with instructions to determine whether the trust is being dissipated or threatened with dissipation, and, if so, to order Sunfruit to escrow its proceeds from produce sales, identify its receivables, and inventory its assets. These assets should then be segregated into a court-supervised trust account on a pro rata basis to all unpaid sellers having bona fide claims. Finally, we REMAND to the sound discretion of the district court the determination of whether to extend the preliminary injunction to Rodriguez.
. The Code of Federal Regulations defines "full payment promptly" as payment within ten days after acceptance of regulated produce, unless the parties execute a specific written agreement to the contrary at the time of the sale. 7 C.F.R. § 46.2(aa) (1990).
. The parties disagreed over the bill. The plaintiff claimed Sunfruit owed it $229,831.13. Sun-fruit argued that it only owed $79,460.94 and offered to pay that sum in full and final settlement. The plaintiff rejected this offer.
. Plana is the president of Sunfruit. Rodriguez is a 35 percent shareholder in Sunfruit and may be an officer. Only Rodriguez submitted an appellee's brief.
. The Department of Agriculture, in its brief as amicus curiae, argues that the district court erred for essentially the same reasons.
. Sunfruit contends that this Court should look to section 198 of the Restatement (Second) of the Law of Trusts (1959) to glean Congress’ intent to limit trust beneficiaries to legal remedies. Section 198 states that a trust beneficiary "can maintain an action at law ... to enforce payment.” Sunfruit argues that by employing the language "to enforce payment" in the statute Congress intended to limit trust beneficiaries to legal remedies. This argument is undercut by the lack of any specific words of limitations in the statute itself. The statute refers to “action” not “action at law.” 7 U.S.C.A. § 499e(c)(4) (West Supp.1990). Moreover, comment a to section 198 recognizes that beneficiaries retain equitable remedies against the trustee.
. Sunfruit's claim that the caselaw interpreting jurisdictional grants in other statutes supports the district court’s interpretation of Section 499e(c)(4) is not persuasive. These statutes are easily distinguishable from the PACA because they contain either express words of limitation or detailed lists of remedies. For example, in the Rail Passenger Service Act of 1970, 45 U.S. C.A. § 501, et seq., cited by Sunfruit, Congress expressly precluded private employees from bringing suits other than those involving labor agreements and the Supreme Court so held in National R.R. Passenger Corp. v. National Ass’n of R.R. Passengers, 414 U.S. 453, 94 S.Ct. 690, 38 L.Ed.2d 646 (1974). Moreover, in the Privacy Act of 1974, 5 U.S.C.A. § 552a(g), also cited by Sunfruit, Congress created a detailed list of remedies for particular violations. This Court found that the Privacy Act limited the remedies available to those listed in Section 552a(g). See Edison v. Department of the Army, 672 F.2d 840 (11th Cir.1982). By detailing an explicit list of remedies for specific violations, the Privacy Act is precisely the type of statute that creates “necessary and inescapable inference” that remedies are limited. See Porter, 328 U.S. at 398, 66 S.Ct. at 1089.
. The district court in Fresh Western, 707 F.Supp. at 515, relied solely on DeBruyn without explanation for its holding that it could not order the segregation of trust assets.
. By requiring trust beneficiaries to show the actual dissipation or the threat of dissipation of the PACA trust before ordering segregation, district courts will avoid unduly burdening those produce beneficiaries who have properly maintained the trust. | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. | What is the total number of appellants in the case that fall into the category "private business and its executives"? Answer with a number. | [] | [
1
] | songer |
Henry J. HALDEMAN, Appellant, v. UNITED STATES of America, Appellee.
No. 7733.
United States Court of Appeals Tenth Circuit.
Jan. 13, 1965.
Stanley Fleishman, Hollywood, Cal. (Sam A. Crow, Topeka, Kan., with him on the brief), for appellant.
Newell A. George, U. S. Atty., Kansas City, Kan., for appellee.
Before PICKETT, LEWIS and BREITEN STEIN, Circuit Judges.
PICKETT, Circuit Judge.
The appellant, Haldeman, was charged in a ten-count indictment with using the United States mails to transmit booklets or advertisements of material which were obscene, lewd, lascivious, indecent and filthy, in violation of 18 U.S.C. § 1461. The mailing of the material described in the several counts was admitted. Haldeman was convicted on nine counts and sentenced to imprisonment for a period of eighteen months on each count, the sentences to run concurrently. The dispositive question presented by this appeal is whether the mailed matter referred to is obscene and therefore not protected by the freedom of speech and pi'ess provisions of the First Amendment to the Constitution. We conclude that the publications in question are not obscene within the legal definition of that term.
Haldeman owned and operated a business at Girard, Kansas which printed numerous books and pamphlets relating to sex and various forms of sex deviation, without illustrations, among which were those referred to in the indictment. From these paperback booklets or pamphlets the parties selected eight as typical, and they were introduced in evidence by agreement of the parties and read by the jury. Each booklet has approximately 30 pages of text, and are bound with plain paper backs upon which is printed the subject matter contained therein, and carries the name of “D. O. Cauldwell, M.D.” as the author. Seven of the booklets are reproduced questions concerning various sex problems, usually abnormal, written to the author as a sexologist. Each question is followed by the author’s answer. Generally the answers are in plain language, with no evident attempt to embellish a sordid subject. The eighth book was a recitation of' a variety of experiences during the medical practice of the author, relating for sex matters. In his answers, the author attempted to explain the nature of' the sexual activities about which inquiry was made, and in some instances to give the reason for them. All the booklets discuss revolting, nauseating, filthy and disgusting incidents, but they are no more repulsive than any discussion of the same subjects for medical, scientific, educational or general information purposes. No one contends that the conditions and experiences referred to in the booklets do not exist or continuously confront the medical profession, law enforcement oifieers, and society, with perplexing problems. The record discloses without contradiction that the forms of sexual behavior described are common problems about which there is considerable literature, including discussions in many text and reference books.
For the past decade the Supreme Court of the United States has struggled with the constitutional question here involved, but it is extremely doubtful if the solution of individual cases has been made any easier by its decisions. It is settled that “obscenity is not within the area of constitutionally protected speech or press.” Roth v. United States, 354 U.S. 476, 485, 77 S.Ct. 1304, 1309, 1 L.Ed.2d 1498, rehearing denied Alberts v. State of California, 355 U.S. 852, 78 S.Ct. 8, 2 L.Ed.2d 60. What is obscene and beyond the scope of constitutional protection is ultimately for the courts to determine as a matter of law. Roth v. United States, supra; Jacobellis v. Ohio, 378 U.S. 184, 84 S.Ct. 1676, 12 L.Ed.2d 793. In determining whether a publication is obscene, the test stated in Roth and restated in Jacobellis is “whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest. * * * » n was recognized in Jacobellis that this test is not perfect, but any other would raise equally difficult problems, and the court emphasized that point, stating:
“We would reiterate, however, our recognition in Roth that obscenity is excluded from the constitutional protection only because it is ‘utterly without redeeming social importance/ and that ‘[t]he portrayal of sex, e. g., in art, literature and scientific works, is not itself sufficient reason to deny material the constitutional protection of freedom of speech and press.’ ” 378 U.S. at 191, 84 S.Ct. at 1680.
The constitutional status of published materials dealing with sex is to be determined in the light of the effect it has, when taken as a whole, and not by isolated excerpts, upon the average person and not the peculiarly susceptible. Furthermore, it is only obscene when it “goes substantially beyond customary limits of candor” in the description or representation of such matters. The guarantee of the Constitution is not confined to conventional material or to the expression of views shared by a majority of citizens. Kingsley Intern. Pictures Corp. v. Regents, 360 U.S. 684, 79 S.Ct. 1362, 3 L.Ed.2d 1512.
As we have stated, the eight booklets involved in this case do not make pleasant reading, but we are convinced that it cannot be said that they are utterly without social importance or that their descriptions and representations go substantially beyond customary limits of candor. The undisputed evidence is to the contrary. It would appear from what was said in Roth and Jacobellis and the decisions which followed that published materials are obscene in a constitutional sense only when they are within the area of “hard core pornography”, whatever that term may mean. Times Film Corp. v. City of Chicago, 355 U.S. 35, 78 S.Ct. 115, 2 L.Ed.2d 72; Mounce v. United States, 355 U.S. 180, 78 S.Ct. 267, 2 L.Ed.2d 187; One, Incorporated v. Olesen, 355 U.S. 371, 78 S.Ct. 364, 2 L.Ed.2d 352; Sunshine Book Co. v. Summerfield, 355 U.S. 372, 78 S.Ct. 365, 2 L.Ed.2d 352; Manual Enterprises v. Day, 370 U.S. 478, 84 S.Ct. 1432; Tralins v. Gerstein, State Atty., 378 U.S. 576, 84 S.Ct. 1903, 12 L.Ed.2d 1033; Grove Press Inc. v. Gerstein, State Atty., 378 U.S. 577, 84 S.Ct. 1909, 12 L.Ed.2d 1035; Excellent Publications, Inc. v. U. S., 1 Cir., 309 F.2d 362; Zeitlin v. Arnebergh, 59 Cal.2d 901, 31 Cal.Rptr. 800, 383 P.2d 152, cert. denied 375 U.S. 957, 84 S.Ct. 445, 11 L.Ed.2d 315; Attorney General v. Tropic of Cancer, 345 Mass. 11, 184 N.E.2d 328. The Third Circuit, in United States v. Ginzburg, 3 Cir., 338 F.2d 12, upheld a conviction under Section 1461 after determining that the publications were obscene within the rule of the foregoing eases and not entitled to constitutional protection. However, such cases as United States v. Darnell, 2 Cir., 316 F.2d 813, cert. denied 375 U.S. 916, 84 S.Ct. 205, 11 L.Ed.2d 155, rehearing denied 375 U.S. 982, 84 S.Ct. 493, 11 L.Ed.2d 429; United States v. Zuideveld, 7 Cir., 316 F.2d 873, cert. denied 376 U.S. 916, 84 S.Ct. 671, 11 L.Ed.2d 612; Kahm v. United States, 5 Cir. 300 F.2d 78, cert. denied 369 U.S. 859, 82 S.Ct. 949, 8 L.Ed.2d 18, in which convictions for violation of the same statute have been upheld, are clearly distinguishable from the case at bar.
Reversed and remanded with instructions to dismiss the indictment.
. The titles of the booklets are: “Questions and Answers Involving Sexual Ethics and Sexual Esthetics”; “Questions and Answers ón Sex and the American Attitude”; “Questions and Answers on. Sex Physique Disparity”; “Questions and Answers on the Sex Life and Sexual Problems of Homosexuals of Both-Sexes”; “Questions and Answers About Oragenital Contacts”; “Questions and. Answers about Cunnilingus”; “Questions. and Answers on Undinism”; and “Revelations of a Sexologist”.
. This was attested to at the trial by the testimony of outstanding professors and medical doctors, including psychiatrists, a Protestant minister, and others. These witnesses testified that the booklets discussed in ordinary language common problems and generally reflected accurate medical opinions and had educational value, particularly in the field of psychiatry and family counseling. Doctor Gray, a practicing obstetrician and gynecologist in Kansas, testified as follows:
“Q. Would it be accurate and fair to say that in your fifteen years of practice that patients have related to you subject matter some of which is covered in the pamphlets ?
“A. Tes, definitely.
“Q. Of the medical works which you sometimes refer to in your practice, do you have an opinion as to whether your reference material is more frank than the material before you?
“A. Well, yes, it is more frank in that it is perhaps more extensive than this. And, of course, the primary exposition of the — and description of the cases involved comes from say, the letters for example that are contained within these books. His writings in themselves show — merely tend to explain these on a medical basis, and in such a manner reflect accepted medical interpretations. So they — and these books which I had reference are perhaps more exhaustive, more complete. They are using case histories, of course the same — not the answer type of thing, but in case abstract, and then illustrate the point from that. But it is a sort of valumatic type of thing, most of them are bigger and more involved.
“Q. As a Doctor, do you have an opinion as to whether or not the eight books under indictment have a medical value?
“A. I think they have.”
. “Dr. Cauldwell’s” books are in the library at the University of Kansas and may be read by those having access to the library.
. In Jacobellis v. Ohio, 378 U.S. 184, 190, 84 S.Ct. 1676, 1679, it was said: “Hence we reaffirm the principle that, in ‘obscenity’ cases as in all others involving rights derived from the First Amendment guarantees of free expression, this Court cannot avoid making an independent constitutional judgment on the facts of the case as to whether the material involved is constitutionally protected.”
. Roth v. United States, 354 U.S. 476, 489, 77 S.Ct. 1304, 1311, and Jacobellis v. Ohio, 378 U.S. 184, 191, 84 S.Ct. 1676. The Supreme Court has accepted the A.L.I. definition of “obscenity” in its proposed Model Penal Code, § 251.4(1), that “Material is obscene if, considered as a whole, its predominant appeal is to prurient interest * * * and if in addition it goes substantially beyond customary limits of candor in describing or representing such matters.” Jacobellis v. Ohio, supra, at 192, 84 S.Ct. at 1680. See, also, Manual Enterprises, Inc., v. Day, 370 U.S. 478, 485, 82 S.Ct. 1432, 8 L.Ed.2d 639.
Prurient interest is defined as a “shameful or morbid interest in nudity, sex, or excretion.” Roth v. United States, supra, 354 U.S. at 487, 77 S.Ct. at 1310. The community standard to be .applied is that of the nation as a whole, and not that of a particular locality or area. Jacobellis v. Ohio, supra, 378 U.S. at 195, 84 S.Ct. 1676.
. Mr. Justice Stewart, concurring in Jacobellis, declined to define the term “hard core pornography”, but stated: “I know it when I see it * * The writer of this opinion has also felt that he would “know it when he saw it” but a reading of some of the published material held to be constitutionally protected tends to raise doubts regarding one’s perceptive abilities in such matters. | What follows is an opinion from a United States Court of Appeals.
Your task is to determine the disposition by the court of appeals of the decision of the court or agency below; i.e., how the decision below is "treated" by the appeals court. That is, the basic outcome of the case for the litigants, indicating whether the appellant or respondent "won" in the court of appeals. | What is the disposition by the court of appeals of the decision of the court or agency below? | [
"stay, petition, or motion granted",
"affirmed; or affirmed and petition denied",
"reversed (include reversed & vacated)",
"reversed and remanded (or just remanded)",
"vacated and remanded (also set aside & remanded; modified and remanded)",
"affirmed in part and reversed in part (or modified or affirmed and modified)",
"affirmed in part, reversed in part, and remanded; affirmed in part, vacated in part, and remanded",
"vacated",
"petition denied or appeal dismissed",
"certification to another court",
"not ascertained"
] | [
3
] | songer |
UNITED STATES of America ex rel. David Frank GOLDBERG, Appellee, v. WARDEN, ALLENWOOD FEDERAL PRISON CAMP, MONTGOMERY, PENNSYLVANIA, Appellant.
No. 79-2215.
United States Court of Appeals, Third Circuit.
Argued March 20, 1980.
Decided June 9, 1980.
Elliott Schulder (argued), William G. Otis, Dept, of Justice, Washington, D.C., Carlton M. O’Malley, Jr., U. S. Atty., Middle District of Pennsylvania, Scranton, Pa., Harry A. Nagle, Asst. U. S. Atty., Middle District of Pennsylvania, Lewisburg, Pa., for appellant.
Daniel J. Kornstein (argued), Stewart L. Levy (argued), New York City, Richard S. Bishop, Gelb & Myers, Scranton, Pa., for appellee.
Renee D. Chotiner, Dennis E. Curtis, Stephen Wizner, Alice Bussiere, Legal Services Organization, New Haven, Conn., for amicus curiae Jerome N. Frank Legal Services Organization.
Before SEITZ, Chief Judge, and WEIS and HIGGINBOTHAM, Circuit Judges.
OPINION OF THE COURT
WEIS, Circuit Judge.
As a result of a plea bargain, the prosecution dismissed certain counts of an indictment “with prejudice.” Petitioner contends that as a consequence of that phraseology, the Parole Commission could not consider the conduct underlying those counts in deciding whether to grant parole on a related charge to which petitioner pleaded guilty. The district court adopted the petitioner’s position, but we reject it and, consequently, vacate the order directing the Commission to conduct a new parole hearing. Because the petitioner may be relying upon other commitments made as part of the plea bargain, however, we remand for clarification of that issue.
Petitioner sought a writ of habeas corpus under 28 U.S.C. § 2241 in the district court alleging that the United States Parole Commission had improperly denied him release. The district court dismissed several of the claims but found meritorious the contention that in reaching its decision the Commission had improperly considered counts of an indictment that had been dismissed “with prejudice.” The court directed the Commission to hold a new hearing, at which time only the charge to which petitioner had pleaded was to be evaluated.
Petitioner was indicted along with several others and charged with participating in a scheme to defraud the United States by delivering meat that did not meet contract specifications. After negotiations between his trial counsel and the government, it was agreed that petitioner would plead guilty to one count of an information charging a violation of 18 U.S.C. § 1001 (1976), concealment of a material fact. In return the government agreed “not to allocute for any particular sentence” but specifically reserved “its right to comment on the evidence against this defendant.” In addition, the government was to “forego seeking any additional charges against said defendant in connection with his conduct in supplying meat to the Department of Defense, and at the time of sentencing will dismiss the counts in the indictment . . . with prejudice.” The agreement did not mention parole.
The petitioner pleaded guilty in the United States District Court for the District of Massachusetts to the one-count information. Before sentence was imposed, counsel acknowledged to the court that he had gone over the presentence report with petitioner, and said that there were no matters included that he wished to challenge. The presentence report, in the section captioned “Official Version,” noted that petitioner had pleaded guilty to a one-count information and described the scheme to supply the Department of Defense with inferior meat. The names of the other six participants were listed, along with a description of their roles in the affair, which included bribery of government inspectors. According to auditors quoted in the report, the government had been defrauded of “at least $1,468,951.” Finally, the report contained a notation by the probation officer:
“Offense Severity Moderate
Parole Prognosis
If defendant is committed, he will serve between 12 and 16 months according to the U.S. Parole Commission Guidelines.”
Petitioner received a prison term of four years and a $10,000 fine. All counts in the indictment pertaining to the petitioner were dismissed.
On May 4, 1978, after four months of imprisonment, the petitioner was given his initial parole hearing. The hearing examiner panel believed that the offense should be classified as “Greatest I” severity under parole guidelines promulgated by the Commission, 28 C.F.R. § 2.20 (1979), as amended by 45 Fed.Reg. 6379 (1980), because the government had been defrauded of a sum in excess of $500,000. Such a rating under the guidelines, when combined with the other factors, “would indicate a range of 40-55 months.”
Because the presentence report predicted a shorter incarceration period, the matter was referred to the Regional Commissioner for determination whether the sentencing court felt that “this case had guidelines of 12-16 months.” In response to an inquiry from the Parole Commission, an Assistant United States Attorney in Massachusetts wrote that at the time of sentencing the court did not mention the time the petitioner would likely serve in prison. The letter went on to say that petitioner had requested a reduction in sentence in early May, but that on May 19,1978, the court had declined to alter its judgment. Thereafter, the hearing examiners and the Regional Commissioner agreed to continue the petitioner to the expiration of his sentence.
In February 1979 the National Appeals Board of the Parole Commission advanced the parole date because of the consideration given to a codefendant and told petitioner he would be eligible for release on March 19, 1980. At the same time, petitioner sought a writ of habeas corpus in the United States District Court for the Middle District of Pennsylvania, the area where he was then confined.
The habeas petition sought either an outright vacation or a reduction of the sentence, and, alternatively, a furlough so that petitioner could return to his family. Among the grounds for relief were that the Parole Commission, in considering information concerning the dismissed counts in the indictment, had breached the plea agreement, and that petitioner’s health was in danger of irreparable harm because of the inadequate care available in prison.
The district court rejected the request for a reduction of sentence because of lack of jurisdiction and also refused the furlough request. The court found that despite the petitioner’s allegation that he was simply a less culpable member of the scheme, the Parole Commission’s denial of parole was not arbitrary or capricious; failure to exhaust administrative remedies precluded consideration of the claim of improper medical care.
The district court concluded, however, that it was “not proper for the parole commission to consider as an aggravating circumstance, see 28 C.F.R. § 2.20(d), counts of an indictment which have been dismissed with prejudice and for which there is no reliable evidence on the record.” The Commission was directed to conduct a new hearing at which time petitioner’s offense severity rating would be recalculated solely on the basis of the count to which he had pleaded guilty. Petitioner was later enlarged pending this appeal.
In this court, the Parole Commission argues that it has broad discretion to consider the nature and circumstances of the offense and that matters apart from the count to which a plea is entered may be relevant to a parole determination. The petitioner renews his contention that the Parole Commission’s consideration of counts dismissed with prejudice violated the plea agreement.
The district court did not determine whether there had been a plea agreement on parole, but took the closely related position that since the counts in the indictment had been dismissed “with prejudice,” the Commission should not have considered them. The court recognized that a sentencing court could properly consider evidence of crimes of which the defendant had been acquitted, e. g., United States v. Sweig, 454 F.2d 181 (2d Cir. 1972), but distinguished that situation because there the sentencing judge had heard the testimony.
We must measure the district court’s reasoning against the powers granted to the Commission by the Parole Commission and Reorganization Act of 1976 (PCRA), 18 U.S.C. §§ 4201^4218 (1976). Section 4203 gives the Commission the power to grant or deny parole and to promulgate rules and regulations establishing guidelines necessary to carry out the national parole policy. The general criteria for making parole determinations are found in § 4206, which provides that eligible prisoners may be released on parole if “the Commission, upon consideration of the nature and circumstances of the offense and the history and characteristics of the prisoner, determines that . . . release would not depreciate the seriousness of his offense or promote disrespect for the law” and “would not jeopardize the public welfare.” Id. § 4206(a)(1), (2). Section 4207 lists the material that the Commission may consider:
“(1) reports and recommendations which the staff of the facility in which such prisoner is confined may make;
(2) official reports of the prisoner’s prior criminal record, including a report or record of earlier probation and parole experiences;
(3) presentence investigation reports;
(4) recommendations regarding the prisoner’s parole made at the time of sentencing by the sentencing judge; and
(5) reports of physical, mental, or psychiatric examination of the offender.”
The section concludes that “such additional relevant information ... as may be reasonably available” may also be reviewed by the Commission.
It is clear that the Commission is granted wide discretion to review material that would be helpful in its determination whether to release a prisoner on parole, a decision the Supreme Court has acknowledged is difficult. It is a “subtle [one which] depends on an amalgam of elements, some of which are factual but many of which are purely subjective appraisals by the Board members.” Greenholtz v. Inmates of the Nebraska Penal and Correctional Complex, 442 U.S. 1, 10, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979). The choice “involves a synthesis of record facts and personal observation filtered through the experience of the decisionmaker and leading to a predictive judgment as to what is best both for the individual inmate and for the community. This latter conclusion requires the Board to assess whether, in light of the nature of the crime, the inmate’s release will minimize the gravity of the offense, weaken the deterrent impact on others, and undermine respect for the administration of justice.” Id. at 8, 99 S.Ct. at 2104 (footnote omitted).
The scope of information that the Parole Commission may consider, though perhaps statutorily not as expansive as that applicable to the sentencing judge, is nevertheless quite broad. The statute applicable to the sentencing court, 18 U.S.C. § 3577 (1976), places no limitation on information that may be received “concerning the background, character, and conduct” of the convicted defendant. We have held, for example, that under this statute a sentencing judge may properly consider allegations in a pending, untried indictment. United States v. Metz, 470 F.2d 1140 (3d Cir. 1972), cert. denied, 411 U.S. 919, 93 S.Ct. 1558, 36 L.Ed.2d 311 (1973); see United States v. Garcia, 544 F.2d 681, 684 (3d Cir. 1976).
In the parole context, Congress has authorized the Commission to view presentence reports, 18 U.S.C. § 4207(3) (1976), despite the knowledge that “[tjhere are no formal limitations on their contents, and they may rest on hearsay and contain information bearing no relation whatever to the crime with which the defendant is charged.” Gregg v. United States, 394 U.S. 489, 492, 89 S.Ct. 1134, 1136, 22 L.Ed.2d 442 (1969). Thus, in Billiteri v. United States Board of Parole, 541 F.2d 938, 944 (2d Cir. 1976), a pre-PCRA case, the court reasoned that if the sentencing judge may take into account offenses other than the one for which defendant was convicted, the Parole Board may use a presentence report to arrive at a severity rating. Similarly, in Zannino v. Arnold, 531 F.2d 687 (3d Cir. 1976), another pre-PCRA case, we held that reports linking a prisoner to large-scale organized criminal activity provided a sufficient basis for a Board determination to deny parole. Nothing in the new Act or its legislative history, curtails what could have been considered by the old Parole Board.
In fact, the PCRA emphasizes consideration of the nature and circumstances of the offense. Before enactment of the Act, House and Senate conferees reconciled conflicts between the House and Senate bills. In their report, the conferees stated that it was their intent that the Commission review and consider both the nature and circumstances of the offense, and that in making each parole decision, the Commission should recognize and determine the relative severity of the prospective parolee’s offense. In so doing, the Commission “shall be cognizant of the public perception of and respect for the law.” H.Conf.Rep.No.838, 94th Cong., 2d Sess. 25, reprinted in [1976] U.S.Code Cong. & Admin.News, pp. 335,358. This inquiry was made explicit in the statute itself. 18 U.S.C. § 4206. It is against this background, therefore, that we must decide if the Commission improperly considered the dismissed counts.
In its opinion, the district court emphasized that the counts were dismissed “with prejudice.” The plea agreement, however, did not in any way link this phrase to the question of parole, nor did it restrict the scope of the presentence report. On these matters the agreement was completely silent. Even at time of sentencing, after the presentence report had been examined by defense counsel, there was no request or suggestion that because these counts were dismissed with prejudice the report should not be reviewed by the Parole Commission.
We find nothing in the record to establish that the “with prejudice” language was to have any effect on the scope of the presentence investigation or, more specifically, prohibit its disclosure to the Parole Commission. In this report, as we noted earlier, the details of the scheme and the amount of money allegedly involved are included. It is this information that apparently is also contained in the dismissed counts of the indictment or is the conduct to which they refer.
Petitioner seems to take the position that without any clarifying language, the use of “with prejudice” is understood to require that those counts, and the conduct to which they refer, be treated as if they had never existed. But the petitioner has not demonstrated that such a restrictive interpretation is common in plea bargaining.
In negotiating for a plea, the defendant has a very real interest in limiting the number of counts to which he is exposed for the obvious reason that the total length of time to which he can be sentenced is reduced. It would be of little benefit to him if those same counts could be included in a new indictment, and so it is generally understood that if on a plea bargain charges are dismissed, they will not be revived. Should the government reinstitute the counts in a new indictment, the defendant could invoke the agreement as a defense under Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971). Accordingly, the common understanding is that in the absence of contrary expression, counts dismissed as a result of plea bargaining are “with prejudice.”
In this case, the addition of the phrase added nothing but certainty to the terms of the plea bargain and insured that the petitioner would not again be charged with the same crime. The clause did no more than express what would otherwise have been implied. Nothing in the terminology suggests that it has any ramifications that would affect parole consideration or that would restrict the presentence report. Nor do the parties cite any decisional law to that effect. We conclude that, standing alone, the phrase “with prejudice” does not bar comment in the presentence report about the charges in the dismissed counts and does not prevent consideration of that conduct by the Parole Commission in weighing all the factors bearing on the nature of the offense and the prisoner’s character as well. Inasmuch as it relied solely on that terminology for validity, the district court’s order must be vacated.
As an independent basis for relief, amicus curiae contends that the Commission’s almost total reliance on the presentence report in arriving at a parole determination denied petitioner an individualized consideration. This, in turn, touches upon the concerns addressed in our decision in Geraghty v. United States Parole Commission, 579 F.2d 238 (3d Cir. 1978), aff’d on other grounds, - U.S. -, 100 S.Ct. 1202, 63 L.Ed.2d 479 (1980). In Geraghty, we suggested that a wooden application of parole guidelines to arrive at the parole determination could usurp traditional judicial control over the sentencing process.
In this case, however, there is no doubt that petitioner’s parole determination took into account factors peculiar to him. The Commission took steps to insure that the sentencing judge’s wishes were ascertained and complied with by forwarding an inquiry to the United States Attorney’s Office in Massachusetts. Only after the response was received did the Commission set parole. This concrete example of considering factors peculiar to the particular prisoner negates any argument that petitioner received nothing more than a mechanical application of the parole guidelines. We therefore conclude that petitioner’s parole determination complied with our dictates in Geraghty.
We also reject an alternative argument advanced by the amicus that the “arbitrary” reliance on the presentence report violated a Commission regulation requiring that parole determinations be made upon a “preponderance of the evidence.” 28 C.F.R. § 2.19(c) (1979). That same regulation goes on to state that “the Commission shall rely upon such information only to the extent that it represents the explanation of the facts that best accords with reason and probability.” Id. In this regard, we think it significant that after he had been given the opportunity to review the report, and before sentencing, petitioner did not challenge any of the factual matters included. Both the sentencing judge and the Parole Commission, therefore, were entitled to assume that the factual information in the report was correct. Conceding that in some instances an overreliance on the presentence report may hinder an impartial and a just decision, we find nothing in this record to suggest that the information received by the Commission here was inaccurate.
Because of the procedural posture of the case when it was decided by the district court, however, we are unable to resolve all the issues at this time. The petitioner has alleged that the plea bargain incorporated the government’s agreement not to use the allegations of the dismissed counts in considering eligibility for parole. A failure by the government to observe a promise with respect to parole recommendations may constitute a breach of a plea bargain. See Cohen v. United States, 593 F.2d 766 (6th Cir. 1979). Although the plea agreement on its face does not link the dismissal to parole recommendation or consideration, the record is not clear if petitioner is raising a factual issue concerning the government’s representations in addition to his interpretation of the phrase “with prejudice.” If so, the matter must be resolved in the first instance by the district court. We will remand to the district court, therefore, to determine if there is an issue remaining, and, in that event, to decide the matter. If there are no further factual matters to be developed, however, the court may then dismiss the petition.
Accordingly, this case will be remanded to the district court for further proceedings consistent with this opinion.
. The plea agreement was prepared on paper bearing petitioner’s trial counsel’s letterhead in the margin, and we assume from that fact that the draftsmanship was that of petitioner’s lawyer.
. Under the guidelines, crimes are assigned a severity rating and placed into one of seven categories. Each prisoner is assigned a parole prognosis score on a scale of 0 to 11. The intersection of these two factors yields the anticipated time to be served in prison. 28 C.F.R. § 2.20 (1979), as amended by 45 Fed.Reg. 6379 (1980).
. The petitioner has been enlarged since September 1979, months in advance of his parole date of March 20, 1980. The case, therefore, is not moot since he could be ordered to return in order to serve the remainder of his sentence. In view of our decision vacating the district court’s order and remanding for possible further findings, we note that counsel for the Commission commented at oral argument that the petitioner will not be reincarcerated until his case has been reevaluated by the Commission.
. There is considerable doubt that the Parole Commission, in fact, ever did review the dismissed counts of the indictment. The documents in the record suggest that the Commission received its information about the petitioner’s offense only from the presentence report. The one-count information is also in the record, but we do not find the original indictment or any evidence that it was ever in the possession of the Commission. The government chose to defend the case on an arguendo basis, assuming that the petitioner’s allegations were correct but denying their legal efficacy. Thus, we must meet the issues as addressed by the district court.
. By regulation, the Commission has provided that it “shall not consider in any determination, charges upon which a prisoner was found not guilty after trial unless reliable information is presented that was not introduced into evidence at such trial (e. g., a subsequent admission or other clear indication of guilt.)” 28 C.F.R. § 2.19(c) (1979).
. The one count information to which petitioner pleaded charged him with covering up that he had misrepresented the quality of meat that he was supplying to the government and that he was making regular cash payments to government inspectors who were to inspect his company’s production. The extent of the fraud being “covered up” and the amount of cash given to the inspectors obviously would have a bearing on the severity rating attributable to the offense charged in the information. | 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 | What is the nature of the counsel for the appellant? | [
"none (pro se)",
"court appointed",
"legal aid or public defender",
"private",
"government - US",
"government - state or local",
"interest group, union, professional group",
"other or not ascertained"
] | [
4
] | songer |
TRUCK DRIVERS LOCAL UNION NO. 807, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, Petitioner, and Pension Fund of New York City Trucking Industry Local 807, Intervenor, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
Nos. 57, 437, Dockets 74-1001, 74-1211.
United States Court of Appeals, Second Circuit.
Argued Oct. 18, 1974.
Decided Nov. 6, 1974.
J. Warren Mangan, Long Island City, N. Y., for petitioner.
Arthur Liberstein, New York City (Zelby, Burstein, Liberstein & Hartman, New York City), for intervenor.
Elinor H. Stillman, Atty., N. L. R. B. (Michael S. Winder, Alan D. Longman, Attys.; Peter G. Nash, Gen. Counsel; John S. Irving, Deputy Gen. Counsel; Patrick Hardin, Asst. Gen. Counsel; Elliott Moore, Deputy Associate Gen. Counsel, on the brief), for N. L. R. B.
Before DANAHER , FEINBERG and MULLIGAN, Circuit Judges.
Senior Circuit Judge for the District of Columbia Circuit, sitting by designation pursuant to 28 U.S.C. § 294(d) (1970).
DANAHER, Senior Circuit Judge:
Certain individual pension claimants charged that they unlawfully had been denied pension credits for service with a trucking company employer in that Local No. 807 had restrained and coerced employees in the exercise of their Section 7 rights. In due course the Regional Director notified the claimants that investigation had failed to establish their charges. Accordingly the Regional Director refused to issue a complaint. The several claimants appealed the Regional Director’s ruling to the General Counsel and each appeal was denied.
The Regional Director nevertheless issued a complaint alleging that Local No. 807 was in violation of Sections 8(b)(1)(A) and 8(b)(2) of the National Labor Relations Act by being a party to and by maintaining a Pension Fund, the Rules and Regulations for the administration of which provided pension credits as a preference to employees who were members of the Teamsters prior to January 1, 1937, as against employees who had not been members of the Union prior to that date.
After hearings, an Administrative Law Judge concluded that the record disclosed a per se violation of the Act. He also recommended that the Board issue a cease and desist order with a posting of the usual notices. But he also concluded, specifically, that Local 807 had “not engaged in any violation of the Act in the actual administration of the Fund”.
The Board adopted the findings and the conclusions of the Administrative Law Judge and issued its own cease and desist order. The Union was directed to refrain from participating in the pension program by allowing pension service credits arising out of union membership or any other discriminatory basis in violation of the Act so as to favor union members over nonunion employees employed under the same collective agreement or in the same collective-bargaining unit.
Our issue stems from certain language incorporated by the Trustees into Rules and Regulations of February 28, 1972, reading in pertinent part:
Section 2. Past Service
(a) It is recognized that it would be difficult for many, if not most, of the employees to establish their periods of Covered Employment prior to January 1, 1937. Consequently, anyone who was a member of Local 807 prior to the period commencing January 1, 1937 may, at the sole discretion of the Trustees, be given a year of Pension Credit for each year he was a member of Local 807 during this period. . Pension Credit shall also be granted for any period of time that an employee can prove that he worked in covered employment through employer records. (Emphasis added.)
It may readily be noticed that the Trustees were looking back some 35 years or more as they undertook evaluation of claims of pension credits. Each year of pension credit beyond 30 years was worth a substantial increment in benefits. Such an award obtained whether an applicant prior to January 1937 had been a member of a union or not, but evidence to establish eligibility quite properly was required. An applicant for pension benefits was required to fill out a form which included authorization to obtain Social Security information, but such data had not been available prior to January 1, 1937. Each applicant was bound to submit details which included his trucking-industry employment, his union initiation date and period of membership, if any, the name and address of his current employer and, in general, evidence pertinent to establish the applicant’s status prior to January 1, 1937. All evidentiary details were compiled and analyzed by the Fund’s administrative staff, and the applicant’s file thereafter was transmitted to the Fund’s Trustees for final determination.
As Section 2(a) supra noted, the Trustees recognized the difficulty confronting many if not most of such employees as they sought to establish their periods of covered employment prior to January 1, 1937.
Some employers had records reflecting the trucking-industry employment of a particular applicant prior to 1937. If so, Section 2(a) provided that Pension Credit “shall” be granted by the Trustees. Some employers, however, retained no such records that far back, indeed some earlier employers had gone out of business. Whether a pension claimant was or had been a nonunion employee or not, the Trustees were bound to evaluate the evidence, whatever it was and from whatever source derived. The administrative problem was alleviated in some measure, at least, if an applicant proffered evidence of pre-1937 union membership which the Trustees “at their sole discretion” were authorized to consider. If Section 2(a) had never been adopted, proof of pre-1937 union membership was some evidence of entitlement. Certainly such evidence created no “presumption” of covered employment.
The Administrative Law Judge analyzed the evidence with respect to pre1937 applications, some 32 in number. He noted that
each case appears to have been resolved on its own merits. It .turns out that the use of the initiation date benefits the union members. But it is not shown that such benefit is improper nor its use in making the pension credit grant improper.
There is no requirement that an applicant for a pension must be or have been a member of Local 807., Each claimant must establish his right to the satisfaction of the Trustees. We see no illegal discrimination in favor of employees who are represented by the Union for union and nonunion claimants participate in the Pension Fund on an equal basis.
Faced with the fact that there was no evidence to establish an instance of discrimination, the Board here has argued on brief that the challenged language makes it
reasonable to infer that current employees could conclude from the preference accorded pre-1937 union members in obtaining pension benefits now that it would be advantageous to become and remain union members in good standing with the expectation that their membership status may be similarly rewarded in the future. (Emphasis in the original.)
We reject the suggestion that it is “reasonable” to deduce that any “current employees”, union or nonunion, can assume a later amendment to Section 2(a) or anticipate its counterpart. For one thing, since 1937, Social Security records will have been compiled. The history of the administration of the Pension Fund belies a supposition that a discriminatory violation of the Act will be created. For another thing, it strains credulity that a trucking industry employee might be encouraged to join Local 807 in the expectation that some time, under circumstances not even apparent, much less real, some amendment of the Rules might provide evidence to establish his pension credit. The possibility of any employee even thinking of such an idea or acting upon it seems utterly remote and speculative. Surely we can not predicate a finding that a party is in violation of the law upon such a gossamer-like theory. The Board’s argument, supra, simply is not persuasive.
On this record we perceive no per se violation of the Act, either from the language of Section 2(a) or otherwise.
Enforcement denied.
. The Union and various trucking employers and employer associations had established the Fund in 1950.
. The Fund is administered by a Board of eight Trustees, four being designated by the empdoyers and four by the union. Each group of Trustees votes as a unit, with a majority of each unit being required for definitive action.
. Although not necessarily apropos in the present situation, we find ourselves reminded of Judge Medina’s observation in N.L.R.B. v. Miranda Fuel Co., Inc., 326 F.2d 172, 175 (2 CA 1963):
On the subject of fair and impartial representation the Board insists upon the per se approach. Like all cliches and short cuts in the law, designed to make life easy for the judicial officer who has to makq the decisions, this merely eliminates the thinking process necessary to get at the root of the matter.
. The Board seeks enforcement of that order ; the Union and the Pension Fund ask that it be set aside.
. The Administrative Law Judge in his adoption of that term had looked to the Board’s Becision and Order in the Nu-Car Carriers Case reported at 187 NLRB No. 117 (1071). There the Board liad invalidated as discriminatory in favor of Union members, regulatieras of the Fund which allowed Union members to prove entitlement to pension credits on the basis of “rebuttable presumption” that they were covered prior to 1952. That case upon review sub nom., Rosen v. N.L.R.B., 455 F.2d 615 (CA 3 1972), turned on evidence that the claimant, one Pagel, simply had not been employed prior to 1952 in a unit covered by a collective bargaining agreement. The Rosen court noted that just as here, there was no evidence that Union members not otherwise qualified received pre-1952 pension credits, nor was there evidence that Union employees situated similarly to Mr. Pagel received such pensions. Id. 455 F.2d 618.
. Cf. Rosen v. N.L.R.B., supra, n. 5, 455 F.2d at 618.
. We realize that the construction put upon a statute by the agency charged with its administration is ordinarily entitled to deference if that construction has a reasonable basis in law, Volkswagenwerk v. FMC, 390 U.S. 261, 272, 88 S.Ct. 929, 19 L.Ed.2d 1090 (1968). But, by the same tokeir, courts are not obliged to stand aside and rubberstamp the affirmance of an administrative decision under the circumstances there noted. Id.
Compare the observations of Mr. Justice Douglas in Teamsters Local v. Labor Board, 365 U.S. 667, 676, 81 S.Ct. 835, 840, 6 L.Ed.2d 11 (1961). “We cannot assume that a union conducts its operations in violation of law or that the parties to this contract did not intend to adhere to its express language. Yet we would have to make those assumptions to agree with the Board that it is reasonable to infer the union will act discriminatorily”. (Emphasis added.)
Although the Board liad found a per se violation, 365 U.S. at 669, 81 S.Ct. 835, the Court concluded that the Board is “confined to determining whether discrimination has in fact been practiced”. Id., 677, 81 S.Ct. 841.
Here the Board had adopted the conclusion of the Administrative Law Judge that Local 807 “has not engaged in any violation of the Act in the actual administration of the Fund”. Cf. Rosen v. N.L.R.B., supra, 455 F.2d at 618; Local 138, Internat’l U. of Operating Engineers v. N.L.R.B., 321 F.2d 130, 133-134 (CA 2 1963). | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)". Your task is to determine which category of federal government agencies and activities best describes this litigant. | This question concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)". Which category of federal government agencies and activities best describes this litigant? | [
"cabinet level department",
"courts or legislative",
"agency whose first word is \"federal\"",
"other agency, beginning with \"A\" thru \"E\"",
"other agency, beginning with \"F\" thru \"N\"",
"other agency, beginning with \"O\" thru \"R\"",
"other agency, beginning with \"S\" thru \"Z\"",
"Distric of Columbia",
"other, not listed, not able to classify"
] | [
4
] | songer |
DOHERTY v. BARTLETT et al.
No. 3052.
Circuit Court of Appeals, First Circuit.
Feb. 12, 1936.
MORTON, Circuit Judge, dissenting in part.
Robert J. Peaslee, of Concord, N. H., and Robert G. Dodge, of Boston, Mass. (Franklin Hollis, of Concord, N. H., on the brief), for appellant.
George L. Dillaway, of Boston, Mass. (Oscar F. Moreau, of Manchester, N. PI., and Allan Robinson, of Boston, Mass., on the brief), for appellees.
Before BINGHAM and MORTON, Circuit Judges, and PF.TERS, District Judge.
Rehearing denied — F. (2d) ——.
PETERS, District Judge.
■ These are separate actions brought in the District Court of New Hampshire for money had and received by Fred G. Bartlett, Leon S. Knowlton, and Joseph O. Tremblay, all of Manchester in the state of New Hampshire, against Henry L. Doher‘ty of the city of New York and state of New York, doing business under the name and style of Henry L. Doherty & Co. In each action the plaintiff seeks to recover money paid for stocks, which it is alleged were illegally sold in New Flampshirc in violation of chapter 202 of the Session Laws of 1917, entitled “An Act to protect the public against the sale of worthless securities.”
The District Court found for the plaintiff in each case, and the defendant appealed. The .cases were heard together in the District Court, and may be disposed of in this court in one opinion.
The defendant in each case filed a motion to dismiss on the ground that there was no valid service made on him. Service was made on the insurance commissioner of New Hampshire during a time when the defendant had consented to this form of service. The defendant also filed a demurrer to plaintiff’s declaration in each case, claiming that the statute upon which the plaintiff relied was unconstitutional. The motion to dismiss on the ground of failure to make proper service has been abandoned, and, as counsel for the defendant in their brief do not argue the uncoustitutionality of the New Hampshire act, we assume that they have abandoned this contention, as well they might, in view of the decisions of Hall v. Geiger-Jones Co., 242 U.S. 539, 551, 37 S.Ct. 217, 61 L.Ed. 480, L.R.A.1917F, 514, Ann.Cas.1917C, 643, Caldwell v. Sioux Falls Stock Yards Co., 242 U.S. 559, 37 S.Ct. 224, 61 L.Ed. 493, and Merrick et al. v. PTalsey & Co., 242 U. S. 568, 37 S.Ct. 227, 61 L.Ed. 498.
The facts relating to the purchase of the stocks as found by the District Court are as follows: On February 12, 1929, the plaintiff Knowlton gave the defendant’s agent, L. O. Parent, who solicited the sale in Manchester, N. H., an order for 20 shares of Cities Service common stock at 95%, an order for 5 shares of common stock at 99, and a check for $2,402.50, as evidenced by receipt to that effect signed “Henry L. Doherty & Company, L. O. Parent, agent.”
On July 26, 1929, the plaintiff Knowlton gave Parent an order for 200 shares of Cities Service common stock. The amount paid was $8,550. The certificates of stock were shipped from the New York office of the defendant, sight draft attached, to the ' Amoskeag Savings Bank at Manchester, N. H. This was done by direction of the plaintiff.
On or about July 10, 1929, the plaintiff Knowlton gave Parent an order for 50 shares of Arkansas Natural Gas Corporation, the purchase price of which was $525; and on or about July 12, 1929, he gave Parent another order for 50 shares of Arkansas Natural Gas Corporation, the purchase price of which was $600.
Knowlton has received on the above-mentioned stock the sum of $345.67 in cash dividend's, which, in accordance with plaintiff’s amended specifications, has been credited to the defendant. He has also received some stock dividends. The stock purchased and the stock dividends Knowlton is willing and ready to surrender.
The plaintiff Tremblay, on February 11, 1929, gave Parent a check for $937.50 for 10 shares of Cities Service' common stock. Parent forwarded the order to the defendant in New York.
On July 27, 1929, Tremblay gave Parent an order’for 50 shares of Cities Service stock and a check for $2,275, and took Parent’s receipt for the money. Parent forwarded the order and check to the defendant’s Boston office. A certificate for the 50 shares was forwarded to Tremblay at Manchester. Cash dividends have been paid on the 50 shares and credited in plaintiff’s amended specifications to the amount of $90.31. The plaintiff also received stock dividends and is ready and willing to surrender the stock purchased and the stock dividends received thereon.
In each of the above transactions the orders for the purchase of stock were solicited by, and given to, Parent at Manchester in New Hampshire, and in every instance the certificates of stock were forwarded from the New York office or through the Boston office to the plaintiffs in New Hampshire. Each transaction was completed in 1929. A printed form unsigned by Henry L. Doherty, which contained the' words, “Sale made to you on (date) we confirm,” was issued from the New York office, or in some instances from the Boston office, and in each instance a stamp for the transfer tax was affixed in New York to the several certificates of stock before delivery. The date of the sale referred to as “confirmed” was the date on which Parent took the order.
On November 16, 1929, Fred G. Bartlett bought through agent Parent 25 shares of Cities Service stock and paid therefor the sum of $750. This transaction, however, differs from the others and disclosed the following facts: Bartlett called the Boston office of H. L. Doherty & Co. by telephone for information concerning some stock previously purchased. The call was referred to Parent, who was then present in the Boston office. In the conversation over the telephone, Parent urged Bartlett to buy more stock, and the above-mentioned 25 shares were then ordered. A check was mailed by Bartlett to the Boston office, and the stock was delivered and accepted by Bartlett in New Hampshire in November, 1929, being sent by registered mail. As in the case of sales with Knowlton and Tremblay, the stamps for the transfer tax were affixed to the certificates before delivery.
Sections 6, 17, 18, and 38 of chapter 284 of the Public Laws of New Hampshire provide as follows:
“6. No dealer in securities shall, in this state, by direct solicitation or through agents or salesmen, or by letter, circular or advertising sell, offer for sale or invite offers for or inquiries about securities unless registered as a dealer under the provisions of this chapter.”
“17. No salesman or agent shall in this state, in behalf of any dealer, sell, offer for sale or invite offers for_or inquiries about securities unless registered as a ■salesman or agent of such dealer under the provisions of this chapter.”
“18. Upon written application by a registered dealer, accompanied by a registration fee of ten dollars for each person, the commissioner shall, if he is satisfied that they are suitable persons, register, as agents or salesmen of such dealer, such persons as the dealer may request.”
“38. Whoever violates any provision of this chapter, or knowingly files with the commissioner or furnishes to him any false or misleading statements or information, shall be fined not more than two thousand dollars, or imprisoned not more than six months, or both.”
It is admitted that, while Henry L, Doherty was duly registered in New Hampshire as a dealer during the year 1929, Parent, who solicited each of the plaintiffs Knowlton and Tremblay in New Hampshire was not registered by the defendant in New Hampshire under section 18 of the act as a salesman or agent of the defendant during the year 1929, when all the sales here involved were made. The names of two agents other than Parent were forwarded by the defendant for registration in November, 1928, for the year 1929, in accordance with the provisions of section 18 of the act, together with the application of Henry L. Doherty & Co. as a dealer under section 6, with the proper fees. Later, in November, the application of one of the agents was withdrawn, but the fee, in accordance with practice in the insurance commissioner’s office, was not returned.
No application was ever made by the defendant for the renewal of the registration of Parent as a salesman or agent in New Plampshire for the year 1929. He was for a part of the year 1928 and the first half of the year 1929 working from the New York office, and was later transferred to the Boston office, which may have accounted for the failure to renew his registration as a salesman in New Hampshire during the year 1929.
The District Court was not obliged to consider, and it has no bearing on the validity of the sales, whether he was qualified to register, or whether the failure of the defendant to register him as his agent for that year was due to an oversight. The statute makes no exceptions in such cases. Chattanooga National Building & Loan Association v. Denson, 189 U.S. 408, 416, 23 S.Ct. 630, 47 L.Ed. 870; Johnson v. Railroad, 83 N.H. 350, 362, 143 A. 516, 61 A.L.R. 1178. Whatever may have been the reason, he was not registered as a salesman or agent in New Hampshire during the year in question, and any sales, solicitations, or offers of sale or transactions by him in connection with the sale of stocks for the defendant during that year were severely penalized under section 38 of the New Hampshire statute.
The District Court found as facts that the defendant knew or should have known that no registration for Parent as the defendant’s salesman in New Hampshire had been applied for or had been issued, and that no payment therefor had been made; that the defendant, Henry L. Doherty, knew the requirements of the New Hampshire laws respecting the sale of securities, because in previous years, with respect to Parent and other agents, he had complied with the same.
While chapter 284 of the Public Laws of New Hampshire does not in terms declare all contracts made in violation of this chapter to be void, it is the general rule that, where a penalty is imposed upon one of the parties participating in such bargains or sales, the transaction is illegal and void. 6 R.C.L. p. 702, § 108; Knee-land v. Emerton, 280 Mass. 371, 380, 183 N.E. 155, 87 A.L.R. 1; Randall v. Tuell, 89 Me. 443, 446, 36 A. 910, 38 L.R.A. 143; Lewis v. Welch, 14 N.H. 294; Albertson & Co. v. Shenton, 78 N.H. 216, 98 A. 516.
Section 580 of the Restatement of the Law on Contracts provides that:
(2) Legislative intent to prohibit the formation of a bargain, or an act essential for its performance, may be manifested by
(b) Making the formation of the bargain or the performance thereof a crime, or
(c) Imposing a penalty for the formation of the bargain or for doing any act that is essential for the performance thereof, or
(e) Other terms of a statute interpreted in the light of the purpose of its enactment.
While the transactions took place in 1929, these actions were not brought until April 12, 1934. No evidence was introduced as to when the plaintiffs first learned that Parent was not duly registered as a salesman of the defendant during the year 1929.
Many exceptions were taken at the trial to the rulings of the District Judge, and assignments of error were filed based on the exceptions. The defendant, however, now relics only on the following:
“(1) The plaintiffs are in no event entitled to rescind sales made so long before the attempted rescission.”
“(2) The fact that Parent was not registered does not entitle the plaintiff to recover.”
“(3) The violation of the New Hampshire statute can in no event operate to invalidate the completed sale.”
The defendant’s first assignment of error on which he relies, viz. that the plaintiffs are in no event entitled to rescind sales “made so long before the attempted rescission,” is based on estoppel or ratification. He contends that one entitled to rescind a contract must exercise the right within a reasonable time after he learns of the facts entitling him to that right; otherwise he cannot recover.
This is true as to voidable contract's or where a contract is void as between the parties, and in some states the usual conditions of rescission are applied, as essential to maintenance of an action, even in cases where the contract is void as against public policy, viz. that the party seeking to recover must first return any consideration received and any benefit derived therefrom before bringing action, Cummings v. Hotchkin Co. (Mass.) 197 N.E. 473; Knee-land v. Emerton, 280 Mass. 371, 183 N.E. 155, 87 A.L.R. 1; but under the decisions in New Hampshire it is sufficient if he offers to return the stocks and any benefits derived therefrom during the trial and before judgment, Mears v. Holmes, 81 N.H. 401, 128 A. 9; Kenalos v. Greene Co., 81 N.H. 426, 128 A. 335. The weight of authority and reason appears to hold no rescission is essential to the right of recovery where the contract is void. Where a transaction is void as against public policy, there is nothing to rescind. Day v. McAllister, 15 Gray (Mass.) 433, 434. Any agreement in the form of a contract under such circumstances has no existence in the eyes of the law. The law annuls it. Property or money held under such a transaction by one of the parties to such an agreement may be recovered in New Hampshire by the other party, if not in pari delicto, without offering to rescind, if not barred by the statute of limitations, and he offers to restore any consideration received by him during the trial and before judgment is entered. Mears v. Holmes, supra; Kenalos v. Greene Co., supra.
The bringing of the action amounts to a repudiation of the transaction as far as any rescission is required. At least, in New Hampshire a tender of the property received under the void contract is sufficient if made at the time of trial, which was done in these cases. The defendant did not plead estoppel, nor does the record disclose facts that would estop the plaintiffs, Knowlton and Tremblay, from recovery.
In Karamanou v. Greene Co., 80 N.H. 420, 124 A. 373, 374, the court said:
“ ‘Where contracts or transactions are prohibited by positive statutes for the sake of protecting one set of men from another set of men — the one, from their situation and condition, being liable to be oppressed or imposed upon by the other — there the parties are not in pari delicto; and, in furtherance of these statutes, the person injured, after the transaction is finished and completed, may bring his action and defeat the contract.’ Lord Mansfield, Browning v. Morris, 2 Cowp. 790, quoted in Edgerly v. Hale, 71 N.H. 138, 147, 51 A. 679.- The statute under consideration was passed for the protection of men such as the plaintiff. The sale only is -penalized, not the purchase. If the plaintiff has paid money or other thing to the defendant under the prohibited contract, the defendant cannot set up a title to such money or thing under the contract made in violation of law, and the plaintiff will be entitled to recover without proof of the defendant’s bad faith or the lack of value in the securities if he returns them.”
In Kenalos v. Greene Co., 81 N.H. 426, 128 A. 335, 336, the court said:
“The exception to the refusal to direct a verdict for the defendant in each case on the grounds common to all of them, that Karamanou v. Greene Co., 80 N.H. 420, 124 A. 373, should be overruled, that no plaintiff showed any damage sustained in the purchase of his stock, and that no plaintiff before bringing suit made a tender of his stock to the defendant either with or without the requirement of returning his payment at the time, is also to be overruled. No reason being presented or suggesting itself why Karamanou v. Greene Co. should be overruled, it is affirmed. It holds it to be immaterial what value the securities have when bought or later. While it does not go so far as to hold that a plaintiff may recover if he does not return the securities, it does not hold that a tender of them must be made before suit is brought. It is now the law that if a rescinding party does what he equitably should, it is a sufficient substitute for restoring the previous situation. Mears v. Holmes, 81 N.H. 401, 128 A. 9, and cases cited. Since no injustice is done the defendant if it receives back the stocks by the time it satisfies the judgments, and since there is adequate procedure to secure their return on such a basis, tender, prior to bringing suit or prior to or during the trial, is not equitably required. An order deferring entry of judgments until the stocks duly assigned are deposited gives the defendant all needed protection in such respect.”
In Hears v. Holmes, 81 N.H. 401, 402, 128 A. 9, the court said:
“The position now relied upon is that if the plaintiff elected to rescind the contract after the defendant denied its existence, he must return what he had received before he could sue to recover what he had paid. ‘While by strict common-law rule one could not rescind save by putting the other party in statu quo, the theory has been much broken in upon since the distinction between legal and equitable relief has come to be largely disregarded; and the rule now in this jurisdiction is that the rescinding party is only required “to do what equitably he ought to do.” Mead v. Welch, 67 N.H. 341, 342 [39 A. 970]; Thorpe v. Packard, 73 N.H. 235 [60 A. 432], See, also, Sipola v. Winship, 74 N.H. 240 [66 A. 962].’ Page Belting Co. v. Prince, 77 N.H. 309, 313, 91 A. 961, 963.”
This appears to be the law in other jurisdictions.
In Mary A. Colby v. Title Insurance & Trust Co., 160 Cal. 632, 644, 117 P. 913, 918, 35 L.R.A. (N.S.) 813, Ann.Cas.1913A, 515, the California Supreme Court said:
“But the doctrine of estoppel by conduct or by laches, or even ratification, has no application to a contract or instrument which is void because it violates an express mandate of the law or the dictates of public policy. Such a contract has no existence whatever. It has no legal entity for any purpose, and neither action nor inaction of a party to it can validate it; and no conduct of a party to it can be invoked as an estoppel against asserting its invalidity. The authorities are uniformly agreed on this principle, and the following cases, out of a number, are selected on this point, because they involve contracts which, like the instruments alleged by plaintiff to have been executed for an illegal consideration, were declared void as against public policy, and where it was held that the plea of estoppel as against such contracts could not be asserted. Brown v. First Nat. Bank, 137 Ind. 655, 37 N.E. 158, 24 L.R.A. 206; Langan v. Sankey, 55 Iowa, 52, 7 N.W. 393; Wheeler v. Wheeler, 5 Lans.(N.Y.) 355; Robinson v. Patterson, 71 Mich. 141, 39 N.W. 21; Hardy v. Smith, 136 Mass. 328; Stanard v. Sampson, 23 Old. 13, 99 P. 796; McCormick Harvesting Mach. Co. v. Miller, 54 Neb. 644, 74 N.W. 1061; Henry v. State Bank of Laurens, etc., 131 Iowa, 97, 107 N.W. 1034.”
In Brown v. First National Bank, 137 Ind. 655, 672, 37 N.E. 158, 164, 24 L.R.A. 206, the court said:
“The contention of counsel that the appellee, having received the benefit of the contract, is estopped to defend against it on the principle that a corporation which has such benefit is estopped to assert that it had no power to contract, is unsound, as applied to the case at bar. The rule suggested applies to cases where private rights alone are concerned, while in contracts void as against public policy the public is interested. The public concern cannot be made a matter of private bargain. * * * It cannot be rendered valid by invoking the doctrine of estoppel.”
In Wheeler v. Wheeler, 5 Lans.(N.Y.) 355, 357, the court said:
“The defendant’s counsel contends that, even if the agreement was void, as against public policy, still it was competent for the parties to ratify it after the sale and purchase; and that the plaintiff having received from the defendant his share of the purchase price, or a portion thereof, is es-topped from alleging the illegality of the agreement until he refunds, or offers to refund, the money received. But the principle of estoppel does not apply to an agreement which the law holds to be void, as against public policy. The ratification of such a contract is as nugatory as the contract itself.”
In Rhines v. Skinner Packing Co., 108 Neb. 105, 108, 187 N.W. 874, 875, the court said:
“The sale, if a Missouri contract, seems to be void when tested by the public policy of Missouri, as declared by the judiciary of that state in enforcing statutes of this kind. Booth v. Scott, 276 Mo. 1, 205 S.W. 633; Amalgamated Zinc & Lead Co. v. Bay State Zinc Mining Co., 221 Mo. 7, 120 S.W. 31, 23 L.R.A. (N.S.) 492. Many other courts have taken the same view of similar statutes. 14A C.J. 1296, sec. 4004, note 95; Edward v. Ioor, 205 Mich. 617, 172 N.W. 620, note in 15 A.L.R. 256, 262.
“To defeat the action defendant argues that the sale was a Nebraska contract unaffected by the laws of Missouri. In this connection it is asserted that the stock was obtained in Omaha, Nebraska, that the note for the purchase price was accepted there, and that it was there the final act of approving the sale was performed. This position is clearly untenable. Defendant sent its agents to Excelsior Springs, Missouri, to negotiate the sale. The representations and inducements resulting in the purchase were made there. It was. there that the subscription for the stock and the purchase money note were signed. It was there the stock was received by plaintiff and accepted by him. If the concluding act in the negotiations is an important factor in determining the situs, as argued by defendant, the delivery in Missouri and the acceptance of the stock there should not be ignored. Defendant cannot evade the consequence of its unlawful acts in Missouri on this ground or thus take from plaintiff the protection of the Missouri statute. The mere attempt of defendant to make the sale in Missouri, without complying with the Missouri statute, was an unlawful act culminating in the void contract which plaintiff is attempting to rescind. The nonsuit cannot be justified on the ground that the sale was a Nebraska contract. It was a Missouri transaction and should be litigated as such. * * *
“A proper tender was made at the trial and, if the plea of tender is wanting in any respect, the petition is still amendable to conform to the proof — an unnecessary formality under the circumstances at this stage of the litigation. In any event a timely, perfect tender in every respect would have been unavailing. It would have been rejected and the attitude of defendant so shows.”
In Westerlund v. Black Bear Mining Co. (C.C.A.) 203 F. 599, 611, the court said:
“Courts take judicial cognizance of the fact that Legislatures use the word ‘void’ in statutes in the sense of utterly void so as to be incapable of ratification, and in the sense of voidable by those alone whose rights are infringed without express discrimination, so that resort must be had to settled rules for the interpretation of statutes in each case to determine in which sense the Legislature intended to use it. One of these rules is that an act declared to be void by statute which is malum in se or against public policy is utterly void and incapable of ratification, but an act or contract so declared void, which is neither wrong in itself nor against public policy, but which has been declared void for the protection or benefit of a certain party, or class of parties, is voidable only and is capable of ratification by the acts or silence of the beneficiary or beneficiaries.”
In Cecil De Mille Productions v. Woolery (C.C.A.) 61 F.(2d) 45, 49, the court quoted with approval the following from Tatterson v. Kehrlein et al., 88 Cal.App. 34, 48, 49, 263 P. 285:
“The Corporate Securities Act was passed for the protection of the public and ‘every case from every court recognizes that when a statute has been made for the protection of the public a contract in violation of its provisions is void.’ Payne v. DeVaughn, 77 Cal.App. 399, 403, 246 P. 1069, 1071. * * * ‘This is one of the distinctions between void and voidable contracts. The doctrines of estoppel by contract and ratification have no application to a contract which is void because it violates an express mandate of the law or the dictates of public policy. Such a contract has no legal existence for any purpose and neither action nor inaction of a party to it can validate it and no conduct of a party to it can be invoked as an estoppel against asserting its invalidity.’ ”
Also see Langan v. Sankey, 55 Iowa, 52, 7 N.W. 393; Cross v. Bell, 34 N.H. 82; Randall v. Tuell, 89 Me. 443, 446, 447, 36 A. 910, 38 L.R.A. 143; First State Bank of Pineville v. Wilson, 246 Ky. 635, 55 S.W.(2d) 657; Allen v. Deming, 14 N.H. 133, 40 Am.Dec. 179; Garey v. Huff Co., 135 Misc. 138, 238 N.Y.S. 38.
In the cases of McCallum v. Mclsaac, 159 Tenn. 655, 21 S.W.(2d) 392, and in Miller v. Stuart, 69 Utah, 250, 253 P. 900, cited by the defendant, the language of the statute in these states differs from that of New Hampshire, and these cases do not support the contention of the defendant.
If, as the New Hampshire decisions hold, a party injured is not required to tender back the property or consideration received, before bringing suit to recover, and, in case of a contract prohibited by statute and void as against public policy, the principle of estoppel or ratification does not apply to such a transaction, we think the plaintiffs were within their rights in bringing these actions within the period of limitation of such actions. 1 C.J. § 400, p. 1153.
With reference to the second assignment of error ruled on, that “The fact that Parent was not registered does not entitle the plaintiff to recover,” counsel for defendant urges that the New Hampshire decision in Karamanou v. Greene Co., supra, did not go so far as to hold that a sale of stock by an unregistered salesman entitles the purchaser to recover the amount paid.
The Karamanou Case was a sale by an unlicensed dealer and was affirmed in the Kenalos Case. It matters not whether the unlawful sale is made by the dealer, or the foundations of the sale are entered into by an unregistered salesman, there is a violation of the act, and a right of recovery of the purchase price clearly results from the decisions in these two cases. It was so held in Kneeland v. Emerton, 280 Mass. 371, 380, 183 N.E. 155, 87 A.L.R. 1. See Albertson & Co. v. Shenton, 78 N.H. 216, 98 A. 516.
The purpose of the so-called Blue Sky Laws is to prohibit sales or offers to sell or solicitation of sales of securities, except by a registered dealer or salesman. If an unregistered salesman or agent sold or took orders for stock in violation of such statutes and his illegal acts cannot be ratified as a valid contract by his principal, a purchaser, on offering to return his stock and any benefit received therefrom, is entitled to recover the purchase price. It is quite evident, too, in these cases that a prior offer to return would have been futile, which the law does not require.
If Parent had authority to make a binding contract, he undertook in each case to make one in New Hampshire; but, if he made a contract for the sale of stocks subject to the approval of his principal, his acts as agent, being contrary to the laws of New Hampshire and against the public policy of that state, were not capable of ratification by his principal. The printed slips admitted as exhibits show that it was “sales” made by Parent in New Hampshire which the defendant undertook to confirm. They did not purport to constitute a new contract of sale independent of the acts of Parent, but to confirm his acts, which the authorities agree were not capable of ratification. 13 C.J. §§ 452, 453, 454, pp. 506, 507.
“As the contract was not a later independent act, but grew immediately out of the illegal solicitation, and was part of the same transaction, being inseparably tied to it by the use of the application blank illegally distributed, the contract was tainted with the illegality. Armstrong v. Toler, 11 Wheat. 258, 6 L.Ed. 468.” Bothwell v. Buckbee-Mears Co., 275 U.S. 274, 277, 48 S.Ct. 124, 125, 72 L.Ed. 277.
Acts by an agent contrary to the public policy of one state cannot be made the basis of a valid contract by ratification in another state. The authorities, supra, support this view, and we think are in accordance with reason and the purpose and intent of statutes of this nature. Otherwise there is no prohibition against a salesman or agent of a dealer in one state using the high pressure salesmanship of Parent and advising prospective purchasers, who are without adequate knowledge of the value of the stocks offered, to borrow and buy all they could. These statutes were enacted to prevent the flooding of a state with worthless stocks, or stocks of doubtful value, which these proved to be. If such statutes can be thus evaded, the intent of the Legislature passing them is easily circumvented, and the purpose of such legislation rendered ineffective as against dealers in worthless securities.
The defendant relies on the case of Doherty v. McAuliffe (C.C.A.) 74 F.(2d) 800, but in this case the dealer and broker were both registered and could legally sell the stock. The only objection was that the installment contract of sale was not approved by the commission as provided by the statute. The contract had been completed. The violation of the statute in this case did not enter into the essence of the contract of sale and, when completed, was not within the prohibition of the statute.
As to the third assignment of error ruled on, that “the violation of the New Hampshire statute cannot operate to invalidate a completed sale”: If the-contract of sale is void and cannot be ratified, there is no valid completed sale, and the plaintiffs are not barred from maintaining an action for money had and received and recovering the consideration paid. The entire transaction is void. “At common law, ‘a right cannot be founded upon a violation of law, and hence no legal right can grow out of a contract promoting or intending to promote such a violation.’ ”Karamanou v. Greene Co., supra, 80 N.H. 420, at page 422, 124 A. 373, 374; Both-well v. Buckbee-Mears Co., supra; Edgerly v. Hale, 71 N.H. 138, 51 A. 679. When a plaintiff has paid money or other thing to the defendant under a prohibited contract, the defendant cannot set up title to such money or thing under a contract made in violation of law, and the plaintiff is not required to prove the defendant’s bad faith or lack of value in the securities.' In furtherance of such statutes as that of New Hampshire, the person injured may bring his action after the transaction is completed and defeat the same. Karamanou v. Greene Co., supra, 80 N.H. 420, at page 423, 124 A. 373; Bauer v. Bond & Goodwin, Inc., 285 Mass. 117, 120, 188 N.E. 708.
The foregoing applies to the actions brought by the plaintiffs Knowlton and Tremblay, and as to them the judgment of the District Court must be affirmed.
As to the action brought by Bartlett, the facts are different. The sale of stock in this instance resulted from a telephone communication by him from Manchester, N. H., with the Boston office concerning another and prior purchase of stock. This call was turned over to Parent, who, during the conversation, prevailed on Bartlett to purchase more Cities Service stock. The solicitation and offer to sell the stock was made by Parent in Massachusetts, and, while the consummation of the transaction was the acceptance by telephone by Bartlett in Manchester, Restatement of the Conflict of Laws, § 325, we do not think the effect of this conference over the telephone was a violation of the New Hampshire statute. No act of Parent, either of solicitation or offer of sale, took place in New Hampshire. No contract of sale, even if Parent was authorized to make a contract of sale, was entered into by him while in New Hampshire. He violated no provision of the-New Plampshire law by soliciting a sale in Massachusetts, where he was duly registered and authorized to solicit a sale of securities as a representative of the defendant, Doherty. All acts in New Hampshire in completing a sale in this case were by the plaintiff and not by the defendant or his agent, Parent.
The entry in the Knowlton Case and in the Tremblay Case will be: Judgment of the District Court is affirmed, with costs.
The entry in the Bartlett Case will be: Judgment of the District Court reversed; judgment to be entered for the defendant, with costs.
MORTON, Circuit Judge (dissenting).
I regret that in the Knowlton and Tremblay Cases I am unable to agree. The decision seems to me inconsistent with the view which we took of a very similar question in Doherty v. McAuliffe (C.C.A.) 74 F.(2d) 800; and I do not see any difference between the law of Massachusetts and of New Hampshire on this point which requires a different result. Indeed, a Massachusetts case, Kneeland v. Emerton, is relied on in the majority opinion. The rule laid down, that a contract negotiated or arranged by an unlicensed agent is utterly void, is at variance with the decisions which we referred to and approved in the McAuliffe Case and with the leading case, Bowditch v. Insurance Co., 141 Mass. 292, 4 N.E. 798, 55 Am.Rep. 474. If consistently applied, it will lead, as it does in this case, to very unjust results. | What follows is an opinion from a United States Court of Appeals.
Your task is to determine the disposition by the court of appeals of the decision of the court or agency below; i.e., how the decision below is "treated" by the appeals court. That is, the basic outcome of the case for the litigants, indicating whether the appellant or respondent "won" in the court of appeals. | What is the disposition by the court of appeals of the decision of the court or agency below? | [
"stay, petition, or motion granted",
"affirmed; or affirmed and petition denied",
"reversed (include reversed & vacated)",
"reversed and remanded (or just remanded)",
"vacated and remanded (also set aside & remanded; modified and remanded)",
"affirmed in part and reversed in part (or modified or affirmed and modified)",
"affirmed in part, reversed in part, and remanded; affirmed in part, vacated in part, and remanded",
"vacated",
"petition denied or appeal dismissed",
"certification to another court",
"not ascertained"
] | [
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Sylvester LOCKHART, Jr., Appellant, v. Gabriel D’URSO, Deputy Court Administrator, Quarter Sessions Court, Philadelphia County, Michael J. Rotko, Assistant District Attorney, Philadelphia County, Pennsylvania, Louis J. Amarando, Clerk of Quarter Sessions Courts, Philadelphia County, Pa., Charles A. Hoenstine, Prothonotary of Superior Court, of Pennsylvania, and George W. Dunn, Deputy Prothonotary of Superior Court of Pennsylvania.
No. 17389.
United States Court of Appeals Third Circuit.
Submitted on Briefs Feb. 6, 1969.
Decided March 11, 1969.
Sylvester Lockhart, Jr., pro se.
Robert Cox, Asst. Dist. Atty., Philadelphia, Pa., for Michael Rotko.
Stanley Asher Winikoff, Deputy Dist. Atty., Harrisburg, Pa., for Hoenstine and Dunn (William C. Sennett, Atty. Gen., Harrisburg, Pa., on the brief).
Murray C. Goldman, Philadelphia, Pa., for Louis J. Amarando.
Before KALODNER, GANEY and SEITZ, Circuit Judges.
OPINION OF THE COURT
PER CURIAM.
Plaintiff below appeals from an order of the district court denying him the right to prosecute his civil rights action in forma pauperis.
The district court denied plaintiff’s request to proceed in forma pauperis on the ground that the action was “plainly without merit”. However, when plaintiff appealed such denial the district court granted him leave to prosecute his appeal in forma pauperis, stating that it was doing so because it could not say that his claim was entirely frivolous. This latter evaluation of the complaint by the district court, without more, requires a reversal of the denial of plaintiff’s right to prosecute his civil rights action in the district court in for-ma pauperis. While there may be ex-1 treme circumstances where such a right I should be denied for plain lack of merit, I we think that, particularly in pro sel cases, the right to proceed in forma pau-j peris should generally be granted where the required affidavit of poverty is filed. This approach minimizes, to some extern, disparity in treatment based on economic circumstances. An attack on the truth of such affidavit or the sufficiency of the complaint should be left for appropriate disposition after service has been made on the defendants. Compare Jordan v. County of Montgomery, Pa. et al., 404 F.2d 747 (3rd Cir. 1969).
The order of the district court of May 7, 1968, in district court civil action No. 68-659 will therefore be reversed and the matter remanded for the entry of an order granting the plaintiff leave to prosecute that action in forma pauperis but without prejudice to the right of defendants, after service, to attack either the truthfulness of the allegations of plaintiff’s affidavit or the sufficiency of his complaint.
KALODNER, Circuit Judge, joins in the result. | 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. | What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number. | [] | [
1
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PAYMER v. COMMISSIONER OF INTERNAL REVENUE (two cases). WESTRICH REALTY CORPORATION et al. v. SAME. RAYMEP REALTY CORPORATION, Inc., et al. v. SAME.
Nos. 17-20.
Circuit Court of Appeals, Second Circuit
July 2, 1945.
Sidney Paymer, of Jamaica, N. Y., for petitioners.
Samuel O. Clark, Jr., Asst. Atty. Gen., and Sewall Key, Robert N. Anderson, and S. Dee Hanson, Sp. Asst, to Atty. Gen., for respondent.
Before L. HAND, SWAN, and CHASE, Circuit Judges.
CHASE, Circuit Judge.
These four petitions, which were consolidated for hearing, require us to decide whether the 1938 net income of certain real estate was taxable to the petitioning corporations each of whom held the title to a part of it, or to the petitioning individuals who owned all the stock of the two corporations. And, if the corporations are taxable on the income, whether their failure to file income and excess profits returns made them liable for a penalty. The Commissioner determined that the corporations were taxable and also that the individuals, to whom the income was paid directly by the lessees of the property, were taxable on the amounts each received on the theory that what was done was the equivalent of dividend distributions by the corporations. He also assessed a penalty against each corporation. The Tax Court affirmed.
The individual petitioners are two brothers, who have been in partnership for many years under the name of Paymer Bros., owning partnership property which has in part been real estate that they improved and managed. Because Samuel had become the co-signer on a note and the guarantor of an account both of which were overdue in 1932, it was then thought that he might be sued by creditors and the partnership property attached. To avoid that, if possible, the partners in that year organized Raymep Realty Corp., Inc. and Westrich Realty Corp., two New York corporations which were given broad powers to own, manage and dispose of real estate and conveyed to each of them a parcel of income-producing real estate in New York City. The conveyance to Raymep was in 1932 and was made directly by the partners. That to Westrich was conveyed first by the partners to Paymer Bros. Realty Corp. Inc., a corporation wholly owned by them, and was then by it deeded to Westrich. In each instance, each of the two partners received half of the stock of the grantee in exchange for the property. The minutes of a meeting of directors and stockholders of each grantee held about the time the property was deeded to it contain the following statement:
“The said conveyance was and is made with the express understanding that the corporation is only to hold title to the property, the beneficial interest and profits to be in the individual stockholders and the management and control of the property to be exclusively theirs. It is understood and agreed that this corporation was only organized for the convenience of the shareholders in the management thereof.”-
After these meetings neither corporate petitioner held any others. Neither ever elected any officers or directors after Samuel was elected president and Joseph treasurer at the organization meeting, ever had any office or bank account, or collected any income. The two partners managed the real estate conveyed as above and collected the income, paid the expenses, deposited the money received in the bank account of Paymer Bros., and used the net profits of the real estate as they pleased, treating that property as the partnership property it had formerly been. The leases existing on the real estate when the .conveyances were made were not assigned to the corporations and nothing was done by Westrich in respect to the property held in its name. That is not true, however, as to Raymep for a loan of $50,000 was obtained by it in 1938 and as part security for the loan it assigned to the lender all the lessor’s rights, profits and interest in two leases on the property and covenanted that they were in full force and effect and that it was the sole lessor. Capital stock tax returns were filed by both Raymep and Westrich for the fiscal year ended June 30, 1938. During 1938 the two partners received gross rentals amounting to $18,999.86 from the property to which Raymep held the title and $3300. from that whose title was held by Westrich.
The petitioners, acting on the advice of their accountant, included the 1938 income from the property held by these corporations in their own partnership information return for that year, in which they also included the incomes and expenses of two other corporations wholly owned by them. The net income so reported was treated as the net income of the partners in their returns.
The petitioners now contend that Raymep and Westrich were mere “dummies” which held the legal title to property owned by the two individual petitioners and that both corporations are to be disregarded for income tax purposes. As a general rule a corporation is a taxpayer separate and distinct from its stockholders. New Colonial Ice Co. v. Helvering, 292 U.S. 435, 442, 54 S.Ct. 788, 78 L.Ed. 1348. And this applies to a corporation wholly owned by one stockholder. Burnet v. Commonwealth Improvement Co., 287 U.S. 415, 53 S.Ct. 198, 77 L.Ed. 399. But there are exceptions and the corporate form will be disregarded where it serves no business purpose and is but a sham. Gregory v. Helvering, 293 U.S. 465, 55 S.Ct. 266, 79 L.Ed. 596, 97 A.L.R. 1355. So, too, a taxpayer may gain the advantage of doing his own business through a wholly owned corporation if he pleases, but the treasury may disregard the separate corporate entity where it serves but as a shield against taxation and treat the one who actually may take the benefit of the income as the owner of the property which produces it and tax him accordingly. Higgins v. Smith, 308 U.S. 473, 60 S.Ct. 355, 84 L.Ed. 406. Yet the treasury may treat a corporation as a separate taxable entity when its organization “is followed by the carrying on of business by the corporation.” Moline Properties v. Commissioner of Internal Revenue, 319 U.S. 436, 439, 63 S.Ct. 1132, 1134, 87 L.Ed. 1499.
We think that Raymep was active enough to justify holding that it did engage in business in 1938. The absence of books, records and offices and the failure to hold corporate meetings are not decisive on that question. Though Raymep was organized solely to deter creditors of one of the partners, it apparently was impossible or impracticable to use it solely for that purpose when it became necessary or desirable to secure the above mentioned loan in a substantial amount. There was, to be sure, less business activity than was shown in Sheldon Building Corporation v. Commissioner of Internal Revenue, 7 Cir., 118 F.2d 835, but we think enough did appear to make the principles applied in that case applicable to Raymep and that the decision of'the Tax Court should be affirmed as to the taxability of that corporation. Compare, Watson v. Commissioner of Internal Revenue, 2 Cir., 124 F.2d 437; Vim Securities Corporation v. Commissioner of Internal Revenue, 2 Cir., 130 F.2d 106, and Palcar Real Estate Co. v. Commissioner of Internal Revenue, 8 Cir., 131 F.2d 210.
Westrich, however, was at all times but a passive dummy which did nothing but take and hold the title to the real estate conveyed to it. It served no business purpose in connection with the property and was intended to serve only as a blind to deter the creditors of one Of the partners. It was but a sham to be disregarded for tax purposes. Gregory v. Helvering, supra. See, also, 112 West 59th Street Corporation v. Helvering, 62 App.D.C. 350, 68 F.2d 397; and North Jersey Title Ins. Co. v. Commissioner of Internal Revenue, 3 Cir, 84 F.2d 898.
There remains the question of the assessment of the penalty against Raymep, that against Westrich being necessarily erroneous under our holding that it was not a taxpayer in 1938. While it is true that ignorance of the law will not excuse the failure of a taxpayer to file a return, no penalty may be imposed where a reasonable cause • for the failure is shown. Girard Investment Co. v. Commissioner of Internal Revenue, 3 Cir., 122 F.2d 843; Hartford-Connecticut Trust Co. v. Eaton, 2 Cir., 34 F.2d 128. The applicable statute, § 291 of the Revenue Act of 1938, 26 U.S.C.A. Int. Rev. Code, § 291, does not make the imposition of the penalty for failure to file a return mandatory but provides for its imposition “unless it is shown that such failure is due to reasonable cause and not due to willful neglect.” Raymep admittedly filed no returns and consequently had the burden to prove that the failure was excusable within the clause of the statute just quoted. T.R. 101, Art. 291-1. It was held in Commissioner of Internal Revenue v. Lane-Wells Co., 321 U.S. 219, 225, 64 S.Ct. 511, 514, 88 L.Ed. 684, that, “The question is one of fact in the first instance for the Board’s determination. Dobson v. Commissioner [of Internal Revenue], 320 U.S. 489, 64 S.Ct.239 [88 L.Ed. 248.]” The Tax Court considered the evidence introduced on that subject and determined that reasonable cause for the failure had not been shown. Such a decision turns upon the particular circumstances in the case presented rather than on any “generalizing principle” and therefore presents no reviewable issue. Commissioner of Internal Revenue v. Estate of Edward Bedford, 65 S.Ct. 1157.
The income taxes of the individual petitioners will be adjusted on the remand, and as no difficulty in doing that is now to be foreseen, nothing is now said on that subject.
Decision affirmed in part and reversed in part, and cause remanded for further proceedings in accordance with this opinion. | 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. | What is the ideological directionality of the court of appeals decision? | [
"conservative",
"liberal",
"mixed",
"not ascertained"
] | [
2
] | songer |
UNITED STATES of America, Plaintiff-Appellee, v. Everett Woodrow WILSON, Defendant-Appellant.
No. 92-5308.
United States Court of Appeals, Fourth Circuit.
Argued Oct. 26, 1992.
Decided Nov. 23, 1992.
William Carlton Ingram, Jr,, Floyd, Allen & Jacobs, Greensboro, N.C., argued, for defendant-appellant.
Harry L. Hobgood, Asst. U.S. Atty., Greensboro, N.C., argued (Robert H. Ed-munds, Jr., U.S. Atty., on brief), for plaintiff-appellee.
Before PHILLIPS, WILKINS, and WILLIAMS, Circuit Judges.
OPINION
WILKINS, Circuit Judge:
Everett Woodrow Wilson pled guilty to making a false statement to a financial institution, the North Carolina National Bank (NCNB). 18 U.S.C.A. § 1014 (West Supp.1992). Wilson appeals his sentence, arguing' that the district court erred in calculating the amount of the loss incurred as' a result of his criminal activity. United States Sentencing Commission, Guidelines Manual, U.S.S.G. § 2F1.1(b) (Nov.1991). He also contends that the district court improperly computed his. Criminal History Category. We find that Wilson’s Criminal History Category was properly calculated; however, because the record is insufficient to permit a determination of whether loss was correctly calculated, we remand for resentencing.
I.
In 1988 Wilson was employed by David Post. In order to purchase Vintage Woods, a small furniture company, Wilson and Post entered into negotiations with NCNB to secure a loan. The negotiations resulted in two loans from NCNB to Vintage Woods totaling $292,000 with Post acting as a guarantor and the assets of Vintage Woods pledged as security. Wilson was named president of Vintage Woods and was responsible for maintaining its financial records. The terms of the loan agreements required Vintage Woods -to file monthly financial statements so that NCNB could keep abreast of its financial condition.
With one exception, Wilson did not file the necessary monthly financial statements until after Vintage Woods began to fail. Approximately seven months after the loans were, made, Wilson, responding to repeated requests from NCNB for the required financial information, provided a false financial statement. This statement, which was the basis for Wilson's prosecution, misrepresented that Vintage Woods •had accounts receivables totaling $101,-309.90, when the actual total was only $24,-000. After Post learned of Vintage Woods’ decline, he notified NCNB that Wilson had falsely represented Vintage Woods’ financial condition. When Vintage Woods finally ceased production, there was an outstanding balance owed to NCNB of $275,-989.70, plus interest. NCNB sued Post for the balance, and these parties eventually-settled when Post paid $125,000 to NCNB.
NCNB eventually liquidated- Vintage Woods’ assets, generating a total, when combined with receivables, of $41,682.41. The pre-sentence report recommended increasing Wilson’s base offense level of six by eight levels because the alleged loss caused by his false statement was more than $200,000 but less than $350,000. . See U.S.S.G. § 2F1.1(b)(1)(I). It also recommended a two-level reduction for acceptance of responsibility, see U.S.S.G. § 3E1.1(a), for an adjusted total offense level of 12, which coupled with Criminal History Category V, resulted in a guideline range of 27-33 months imprisonment.
The district court determined Wilson’s offense level based on the entire outstanding balance less the amount recovered by NCNB from the sale of assets and accounts receivables:
$275,989.70 Balance due NCNB under the loans
-$ 41,682.41 Sale of assets and receivables
$234,307.29 Loss for determining base offense level
Thus, in determining Wilson’s sentence, the district court did not decrease NCNB’s loss by the amount it recovered from Post, or by any loss that occurred prior to the criminal act of filing the false statement. The district court imposed a sentence of 27 months imprisonment, a term of supervised release of three years, and a special assessment of $50.
The parties successfully moved this court to remand for resentencing in light of United States v. Rothberg, 954 F.2d 217 (4th Cir.1992). At resentencing, the district court imposed the same sentence.
Wilson appeals, claiming that the $125,-000 paid to NCNB by the third-party guarantor should not have been included in calculating the loss for sentencing purposes; that the district court erred in determining the total amount of loss because it included loss that was not related to his false statement;. and that the district court erred in including a prior conviction for writing a check on a closed account in determining his Criminal History Category.
II.
A.
We first address whether payment to a lender by a third-party guarantor should be included in calculating loss for sentencing purposes. Within the context of these facts the issue is whether the district court erred in not reducing the amount of loss by the $125,000 paid by Post, the guarantor. • This court recently addressed the issue of determining loss under U.S.S.G. § 2F1.1 in United States v. Rothberg, 954 F.2d 217 (4th Cir.1992). In Rothberg the defendant was convicted of fraudulently obtaining credit from a financial institution. The district court refused to enhance the base offense level, reasoning that calculation of actual loss was too speculative because the victim might recover damages in a concomitant civil proceeding. Id. at 218. We remanded for resentencing, holding that recovery “from Roth-berg’s other assets is akin to restitution and is not a proper consideration in determining the loss suffered as a result of the fraud.” Id. at 219; see also United States v. Saunders, 957 F.2d 1488, 1494 (8th Cir.) (rejecting defendant’s contention that restitution paid by his girlfriend should be deducted from “the dollar figure associated with his conduct”), cert. denied, — U.S. -, 113 S.Ct. 256, 121 L.Ed.2d 187 (1992).
Applying Rothberg, we conclude that the $125,000 paid by Post in settlement with NCNB should be included in calculating loss for determining Wilson’s offense level. We agree with the district court that this amount Should not be deducted from loss because as' payment by a guarantor, it is also akin to restitution. The defendant, through a third party, is returning that which he took.
Another basis for including the $125,000 in determining the total amount of loss is found in U.S.S.G. § lB1.3(a)(l) (Nov.1991). This subsection provides that a defendant’s sentence is to be based on:
all acts and omissions committed or aided and abetted by the defendant, or for which the defendant would be otherwise accountable, that occurred during the commission of the offense of conviction, in preparation for .that offense, or in the course of attempting to avoid detection or responsibility for that offense, or that otherwise were in furtherance of that offense.
The dictates of this relevant conduct provision require that the losses suffered by both NCNB and Post should be considered for sentencing purposes to reflect the full consequences of Wilson’s criminal conduct.
B.
Wilson also maintains that because some of the loss suffered was not related to his criminal conduct, the district court erred by using the total figure ($275,-989.70) when calculating loss under U.S.S.G. § 2F1.1. When the offense involves making a false statement, the inquiry to determine loss must focus on the amount of loss related to the false statement. Critical to the resolution of this appeal is the fact that at the time the loan applications were made and approved, no offense had been committed. Thus, while business losses began to occur soon after the loans were made, these losses were not related,, as far as the record before us reveals, to the criminal conduct. Rather, a false statement was filed approximately seven months after the loans were made. The task of the district court is to determine the amount of loss that is attributable to Wilson’s criminal conduct. Thus, we hold that in the event a bank loan legitimately is obtained by one who subsequently submits a statement that is required in connection with the loan and that statement is false (e.g., defendant falsifies a required periodic report of his current assets), the loss under U.S.S.G, § 2F1.1 is the loss that can be attributed 'to the false statement. Generally, the loss attributable to the false statement is the amount of- the outstanding loan less any amount recouped by the bank from assets pledged against the loan, less the estimated amount the bank would have lost had the statement not been false. Because the record is unclear as to whether this approach was followed by the district .court in calculating the loss, we remand for resentencing.
C.
Finally, we are asked to consider whether the district court properly included Wilson’s prior conviction for writing a check on a closed account in determining his Criminal History Category. Wilson asserts that writing a check on a closed account is analogous to writing a check on an account for which there are insufficient funds, an offense expressly excluded by U.S.S.G. § 4A1.2(c)(l), for determining a defendant’s Criminal History Category unless “the prior offense was similar to an instant offense.” Because this guideline only excludes “insufficient funds check[s],” the district court concluded that this subsection did not apply and, therefore, included the prior conviction in determining Wilson’s Criminal History Category.
The commentary to this guideline states: “ ‘Insufficient funds check,’ as used in § 4A1.2(c)(1), does not include any conviction establishing that the defendant used a false name or non-existent account.” U.S.S.G. § 4A1.2(c)(1), comment, (n.13) (emphasis added). The district court reasoned that the account Wilson used as the vehicle to commit this prior offense was a nonexistent one because it had been closed prior to the utterance of the check in question. We find no error in this reasoning. A closed account is a nonexistent account and distinguishable from an open account having insufficient funds on deposit to cover a check when presented for payment.
III.
In summary, we adhere to the reasoning of Rothberg and hold that payments by á guarantor are to be included in calculating loss under U.S.S.G. § 2F1.1. Therefore, the judgment of the district court is affirmed as to the inclusion of the $125,000 in calculating the loss. We also conclude that the offense of writing a check on a closed account was properly included when determining Wilson’s Criminal History Category. However, we vacate the sentence and remand for resentencing after a determination of loss is made consistent with this opinion.
AFFIRMED IN PART, VACATED IN PART, AND REMANDED.
The district court properly deducted from loss the amount recovered from the pledged assets. This approach is consistent with the reasoning expressed in the guideline commentary applicable to fraudulent loan application cases:
In fraudulent loan application cases and contract procurement cases where the defendant’s capabilities are fraudulently represented, the loss is the actual loss to the victim (or if the loss has not yet come about, the. expected loss). For example, if a defendant fraudulently obtains a loan by misrepresenting the value of his assets, the loss is the amount of the loan not repaid at the time the offense is discovered, reduced by the amount the lending institution has recovered, or can expect to recover, from any assets pledged to secure the loan.
U.S.S.G. § 2F1.1; comment. (n.7(b)). | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine which of these categories best describes the income of the litigant. Consider the following categories: "not ascertained", "poor + wards of state" (e.g., patients at state mental hospital; not prisoner unless specific indication that poor), "presumed poor" (e.g., migrant farm worker), "presumed wealthy" (e.g., high status job - like medical doctors, executives of corporations that are national in scope, professional athletes in the NBA or NFL; upper 1/5 of income bracket), "clear indication of wealth in opinion", "other - above poverty line but not clearly wealthy" (e.g., public school teachers, federal government employees)." Note that "poor" means below the federal poverty line; e.g., welfare or food stamp recipients. There must be some specific indication in the opinion that you can point to before anyone is classified anything other than "not ascertained". Prisoners filing "pro se" were classified as poor, but litigants in civil cases who proceed pro se were not presumed to be poor. Wealth obtained from the crime at issue in a criminal case was not counted when determining the wealth of the criminal defendant (e.g., drug dealers). | This question concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Which of these categories best describes the income of the litigant? | [
"not ascertained",
"poor + wards of state",
"presumed poor",
"presumed wealthy",
"clear indication of wealth in opinion",
"other - above poverty line but not clearly wealthy"
] | [
5
] | songer |
CONTINENTAL CASUALTY CO. v. SCHAEFER. GOERIG et al. v. CONTINENTAL CASUALTY CO. MACRI et al. v. SCHAEFER.
No. 11707.
United States Court of Appeals Ninth Circuit.
Feb. 11, 1949.
Rehearing Denied April 5, 1949.
See, also, 167 F.2d 107.
Eugene D. Ivy and Elwood Hutcheson, both of Yakima, Wash., for appellant Continental Casualty Co.
S. W. Brethorst, Tom W. Holman, Thomas N. Fowler, and Warren L. Dewar, all of Seattle, Wash., for appellants Macri.
Olson & Palmer, of Yakima, Wash., and Stuart W. Hill, Portland, Or., for appellee Schaefer.
Before DENMAN, Chief Judge, and HEALY and BONE, Circuit Judges.
DENMAN, Chief Judge.
The several Macris, hereafter so called, contractors on a government contract under the Miller Act, appeal from a judgment in favor of Schaefer, their subcontractor, for labor and materials furnished in the performance of a subcontract and modification thereof.
Continental Casualty Company, hereafter called Continental, appeals from a judgment against it as surety on the contract between the Macris and the United States, described infra, in favor of Schaefer for the amount of the judgment against the Macris.
The Macris do not contend that they are not liable for an unpaid balance on the contract price included in the judgment, but contend they are not liable for more than the contract price. They contend that the evidence does not support the court’s finding that they breached the subcontract and, on the contrary, that the extra work done by Schaefer was in the performance of that contract. Continental’s appeal urges these grounds and, in addition, that in any event a surety under the Miller Act is not liable for more than the value of the labor and materials to be supplied under the contract. Continental also seeks to recover here additional attorney’s fees for prosecuting this appeal.
The dispute between Schaefer and the Macris arises out of the performance of a subcontract tO' do the cement work on the federal irrigation project known as the Roza Division, Yakima Project, near Yakima, Washington. Schaefer sued to recover $57,618.87 as the alleged unpaid balance of the reasonable value of the work, labor and expenses on a quantum meruit theory after the alleged breach of a contract by the Macris. The subcontract between Schaefer and the Macris provided that Schaefer was to furnish “all labor and necessary equipment to do all of the concrete work, form work, cut, bend and install all reinforcing steel, all such work as shown on the plans as specified [in certain numbered specifications].”
The trial court, sitting without a jury, found that the Macris were to perform all of the excavating and to furnish all of the materials necessary for the performance of the subcontract with the exception of form wire, nails and curing materials. The excavating and materials were to be furnished in accordance with specifications and in proper time for the performance of the subcontract by Schae-fer. The court further found that Schae-fer’s performance was diligent, but that the Macris had breached the subcontract in that they failed to make the excavations in the proper manner so that Schaefer’s carpenters had to make extra excavations in order to install the forms. The Macris also failed to do the fine grading in the proper manner and in time for Schaefer to proceed with prompt progress of the work. The Macris also failed to furnish the proper quality and quantity of lumber required, which hindered and delayed Schaefer in the performance of his work. Macris’ breaches were found willful and negligent and they continued and persisted throughout the entire performance of the subcontract.
The court further found that Schaefer had made many complaints to the Macris regarding the latter’s defaults; that the Macris induced Schaefer to continue performance and to perform some of the work the Macris were to do, and that Schaefer would be compensated for the additional expense because of the adverse conditions created by the Macris. The court found that “there was an implied agreement or quasi-contract that * * * Schaefer was to be paid the fair and reasonable value of his subcontract under the conditions and with the extra burdens imposed upon [Schaefer by the Macris’ breaches].”
The subcontract contained a provision that in order to obtain extra compensation written notices and statements were required. The court found that the Macris had waived this provision by their conduct toward Schaefer by accepting and acting upon the oral notices given.
Judgment was rendered in favor of Schaefer against the Macris and Continental for $56,764.97, with interest from date of judgment. Also, a judgment in that same amount was rendered in favor of Continental against the Macris, plus $1750 for Continental’s attorneys’ fees. Continental and the Macris both appeal from the judgments, and Continental asks for additional attorneys’ fees from the Macris to cover the prosecution of this appeal.
A. The Law Governing the Several Issues.
On the issue of the Macris’ liability to Schaefer, we think that the Washington law should govern. While federal jurisdiction is conferred by the Miller Act and not by diversity of citizenship, we feel that the reasons underlying the doctrine of Erie Ry. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487, are applicable here, where the issue does not involve construction or application of a federal statute. Blair v. United States, 8 Cir., 147 F.2d 840, 849. Cf. Goerig v. Continental Casualty Co., 9 Cir., 167 F.2d 930. The rights and liabilities of the parties under the subcontract should not depend on the choice of forum sought to enforce these rights. Cf. Guaranty Trust Co. v. York, 326 U.S. 99, 109, 65 S.Ct. 1464, 89 L.Ed. 2079, 160 A.L.R. 1231. Hence we should decide this issue as would a state court sitting in Washington. Since all the relevant facts regarding this subcontract have occurred in Washington, the Washington substantive law of contracts is applicable. Hatcher v. Idaho Gold & Ruby Mining Co., 106 Wash. 108, 113, 179 P. 106.
On the issue of Continental’s liability on the payment bond, the federal law should control because the determination of the extent of the liability involves the construction of • a federal statute, the Miller Act, under which it was created, Liebman v. United States, 9 Cir., 153 F.2d 350.
B. Macris’ Liability to Schaefer.
The district court held that there was an “implied agreement or quasi-contract” to the effect that the Macris would pay Schaefer the fair and reasonable value of his subcontract under the conditions and with the extra burdens imposed upon Schaefer by the Macris’ breach and failure to perform their part of the subcontract. The Macris claim there is no substantial evidence to support the finding that they breached the subcontract. While the testimony is conflicting, the record contains sufficient evidence to support the finding, and this court will not weigh the evidence in such a case. Federal Rules of Civil Procedure, rule 52 (a), 28 U.S.C.A. We cannot say that this finding is clearly erroneous.
Since the court found that the subcontract was willfully breached by the Macris and that they induced Schaefer to continue performance and even to perform part of the Macris’ work, Schaefer should be allowed to recover in excess of the stipulated contract price for the extra work performed in reliance on the Macris’ statements, which were intended to induce reliance. Olwell v. Nye & Nissen Co., 26 Wash.2d 282, 173 P.2d 652, 169 A.L.R. 139. Whether the theory is called implied-in-fact contract, quasi-contract or promissory estoppel, the measure of Schaefer’s recovery against the Macris should be the reasonable value of the work and materials furnished plus overhead and profit. Nelson v. City of Seattle, 180 Wash. 1, 28, 38 P.2d 1034. Cf. United States v. Zara Contracting Co., 2 Cir., 146 F.2d 606; 5 Williston, Contracts (Rev. Ed.) § 1480.
The Macris contend that Schaefer may not recover for the extra work because he has not complied with the contract provisions regarding written notice of changes in order to get extra compensation. The trial court found that the Macris had waived these provisions by accepting and acting on the oral notices, and there is ample evidence to support such a finding. Such a provision does not deprive the parties of the power to modify the contract without a writing, Ritchie v. State, 39 Wash. 95, 81 P. 79.
The Macris rely on City and County of San Francisco v. Transbay Construction Co., 9 Cir., 134 F.2d 468. That case is not applicable here because it was a diversity case in which this court expressly applied California law to determine the rights of the parties under the contract. Furthermore, that case is distinguishable in that the nature of the claim, although on the theory of quantum meruit, was really for damages for delay, and the plaintiff there had failed to comply with provisions of the City’s charter relating to filing such claims within sixty days. Also, there the alleged extra work done was that which the plaintiff contracted to do, but it had become more burdensome due to unanticipated conditions. The City had held out no added inducement to the contractor to continue performance, and did not, by implication or otherwise, agree to pay the contractor anything beyond the amount fixed in the written agreement. In the instant case, no statute limits the Macris’ liability for breaches of the subcontract, and also Schaefer has performed work at the Macris’ request which was not called for by the subcontract. We hold the Macris liable for the extra work performed at their request.
C. Method of Ascertaining the Amount of Recovery.
Macris contend that Schaefer should not recover because he has failed to prove the increased cost of the work because of Macris’ defaults. Schaefer introduced a statement of costs prepared by a certified public acountant which showed all Schaefer’s costs on this project. From this amount was subtracted the amount the Macris had paid on account and judgment was rendered for the difference. There was evidence to show what Schaefer’s costs would have been if the work had progressed as originally contemplated, and this amount was substantially the same as the amount of Schaefer’s bid, so the increased costs of Schaefer were properly computed by reference to this statement. In the light of this evidence we cannot say that the finding of the trial court was erroneous. The judgment in favor of Schaefer against the Macris is affirmed.
D. Continental’s Liability to Schaefer.
Section 1 of the Miller Act, 40 U.S.C. § 270a, 40 U.S.C.A. § 270a, provides that the contractor with the government shall furnish “a payment bond * * * for the protection of all persons supplying labor and material in the prosecution of the work provided for in said contract for the use of each such person.” Section 2, 40 U.S.C. § 270b, 40 U.S.C.A. § 270b, provides that “every person who has furnished labor or material in the prosecution of the work provided for in such contract, in respect of which a payment bond is furnished under section 270a of this title and who has not been paid in full therefor * * * shall have the right to sue on such payment bond for the amount, or the balance thereof, unpaid at the time of institution of such suit * * *. ”
Continental contends that Schaefer’s cause of action is for damages for breach of the subcontract by the Macris, and that a surety under the Miller Act is not liable for such damages. United States v. Maryland Casualty Co., 5 Cir., 147 F.2d 423; L. P. Friestedt Co. v. United States Fire Proofing Co., 10 Cir., 125 F.2d 1010. These cases are distinguishable from the instant case in that there was no agreement there by the general contractor or the United States to pay any additional amount for the. extra work done. Here the court below found, “That pursuant to said subcontract * * * and pursuant to the oral conversations, representations and inducements herein referred to, [Schaefer] between the 14th day of March, 1944, and the first day of May, 1945, furnished labor and materials and performed services for the [Macris] at their special instance and request of the reasonable cost and value of $89,498.71.” From this amount was deducted the amount the Macris paid on account, which left a balance of $56,764.97, the amount of the judgment. It does not appear from this finding that the amount of the judgment included damages for breach of contract.
In the Friestedt case, supra, 125 F.2d at page 1012, the court said, “There is here no claim that they [the subcontractors] furnished any extras necessary for the completion of the contract and therefore contemplated by the parties and implied in the contract. * * * What was done was not required by any of the terms of the contract but became necessary because of an alleged breach of the contract because a contractor violated one of the terms of the contract; * * ” Here the new agreement between the Macris and Schae-fer contemplated that Schaefer was to perform extra work, which the Macris were originally obligated to perform, in order that the main contract between the Macris and the United States could be performed. The performance of the new agreement furnished labor and materials agreed by the Macris to be supplied under the main contract and hence labor and materials within the terms of the Miller Act and the bond. Cf. John A. Johnson & Sons v. United States, 4 Cir., 153 F.2d 534. The judgment against Continental is affirmed.
E. Attorneys’ Fees for Continental’s Appeal.
The trial court awarded Continental $1750 for attorneys’ fees in that court. Continental now seeks to recover in this court fees for the prosecution of this appeal, pursuant to a provision in the application for the bond which required the Macris “to indemnify the company [Continental] against all loss, costs, damages, expenses and attorney’s fees whatever, and any and all kind of liability therefor, sustained or incurred by the company * * * in prosecuting or defending any action brought in connection [with the bond].” There is also a provision “that separate suits may be brought hereunder as causes of action accrue” without prejudice to other suits regardless of when the cause of action arises.
No cause of action had accrued for the attorneys’ services in this court when the case was pending in the district court. Whatever right the parties may have for this more recent cause of action should be instituted in a court of first instance. It is an original proceeding which cannot be initiated here.
In the three cases cited by Continental: American Can Co. v. Ladoga Canning Co., 7 Cir., 44 F.2d 763; Davis v. Parrington, 9 Cir., 281 F. 10, and Rigopoulous v. Ker-van, 2 Cir., 140 F.2d 506, 151 A.L.R. 1126, the statutes involved created in the appellate court the right there to recover attorneys’ fees.
The judgment of Schaefer against the Macris and Continental is affirmed. The petition for allowance of attorneys’ fees is -dismissed, without prejudice.
40 U.S.C. §§ 270a, 270b, 40 U.S.C.A. §§ 270a, 270b. | 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 40. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA". | 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 40? Answer with a number. | [] | [
270
] | songer |
BENDIX HOME APPLIANCES, Inc., v. RADIO ACCESSORIES CO.
No. 12172.
Circuit Court of Appeals, Eighth Circuit.
June 15, 1942.
Rehearing Denied July 9, 1942.
W. C. Fraser, of Omaha, Neb. (C. F. Connolly and Crofoot, Fraser, Connolly & Stryker, all of Omaha, Neb., on the brief), for appellant.
L. R. Newkirk, of Omaha, Neb. (C. L. Waldron and Waldron & Newkirk, all of Omaha, Neb., on the brief), for appellee.
Before GARDNER, THOMAS and RIDDICK, Circuit Judges.
RIDDICK, Circuit Judge.
The plaintiff and the defendant in the court below, the parties to an executory contract terminable at the will of either party, agreed that the. contract should remain in force for a stated term in order that the plaintiff, which had sustained a loss through performance to the date of the amendment, might recoup its losses. The defendant wrongfully terminated the contract, and the plaintiff brought this suit to recover expenses incurred by it in performance of the contract both before and after the amendment and for the profits which the plaintiff claimed it would have earned but for defendant’s default. At the conclusion of the testimony plaintiff was permitted to amend its pleadings to ask a recovery against defendant for the breach of a supplementary agreement which the parties executed after the breach of the original contract. There was a judgment for the plaintiff for the breach of both the original and the supplementary contracts.
The questions presented on this appeal are: (1) whether the court has jurisdiction of the defendant in the suit, (2) the validity of the contract as originally drawn and as amended, and (3) whether the plaintiff may recover the particular items of damage for which judgment was rendered if there was a valid contract between the parties.
A jury was waived and the case was tried to the court. The testimony taken at the trial on the merits of the case is not brought into the record. On the question concerning the court’s jurisdiction of the defendant, the record contains certain affidavits and exhibits, but it does not appear that these constituted all of the evidence upon which the court made its decision upon this question.
The trial judge made extended findings of fact which, in the circumstances just stated, are conclusive upon this court. From these findings we take the following statement of the case:
Radio Accessories Company, a Nebraska corporation with its principal place of business in the city of Omaha, and Bendix Home Appliances Incorporated, a Delaware corporation with its principal place of business in South Bend, Indiana, on the 6th day of May, 1938, entered into a written contract under which Bendix Incorporated granted to Radio Accessories the exclusive franchise for the wholesale distribution of Bendix Home Laundries in a number of counties in the states of Nebraska and Iowa, Bendix Incorporated reserving the right to change at will the extent of the territory described. Radio Accessories agreed to maintain a staff of trained personnel for the service of Bendix products in the territory allotted it; to repair and service free of charge for one year from the date of sale the Bendix machines sold by it or by its predecessor distributor; to maintain a service reserve fund in an amount satisfactory to Bendix Incorporated to defray the expense of rendering free service upon machines sold; upon the termination of the contract by either party to pay to Bendix Incorporated the proportion of unexpended service reserve fund allocable to each Bendix Home Laundry; and aggressively to advance the sale of the Bendix Home Laundries. Bendix Incorporated agreed to warrant to purchasers of home laundries that the machines were free from defects in material and workmanship under normal use and service, its obligation under the warranty being limited to repairing or replacing at its factory any machine or part which proved defective within one year from the date of installation.
It was expressly stipulated in the contract that Radio Accessories was not appointed an agent of Bendix Incorporated for any purpose whatsoever and that the contract was terminable at the will of either party, with or without cause. Radio Accessories did not agree to buy and Bendix Incorporated did not agree to sell any stipulated number of Bendix products. Radio Accessories agreed to pay promptly for all home laundries and parts delivered by Bendix Incorporated, but the latter was absolved from all claims whatsoever for failure to make delivery of the machines ordered. It was agreed that the contract should be interpreted and construed in accordance with the laws of Indiana.
At the time of the execution of the contract, M. E. Daily was the acting distributor of Bendix products at Omaha. Radio Accessories purchased from M. E. Daily his stock of Bendix laundries and parts and other material necessary to the sale of Bendix products. Radio Accessories took over the service on six laundries which had been sold by Daily. Daily released Radio Accessories and Bendix Incorporated from all claims against either of them. A written memorandum of this transaction was executed and signed by the representatives of the three parties involved.
The Bendix Home Laundry was relatively new and untried. It developed in the hands of purchasers a number of defects which Radio Accessories was required by the terms of the contract to correct at its own expense, subject only to the credit allowed it by Bendix Incorporated for defective parts under the warranty given the purchaser of each machine. From the outset the contract proved to be an expensive one for Radio Accessories. In response to its complaints, Bendix Incorporated sent employees into Nebraska, who inspected and repaired defective machines in the hands of users in the state, gave demonstrations to the owners of machines purchased and to the employees of Radio Accessories in the proper operation and maintenance of the machines, advised Radio Accessories in the purchase of parts from Bendix Incorporated for the repairs necessary and did what they could toward promoting the sale of Bendix Home Laundries. The net result of all operations, nevertheless, continued to be a loss for Radio Accessories.
In this state of affairs the president of Radio Accessories met the sales manager of Bendix Incorporated in Chicago during the latter part of July 1938, where, after a canvass of the situation, it was agreed that the contract between the parties should be amended to eliminate the provision permitting its termination at will by Bendix Incorporated, and to provide that Bendix Incorporated would continue the contract in full force and effect for one year from the date of its execution in order that Radio Accessories might have an opportunity to recoup the losses which it had sustained up to that time under the contract in giving free maintenance to machines sold.
On October 21, 1938, Bendix Incorporated wrongfully canceled the contract as amended and appointed a new distributor. Immediately thereafter the parties entered into another agreement, the substance of which was that Radio Accessories was to be paid for all Bendix sales and promotional material on hand; that its successor distributor would take over from Radio Accessories all parts in stock and pay for them; that any surplus money remaining in a cooperative advertising fund, after charging it with outstanding items, would be paid over to Radio Accessories; and that Bendix Incorporated would assume and pay all the expenses of a certain dealers’ meeting, the arrangements for which had been made prior to the cancellation of the original contract.
. In its petition for damages for breach of contract, Radio Accessories alleged the execution of the original contract between the parties, its amendment for a definite term, and that certain oral agreements between the parties prior to the signing of the written contract were made in supplement of the original contract and as a material part of the consideration for it. These oral agreements on the part of Radio Accessories were to discontinue the distribution of competitive products of other manufacturers in the territory- allotted to it, and to purchase the laundries and parts in the hands of its predecessor distributor. On the part of Bendix Incorporated the oral agreements were to send a factory representative to assist Radio Accessories in promoting the sale of the Bendix Home Laundries and its assurance that the laundries purchased from the former distributor were free from defects. The alleged breach of the contract as originally executed was the failure of Bendix Incorporated to furnish the factory representative to assist plaintiff, and the fact that the machines purchased from plaintiff’s predecessor proved to be so defective in the hands of purchasers as to oblige the plaintiff to expend large sums of money under the service clause of the original contract.
The plaintiff also averred that after the amendment of the original contract and in reliance upon defendant’s agreement not to cancel, it incurred further expense under the service and maintenance clause of the contract in its efforts to promote the sale of Bendix Home Laundries. It declared that the amendment by which Bendix Incorporated agreed not to terminate the contract was made by Bendix Incorporated in recognition of the losses sustained by Radio Accessories in attempting to sell the home laundries and in order to “thereby afford plaintiff a means to recoup his losses and damages”; and that the cancellation by Bendix Incorporated on October 20, 1938 of the contract which had been amended on July 29, 1938, was made without just cause. The recovery of the expenses of plaintiff under the contract and the profits which the plaintiff would have made but for the cancellation of the contract was asked.
Bendix Incorporated, by a special appearance, moved to dismiss the petition on the ground that it had never engaged in business in the State of Nebraska within the meaning of the statutes of that state so as to authorize the service made upon it in the manner followed by the plaintiff in this case. The special appearance having been overruled, it filed an answer in which it admitted the execution of the original contract, denied the alleged amendment of July 29, 1938, admitted the cancellation of the contract on October 21, 1938, denied the breaches of contract alleged by the plaintiff, and averred that the contract sued on was void for want of mutuality, both before and after the supposed amendment. There was no answer to the amendment to the petition filed at the close of the trial.
The court awarded Radio Accessories a judgment in the sum of $6,007.29, of which amount $5,306.08 represented the expenses incurred by Radio Accessories for salaries and expenses of salesmen, servicemen, its general manager, and its vice-president from the date of the execution of the original contract until the date of its cancellation by Bendix Incorporated, with interest. The balance of the judgment, $701.21, was made up of items allowed under the supplementary contract executed by the parties after the date of the cancellation of the original contract.
(1) The applicable statutes of Nebraska provide that service may be had upon a nonresident corporation engaged in business within the state by summons upon a managing agent of the corporation or upon the State Auditor of Public Accounts. Comp.Stat.Neb.1929, §§ 20-513 and 24-1201. In this case the service was attempted under both methods. The trial court was of the opinion that both were good. The activities of a foreign corporation which are sufficient to make it amenable to process within a state by service upon an officer of the state or upon the corporation may be less than those required to subject the corporation to the provisions of the state’s licensing and taxation statutes. Liquid Veneer Corporation v. Smuckler, 9 Cir., 90 F.2d 196; International Harvester Co. v. Kentucky, 234 U.S. 579, 34 S.Ct. 944, 58 L.Ed. 1479; Rendleman v. Niagara Sprayer Co., D.C.Ill., 16 F.2d 122; Wilson v. Hudson Motor Car Co., D.C.Neb, 28 F.2d 347. The Supreme Court of Nebraska has held in a late case that a corporation which does business in the State of Nebraska without qualifying under the Nebraska statute is subject to process served upon the Auditor of Public Accounts under the state statutes although the service is made after the corporation has ceased to do business in the state. Yoder v. Nu-Enamel Corp, 140 Neb. 585, 300 N.W. 840. And see Yoder v. Nu-Enamel Co., 8 Cir, 117 F.2d 488.
The jurisdiction of the court depends on whether the activities of Bendix Incorporated constituted doing business in the State of Nebraska. Although the contract between the parties did not create Radio Accessories an agent of Bendix Incorporated in the State of Nebraska, nevertheless, the work of the distributor as well as that of the employees of Bendix Incorporated, in making good the warranty to the individuals purchasing laundries, was to that extent the activity of Bendix Incorporated. But since the testimony at the trial was not brought into the record, we must assume that the evidence in the case was sufficient to support the decision of the lower court on the question of jurisdiction.
(2) Contracts like the one under consideration are not pure sales contracts. They have some of the characteristics of agency and of factorage contracts. Marrinan Medical Supply Co. v. Fort Dodge Serum Co, 8 Cir., 47 F.2d 458. They have been developed to meet the needs of modern manufacturing and distribution. 4 Williston, Contracts, § 1027A. One purpose of the parties to them is the sale of the manufacturer’s product, but the development of a market for the product and the exploitation of a sales territory by advertising and the solicitation of orders by salesmen are also involved. In such circumstances the parties cannot be explicit as to quantity or amount. And since agreements of the kind under discussion are in common use among business men, they are to be given a practical interpretation. Presumably they are entered into in good faith with the intention of performance in good faith by both parties. Courts are not inclined to hold them void for want of mutuality of obligation because the obligation of one party is imperfectly expressed, or even in the absence of any express statement of an obligation where the contracts are for a definite term. Marrinan Medical Supply Co. v. Fort Dodge Serum Co., supra; E. I. DuPont de Nemours & Co. v. Claiborne-Reno Co, 8 Cir, 64 F.2d 224, 89 A.L.R. 238. “A promise may be lacking, and yet the whole writing may be ‘instinct with an obligation,’ imperfectly expressed.” Wood v. Lucy, Lady Duff-Gordon, 222 N.Y. 88, 118 N.E. 214 (quoted in the opinion in the Marrinan case). If from the whole contract it is manifest that the parties intended that for an express obligation upon one of them there should be a corresponding obligation upon the other, the correlative obligation will be implied though not expressed. Marrinan Medical Supply Co. v. Fort Dodge Serum Co, supra.
But where the arbitrary and unrestricted right of cancellation is reserved to one or both parties, contracts like the one here are binding only to the extent that they have been performed. Since the contract is expressly made terminable at the will of either party, with or without cause, it is not enforceable by either party. A demand for performance by one party may always be met by a repudiation of the whole contract by the other, the agreement between them furnishing the basis upon which the parties may deal with each other if they so desire, but with no obligation upon either requiring a continuation of relations. Motor Car Supply Co. v. General Household Utilities Co., 4 Cir., 80 F.2d 167; Ford Motor Co. v. Kirkmyer Motor Co., 4 Cir., 65 F.2d 1001; Willard, Sutherland & Co. v. United States, 262 U.S. 489, 43 S.Ct. 592, 67 L.Ed. 1086; E. I. DuPont de Nemours & Co. v. Claiborne-Reno Co., supra; Nebraska Aircraft Corp. v. Varney, 8 Cir., 282 F. 608; Huffman v. Paige-Detroit Motor Car Co., 8 Cir., 262 F. 116; Oakland Motor Car Co. v. Indiana Auto Co., 7 Cir., 201 F. 499; Fowler Utilities Co. v. Gray, 168 Ind. 1, 79 N.E. 897, 7 L.R.A.,N.S., 726, 120 Am.St. Rep. 344; Zelen v. Domestic Industries, Inc., 135 Neb. 456, 282 N.W. 387.
The contract as originally written was not enforceable by either party. The rights of the parties are not changed by the fact found by the court that Radio Accessories upon the faith of the contract incurred expenses or suffered loss in making preparations for distributing home laundries in the territory assigned to it. For it must be held to have entered upon performance with the knowledge that it had agreed that Bendix Incorporated might withdraw at any moment. It had the right to hope that the enterprise upon which it had embarked would prove profitable to both parties and that the relationship might continue to the benefit of both, but it had nothing more. In the event of the termination of the contract by Bendix Incorporated, Radio Accessories could not recover under the contract as originally written for any expenses it had incurred, nor for any loss of profit which it might have made had the contract remained in force.
We cannot agree with the contention of the plaintiff below, sustained by the trial court, that the representations made by the parties to each other prior to the execution of the written contract could be proved by parol evidence for the purpose of showing the real consideration of the contract. The considerations expressed in the contract sued upon are wholly contractual. In such cases parol testimony is not admissible to prove considerations other than those expressed in the contract. Pickett v. Green, 120 Ind. 584, 22 N.E. 737.; Conant v. National State Bank, 121 Ind. 323, 22 N.E. 250; Wells v. Aufrecht, 96 Neb. 402, 147 N.W. 1125; Hartman v. Lipovsky, 122 Neb. 823, 241 N.W. 563; Dawson County State Bank v. Durland, 114 Neb. 605, 209 N.W. 243. But if prior promises on behalf of the parties could be proved in the present case as a part of the consideration of the contract, they could be of no avail to either party because either party, by exercising its right to terminate the contract, could have avoided performance of them.
The trial court also held that the written warranty which Bendix Incorporated gave to the original purchaser of a home laundry was a part of the contract between Bendix Incorporated and Radio Accessories. - But by its very terms the obligations of this warranty ran only to the original purchaser of a home laundry and to no one élse, and the court’s holding in this respect was clearly erroneous. It is true that the court denominated its holding a finding of fact, but the matter involved was the construction of the contract, a question of law. Its inclusion within the court’s finding of fact is not determinative of its real nature nor is it binding upon this court. Lambert Lumber Co. v. Jones Engineering & Construction Co., 8 Cir., 47 F.2d 74.
We conclude, however, that the contract as amended was valid and binding upon the parties. Falstaff Brewing Corp. v. Iowa Fruit & Produce Co., 8 Cir., 112 F.2d 101, citing the Marrinan Medical. Supply Co. and the E. I. DuPont de Nemours & Co. cases. The situation of the parties after the amendment was in all respects as if the amended contract was the first and only agreement between them. The trial court found that the amendment was made for the specific purpose of enabling the plaintiff below to recoup the losses which it had sustained prior to the amendment. The Bendix Home Laundries had been improved and perfected, and the parties in recognition of the loss sustained by the plaintiff in trying to sell the original imperfect model, agreed to continue the contract in force for a definite term in order that the distributor might recover its prior losses and possibly make a profit. The contract as amended was not void for want of mutuality of obligation, under the authorities cited above, because of uncertainty as to the number of home laundries to be sold nor because by the amendment Radio Accessories was not expressly denied the right to terminate at will. The facts concerning the amendment to the contract as found by the court clearly imply the intention of the parties that both should be obligated for the term agreed upon. Marrinan Medical Supply Co. v. Fort Dodge Serum Co., supra.
It follows that Bendix Incorporated was liable to Radio Accessories for the damages caused by the wrongful cancellation of the amended contract. The measure of this damage was the reasonable expenditure of Radio Accessories in performance, less any amount received by Radio Accessories for performance, plus any profit which Radio Accessories would have earned had the contract not been terminated. Falstaff Brewing Corp. v. Iowa Fruit & Produce Co., supra; United States v. Behan, 110 U.S. 338, 4 S.Ct. 81, 28 L.Ed. 168; White River Levee District v. McWilliams Dredging Co., 8 Cir., 40 F.2d 873; Michelson, Inc., v. Nebraska Tire & Rubber Co., 8 Cir., 63 F.2d 597, 601; Elvidge v. Brant, 131 Neb. 1, 267 N.W. 169; International Text-Book Co. v. Martin, 82 Neb. 403, 117 N.W. 994; Lowe v. Turpie, 147 Ind. 652, 670, 44 N.E. 25, 47 N.E. 150, 37 L.R.A. 233.
(3) The judgment for breach of the original contract must be reversed because plaintiff below was granted a recovery for its expenses incurred both before and after the amendment. At the time of the amendment, the plaintiff had no cause of action on the contract for expenses incurred in promoting the sale of the defendant’s products. The amendment was made for the specific purpose of enabling the plaintiff to recoup the expenses which it had incurred prior to the amendment and for which it had no cause of action on the contract. It was necessary, therefore, that the plaintiff realize a profit under the contract as amended, in order to recover its past expenditures. It was incumbent upon the plaintiff in a suit for damages for breach of the contract as amended to show with reasonable certainty that but for the breach on the part of the defendant it would have recouped the expenditures made prior to the amendment, by profits earned after the amendment. There is no finding to this effect by the trial court. But the trial court found that the evidence was insufficient to show that the plaintiff would have made any profit under the amended contract, had it not been canceled by the defendant. The action of the trial court in awarding a judgment to the plaintiff below for expenses incurred prior to the execution of a valid contract between the parties is in direct conflict with its finding of fact. Since it is impossible under the record before us to separate the expenses incurred by the plaintiff before the amendment from those incurred after-wards, the judgment upon the original contract as amended must be reversed and remanded for further proceedings.
The judgment upon the supplementary contract is affirmed upon the court’s finding that the contract was breached by the defendant and that the plaintiff sustained the damages allowed. | What follows is an opinion from a United States Court of Appeals.
Your task is to identify the most frequently cited federal rule of civil procedure in the headnotes to this case. Answer "0" if no federal rules of civil procedure are cited. For ties, code the first rule cited. | What is the most frequently cited federal rule of civil procedure in the headnotes to this case? Answer with a number. | [] | [
0
] | songer |
The DORIC COMPANY, Appellant, v. LEO JAY ROSEN ASSOCIATES, INC., Appellee.
No. 19085.
United States Court of Appeals Fifth Circuit.
June 14, 1962.
Richard S. Banick, Miami, Fla., Fowler, White, Gillen, Humkey & Trenam, Miami, Fla., of counsel, for appellant.
Abraham H. Shukat, Miami Beach, Fla., for appellee.
Before TUTTLE, Chief Judge, and BROWN and BELL, Circuit Judges.
GRIFFIN B. BELL, Circuit Judge.
Leo Jay Rosen Associates, Inc., a Florida Corporation, brought suit against The Doric Company, a Washington Corporation, for advertising services rendered the Saxony Hotel, Miami Beach, Florida, recovering by jury verdict the stipulated amount of the account, and this appeal followed.
The Doric Company was engaged in managing real estate including hotel properties owned by it and others. Tom Muggleston purchased the Saxony Hotel with title being vested in Saxony Properties, Inc., a Delaware Corporation formed for the purpose of the ownership. That corporation at the same time entered into a management contract with The Doric Company to operate and manage the hotel, and whereunder the accounting was done in the Seattle central office of Doric, trade invoices were paid from there, various daily reports were made to the Seattle office by those in charge of the Saxony, and with Doric having complete authority to hire all employees, and in general to supply management as experts. All funds were deposited in a Miami Beach bank with transfers being made to Doric in Seattle for use in meeting trade invoices and other obligations with the exception of the payroll which was paid locally.
Mr. Hilsenberg, then engaged in managing a Doric hotel in California, was engaged by Mr. Muggleston with the assistance of Mr. Clodfelter, president of Doric, as executive director of the Saxony at the time of the acquisition, and was paid by Saxony Properties, Inc.
At the time of the purchase Messrs. Clodfelter, Hilsenberg, Muggleston, the Doric auditor, and the real estate broker handling the matter were together at the Saxony. Mr. Clodfelter called a news conference and distributed a news release to the members of the press present and these included Mr. Paul M. Bruun, a writer for the Miami Beach Sun. The release announced the acquisition of the Saxony by Doric. Mr. Clodfelter stated to Mr. Bruun that Mr. Hilsenberg would be the manager. The news release and conference became the subject of a news story by Mr. Bruun, and also the basis for an article, hereinafter discussed, in the Sax Sunny News, a hotel house organ, repeating the news release, including the statement that the Saxony was being acquired by Doric.
At this point enters Mr. Rosen, president and owner of appellee. He was acquainted with Max Sax, brother of the former owner, who was retained by the new régime. The new management desired the services of an advertising agent, and Rosen wanted the business. Several agents were considered, numerous conferences were held between Mr. Rosen, Mr. Hilsenberg and members of his staff, and Rosen was finally selected.
Mr. Rosen testified that he had previously read the news article by Mr. Bruun, another to the same effect in the Miami Herald, and the article in the Sax Sunny News regarding the acquisition by Doric. He dealt with Hilsenberg as the managing director of the hotel, which title was on his office door.
One of the problems of an advertising agency is to be certain of reimbursement of sums advanced for accounts. Mr. Rosen testified that Mr. Plilsenberg assured him that his selection would be cleared with Doric, and that Doric would pay such sums as might be due. He was then advised by Hilsenberg that the president of Doric had awarded him the account. Statements were rendered to the Saxony Hotel, stipulated not to be a legal entity, and were paid by Doric from the Seattle office. Copies of materials prepared by Rosen were by direction of Hilsenberg forwarded to Doric in Seattle by the printer. Rosen knew nothing of the management contract.
At any rate the association lasted only a few months; the Saxony first being put into receivership, and later into bankruptcy. In the meantime Saxony Properties, Inc. sold the Saxony, the services of Mr. Hilsenberg were terminated and he was again employed by Doric.
The issue as submitted to the jury in charge was whether Rosen carried the burden of establishing that the Doric Company held itself out to Rosen to be the owner, lessee or operator, and therefore the principal in the operation and management of the hotel at the time the agreements for advertising were made, and that Rosen in the exercise of reasonable prudence and in reliance on such conduct performed the services in question at the instance and request of Doric.
Appellant contends that the evidence was insufficient to sustain this burden. The answer lies in a consideration of the doctrine of agency by estoppel where-under Doric held itself out as the owner of the hotel, and Hilsenberg as possessing authority to bind it.
Agency by estoppel in Florida embraces the primary elements of a representation by the principal, reliance on the representation by the claimant, and a change in position by the claimant in reliance on the representation. Bogue Electric Manufacturing Company v. Coconut Grove Bank, 5 Cir., 1959, 269 F.2d 1; and Hartline v. Mutual Benefit & Accident Ass’n, 5 Cir., 1938, 96 F.2d 174.
In Bush Grocery Company v. Conely, 1911, 61 Fla. 131, 55 So. 867, the rule is stated thusly:
“Where a principal has, by his voluntary act, placed an agent in such a situation that a person of ordinary prudence, conversant with business usages and the nature of the particular business, is justified in presuming that such agent has authority to perform a particular act, and therefore deals with the agent, the principal is estopped, as against such third person, from denying the agent’s authority.”
The evidence viewed, as it must be, most favorably to the jury verdict shows that the press release and statements made at the conference were representations by Doric through its president that it had acquired the hotel, and that Hilsenberg was to be the manager. The president of Rosen read three news articles based thereon to the effect that Doric had acquired the Saxony before entering into the arrangement to render the service here. Hilsenberg represented to Rosen that Doric had approved his selection, and was to pay for the services and Doric did pay for some of the services. Rosen relied on these representations to its detriment. This evidence covers the elements necessary to sustain an agency by estoppel, and constitutes an adequate basis for the verdict.
Nor were the proceedings infected with error because Rosen was permitted to testify as to the representations of agency by Hilsenberg. The representation of acquisition by Doric, and the holding out of Hilsenberg as manager was shown by other and independent evidence sufficient to establish the agency prima facie, and thereafter the statements of Hilsenberg were admissible to show reliance by Rosen on the prior representations by Doric, and to show that Rosen dealt with Hilsenberg as an agent of Doric and not in some other capacity. 2 Am.Jur., Agency, § 445; 4 Wigmore on Evidence (3rd Ed., 1940) § 1078.
The remaining assignments of error require little discussion. A substantial part of the trial was taken up in an attempt to keep the news release out of evidence. The rulings of the court at the instance of Doric compelled Rosen to seek out the news release itself rather than being able to prove it by secondary evidence. The testimony was that no copy of it could be located but after objection, Rosen was at the last minute able to get reporter Bruun who had retained the news release to bring it to court and testify regarding it. Doric then took the position that Bruun could not testify and that the release was inadmissible because neither was listed in the pretrial stipulation, of witnesses and exhibits to be used. Rosen claimed that it did not know of the need for the witness or the release, or that the witness had a copy of the release when the stipulation was made. The copy of Sax Sunny News, also admitted in evidence, was not listed in the stipulation, and the same objection is now made to it. It was in the possession of Max Sax, a listed witness who responded to subpoena and Rosen claimed that it was not listed because it was not in its possession. These were matters for the discretion of the trial court and no abuse of discretion appears. Texas and Pacific Railway Company v. Buckles, 5 Cir., 1956, 232 F.2d 257, cert. denied 351 U.S. 984, 76 S.Ct. 1052, 100 L.Ed. 1498. This is particularly so where no prejudice to the objecting party was shown at the time. Cf. Globe Cereal Mills v. Scrivener, 10 Cir., 1956, 240 F.2d 330. Cherney v. Holmes, 7 Cir., 1950, 185 F.2d 718; and 3 Moore’s Federal Practice (2nd ed., 1948) § 16.20.
And lastly, it was not error to admit in evidence as exhibits advertising brochures prepared by Rosen for the Saxony at the instance of Hilsenberg, copies of which, after printing, were mailed by direction of Hilsenberg to the Seattle office of Doric. They at least served to advise Doric that the services of Rosen were continuing and, in turn, the direction that they be forwarded to Doric was some assurance to Rosen that Doric was the owner or lessee of the hotel. They were material to this extent and were admissible premised on the prior prima facie proof of the agency of Hilsenberg. 2 C.J.S. Agency § 29(2) (b) and see citations of authority, supra, on admissibility of representations of agency by Hilsenberg.
The motion of appellee for additional costs in the form of attorney’s fees in connection with this appeal is denied.
The judgment appealed from is
Affirmed. | What follows is an opinion from a United States Court of Appeals.
Your task is to identify the most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if no U.S. Code titles are cited. If one or more provisions are cited, code the number of the most frequently cited title. | What is the most frequently cited title of the U.S. Code in the headnotes to this case? Answer with a number. | [] | [
0
] | songer |
UNITED STATES of America v. Christopher E. GRIFFIN, a/k/a Chris E. Griffin, Chris Griffin, Appellant.
No. 86-3058.
United States Court of Appeals, District of Columbia Circuit.
Argued March 6, 1987.
Decided April 14, 1987.
G. Allen Dale, Washington, D.C., for appellant.
Susan A. Nellor, Asst. U.S. Atty., with whom Joseph E. diGenova, U.S. Atty., Michael W. Farrell, Mary Ellen Abrecht and Darryl W. Jackson, Asst. U.S. Attys., Washington, D.C., were on brief, for appellee.
Before WALD, Chief Judge, EDWARDS and D.H. GINSBURG, Circuit Judges.
Opinion for the Court filed by Chief Judge WALD.
WALD, Chief Judge:
Appellant Christopher E. Griffin pled guilty to one count of mail fraud, was sentenced to five years’ imprisonment, and was ordered to pay restitution to the victim in the amount of $62,500. He subsequently moved the District Court to set aside his guilty plea, vacate his sentence, and grant him a jury trial. Griffin alleged that his plea was involuntary because it was induced by promises by his attorney and the prosecutor that he would not be incarcerated, that the prosecutor’s comments during the sentencing hearing breached the plea agreement, that his plea was not made knowingly and voluntarily because he was not fully informed by his attorney regarding the count of the indictment to which he was to enter his plea, and that he was not given adequate time before sentencing in which to review the presentence report. The District Court rejected all of these claims and denied the motion. 641 F.Supp. 1546, 1547 (D.D.C.1986). For the reasons set forth below, we affirm.
I. Background
A seven-count indictment filed on August 8, 1985 charged Griffin with two counts of mail fraud (18 U.S.C. § 1341), two counts of wire fraud (18 U.S.C. § 1343), and three counts of interstate transportation of money obtained by fraud (18 U.S.C. § 2314). Griffin’s trial was scheduled to begin on January 23, 1986. After a jury had been selected and sworn, but before any evidence had been presented, Griffin’s counsel, Mr. Charles Halleck, informed the court that a plea agreement had been reached. Transcript of Plea Proceeding (“PT”) at 6. The agreement provided that Griffin would plead guilty to one count of his choice in exchange for the government’s promise to dismiss the remaining counts, to forego prosecution of Griffin for related offenses involving victims in Ohio and New York, to waive its right to argue that Griffin be incarcerated pending sentencing, to waive its right to allocute at sentencing except to request that the court order restitution in the amount of $62,500, and to recommend that any penalty imposed by the court not exceed three years. In addition, Griffin agreed to execute a promissory note for the balance of the $62,-500 not paid at the time of sentencing. PT at 6-8. Griffin’s counsel first stated to the court that Griffin intended to plead to count five of the indictment, which charged interstate transportation of money obtained by fraud. PT at 6. After the prosecutor responded to the court’s inquiry concerning the maximum penalty for count five, Griffin’s counsel indicated that he had erred and that Griffin actually intended to plead guilty to count two of the indictment, mail fraud, which carried a maximum penalty of five years’ imprisonment, a $1,000 fine, or both. PT at 8-9.
Griffin was then sworn, and the court proceeded to question him as to his understanding of the plea, as required by Rule 11 of the Federal Rules of Criminal Procedure. Griffin stated that he wished to plead guilty to count two of the indictment and that he understood the terms of the plea agreement. PT at 10-12. Griffin acknowledged that the court could impose the maximum sentence of five years, $1,000, or both, and could also order him to make restitution. PT at 13-14. The following exchange then took place:
The Court: Has your plea of guilty this afternoon been tendered or offered to the court by virtue of any representation by Mr. Halleck, or anyone else, including the prosecutor, as to what the actual sentence will be imposed by the court?
The Defendant: No.
Mr. Halleck: I have indicated what I think, but I have indicated to him I can’t make any promises about what the court will do.
The Court: That is exactly right. You understand that, do you not?
The Defendant: Yes.
The Court: Do you understand the court has total discretion and it could sentence you to a maximum term of imprisonment of up to five years in jail and fine you $1,000, or both?
The Defendant: Yes, sir.
PT at 21. Finally, Griffin stated that he understood that if the court accepted his guilty plea, he would not be allowed to withdraw the plea. PT at 28. The court then accepted Griffin’s guilty plea to one count of mail fraud. PT at 29.
At the sentencing hearing, which was held on February 27, 1986, Griffin and his counsel requested the court to impose probation or a suspended sentence. Transcript of Sentencing Hearing (“ST”) at 15-27. The prosecutor then addressed the court, stating that “[t]he government will limit its allocution, pursuant to the plea agreement between it and the defendant, to its concern with the actual restitution in the amount of $62,500.” ST at 28. The prosecutor indicated that the victim, Ms. Joan Pierotti, had given Griffin $62,500, which she obtained by borrowing money from a friend and by taking out a second mortgage on her house. Ms. Pierotti believed that Griffin’s life would be endangered if he were unable to obtain his release from prison, and the money she gave Griffin was ostensibly to be used by him to post bond and to pay legal fees. ST at 28-29. The prosecutor argued that Griffin had sufficient assets to enable him to make full restitution, noting that Griffin had filled out an application for a Swiss bank account in October of 1984, had sent $30,-000 to his brother, and had once boasted about owning three fur coats. ST at 29-31. Finally, the prosecutor quoted from a decision of an Illinois court, which stated, in sentencing Griffin for a prior conviction:
Defendant is certainly a young man, but in a short period of life, adulthood, he has been able to circumvent the law. He has used people, he has taken advantage of people, he has used cunningly his abilities, and they are great abilities____ This man is a cunning man. He has used his wits, he has used his charm, and he has abused the general public by using these matters. Certainly this is not a crime of passion, this is not a violent crime, but his conduct is such that as far as this court is concerned he can very well be construed as coming within the realm of taking advantage of people and using people for his own benefit and for his own needs and desires, whatever they may be.
ST at 32 (quoting People v. Griffin, 113 Ill.App.3d 184, 68 Ill.Dec. 778, 446 N.E.2d 1175 (1982)). After reading this excerpt, the prosecutor stated, “Your honor, we simply ask, in terms of ordering restitution, the court not be further manipulated to the extent that such manipulation may take place and that the court order full restitution from the defendant to the complainant in the full amount of $62,500.” ST at 32-33. The prosecutor concluded his allocution by stating that “[a]s a part of our plea agreement, the government would recommend that any penalty imposed not exceed three years and we will dismiss all other counts after the sentence is imposed by the court.” ST at 33. The prosecutor then indicated that Ms. Pierotti “would like to address some brief remarks to the court.” ST at 38. Ms. Pierotti was sworn, questioned by the court, and cross-examined by Griffin’s counsel. ST at 38-46. At the conclusion of the hearing, the court sentenced Griffin to five years’ imprisonment and ordered him to pay restitution in the amount of $62,500. ST at 52.
Halleck stated at the sentencing hearing that Griffin had given him $5,400 to be paid immediately as partial restitution. ST at 23, 48. When Halleck did not tender the $5,400 after the hearing, the government sought to have Griffin held in contempt of court. On March 5,1986, the court ordered Griffin to show cause why he should not be held in civil contempt of court. At the show cause hearing on March 10, Halleck stated that he was refusing to relinquish the $5,400 because it had been given to Griffin by his fiancee, who now wanted the money returned to her. Transcript of Show Cause Hearing (“SCT”) at 2-8. At the conclusion of the hearing, the court took the matter under advisement. SCT at 28-29.
On April 15, 1986, Griffin moved the District Court to allow him to withdraw his guilty plea. A hearing on this motion, along with a further hearing on the order to show cause why Griffin should not be held in contempt, was held on May 22-23, 1986. Griffin, Halleck, and the prosecutor each testified concerning the circumstances surrounding the negotiation of the plea agreement. Griffin testified that he was promised, both by Halleck and by the prosecutor, that he would be placed on probation or given a suspended sentence if he agreed to make full restitution to Ms. Pierotti. Transcript of Hearing on Motion to Withdraw Guilty Plea (“MT”) at 137, 144, 147-48. The prosecutor testified that he did not make any promises to Halleck or to Griffin concerning the sentence Griffin would receive, and that Halleck made no such promises to Griffin while he (the prosecutor) was present. MT at 166. Halleck’s account was at odds with both the prosecutor’s testimony and with Griffin’s. Halleck testified that “I didn’t promise [Griffin] that he would get probation, but I did promise him that he wouldn’t get more than three years.” MT at 193. Halleck explained that he had told Griffin that the judge might place him on probation or sentence him to a period of incarceration up to three years, “[b]ut the one thing I told him was it was a three-year cap. Because if it had been a five-year cap we’d have never pled.” MT at 197; see also MT at 203. Halleck gave inconsistent testimony concerning whether he told Griffin that the agreement to limit any period of incarceration to three years was binding on the court. When questioned by the court, Halleck testified that he did not tell Griffin that the agreement was binding:
The Court: Did you explain to [Griffin] that [the plea agreement] was binding on the court?
The Witness: No, sir; I didn’t. I never had any idea that you’d ever do that to me or to him.
The Court: Wait a minute, Mr. Halleck. The Witness: I conveyed that thought to him. I didn’t tell him that it was binding on you, no. Obviously, it wasn’t.
MT at 204-05. Later in his testimony, however, Halleck indicated that he had promised Griffin that the judge would sentence him to no more than three years in prison:
The Court: The court never promised your client or you that it would give anything other than up to the maximum of five years.
The Witness: You never promised me. You didn’t promise anybody.
The Court: That’s exactly right.
The Witness: But I told him — I promised him you wouldn’t give him more than three years.
MT at 214A-215. At the conclusion of the hearing, the District Court indicated that it found Griffin and his witnesses “wholly lacking in credibility” and stated that “there is no basis in fact or in law for [Griffin] to be allowed to withdraw his plea.” MT at 233.
The District Court issued its formal decisions on the motions on August 26,1986, in two memorandum opinions and orders. In the first decision, the court denied Griffin’s motion to withdraw his guilty plea. The court conceded that “[i]f defendant was promised that he would not be sentenced to five years, he is entitled to relief,” 641 F.Supp. at 1549, but found “as a matter of fact, that defendant was not promised by [the prosecutor], Mr. Halleck or the Court that he would receive less than the maximum sentence of five years.” Id. at 1550. The Court also held that the government’s allocution at the sentencing hearing did not breach the plea agreement, that Griffin’s plea to mail fraud was knowingly and voluntarily made, and that Griffin had adequate time to review the presentence report and to address any inaccuracies in it. Id. at 1551-54. In the second decision, the court held Griffin in civil contempt for making misrepresentations to the court “with respect to the source of the $5,400 and the whereabouts of $30,000-plus,” and for failing to turn over the $5,400 immediately after the sentencing hearing. 641 F.Supp. 1556, 1558-59 (D.D.C.1986). The court declined to impose any sanctions, however, explaining that “the $5,400 has been paid into the Court’s registry. Thus the defendant is no longer in contempt, and the Court, therefore, need not impose any sanctions, at this time, to coerce the defendant to pay the $5,400.” Id. at 1559.
II. Analysis
Griffin moved to withdraw his guilty plea under Federal Rule of Criminal Procedure 32(d) and 28 U.S.C. § 2255. Once a defendant who pleads guilty has been sentenced, permission to withdraw the plea will be granted only “in those ‘extraordinary cases’ when the court determines that a manifest injustice would result from allowing the plea to stand.” United States v. Roberts, 570 F.2d 999, 1008 (D.C.Cir. 1977). A guilty plea must be set aside if it is shown to have been “induced by promises or threats which deprive it of the character of a voluntary act,” Machibroda v. United States, 368 U.S. 487, 493, 82 S.Ct. 510, 513, 7 L.Ed.2d 473 (1962), or to have been made in reliance on a promise by the prosecutor that was subsequently breached. Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 498, 30 L.Ed.2d 427 (1971).
Griffin argues that his guilty plea was not truly voluntary because it was induced by a promise that he would receive less than the maximum sentence of five years. A guilty plea is voluntary only if it is “ ‘entered by one fully aware of the direct consequences, including the actual value of any commitments made to him by the court, prosecutor, or his own counsel.’ ” Mabry v. Johnson, 467 U.S. 504, 509, 104 S.Ct. 2543, 2547, 81 L.Ed.2d 437 (1984) (quoting Brady v. United States, 397 U.S. 742, 755, 90 S.Ct. 1463, 1473, 25 L.Ed.2d 747 (1970) (internal quotations omitted)).
In this case, the District Court found after an evidentiary hearing that Griffin had not been promised that he would be sentenced to less than five years’ incarceration. In reaching that conclusion, the court relied to a large extent on Griffin’s statements under oath during the plea proceeding, in which he affirmed that his plea was not made in response to any representations by Mr. Halleck or the prosecutor as to what the actual sentence would be, and acknowledged that the court had total discretion in sentencing and could impose the maximum penalty. Although “the representations of the defendant, his lawyer, and the prosecutor at such a [plea] hearing ... constitute a formidable barrier in any subsequent collateral proceedings,” it is also clear that
the barrier of the plea or sentencing proceeding record, although imposing, is not invariably insurmountable____ [T]he federal courts cannot fairly adopt a per se rule excluding all possibility that a defendant’s representations at the time his guilty plea was accepted were so much the product of such factors as misunderstanding, duress, or misrepresentation by others as to make the guilty plea a constitutionally inadequate basis for imprisonment.
Blackledge v. Allison, 431 U.S. 63, 73-75, 97 S.Ct. 1621, 1628-29, 52 L.Ed.2d 136 (1977) (footnotes omitted); see also United States v. Roberts, 570 F.2d 999, 1007 (D.C.Cir.1977) (fact that appellant, when questioned by court, denied that guilty plea had been induced by prosecutorial promises does not estop him from seeking to withdraw plea).
The District Court in this case properly gave significant weight to the statements made by Griffin and Halleck at the plea proceeding. But it also carefully considered their testimony at the hearing on Griffin’s motion to withdraw his plea. This court has stated that a guilty plea may not be set aside on the ground that “counsel ‘assured’ defendant that he would obtain certain treatment, even if embellished by the defendant’s addition that he ‘presumed’ that his attorney had in hand a promise or agreement on the part of the prosecutor or judge.” United States v. Simpson, 436 F.2d 162, 164 (D.C.Cir.1970). Rather, a defendant who seeks to withdraw his plea under the circumstances presented here must demonstrate that he was advised by his counsel that the judge was a party to the agreement supposedly reached, or at least that that agreement was binding on the judge. See id. (“an allegation of false advice from counsel of an outright arrangement with the judge crosses the line and would constitute, if proved, impermissible verbal coercion”). Halleck’s testimony at the motions hearing was inconsistent with Griffin’s testimony, and also internally inconsistent with respect to the question of whether Halleck promised his client that the court would abide by the “three-year cap.” After “wrestling” with these inconsistencies, the District Court concluded that “[t]he only credible evidence of a plea agreement was the evidence of the agreement as stated in open court on January 23, 1986, within minutes after the agreement was reached,” and that no promises had been made to Griffin other than those set forth in the plea agreement. 641 F.Supp. at 1550. The District Court apparently concluded that Halleck’s testimony that he had promised Griffin that the judge would sentence him to no more than three years was not credible. His conclusion was bolstered by the prosecutor’s testimony concerning a telephone conversation he had with Halleck after Griffin was sentenced. According to the prosecutor, Halleck “indicated that if it would help his client, Mr. Griffin, he would come in and testify that he, Mr. Halleck, promised Mr. Griffin that he would get probation as a sentence” and that Halleck “went on to say that he would deny, if ever asked, that he had this conversation on this particular point.” MT at 221. In sum, despite the closeness of the judgment call, the District Court’s finding that Griffin had not been promised that he would receive less than the maximum sentence was not clearly erroneous. Further, even if the District Court had found Halleck’s testimony to be credible, there was no evidence that Halleck told Griffin explicitly that the agreement was binding on the court, and certainly no evidence that the court was actually a party to the agreement. We conclude that Griffin was aware of “the actual value of any commitments made to him by ... his own counsel” and that his guilty plea therefore was voluntary.
Griffin also argues that he should be permitted to withdraw his guilty plea because the government breached the plea agreement, which provided that the prosecutor would limit his allocution to arguing that the court should order restitution to Ms. Pierotti in the amount of $62,500. The prosecutor’s statements at the sentencing hearing concerning the amount of money Ms. Pierotti sent to Griffin, the sources from which she obtained those funds, and her motivation for acting as she did were related to the need for restitution and therefore fell within the scope of the plea agreement. Similarly, the prosecutor’s comments with respect to Griffin’s assets were relevant to show that Griffin was financially able to make full restitution, and were responsive to Griffin’s claim that he lacked the funds to make restitution. See ST at 25, 33, 36. The prosecutor, however, went over the line when he read to the court from an Illinois decision which described Griffin as a “cunning man” who had used his wits and charm to “tak[e] advantage of people,” and then urged the court not to “be further manipulated” by Griffin. Thése comments constituted a general attack on Griffin’s character rather than an argument in favor of restitution. Nonetheless, the District Court was clearly informed of the terms of the plea agreement and of what the government’s recommendation on penalty was to be: i.e., that the court order full restitution and that any period of incarceration not exceed three years. This was not a situation in which a “post-sentence application informs the trial court, for the first time, of a plea agreement term that the prosecutor allegedly failed to honor.” See United States v. Bullock, 725 F.2d 118, 119 (D.C.Cir.1984). Further, the court stated at the sentencing hearing that it had been aware of the Illinois decision before the prosecutor’s allocution and that it “did not affect the court’s decision one whit.” MT at 232. In these circumstances, we find no “manifest injustice” that would require us to permit Griffin to withdraw his guilty plea. We have previously had occasion, however, to “admonish the government to avoid occasions for questioning its meticulous adherence to the terms of a plea bargain,” and we do so again in this case. Bullock, 725 F.2d at 119.
We have considered appellant’s other arguments and have found them to be without merit. Accordingly, the judgment of the District Court is
Affirmed.
. Fed.R.Crim.P. 32(d) provides that after sentencing, "a plea may be set aside only on direct appeal or by motion under 28 U.S.C. § 2255.”
. Appellant contends that the prosecutor breached the plea agreement by stating “in a halfhearted manner” the government’s recommendation that any penalty imposed not exceed three years. See Brief of Appellant at 7. This argument is foreclosed by the Supreme Court's decision in United States v. Benchimol, in which the Court held that the government’s agreement to recommend a particular sentence does not carry with it an implied requirement that the prosecutor make the recommendation "enthusiastically” or that he explain the reasons for the recommendation. 471 U.S. 453, 455, 105 S.Ct. 2103, 2104-05, 85 L.Ed.2d 462 (1985) (per curiam). The Benchimol Court distinguished United States v. Brown, 500 F.2d 375 (4th Cir.1974), the case principally relied on by appellant, as one in which "the Government attorney appearing personally in court at the time of the plea bargain expressed personal reservations about the agreement to which the Government had committed itself." Benchimol, 471 U.S. at 456, 105 S.Ct. at 2105. The prosecutor in Brown, when questioned by the court about the terms of the plea agreement, stated that he did “have some problems” with the government’s sentencing recommendation. Brown, 500 F.2d at 377. The prosecutor in this case expressed no such "personal reservations."
. Griffin also argues that the government violated the terms of the plea agreement "by allowing the complaining witness to address the Court." Brief of Appellant at 28. The District Court correctly concluded, however, that Ms. Pierotti was not a witness for the government and that her statements at the sentencing hearing could not be considered part of the government’s allocution. 641 F.Supp. at 1553. Although the prosecutor did notify the court that Ms. Pierotti was present and wished to speak, he did not direct any questions to her. She was questioned by the court and cross-examined by Griffin’s counsel.
. Griffin also appeals from the District Court’s decision holding him in contempt of court, arguing that he "took every step within his power to immediately tender the $5,400 partial restitution as ordered by the Court.” Brief of Appellant at 41. The court stated in its opinion, however, that the $5,400 had been paid into the court’s registry and that therefore "the defendant is no longer in contempt." 641 F.Supp. at 1559. Because the contempt has been purged, the issue presented by appellant is moot. See In re Campbell, 628 F.2d 1260, 1261 (9th Cir.1980) ("once a civil contempt order is purged, no live case or controversy remains for adjudication”). | 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". | From which district in the state was this case appealed? | [
"Not applicable",
"Eastern",
"Western",
"Central",
"Middle",
"Southern",
"Northern",
"Whole state is one judicial district",
"Not ascertained"
] | [
7
] | songer |
HOWARD et al. v. AMERICAN SECURITY & TRUST CO. et al.
No. 9639.
United States Court of Appeals District of Columbia Circuit.
Argued Oct. 19, 1948.
Decided Nov. 22, 1948.
Mr. Jerome F. Barnard, of Washington, D. C., with whom Mr. Ernest F. Henry, of Washington, D. C., was on the brief, for appellants.
Mr. William S. Tarver, of Washington, D. C., with whom Mr. John L, Laskey, of Washington, D. C., was on the brief, for appellees Timberlake, et al.
Messrs. Geoffrey Creyke, Jr., and Andrew A. Lipscomb, both of Washington, D. C., entered appearances for appellee Arthur Thompson.
Messrs. Arthur G. Nichols, Jr., and Stanton C. Peelle, Jr., both of Washington, D. C., entered appearances for appellee American Security & Trust Co.
Mr. Harold P. Ganss, of Washington, D. C. , entered an appearance for appellees Maude B. Ford, et al.
Mr. Charles D. Drayton, of Washington, D. C., entered an appearance for appellee Children’s Hospital.
Mr. Charles F. R. Ogilby, of Washington, D. C., entered an appearance for appellee Washington Home for Incurables.
Mr. George C. Gertman, of Washington, D. C., entered an appearance for appellee Isabelle Walker.
Before EDGERTON, PRETTYMAN, and PROCTOR, Circuit Judges.
PRETTYMAN, Circuit Judge.
This is an appeal from a judgment of the District Court in a civil action brought by the trustee under the will of Dorsey Clagett, deceased, for construction of that will and for instructions as to the proper distributees of the estate. The trial court rendered judgment upon the pleadings. It made extended findings of fact and conclusions of law and referred the matter to the Auditor of the Court to determine the amounts distributable to the persons entitled to participate under the decision.
Many of the able and. scholarly arguments presented by counsel relate to the rules of construction applicable to wills. But in this case we perceive in the will itself the intent of the testator, and that intent must be given effect. Technical rules of construction come into play only when the testator’s intent cannot be satisfactorily discerned.
By his will this testator left all his property, with minor immaterial exceptions, in trust for his wife for her life. He then directed:
“ * * * At the death of my wife, after paying all her funeral expenses and proper charges I direct my trustee, to pay the following beneficiaries the sums named or such pro-rata share as they may be entitled to.
“To Elbert Clagett, Five Thousand dollars ($5,000.)
******
“To Ella L. Clagett or her child or chil-dren, born of her by William B. Clagett, Five Thousand dollars ($5,000.)
******
“To Smith) Thompson, Jr., his heir or heirs Three Thousand Dollars ($3,000.) ******
“All the remainder of my estate together with such legacies as may have lapsed at the time of this distribution to be divided among the children then alive of my deceased brother William H. Clagett share and share alike.”
There were other pecuniary bequests, but, with immaterial exceptions, they are like one or another of the quoted three.
It is at once apparent that the testator had in mind some difference between these three bequests. He was a literate man; in fact, the Register of Wills in this jurisdiction for nine years. He said, in the quoted language, that he desired Elbert Clagett hirnself to have $5,000; Ella L. Clagett or her children by William B. Clagett to have $5,000; and Smith Thompson, Jr., his heir or heirs to have $3,000. The language is clear enough. The difficulty arises when an attempt is made to apply the rule that the law favors the earliest possible vesting of an estate, which would lead to the conclusion that these bequests vested at the death of the testator. Having thus vested, the peregrinations of the several interests during the forty-two years of the existence of the life estate (the wife having outlived her husband that long) would present an involved problem. But we think that the testator obviated that difficulty. By two expressions, he clearly indicated the date at which circumstances should differentiate between the three classes of beneficiaries. He directed that “At the death of my wife” the trustee should “pay the following beneficiaries”. And in the clause following the bequests, he referred to legacies which “may have lapsed at the time of this distribution”, i. e., at the time of the death of his wife. Thus, he thought of his legacies as possibly lapsing at any time prior to his wife’s death. If he had thought of them as vesting at his own death, so that the heirs of his named beneficiaries would thereupon take, he would hardly have referred to the possibility of their having lapsed at a date subsequent to his death. By the two expressions quoted, this testator clearly showed that as he wrote the different descriptions of his beneficiaries he was thinking of the time of his wife’s death. If his language is followed literally, the difference between the several bequests becomes effective; if it is not followed literally, that difference becomes blurred and maybe lost by reason of deaths, births and assignments occurring between the death of the testator and that of the life tenant. For example, if the bequest to Elbert Clagett vested at the testator’s death, Elbert Clagett then living, his heirs would take upon the death of the testator’s wife, just as would the heirs of Smith Thompson, Jr., and the heirs of Ella Clagett’s children. When all the will is read, the testator’s intent seems clear to us. It was that the participating beneficiaries be those persons to whom the descriptions in the will applied as of the date of the death of the life tenant.
We are fully conscious of the authorities which establish that language such as “at the death of my wife” should be deemed to refer to the time of enjoyment of the bequest and not to the vesting of its title. But this again is a rule of construction for use where the testator’s intent is not revealed.
Our view of the matter coincides with the conclusions of law reached by the learned trial judge.
Another question concerns the meaning of the clause in the will, above-quoted, which relates to “All the remainder”, etc. The estate is not large enough to pay all the pecuniary bequests in full, or so many of them as have not lapsed. The question is whether the amounts of the lapsed legacies should go to make up the shortage in the funds available for the specific pecuniary bequests, or should go intact (or in proportion to the available funds) to the residuary legatees. Technically, the question is whether the phrase “together with such legacies as may have lapsed at the time of this distribution” is an integral part of the residuary clause or is an alternative designation of beneficiaries of the pecuniary bequests.
Again we think that the intent of the testator is apparent and was to convey to' these residuaries a true residuum only, that is, any excess remaining after payment of all pecuniary bequests. If he had meant to designate a substitute recipient for the precise amount of a pecuniary bequest, he would hardly have done' so by a mere parenthetical reference in the process of disposing of the residue of his estate. The testator seems to have contemplated, as he provided, that if his named pecuniary beneficiaries were not in being at the time of the distribution, their bequests would lapse, not merely be transferred intact to another person. The inclusion of the quoted provision in the residuary clause seems to us to have been a precautionary measure lest intestacy be suggested as to those funds. This was the view of the trial court.
It follows that the judgment of the District Court must be and it is hereby.
Affirmed.
Pyne v. Pyne, 1946, 81 U.S.App.D.C 11, 14, 154 F.2d 297, 300. | 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. | What is the nature of the second listed respondent whose detailed code is not identical to the code for the first listed respondent? | [
"private business (including criminal enterprises)",
"private organization or association",
"federal government (including DC)",
"sub-state government (e.g., county, local, special district)",
"state government (includes territories & commonwealths)",
"government - level not ascertained",
"natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)",
"miscellaneous",
"not ascertained"
] | [
7
] | songer |
Irene ALVARADO, Reg. 17513-170, et al., Appellants, v. Virginia McLAUGHLIN, Warden, Federal Reformatory for Women, Alderson, West Virginia, et al., Appellees.
No. 73-1111.
United States Court of Appeals, Fourth Circuit.
Argued July 18, 1973.
Decided Oct. 23, 1973.
Wilfred J. Ritz, Lexington, Va. (Richard J. Bolen, Noel P. Copen, Huddles-ton, Bolen, Beatty, Porter & Copen, Huntington, W. Va., and Fred M. Vinson, Jr., Washington, D. C., on brief), for appellants.
John A. Field, III, U. S. Atty., for ap-pellees.
Before CRAVEN, BUTZNER and RUSSELL, Circuit Judges.
DONALD RUSSELL, Circuit Judge:
Section 7237(d), 26 U.S.C., provided, inter alia, that a convicted narcotic law offender was ineligible for parole consideration. That section, however, was repealed as a part of the enactment of the Comprehensive Drug Abuse Prevention and Control Act of 1970, effective May 1, 1971. Under this Act, persons convicted of, narcotic law violations were entitled to the same parole consideration as other offenders had under the general parole provision set forth in Section 4202, 18 U.S.C. The Act included, though, a “savings” provision to the effect that, “[P]rosecutions for any violation of law occurring prior to the effective date of section 1101 * * * * shall not be affected by the repeals or amendments made by such section * * * or abated by reason thereof.” The Board of Parole takes the position that, by virtue of this “savings” provision in the Act as well as the general “savings” statute, any federal prisoner convicted of a narcotic law offense committed prior to May 1, 1971, does not qualify for administrative parole consideration under the terms of the general parole statute. The petitioners, all federal prisoners convicted and sentenced on account of a narcotic law offense committed prior to May 1, 1971, filed this declaratory action to establish their eligibility for administrative parole consideration under Section 4202. The District Court, 355 F.Supp. 404, found that they did not qualify and dismissed their claim for relief. The petitioners have appealed. We reverse.
The contention of the Board, if sustained, would mean that federal prisoners, convicted of the same offense, would, as a matter of law, be treated differently in connection with the service of their sentences dependent upon whether their offense occurred before or after May 1, 1971. This contention is predicated on what the Board conceived to have been Congressional intent in enacting the new Act. Congressional intent to achieve such an irrational and manifest discrimination in treatment between prisoners convicted of the same offense, so inconsistent with fundamental fairness, should not be assumed, unless compelled by clearly expressed legislative purpose. We find no such expression of legislative intent in the Act. To the contrary, we are of the opinion that the language of the two “savings” provisions, relied on by the Board for its ruling, is plainly inapplicable as a bar to the rights of the petitioners under Section 4202 and that the position taken by the Board is at variance with the broad rehabilitative purposes of the Act itself.
The “savings” provision incorporated in the Comprehensive Drug Abuse Prevention and Control Act of 1970 [i. e., Section 1103(a)] was intended merely to preserve the right of the Government to prosecute offenders whose offense occurred before the effective date of the new Act but had not been theretofore prosecuted. The key word in the “savings” provision is “prosecution”. That term fixed the reach of the provision. The grant of parole, as authorized under Section 4202 is a part of an administrative proceeding, conducted not by the Court but by an administrative body, and conducted “long after sentence has been entered and the prosecution terminated.” Bradley v. United States (1973) 410 U.S. 605, 611, n. 6, 93 S.Ct. 1151, 1156, 35 L.Ed.2d 528. It “in no way affects the prosecution of the case,” United States v. Stephens (9th Cir. 1971) 449 F.2d 103, 105, and is in no respect a part of the “prosecution”. Section 1103(a), confined as it is specifically to the concept of “prosecution”, presents thus no bar to the right of the petitioners to qualify for consideration for parole under Section 4202 and cannot justify the arrant discrimination inherent in the position taken by the Board.
Neither does the general “savings” statute, Section 109, 1 U.S.C., foreclose the petitioners from a right to be considered for parole. That statute, “intended to obviate the common law’s technical abatement of a prosecution by the repeal of the statute under which it proceeded,” provides that, “[T]he repeal of any statute shall not have the effect to release or extinguish any penalty * * incurred under such statute, unless the repealing Act shall so expressly provide * * *.” It seems clear that the term “penalty” as used in this statute was intended to cover the same concept as the term “prosecution” in Section 1103(a) and is to be given no broader meaning. See United States v. McGarr (7th Cir. 1972) 461 F.2d 1, 4-5. “Penalty” in the statute refers to and embraces simply the sentence imposed by the Court. That sentence is in no way voided or “abated” by the subsequent grant of administrative parole. Parole is not “a suspension of sentence”, Jenkins v. Madigan (7th Cir. 1954) 211 F.2d 904, 906, cert, denied 348 U.S. 842, 75 S.Ct. 63, 99 L.Ed. 664; it does not remove or make invalid the sentence imposed, Marrero v. Warden, supra; it is still “a form of custody”, Padilla v. Lynch (9th Cir. 1968) 398 F.2d 481, 482, and “is in legal effect imprisonment”, Anderson v. Corall (1923) 263 U.S. 193, 196, 44 S.Ct. 43, 68 L.Ed. 247; in summary, it “is not a release of the prisoner from all disciplinary restraint but is rather merely ‘an extension of the prison walls’; and the prisoner while on parole remains ‘in the legal custody and under the control of’ the Parole Board,” United States v. Nicholson (4th Cir. 1935) 78 F.2d 468, 469-470, cert, denied 296 U.S. 573, 56 S.Ct. 118, 80 L.Ed. 405. So regarded, administrative parole does “not have the effect to release or extinguish any penalty” imposed by the sentence of the Court and is accordingly not within the terms of Section 109.
“The granting and revocation of parole are matters traditionally handled by administrative officers.”
Not only is there nothing in the law relied on by the Board to sustain this denial of eligibility for parole consideration to the petitioners but also, the Congressional intent in enacting the Comprehensive Act that repealed Section 7237(d) shows, to our mind, an unmistakable legislative purpose contrary to that contended for by the Board. It is obvious that Congress, in removing the ban on administrative parole for narcotic law offenders in the Comprehensive Act of 1970, was expressing a legislative judgment that an intelligent program of rehabilitation, in which administrative parole should be an available tool, was the preferred method of dealing with such offenders. If that was the Congressional purpose, it is difficult to find any basis in that Act, much less in reason or in fairness, for treating differently prisoners whose narcotic law offenses took place before May 1, 1971 from those whose offenses occurred after that date. We will not assume that Congress intended any such irrational purpose or intent.
Compounding the discrimination that the Board has made between offenders sentenced before and after May 1, 1971 is the incongruous position taken by the Board in eases arising in the Ninth and Seventh Circuits, where the Courts have found that the Board does have parole authority, and those arising in other Circuits where the Courts have not passed on the issue. In the case of any prisoner in the Ninth and Seventh Circuits the Board finds parole eligibility; in all other Circuits it denies eligibility. Such a disparity in treatment is intolerable. If the Board acquiesces in the decisions made by the Ninth and Seventh Circuits, it should in common justice extend the rights thus acquiesced in to all prisoners under its control. Our decision, so far as prisoners in this Circuit are concerned, assures to them equality of treatment with prisoners in the Ninth and Seventh Circuits. We assume the Board will extend the same rights to prisoners from the Third and District of . Columbia Circuits in view of the decisions in United States v. Marshal, 13 Cr.L. 2547 and Marrero v. Warden, supra, 483 F.2d 656.
We recognize, as the able District Judge observed, that there are decisions indicating a contrary conclusion to that expressed by us. A majority of the Courts that have examined the question have, however, decided as we have and we find their reasoning convincing.
This proceeding is accordingly remanded to the District Court with direction to enter a declaratory judgment that the petitioners are eligible for consideration for parole on the terms and subject to the conditions set forth in Section 4202,18 U.S.C.
. 21 U.S.C. 801 et seq.
. This is the section of the Act which repealed Section 7237(d).
. Note under Section 171, 21 U.S.C.
. Section 109, 1 U.S.C.
. Pub.L. 91-513, 84 Stat. 1236, 21 U.S.C. 801 et seq.
. See, also, Morrissey v. Brewer (1972) 408 U.S. 471, 486, 92 S.Ct. 2593, 2603, 33 L.Ed. 2d 484:
. Marrero v. Warden (3d Cir. 1973) 483 F. 2d 656.
. The right of the judge to provide for parole as a part of his sentence is quite different from the “availability of parole under the general parole statute”; the reason is that one is a part of the sentence or “penalty”, the other is an administrative action “made long after sentence has been entered and the prosecution terminated.” See, United States v. Huguet (2d Cir. 1973) 481 F.2d 888, 891.
. Many of these cases dealt specifically with the power to sentence under the old Act, not to the subsequent, administrative effectuation of that sentence later. See United States v. Fiore (2d Cir. 1972) 467 F.2d 86, 88-89, cert. den. 410 U.S. 984, 93 S.Ct. 1510, 36 L.Ed.2d 181; United States v. De Simone (2d Cir. 1972) 468 F.2d 1196, 1198-1199, cert. den. 406 U.S. 959, 93 S.Ct. 1499, 36 L. Ed.2d 188; Page v. United States (10th Cir. 1972) 459 F.2d 467, 468, cert. den. 410 U.S. 989, 93 S.Ct. 1506, 36 D.Ed.2d 187. Whether Fiore and De Simone remain the law of the Second Circuit is doubtful in view of the decision of that Circuit in United States v. Huguet (2d Cir. decided July 9, 1973), 481 F.2d 888.
. See United States v. Marshal, supra; Marrero v. Warden, supra; United States v. McGarr, supra; United States v. Stephens, supra; United States v. Robinson (7th Cir. 1972) 466 F.2d 780, 782; United States v. Pratter (7th Cir. 1972) 465 F.2d 227, 233. | 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". | In what state or territory was the case first heard? | [
"not",
"Alabama",
"Alaska",
"Arizona",
"Arkansas",
"California",
"Colorado",
"Connecticut",
"Delaware",
"Florida",
"Georgia",
"Hawaii",
"Idaho",
"Illinois",
"Indiana",
"Iowa",
"Kansas",
"Kentucky",
"Louisiana",
"Maine",
"Maryland",
"Massachussets",
"Michigan",
"Minnesota",
"Mississippi",
"Missouri",
"Montana",
"Nebraska",
"Nevada",
"New",
"New",
"New",
"New",
"North",
"North",
"Ohio",
"Oklahoma",
"Oregon",
"Pennsylvania",
"Rhode",
"South",
"South",
"Tennessee",
"Texas",
"Utah",
"Vermont",
"Virginia",
"Washington",
"West",
"Wisconsin",
"Wyoming",
"Virgin",
"Puerto",
"District",
"Guam",
"not",
"Panama"
] | [
48
] | songer |
CHUNG CHAW WA, a/k/a Chung Tseou Fat, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
No. 7231.
United States Court of Appeals First Circuit.
March 13, 1969.
Joseph F. O’Neil, Boston, Mass., on memorandum of petitioner in opposition to motion to dismiss.
Paul F. Markham, U. S. Atty., and Stanislaw R. J. Suchecki, Asst. U. S. Atty., on motion of respondent to dismiss.
Before ALDRICH, Chief Judge, Mc-ENTEE and COFFIN, Circuit Judges.
PER CURIAM.
Petitioner is an alien who entered on a Norwegian ship and overstayed his temporary seaman’s permit. He brings this action in this court to review a deportation order following a hearing before an Immigration and Naturalization Service examiner. His root complaint is that he should be allowed to depart to Hong Kong voluntarily, instead of being deported there, with the attendant risk, if the Crown Colony should refuse to accept him, of being sent to Tahiti. Specifically, he contends the examiner failed to inform him of his right to show the possibility of future persecution in the event of deportation. 8 U.S.C.A. § 1253(h); 8 C.F.R. § 242.17(c). He is without funds, or prospect of funds, to enable him to depart voluntarily, but hopes he might acquire some if he were allowed to stay and work “several months.”
The government moves to dismiss for lack of jurisdiction because petitioner failed to exhaust his administrative remedies. 8 U.S.C. § 1105a(e); Mai Kai Fong v. INS, 9 Cir., 1962, 305 F.2d 239, 242; Arias-Alonso v. INS, 5 Cir., 1968, 391 F.2d 400. After pages of generalities in his brief it finally appears that petitioner’s answer to this is that it was his counsel rather than himself personally, who responded “No,” to the examiner’s question whether he wanted to appeal. There is nothing to show that this answer was not authorized, or that petitioner thereafter, within the statutory ten days, sought to appeal, which he could still have done. 8 C.F.R. § 242.21. The point is frivolous.
We may add that the appeal also appears entirely lacking in substance. There is even now no identification of where, or what, persecution petitioner feared. Presumably he feared none in Hong Kong,, since that is where he wished to go. And it is as unclear to us as it must have been to the examiner how a mere seaman who, incidentally, had eleven siblings in the island, feared political persecution in Tahiti. There is a burden on petitioner to show that he was prejudiced, and he makes no attempt to do so. We find it difficult to believe that this appeal was taken other than for delay. In any event, it must be dismissed for lack of jurisdiction. | What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Consider the following categories: "criminal" (including appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence), "civil rights" (excluding First Amendment or due process; also excluding claims of denial of rights in criminal proceeding or claims by prisoners that challenge their conviction or their sentence (e.g., habeas corpus petitions are coded under the criminal category); does include civil suits instituted by both prisoners and callable non-prisoners alleging denial of rights by criminal justice officials), "First Amendment", "due process" (claims in civil cases by persons other than prisoners, does not include due process challenges to government economic regulation), "privacy", "labor relations", "economic activity and regulation", and "miscellaneous". | What is the general issue in the case? | [
"criminal",
"civil rights",
"First Amendment",
"due process",
"privacy",
"labor relations",
"economic activity and regulation",
"miscellaneous"
] | [
7
] | songer |
Myles James SWIFT, Appellant, v. DIRECTOR OF SELECTIVE SERVICE et al.
No. 24137.
United States Court of Appeals, District of Columbia Circuit.
Argued June 4, 1970.
Decided July 16, 1971.
Mr. Gaillard T. Hunt, Washington, D. C., with whom Mr. Walter C. Farley. Washington, D. C., was on the brief, for appellant.
Mr. Morton Hollander, Atty., Department of Justice, with whom Messrs. Thomas A. Flannery, U. S. Atty., and Reed Johnston, Jr., Atty., Department of Justice, were on the brief, for appel-lees. Mr. Robert E. Kopp, Atty., Department of Justice, also entered an appearance for appellees.
On Appellees’ Petition for Rehearing
Before BAZELON, Chief Judge, and ROBINSON and WILKEY, Circuit Judges.
PER CURIAM:
Appellant Swift sought an injunction to prevent his induction into the Army, asserting that his induction order was invalid for two reasons. He urged first, that his draft status must be governed by the new Random Selection Sequence Regulations, not by the order of call existing on the date of his original induction order; and, second, that his local board acted unlawfully in refusing to reopen his classification in response to his post-induction order claim of conscientious objection. The District Court resolved the first contention against appellant- on the merits. We affirm that decision for the reasons given in Part II of this opinion.
The District Court further held that appellant’s second contention was barred from pre-induction review by Section 10(b) (3) of the Military Selective Service Act of 1967 (50 U.S.C. (Supp. V, 1970) § 460(b) (3)). In our initial opinion in this case of March 16, 1971, we disagreed with that conclusion and held, Judge Wilkey dissenting, that under United States v. Gearey appellant had stated a claim that the board had acted unlawfully which could be reached on pre-induction review. However, we noted in our March 16, 1971, opinion that if we had chosen to follow Ehlert v. United States “appellant would have no feasible claim that his board acted lawlessly in refusing to reopen his classification.”
Subsequently, before the mandate of this court had issued, the Supreme Court affirmed the Ninth Circuit’s decision in Ehlert, holding that under the applicable regulations a claim of conscientious objection which matures after issuance of an induction order may not be entertained by the Selective Service, but must be considered by the military after induction. Ehlert obviously removes the basis for appellant’s contention that his board unlawfully refused to consider his posi-induction order claim to conscientious objection. We therefore vacate our opinion of March 16, 1971, and thus also affirm the District Court’s action in denying a preliminary injunction on this second ground.
I. FACTS
Appellant was classified I-A by his local board in Allentown, Pennsylvania, in March 1969. He took an appeal, and was classified I-A-0 by an appeals board. On September 12, 1969 he received an order to report for induction on October 1. Appellant obtained assorted postponements of the reporting date; then, on November 22, he presented his board with a request to change his classification to 1-0 on the ground that his views, which had crystallized after the induction order, prevented him from serving in the Army at all. By letter of December 11, the board informed appellant that it had considered the information submitted in support of his 1-0 claim, and had unanimously refused to reopen his file. The Pennsylvania State Director of Selective Service, on January 5, 1970, reviewed appellant’s file, and concluded that the local board had acted properly.
In the meantime, by letter of December 19, 1969, the local board had ordered appellant to report for induction in Allentown on January 15, 1970. He did so, but no final decision as to his acceptability was reached because further physical tests were needed. On January 21, 1970, appellant was ordered by his local board to report to Walter Reed Army Hospital on February 11, for the tests. He reported as directed, and on February 17 he was informed that he had been found fully acceptable for induction. The next day he was ordered by a letter' from his local board to report for induction in Allentown on March 2, 1970. Later, appellant’s request for a transfer of induction was granted, and he was to have reported for induction in the District of Columbia on April 7, 1970. Court proceedings leading to a stay of induction order from this court were started on April 1, 1970.
II. RANDOM SELECTION
Appellant argues that his induction order was terminated by the events of January 15, 1970, when he reported to the Armed Forces Entrance Examination Station (AFEES) and was not inducted because of an inability to complete his physical examination on that day. Thereafter, appellant maintains, he could only be inducted pursuant to a new induction order, issued in conformity with the order of call established by the new regulations effective January 1, 1970, calling for a lottery. Since resolution of this question involves only a legal issue, and does not call for a review of a factual determination or the exercise of discretion by the local board, we think it plainly can be reached on preinduction review.
Appellant emphasizes that his original order to report for induction (SS Form 252) dated September 12, 1969, which was postponed several times, was still in effect on January 15, 1970, and that he fully complied with this order by reporting at the time and place designated and being physically examined. Appellant alleges, and the District Court took as true on his expressed willingness to testify and on the Government’s representation that no dispute of fact existed, that on January 15 he was sent from the AFEES and told by AFEES personnel that the next orders he would get would be from his local board. He asserts that the reason for this was that his physical examination had only been partly completed, that further examination in regard to his problems of flat feet and a bad back could not be done at the local station, and the facilities of a hospital such as Walter Reed were required. He subsequently was sent to Walter Reed for further examination which resulted in his being determined medically acceptable, as he was informed by the notice sent February 17, 1970.
On this state of facts appellant argues that his order of induction of September 12, 1969, was thus terminated or exhausted, that a new order of induction from the local board was necessary to put him once again in line for military service, and that such order had to be issued under the new random selection regulations.
Appellant does not, and the Government asserts he cannot, point to any provision in the statutes, Selective Service regulations, or Army regulations that states specifically that the failure to induct a registrant into the Armed Forces on the day he reports pursuant to an order of induction, when the reason for the delay is an incomplete physical examination, has the legal effect of canceling or terminating his previously issued induction order. On the other hand, appellant asserts that the Government can point to no statute, regulation, or other authority which says that the induction order continues in full force and effect.
It is probable that many thousands of registrants have been treated in the same manner as apepllant here, i. e., the registrant has reported for a physical examination, some problem has been encountered which is beyond the capacity of the particular examining station to determine with finality, and the registrant has been told to go back to his residence and that he will be advised later as to when and where his physical examination can be completed. The registrant has then been found medically acceptable or unacceptable, and the Selective Service process has functioned in a normal manner in taking or rejecting him.
it is obvious that the reason this question has seldom arisen in court before is that few registrants ever found themselves with the attractive alternative possibility that appellant here claims, i. e., if the induction order was exhausted by appellant reporting on the day specified and the Armed Services were unable to complete his physical exam until space could be secured for him to be examined at a more elaborate medical facility such as Walter Reed, then appellant could only be reordered to report for induction under the new random selection regulations. With lottery No. 342, appellant would naturally prefer this alternative if in law it does exist.
We think the answer to this question is indicated by Army Regulation 601-270, Section 3-31 of March 18, 1969. This section is the Armed Services’ effort to provide administrative instructions for handling registrants at the Armed Forces Entrance Examination Stations under various contingencies. Insofar as the medical examination itself is concerned, it is obvious that each registrant will fit into one of three categories: one, medically acceptable; two, medically unacceptable; or three, medical acceptability undetermined for any of several reasons. Sub-paragraph a. gives specific instructions as to what officials at the AFEES are to do with those registrants found “medically unacceptable,” specifying which forms will be filled out and what transportation will be provided the registrants, etc. Sub-paragraph 6. is a similar effort to instruct officials at the AFEES as to how to handle registrants “whose medical acceptability is undetermined” on the first day of examination. These pertinent instructions state:
b. Registrants whose acceptability is undetermined.
In the case of registrants whose acceptability for induction in undetermined, pending * * * further hospital study/consultation, or additional mental evaluation, their records may be held at the AFEES for completion upon final determination of acceptability. The registrant will be advised that his acceptability for induction is undetermined pending the above determinations and that he will be further advised by his Local Board. The registrant will be returned to his Local Board in the same manner as other registrants rejected at time of induetion. Disposition of the registrant will be shown on SS Form 261 as “acceptability undetermined” with the remark “pending medical, mental or administrative action” as applicable.
It is readily apparent that a good many reasons could arise as to why the medical examination for some registrants could not be completed at the AFEES medical facilities. In the case of appellant, his problems of flat feet and a bad back needed more expert evaluation, which was only obtainable at a facility like Walter Reed. On oral argument, the question was posed to appellant’s counsel as to whether sub-paragraph V. would also govern a situation in which the AFEES facility ran out of x-ray film, the registrant needed his chest x-rays completed, and he had to be told to come back at a subsequent date. Appellant’s counsel stated that this situation of exhausted x-ray film would be comparable to appellant’s situation of necessary further evaluation of flat feet and a bad back.
We find nothing in sub-paragraph b. which has the effect of or indicates that it is intended to have the effect of canceling or terminating any registrant’s previously outstanding order of induction, unless and until he is found finally “medically unacceptable.” Rather, we find in subparagraph b. an effort to provide detailed instructions, even as to precisely which forms are to be completed by the official at the AFEES, and what handling the registrant is to receive, all in contemplation of the registrant’s remaining in an undetermined status until his medical acceptability can be finally determined. To us it seems highly illogical that any of innumerable possible happenstances which would interrupt the completion of the physical evaluation of a registrant have the legal effect of terminating his previously extant order of induction. For example, if for any reason an AFEES had to close for one day, this would necessarily throw all the registrants being processed that day back to their local boards to receive new orders to be inducted, on the inescapable logic of appellant’s argument here. There is nothing in Section 3-31 which indicates that the effect of suspending temporarily the medical examination of a registrant until he can be processed at the proper medical facility was intended to exhaust the effectiveness of the order of induction under which the registrant and the AFEES were operating.
The fact that sub-paragraph b. calls for the registrant to be returned to his local board is to our minds a mere administrative convenience. It is certainly a logical feature of the Selective Service System that the registrant should look to only one place for his orders with respect to the draft — his local board. If his medical examination is interrupted and is to be continued a short time later, it is logical that the local board should have the authority to notify him. To hold that because of a fortuitous event at the AFEES an already selected registrant is thrown back to his local board to be processed again in a different order of priority with other registrants at that same local board would do violence to the whole rationale of the Selective Service System. The rationale of that system must be that the registrant, once validly called on his current draft classification, retains his relative place in the priority call, otherwise the whole system of just and fair priorities of selection for service is thrown out.
In fact, it appears that the system contemplates that the induction of registrants in this position is to be neither cancelled, nor postponed, as those categories are defined by the regulations. Rather, their induction is merely administratively “delayed.” Selective Service Operations Bulletin No. 326, dealing with delay of induction, provides as follows :
5. The authority of an AFEES Commander to delay an induction for reasons other than challenges to physical qualifications, as specified in paragraph 3, is limited to the following:
a. When a registrant is found unacceptable or acceptability cannot be immediately determined at the time of induction as a result of the routine induction processing procedure prescribed in AR 601-270.
This is further evidence that the Army and the Selective Service authorities quite realistically contemplated that many registrants of ultimate physical acceptability might not be immediately and finally so determined on the day of reporting, and therefore the AFEES Commander had to be told by the appropriate regulations what he was authorized to do about their situation. The provisions of paragraph 3-31, subpara-graphs a. and b., of AR 601-270 are thus part of the regulatory scheme envisaged in the Selective Service Act, giving detailed instructions to the AFEES Commander for the action to be taken when the registrant is found physically unacceptable or when his acceptability is undetermined for a period of time.
Appellant places considerable emphasis on the last sentence of subparagraph b., which refers to local board action concerning a registrant whose acceptability has been undetermined for a period, as was appellant’s here. This last sentence states: “His [the registrant whose acceptability has been undetermined] other records will be completed and distributed in the same manner as for registrants found acceptable at time of pre-induction, except Section VIII, DD Form 47 will not be completed until such time as the registrant is again ordered to report for induction.” Appellant argues that this last phrase has the effect of terminating the existing order to report for induction and that the whole intent of sub-paragraph b. is to require the board to reprocess a registrant, the determination of whose medical acceptability is deferred; and that such reprocessing be accomplished by the issuance of a new SS Form 252, order to report for induction. However, it seems to us that this sentence means only that the registrant will be notified by his local board of his new reporting date after his physical examination has been satisfactorily completed. This ties in with the phrase earlier in sub-paragraph b“The registrant will be advised that his acceptability for induction is undetermined pending the above determinations and that he will be further advised by his Local Board.” This is consistent with the idea that all information to the registrant is to come from one source, his local board.
It may be helpful to look at what actually occurred here in the case of appellant. He was ordered to report for induction (SS Form 252) by local board 89 on September 12, 1969. The reporting date of October 1st was subsequently delayed more than once, at times because of appellant’s request and at times for the board’s convenience. However, subsequent to the issuance of the formal order on Form 252 the board communicated with the registrant by simple letter, not by any particular formal order. For example, the board’s letter of December 11 rejected the claim for a 1-0 classification, and stated, “[y]ou[r] Induction Order, therefore, is still in effect. You will be advised by letter when and where to appear for Induction into the U.S. Armed Forces.” On December 19th the board wrote a simple letter stating “You are hereby ordered to report for induction * * * on January 15, 1970.” This was the instruction to report at a certain time and place, which appellant had no difficulty in accepting as being unquestionably valid and obligatory on him, and this was a letter of instruction by the local board, based on the continuing validity of the September 12 “Order to Report for Induction” on Form 252. Subsequently, on February 18, local board 89 sent a similar simple letter stating “You are hereby ordered for induction into the U.S. Armed Forces of the United States [sic] and to report * * * on March 2, 1970.” It was thereafter that appellant asserted that he must receive a new formal order 252 from the local board and that this new order had to be based on the new random selection regulations, since somehow his reporting on January 15 had exhausted the authority of the previous order for induction which hitherto had been in full force and effect. We see no difference between the effect of the letter of December 19, advising of a new date and place of induction on the basis of the order of induction of September 1969, on Form 252, still in full force and effect even as construed by appellant, and the same form of letter dated February 18, which was likewise based by the local board on the previous order of induction of September 1969 being in full force and effect. Each of these letters written by the board to the appellant merely represents advising him of a new time and place of reporting pursuant to the previously existing order, although the board uses the language in the letter “you are hereby ordered,” which apparently would conform with the last sentence of sub-paragraph b. of AR 601-270, paragraph 3-31.
We therefore conclude that appellant’s induction order was not can-celled or in any way terminated by the delay of his induction resulting from his physical condition being found medically undetermined on January 15, 1970.
III. APPELLANT’S OTHER CLAIMS
1. Appellant has also complained that his classification as I-A-0 instead of 1-0 was without a basis in fact. This claim is plainly barred from pre-induction review by Clark v. Gabriel.
2. Appellant further contends that the Military Selective Service Act of 1967 is limited by Article I, Section 8, Clause 12 of the Constitution to a term of two years, and therefore expired on June 30, 1969.
We treat this issue on the merits because we find that, as it is wholly frivolous, we can resolve it expeditiously. For this reason, a three-judge statutory court normally called for by this type of question is not required. Also for this reason pre-induction review is appropriate.
Article I, Section 8, Clause 12 of the Constitution provides as follows: “The Congress shall have power * * * to raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years * *- *»
Since in our view the Military Selective Service Act of 1967 is in no way an “Appropriation of Money,” we resolve this issue against appellant.
3. Finally, in his response to the Government’s petition for rehearing, appellant represents that since the issuance of our opinion of March 16, 1971, he has had' occasion to examine his Selective Service file and has discovered therein certain documents which indicate that his induction order of September 12, 1969, may have been cancelled by National Headquarters of Selective Service sometime around November 5, 1969.
Appellant therefore asserts that his November 22, 1969, claim for 1-0 status was not, as has been supposed throughout this litigation, a posi-induction order claim now governed by Ehlert v. United States, b.ut rather a pre-induction order claim, entitling him to a reopening upon presentation of a prima facie case. See Mulloy v. United States. This claim, and the facts necessary to support it have never been presented to the District Court. It is thus not properly before us for decision and we decline to pass upon it in any way.
The opinion and judgment of this court of March 16, 1971, and the order of this court of April 13, 1970, staying appellant’s induction into the Army will accordingly be vacated, and the judgment of the District Court of April 13, 1970, will be
Affirmed.
. 32 C.F.R. § 1631.7 (1970) (effective January 1, 1970).
. 368 F.2d 144 (2d Cir. 1966) ; 379 F.2d 915 (2d Cir.), cert. denied, 389 U.S. 959, 88 S.Ct. 335, 19 L.Ed.2d 368 (1967).
. 422 F.2d 332 (9th Cir. 1970).
. Ehlert v. United States, 402 U.S. 99, 91 S.Ct. 1319, 28 L.Ed.2d 625 (1971).
. Persons in this classification are available for military service, 32 C.F.R. § 1622.2 (1970), for failure to show that they are eligible for another class, id., § 1622.10 (1970).
. The administrative scheme of the Selective Service System is found in 32 C.F.R. §§ 1623 to 1627 (1970).
. Persons in this class are conscientious objectors available for non-combatant service only, 32 C.F.R. § 1622.2 (1970). According to appellant’s brief, virtually all I-A-Os are used as medical personnel.
. Persons in this class are conscientious objectors available only for civilian work, id.
. Briefly, appellant states that after the induction order was issued he found that almost all I-A-Os are used in a position “he found as conscientiously objectionable as actual combat, service in the medical corpsand that “the Army feels that all its personnel contribute to its basic mission, and that all non-combatants, not only medics, are essential to the machinery of fighting.” Appellant’s Brief at 1-2.
. The entire letter was as follows:
The Local Board considered the information you submitted in support of your claim for a 1-0 classification but they decided unanimously not to re-open your file. You [sic] Induction Order, therefore, is still in effect.
You will be advised by letter when and where to appear for Induction into the U. S. Armed Forces.
. The entire letter was as follows:
The file of the registrant has been reviewed.
It has been determined that the local board properly considered the registrant’s claim for a Class 1-0 classification after he had been classified in Class I-A-O.
Although not stated in specific language the Classification Questionnaire on page 8 indicated that the local board considered the claim according to Section 1625.2 of selective service regulations and did not find first a change in the registrant’s status as a result of circumstances beyond his control.
No action by this headquarters is deemed to be warranted.
. Appellant argues that this letter improperly failed to observe the 21-day delay between issuance of DD Form 62 and an order to report for induction mandated by 32 CFR § 1631.7 (1970). However, as discussed in Part II, infra, the local board was acting pursuant to an already outstanding induction order in notifying appellant by letter to report. Section 1631.7 is therefore not applicable. Moreover, we think it evident from the circumstances of this case that the local board simply utilized DD Form 62 as a convenient method of notifying appellant of the result of his examination at Walter Reed Hospital. Since on oral argument appellant’s counsel conceded that a DD Form 62 had already been sent to appellant some months prior to his initial induction order on SS Form 252, it is apparent that the second DD Form 62 of February 17, 1970 was merely intended to inform appellant of the satisfactory result of his Walter Reed visit and was not intended to serve as the prerequisite to a new order to report as contemplated by § 1631.7. While the use of DD Form 62 for the former purpose is no doubt poor administrative practice, contrary to applicable regulations, see AR 601-270 11 3.31(b), and needlessly confusing, we do not think any right of appellant’s was violated thereby.
. Appellant initially sought a temporary restraining order in the District Court to prevent his April 7 induction. This was denied, and we allowed an emergency appeal, which was dismissed when appellant’s induction was postponed until April 14. The District Court then refused to enjoin appellant’s induction, and on April 13 we stayed the induction pending appeal.
. Supra note 1. Appellant’s lottery number is 342.
. “Preinduction review will always lie where * * * the facts are uncontested, no discretion is involved, and the applicable ‘law’ is clear.” Shea v. Mitchell, 137 U.S.App.D.C. 227, 230, 421 F.2d 1162, 1165 (1970).
. The regulation, 32 CFR. § 1632.14 (1970) provides that a registrant who either fails to report for induction, or whose induction is postponed, is under a continuing duty to report for induction. Appellant urges that (1) he did not fail to report for induction, but rather reported and was turned away; and (2) his induction was not formally “postponed” after January 15, 1970, when he reported, and his medical condition was deemed undetermined. As to this latter contention, appellant maintains that since no postponement of induction under 32 CFR § 1632.2 (1970) was accomplished, 32 CFR § 1632.14, which provides for a continuing duty to report when a “postponement” is terminated, cannot come into play to extend appellant’s order. The contention made is therefore that the “postponement of induction” authorized by § 1632.2 is the only type of postponement which § 1632.14 contemplates as extending the effect of an induction order. This argument, however, falls of its own weight, since appellant admits that his induction was lawfully “postponed” several times, and that his original induction order continued in effect until January 15, 1970. Section 1632.2 authorizes the local board, on request of a registrant, to grant a postponement of induction in cases of “extreme emergency” or hardship “beyond the registrant’s control.” The postponements received by appellant, however, were clearly not of this nature. His induction was delayed at least twice, on September 15, 1969, and November 28, 1969, as a result of the granting of his requests to have his induction transferred to the District of Columbia. Another delay occurred on November 25, 1969, apparently to permit the board to consider whether to reopen appellant’s classification on his claim for 1-0 status.
Appellant does not claim that these delays or postponements were in any way invalid, and it is evident that they were not granted pursuant to § 1632.2. It follows, therefore, that the word “postponement” as used in § 1632.14 must have a broader meaning than simply those postponements granted under § 1632.2. At least two circuits, in situations similar to the instant case, have so held. United States v. Ritchey, 423 F.2d 685 (9th Cir. 1970) ; United States ex rel. Luster v. McBee, 422 F.2d 562 (7th Cir. 1970) ; accord, United States v. Evans, 425 F.2d 302 (9th Cir. 1970) ; contra, Liese v. Local Board, 314 F.Supp. 521 (E.D.Mo.1970). Consequently, the mere fact that action prescribed by § 1632.2 was not taken when appellant’s induction was delayed on January 15, 1970, does not necessarily mean that he is no longer under a duty to report pursuant to his original order.
. Section 3-31 of Army Regulation (AR) 601-270 provides as follows :
3-31. Registrants found unacceptable on physical inspection or complete medical examination, registrants pending security processing or additional mental evaluation or moral or medical waiver action, and registrants refusing to submit to induction or who are uncooperative.
a. Medically unacceptable registrants. For registrants found medically unacceptable, the following procedure will be followed:
(1) Applicable subitems under section VIII, DD Form 47, will be completed.
(2) Disposition of registrant will be entered in column 4, SSS Form 261.
(3) Appropriate entries will be made on duplicated copies of the Standard Form 88 for registrants found unacceptable at time of physical inspection (para. 4r-21).
(4) Processing personnel will review each registrant’s DD Form 47, Standard Form 88, Standard Form 89, and DD Form 98, and other forms prepared, for accuracy and completeness.
(5) If necessary, transportation arrangements will be made for returning them to the appropriate Selective Service local boards, or in appropriate cases, to place of residence. Every effort will be made to place the registrants on return transportation on the same day of their arrival at the AFEES.
b. Registrants whose acceptability is undetermined,. In the case of registrants whose acceptability for induction is undetermined, pending security processing, moral or medical waiver action or for further hospital study/consultation, or additional mental evaluation, their records may be held at the AFEES for completion upon final determination of acceptability. The registrant will be advised that his acceptability for induction is undetermined pending the above determinations and that he will be further advised by his local board. The registrant will be returned to his local board in the same manner as other registrants rejected at time of induction. Disposition of the registrant will be shown on SS Form 261 as “Acceptability Undetermined” with the remark “Pending medical, mental or admin, action,” as applicable. DD Form 62 will not be accomplished for those individuals (provided a DD Form 62 was prepared at the time of initial examination) until it is determined that they are unacceptable for service. If the final determination results in a decision that the registrant is acceptable of induction, DD Form 62 will not be prepared; instead, a letter will be prepared and forwarded to the local Selective Service board including a statement substantially as follows: “Registrant (Name) (Selective Service number) is removed from ‘Acceptability Undetermined’ status and the original determination of acceptability on DD Form 62, date-•, ‘found fully acceptable for induction into the armed forces,’ is unchanged.” His other records will be completed and distributed in the same manner as for registrants found acceptable at time of preinduction, except section VIII, DD Form 47, will not be completed until such time as the registrant is again ordered to report for induction.
c. Registrants who refuse to submit to induction, or who are uncooperative. * :js * * *
. Of., 32 CFR § 1631.7 (1970), governing those registrants called under the new lottery system, which provides :
That any registrant classified in Class I-A or Class I-A-0 who is subject to random selection as herein provided, whose random sequence number has been reached, and who would have been ordered to report for induction except for delays due to a pending per-448 F.2d — 73
sonal appearance, appeal, preinduction examination, reclassification, or otherwise, shall if and when found acceptable and when such delay is concluded, be ordered to report for induction next after delinquents and volunteers even if the year in which he otherwise would have been ordered to report has ended and even if (in cases of extended liability) he has attained his twenty-sixth birthday.
This section replaced the earlier regulation, 32 CFR § 1631.7 (1969), 32 Fed. Reg. 9793, July 4, 1967, applicable to those called under the old system, which provided, with exceptions not here relevant, that registrants within groups designated according to age and marital status, be called “in order of their dates of birth with the oldest being selected first.”
Thus, in appellant’s case, had the order of call not been changed by the adoption of the lottery system, it would be totally inconsequential whether, after a delay of induction, he was ordered to report by letter or by a new SS Form 252, since .lie would still retain the same priority of call relative to the rest of his group.
. This is so insofar as the definition of “postponement” is limited to that action prescribed by 32 CFR § 1632.2 (1970). However, in respect of this question, see note 16, supra. In any event, regardless of how a postponement is defined for present purposes, there is no regulation which indicates that delays such as those encountered here require the cancellation of an outstanding order of induction.
. Operations Bulletin No. 326, issued August 22, 1968 by the National Director of Selective Service, as amended October 23, 1968.
. Quoting from a letter issued by the United States Army Recruiting Command “clarifying previous * * * letters on the * * * subject [of unauthorized delay of induction].” Bulletin No. 326, signed by the National Director of Selective Service, reproduces this letter in toto.
. Inspection of DD Form 47 (Record of Induction) also indicates that complete reprocessing of a registrant who is delayed because of undetermined medical acceptability, such as might be expected to be required if a new order to report was necessary, is not contemplated by the regulatory scheme. The first two sections of this form are filled out by the local board, and since AR 601-270 provides that the form is to be held for later completion, rather than destroyed or returned to the local board, it is evident that complete reprocessing of the registrant is required neither of the local board nor of the induction station.
. In one respect the procedure specified in sub-paragrapli h. was not followed. Appellant’s counsel stipulated at oral argument, and it is apparent that as a predicate for the validity of the SS Form 252 Order to Report for Induction of September 12, 1969, that at some previous time a DD Form 62 on appellant’s physical acceptability was issued. If this is true, although it does not appear in the record, then the sending of another DD Form 62 “Statement of Acceptability,” which was done on February 17, 1970 after appellant’s physical examination had been completed at Walter Reed, was superfluous and contrary to the Army regulation. See note 12, supra. It certainly was not intended to lay the predicate for a new SS Form 252, Order to Report for Induction, because this would have required an interval of 21 days before such an order was issued. On the following day, February 18, as had been used previously, an informal letter ordering the appellant to report was sent by local board 89, obviously as before, on the assumption that the formal SS Form 252 Order to Report for Induction of September 12, 1969, was still in full force and effect.
. 393 U.S. 256, 89 S.Ct. 424, 21 L.Ed. 2d 418 (1968).
. 28 U.S.C. § 2282. See Bailey v. Patterson, 369 U.S. 31, 82 S.Ct. 549, 7 L.Ed. 2d 512 (1962) ; Ex parte Poresky, 290 U.S. 30, 54 S.Ct. 3, 78 L.Ed. 152 (1934).
. Shea v. Mitchell, see note 15, supra,.
. Appellant had also alluded to this discovery in his petition for rehearing filed March 29, 1971, which was denied by this court on April 16, 1971.
. 398 U.S. 410, 90 S.Ct. 1766, 26 L.Ed. 2d 362 (1970). | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)". Your task is to determine which category of federal government agencies and activities best describes this litigant. | This question concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)". Which category of federal government agencies and activities best describes this litigant? | [
"cabinet level department",
"courts or legislative",
"agency whose first word is \"federal\"",
"other agency, beginning with \"A\" thru \"E\"",
"other agency, beginning with \"F\" thru \"N\"",
"other agency, beginning with \"O\" thru \"R\"",
"other agency, beginning with \"S\" thru \"Z\"",
"Distric of Columbia",
"other, not listed, not able to classify"
] | [
0
] | songer |
KETCHUM et al. v. MacDONALD.
No. 5942.
Circuit Court of Appeals, Third Circuit.
Aug. 6, 1936.
Wm. S. Doty, Doty & Thornton, and Thomas A. Thornton, all of Pittsburgh, Pa., for appellants.
E. Lowry Humes, of Pittsburgh, Pa., for appellee.
Before BUFFINGTON, DAVIS, and THOMPSON, Circuit Judges.
Writ of certiorari denied 57 S. Ct. 120, 81 L.Ed. ——.
DAVIS, Circuit Judge.
This is an appeal from an order of the District Court dismissing exceptions to the report of the special master and thereby denying to the appellants the relief sought in their petition.
In 1928 the petitioners, appellants, instituted proceedings against the Conneaut Lake Company in the common pleas court of Allegheny county, Pa., for services performed by them for the company. On April 15, 1933, they obtained a judgment for $6,-388.35.
While the above suit was going on, Ralph Hirsch, a simple contract creditor of the Lake Company, on September 27, 1929, filed a bill of complaint in the District Court for the appointment of a receiver for the assets of the Lake Company. The bill of complaint alleged that the Lake Company was unable to meet the claims of creditors and prayed that a receiver be appointed because “the property and assets of said defendant are of such a nature * * * that the security and protection of creditors requires that the same be kept intact and * * * maintained as an operating whole,” and in order that “ * * * loss to the creditors and stockholders * * * may be prevented and that the rights of all parties may be fairly and equitably conserved and protected * * *.” The Lake Company consented to the appointment, and the appellee R. J. MacDonald was appointed receiver.
The assets of the Lake Company were alleged, in the bill of complaint, to consist of real property valued' at $1,000,000; cash amounting to $10,000; and accounts receivable amounting to $5,000. The Lake Company also had personal property valued at $117,243.82, though this value was not mentioned in the bill of complaint. The liabilities were alleged to be $553,675.87, of which $432,440 was secured by mortgages.
On May 10, 1933, the appellants presented a petition to the District Court in which they prayed that the appointment of the receiver be declared void for want of jurisdiction and that the receiver be directed to make payment to the petitioners of the amount of the judgment and costs, or that, in default of payment, that they be allowed to issue execution on their judgment without regard' to the receivership.
They alleged in their petition that the bill of complaint neither set forth the amount nor the nature of the claim of Hirsch against the Lake Company; that the bill of complaint asked for no other or further relief than the appointment of a receiver; that the receivership proceedings were collusive because the attorney representing the complainant was a partner of the attorney representing the Lake Company; that the purpose of the receivership was merely to delay, hinder, and defraud creditors, and to enable the receiver to continue a hazardous and speculative venture; and that the petitioners were fraudulently delayed in their action in the state court by belated amendments, breaches of agreement, and improper contentions.
On May 19, 1933, Hirsch filed a petition for leave to amend the bill of complaint in order to allege that he was a creditor on a judgment note to the extent of $9,426.-16. The amendment was allowed, then revoked, and later, on December 9, 1933, reinstated.
The receivership proceeded, and in due course the assets of the Lake Company were sold. The District Court confirmed the sale on December 1, 1933. The amount realized from the sale of property valued at approximately $1,000,000 was only $35,000, but the petitioners did' not take exception to the final confirmation of the sale.
The receiver filed his account and exceptions were noted thereto. Shortly thereafter, July 11, 1934, the court appointed a special master to pass upon the exceptions and to distribute the balance of the funds that came, or might come, into the hands of the receiver. The special master filed his report on December 28, 1934, in which, among other things, he reported that there was no evidence of fraud or collusion; that the financial condition of the Lake Company necessitated the appointment of a receiver; and that there was no basis either in law or in fact to support the allegations of the petitioners. Exceptions were filed to the special master’s report which Judge Gibson dismissed on March 7, 1935, and' from the order of dismissal this appeal was taken.
Several of- the questions presented in this appeal were considered and disposed of by us in People’s-Pittsburgh Trust Company v. Hirsch, 65 F.(2d) 972. In that case the Trust Company as mortgagee of the greater portion of the real estate owned by the Lake Company sought to foreclose. The District Court refused the petition and allowed the receiver the right to sell the property free and clear of all liens. In the appeal by the Trust Company, the appellants, Ketchum and Kiefer, as amici curiæ, filed a brief attacking the jurisdiction of the District Court and presenting practically the same questions which they raise here. In our opinion, on page 975 of 65 F.(2d), we held that neither the lack of specific allegations in the bill of complaint, as to the nature of the indebtedness of the Lake Company to Hirsch, nor the fact that Hirsch was not a judgment creditor under the circumstances of that case, was fatal to the jurisdiction of the District Court. A further discussion of these questions which we considered there is unnecessary.
In attacking the jurisdiction of the District Court, the appellants contend that the Lake Company was not insolvent. It is true that the figures stated in the bill of complaint indicate that the company had assets in excess of liabilities. This, however, is not the” only definition of insolvency. The allegation in a bill that a defendant is unable to pay its current obligations constitutes insolvency in the equitable sense, and is sufficient for the appointment of a receiver. American Can Company v. Erie Preserving Company (C.C.) 171 F. 540; Cunningham v. Norton, 125 U.S. 77, 90, 8 S.Ct. 804, 31 L.Ed. 624. The bill of complaint alleged that the Lake Company was unable to meet its current obligations. Moreover, in People’s-Pittsburgh Trust Company v. Hirsch, supra, we found as a fact that the Lake' Company was hopelessly insolvent. The fact that from the sale of assets valued at more than $1,000,000, only $35,000 was realized, establishes the correctness of that finding. There is nothing extraordinarily unusual about this result, for the past several years of economic depression have provided countless examples showing the shocking difference between the appraised value of property and the value recoverable in a quick or forced sale. It is evident that if this receivership had not taken place, bankruptcy would quickly have ensued.
The appellants also contend that the bill of complaint sought no further relief than the appointment of a receiver. If this were true, under Shapiro v. Wilgus, 287 U.S. 348, 53 S.Ct. 142, 77 L.Ed. 355, 85 A.L.R. 128, and Gordon v. Washington, 295 U.S. 30, 55 S.Ct. 584, 79 L.Ed. 1282, their contention would be a just criticism; but the evident purpose of the appointment of the receiver was to protect and conserve the assets of the corporation and this justified the appointment of the receiver in this case. In Michigan v. Michigan Trust Company, 286 U.S. 334, 52 S.Ct. 512, 515, 76 L.Ed. 1136, the Supreme Court said that receiverships for the conservation of assets “have at times a legitimate function, but they are to be watched with jealous eyes.”
The appellants further charge that the suit was collusively brought with the purpose of delaying and hindering creditors of the defendant corporation, but the special master specifically found, as above stated, that there was no collusion or fraud in the case, and we think that the evidence supports his finding.
We do not find anything justifying a reversal, and therefore the decree of the District Court is affirmed. | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the second listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to determine what category of business best describes the area of activity of this litigant which is involved in this case. | This question concerns the second listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". What category of business best describes the area of activity of this litigant which is involved in this case? | [
"agriculture",
"mining",
"construction",
"manufacturing",
"transportation",
"trade",
"financial institution",
"utilities",
"other",
"unclear"
] | [
9
] | songer |
COX v. UNITED STATES.
No. 11028.
Circuit Court of Appeals, Eighth Circuit.
April 28, 1938.
Powhatan H. Jackson,'of Kansas City, Mo. (Sloáne Turgeon, of Kansas City, Mo., on the brief), for appellant.
Otto Schmid, Asst. U. S. Atty., of Kansas City, Mo. (Maurice M: Milligan, U. S. Atty., of Kansas City, Mo., on the brief), for the United States.
Before GARDNER, SANBORN, and THOMAS, Circuit Judges.
SANBORN, Circuit Judge.
The appellant was tried and convicted upon the first count of an indictment charging that on or about-January 5, 1936, he sold to Carl -V. Powell, in Newton cpunty, Mo., a 1935 model Chevrolet four-door sedan, motor No.- 5183599, serial No. 5EAÓ6 — ■ 13962, which had been stolen from O,' S. French, the owner, at Pitts.burg, Kan., on January 4, 1936, and was moving in interstate commerce, and which the appellant knew had been stolen. National Motor Vehicle Theft Act, § 408-, tit. 18, U.S.C.,-18 U. S.C.A. § 408. ‘
The evidence'of the government upon the trial showed that on Saturday, January 4, 1936, at some time between the hours of 6 and 9 o’clock in the evening, at Pittsburg, Kan., the Chevrolet four-door sedan described in the indictment was stolen by some unidentified person from O. S. French; that on Sunday afternoon, January 5, 1936, the appellant — who had on the previous Saturday afternoon agreed to procure and sell to Carl V. Powell a Chevrolet sedan which the appellant intimated would be stolen within seventy-five miles of Joplin, Mo. — delivered to Powell, in Newton county, Mo., a 1935 model Chevrolet four-door sedan under circumstances clearly indicating that the automobile was a stolen automobile and that the appellant knew that it had been stolen.. The evidence also showed that the appellant gave to Powell a forged bill of sale of the automobile, purporting to be signed by Mrs. Tom Strickland of Eureka Springs, Ark., which described the automobile as a 1935 Chevrolet sedan, motor No. 5400365, s'erial No. E3A06 — 44957; and that the application for a certificate of title for the automobile, filed by Powell with the secretary of state of the state of Missouri, described it as-a 1935 model Chevrolet, engine No. 5400365, and serial No. 3EA06— 44957.
Aside from the testimony that the automobile sold to Powell in Missouri on Sunday was of the same model, type, and style as the automobile stolen from French in Kansas on Saturday, that the French automobile was stolen shortly after the appellant agreed with Powell to procure for him such an automobile within a radius of seventy-five miles of Joplin, and that Powell subsequently entered a plea of guilty in the federal court based upon his possession of the automobile sold by the appellant to him, there is no evidence to justify even a suspicion . that the automobile stolen from French was the same automobile which was sold to Powell..
Proof'that an automobile of a well-known and widely distributed type and model is stolen in one state on Saturday and that a similar car is sold and delivered in an adjoining state on the following day ■is not-sufficient evidence upon which to base ■ a'finding that the automobile stolen was the ■automobile sold, or a finding that the automobile sold -was, an automobile which had moved in interstate commerce and was still .a part of interstate- commerce. This.is because the evidence, taking that view of it most favorable to the government, is not inconsistent with the hypothesis that the automobile sold was a different automobile than that which was stolen. Evidence which is consistent with two conflicting hypotheses tends to prove neither, Gunning v. Cooley, 281 U.S. 90, 94, 50 S.Ct. 231, 74 L.Ed. 720; Stevens v. The White City, 285 U.S. 195, 204, 52 S.Ct. 347, 76 L.Ed. 699; Svenson v. Mutual Life Ins. Co. of New York, 8 Cir., 87 F.2d 441, 443; New York Life Ins. Co. v. King, 8 Cir., 93 F.2d 347, 353; and proof of circumstances which, while consistent with guilt, are not inconsistent with innocence, will not support a conviction, Spalitto v. United States, 8 Cir., 39 F.2d 782, 784; Van Gorder v. United States, 8 Cir., 21 F.2d 939, 942; Cravens v. United States, 8 Cir., 62 F.2d 261, 274; McClintock v. United States, 10 Cir., 60 F.2d 839, 842.
Since the government failed to identify the automobile sold in Missouri to Powell on January 5, 1936, as the automobile stolen from French in Kansas on January 4, 1936, it failed to prove that the crime charged had been committed. One of the essential elements of the crime, which the government was required to prove beyond a reasonable doubt, was that the automobile sold to Powell in Missouri had moved in interstate commerce and was still a part of interstate commerce. Davidson v. United States, 8 Cir., 61 F.2d 250, 255; McAdams v. United States, 8 Cir., 74 F.2d 37, 39. Unless the stolen automobile had moved and was still moving in 'interstate commerce when it was sold, the sale was not a federal offense and the court below was without jurisdiction to deal with it.
The appellant, at the close of the government’s case, moved for a directed verdict on the ground that the government’s evidence was insufficient to sustain a verdict of guilty. His motion was denied. Pie then put in his defense. He did not renew his motion for a directed verdict at the close of all of the evidence. By failing so to do, he lost his right to challenge in this court the sufficiency of the evidence to sustain the verdict, and there is no ruling of the trial court of which he has any right to complaint. Ayers v. United States, 8 Cir., 58 F.2d 607, 608, 609. However, where it clearly appears in a criminal case that a defendant has been convicted of an offense which the evidence fails to show was committed, the error of submitting the case to the jury for determination is so plain and vital that this court is at liberty to and will reverse even in the absence of a proper motion and exception, not because the defendant has a right to demand a reversal, but solely in the public interest and to guard against injustice. Wiborg v. United States, 163 U.S. 632, 658, 16 S.Ct. 1127, 1197, 41 L.Ed. 289; Ayers v. United States, supra, 8 Cir., 58 F.2d 607, 609, 610.
The judgment is reversed and the case remanded for a new trial. | 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. | Did the interpretation of federal rule of procedures, judicial doctrine, or case law by the court favor the appellant? | [
"No",
"Yes",
"Mixed answer",
"Issue not discussed"
] | [
1
] | songer |
IOWA TERMINAL RAILROAD CO., Petitioner, v. INTERSTATE COMMERCE COMMISSION and United States of America, Respondents, Iowa Traction Railroad Co., Intervenor.
No. 87-1051.
United States Court of Appeals, District of Columbia Circuit.
Argued Nov. 9, 1987.
Decided Aug. 9, 1988.
Peter A. Greene, with whom R. Hale Foote, Washington, D.C., was on the brief, for petitioner.
Laurence H. Schecker, Atty., I.C.C., with whom Robert S. Burk, Gen. Counsel, John J. McCarthy, Jr., Deputy Associate Gen. Counsel, I.C.C., and Catherine G. O’Sullivan and Marion L. Jetton, Attys., U.S. Dept, of Justice, Washington, D.C., were on the brief, for respondents.
Thomas F. McFarland, entered an appearance for intervenor Iowa Traction R. Co.
Before EDWARDS, SILBERMAN and BUCKLEY, Circuit Judges.
Opinion for the court filed by Circuit Judge BUCKLEY.
BUCKLEY, Circuit Judge:
Iowa Terminal Railroad Company petitions for review of an Interstate Commerce Commission order establishing the sale price for a 10.4-mile section of Iowa Terminal’s line. The Commission issued the order pursuant to a statute that permits a prospective purchaser to require the sale of railroad facilities that would otherwise be abandoned. Because we find certain of the Commission’s valuations to be unsupported by either the evidence or the statute, we remand them to the Commission for further consideration.
I. Background
On March 7, 1986, Iowa Terminal Railroad Company (“Iowa Terminal”) filed an application with the Interstate Commerce Commission (“ICC” or “Commission”) to abandon its entire 26.1-mile electric railroad line in Cerro Gordo and Floyd Counties, Iowa. Petitioner’s decision to abandon the line brought the railroad within the terms of a detailed statutory framework designed by Congress to keep viable lines in operation.
Because of the importance of rail transportation, Congress has declared that railroads may not terminate service except with prior approval of the ICC, 49 U.S.C. § 10903 et seq. (1982), or pursuant to an exemption by the ICC from the approval provisions of the Interstate Commerce Act. 49 U.S.C. § 10505. Furthermore, within ten days after the ICC publishes a decision allowing a railroad to abandon a line, any person may offer to purchase it. 49 U.S.C. § 10905(c). If the ICC finds that an offer is bona fide and the offeror financially responsible, it must suspend its permission to abandon in order to allow the parties to negotiate a sale. 49 U.S.C. § 10905(d).
In the event the parties cannot agree on terms, either party may ask the ICC to determine the price and other terms of sale. 49 U.S.C. § 10905(e). The Commission shall “[i]n no case ... set a price which is below the fair market value of the line (including ... all facilities on the line or portion necessary to provide effective transportation services).” 49 U.S.C. § 10905(f)(1)(C). Unless the offeror withdraws his offer within ten days of the ICC’s determination of the terms of the sale, the offeror is bound by that determination. 49 U.S.C. § 10905(f)(2). Once the line has been purchased, the purchaser may not discontinue service for at least two years. 49 U.S.C. § 10905(f)(4).
In this case, the ICC granted petitioner permission to abandon the line. Shortly thereafter, on September 16, 1986, Iowa Traction Railroad Company (“Iowa Traction”) offered $263,161 to purchase a 10.4-mile portion of petitioner’s line known as the Mason City Division. The ICC accepted the offer as bona fide and stayed the abandonment certificate to permit the parties to complete the transaction. The companies were unable to reach an agreement and, pursuant to section 10905(e), Iowa Traction asked the ICC to set the purchase price.
After reviewing written submissions by both railroads, the ICC determined that the proper price for the Mason City Division was $319,500. Iowa Terminal Railroad Co., Docket No. AB-269 (Jan. 8, 1987) ^Valuation Decision”), Joint Appendix (“J.A.”) at 384. Iowa Traction accepted the terms, J.A. at 398, and Iowa Terminal filed a petition for review. It also petitioned the ICC to stay the sale pending review, which the ICC declined to do. Iowa Terminal Railroad Co., Docket No. AB-269 (Mar. 24, 1987) (“Denial of Stay”), J.A. at 468.
Petitioner contends that the ICC substantially undervalued the Mason City Division in violation of its statutory obligation to set a price no lower than the “fair market value” of the line. Indeed, petitioner argues that the price set by the ICC is so woefully inadequate that it constitutes an “unconstitutional taking” in violation of the Fifth Amendment to the United States Constitution.
II. DISCUSSION
A. The Meaning of “Fair Market Value”
The ICC establishes the “fair market value” of rail facilities under 49 U.S.C. § 10905(f)(1)(C) by calculating the net liquidation value of the assets for their “highest and best nonrail use.” Chicago & North W. Transp. Co., 363 I.C.C. 956, 958 (1981), aff'd, 678 F.2d 665 (7th Cir.1982). In a thoughtful analysis of the statute, which we here adopt, the Seventh Circuit concluded that the ICC’s application of section 10905 was appropriate, and that the sales price established in accordance with its terms met the constitutional obligation to provide the seller with just compensation. Chicago & North W. Transp. Co. v. United States, 678 F.2d 665 (7th Cir.1982). Because the provisions of section 10905 “generally affect only those lines which ... have been found not economically viable,” a railroad intent on abandoning a line is fairly compensated when it receives “what [it] would have had but for the taking,” namely, “the nonrail market value of [its] assets.” Id. at 668.
To assist the Commission in determining the net liquidation value of rail facilities, ICC regulations provide that the prospective purchaser must submit an estimate of their value and “provide reasons why its estimates are correct_” 49 C.F.R. § 1152.27(h)(3) (1987). The seller then submits a reply. 49 C.F.R. § 1152.27(h)(4) (1987). Because the Commission must render its decision within sixty days from the date on which a request for ICC intervention is made, 49 U.S.C. § 10905(f)(1)(A), the price and other terms of sale will normally derive entirely from these written submissions. Chicago & North W., 678 F.2d at 671. Nevertheless, the buyer “has the burden of proof as to all issues in dispute,” 49 C.F.R. § 1152.27(h)(3), and must present sufficient evidence of the line’s value to meet that burden.
B. The Value of the Mason City Division
Petitioner argues that the ICC undervalued the Mason City Division’s right-of-way, track, land, buildings, and rolling stock. In considering each element of the valuation order, we are mindful that the ICC’s decision “must be upheld if, based on the record before it, the ICC decision is not arbitrary or capricious.” Illinois Cent. Gulf R.R. Co. v. ICC, 717 F.2d 408, 412 (7th Cir.1983). While we may not substitute our judgment for that of the agency, we must nevertheless satisfy ourselves that the ICC considered all relevant factors and provided a reasoned explanation for its decision. Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 2866, 77 L.Ed.2d 443 (1983).
1. The Right-of-Way
Petitioner owns three sections of the railroad’s right-of-way in fee simple, and argues that the ICC erred in concluding that they have no value. We agree with petitioner in the case of two of the rights-of-way, but not in the case of one it had agreed to donate, in the event of an abandonment, to the Cerro Gordo County Conservation Board. Letter of Agreement dated October 13, 1986 (“Letter of Agreement”), J.A. at 319-20.
Petitioner asserts that as the abandonment did not take place, the proposed gift should be viewed as a nullity; and as Iowa Traction would be using the right-of-way in its operations, it should be required to pay for it. Section 10905 requires, however, that the sales price be calculated on the basis of what the seller would have realized from the sale of the assets had the line in fact been abandoned. Nobody disputes that “but for the taking” in this case, petitioner would have transferred the right-of-way to the Conservation Board without compensation. It is irrelevant that Iowa Traction will realize a minor windfall because, as the Seventh Circuit noted in Chicago & North Western, “[t]he purpose of [section 10905] would be frustrated if the Commission were required to consider the value of the [right-of-way] to the offeror” as part of an operating railway rather than the price the seller would have received from the sale of the right-of-way for non-rail uses. 678 F.2d at 668.
Petitioner argues, on appeal, that it is at least entitled to the benefit of the tax savings it would have realized had it been able to deduct the value of the right-of-way as a charitable gift in its income tax returns. Reply Brief for Petitioner at 15. Such a position stretches the statute too far. Subsection 10905(f)(1)(C) requires the ICC to determine the fair market value of an asset to a nonrail purchaser, not its after-tax value to the vendor.
We have trouble, however, with the ICC’s decision to ascribe no value to a section of fee simple right-of-way between mileposts 0.0 and 1.5. The ICC discounted written offers of $21,500 and $7,000 for portions of the right-of-way because they were “vague, have expired, and include more land and assets than the [right-of-way].” Valuation Decision, J.A. at 388. Instead, the ICC held that the land was worth only $2,500, which the ICC claimed to be petitioner’s own assessment of the interest’s value. Id. The ICC then concluded that Iowa Traction need not pay even $2,500 because “street crossing removal and resurfacing costs will substantially exceed this amount.” Id.
The ICC misinterpreted petitioner’s valuation of the interest. In the estimate it submitted to the Commission, petitioner referred to the two written offers for distinct portions of the right-of-way, to an inquiry by a third buyer interested in acquiring another portion of the right-of-way for $1,500, and then placed a value of $2,500 on “the balance of the right-of-way from milepost 0.0 to approximately milepost 1.5.” J.A. at 275. Adding these figures to the railroad's estimate that the balance of the right-of-way not covered by the offers and inquiry is worth $2,500, we find that petitioner valued the entire 1.5-mile stretch at $32,600.
In recalculating the value of the right-of-way, the Commission should again consider the written offers submitted by petitioner and determine with some precision the cost of any street-crossing removal and resurfacing petitioner would have been obliged to undertake on abandonment. The fact that the offers have expired is of little relevance absent evidence that the value of the land has since decreased.
Lastly, we find no support for the ICC’s conclusion that the fee simple right-of-way between mileposts 2.5 and 6.5 has no value. Petitioner submitted evidence that it had received an offer to buy this and other land for $92,000. J.A. at 274-75. The ICC addressed the offer for the first time in its appellate brief, where it asserted that the offer merited “little weight” because it covered more than simply the right-of-way. Brief for Respondents at 25. While we agree that the offer is not as neatly tailored as it might be, this defect does not by itself support the Commission’s conclusion that the four-mile right-of-way has no value whatsoever.
2. Track and Ties
Petitioner argues that the ICC committed a “glaring error” in placing a net value of $50,529 on track and ties. Brief for Petitioner at 21. The Commission based this figure on an Iowa Department of Transportation (“IDOT”) estimate that the tracks had a scrap value of $52,359 after removal costs, and that the cost of removing the ties would exceed their salvage value by $1,830. At the same time, the ICC dismissed three bids petitioner had received for the rail and other track materials that indicated steel scrap values ranging from $58,222 to $73,194. The ICC rejected the first because removal costs were not specifically identified; the second, because it was phrased as “depending on market value at such time” as the transaction would actually take place; and the third, because removal costs were based on the cost of removing rail from a section of the line not subject to the sale. Valuation Decision, J.A. at 388, 389.
Petitioner argues that the ICC should not have rejected this evidence and, particularly, that the ICC’s attempt to discredit the removal costs outlined in the third bid “is simply meaningless” because the track on which the estimate was based is only thirty miles from the Mason City Division. Brief for Petitioner at 22. These shortcomings, however, were not decisive; they merely helped persuade the Commission that the IDOT estimate submitted by Iowa Traction was “the most complete and credible evidence of record.” Valuation Decision, J.A. at 389. This decision was not arbitrary or capricious, particularly because Iowa Traction’s submission had been prepared by the IDOT and shared none of the deficiencies that caused the ICC to discredit petitioner’s bids.
Nor can we fault the ICC for its approach to the valuation of the railroad ties. The ICC agreed with the IDOT’s conclusion that the ties have a negative value of $1,830 based on its estimate that only fifteen percent of the ties are salvageable and that it will cost 50 cents each to remove them. While petitioner disputes the ICC’s finding as to the percentage of ties that are salvageable, the Commission did not abuse its discretion in crediting the IDOT estimate, informed as it was by that department’s “knowledge of the condition of the ties from routine inspection of the line.” Id.
Petitioner correctly points out, however, that had the line been abandoned, it would have had the benefit of the terms of its gift to the Cerro Gordo Conservation Board. These provided that while Iowa Terminal retained the right to salvage rails, ties, and other materials from the 2,000-foot right-of-way, the Board agreed to relieve the railroad of any obligation to remove them. Reply Brief for Petitioner at 15; Letter of Agreement, J.A. at 319. Therefore in its calculation of the salvage value of the ties on this right-of-way, the ICC should have included only those that could have been removed and sold at a profit. Just as the ICC was entitled to rely on petitioner’s conditional gift in finding that the Mason City Division right-of-way has no value, so must it grant petitioner the benefit of having relieved itself, by virtue of the gift, of the obligation to remove the ties.
3. Land at Emery
The ICC determined that Iowa Traction should be permitted to purchase an approximately ten-acre parcel of land at Emery at a price of $2,000 an acre. Petitioner argues that only two acres of land should be included in the transaction, and that the land is worth $5,000 an acre. We uphold the ICC’s decision on both counts.
Under subsection 10905(f)(1)(C), the ICC is instructed to calculate the value of “all facilities on the line or portion necessary to provide effective transportation services.” Petitioner argues that only two acres of the Emery parcel are “necessary” to operate a railroad. Brief for Petitioner at 12. Indeed, petitioner notes that the remaining land has been leased for many years to a third party for nonrail purposes. Id.
In the course of denying Iowa Terminal's petition for a stay, the ICC defended the inclusion of the full parcel:
Simply because the land may not have been used in the past for rail operations does not mean that the land cannot be deemed essential for the acquiring party’s future effective transportation services. [Iowa Traction] indicated in its request to set terms that it needed to purchase the entire 10-acre parcel of land ... to conduct operations and to allow for expansion of the shop when a second car storage building was necessary.
Denial of Stay, J.A. at 470-71 (footnotes omitted).
We accept the ICC’s analysis. The purpose of the statute empowering the Commission to mandate a sale is to keep viable lines in operation. While the land has not been used for rail operations in the past, we will not challenge the ICC’s expert determination that the continued availability of the land is required to assure the effective operation of the Mason City Division in the future.
Nor do we believe the Commission acted arbitrarily when it established a value of $2,000 an acre for the land in light of the “lack of sewers, water, or paved streets in Emery....” Although two appraisals (including one by the IDOT) valued the land at approximately $5,000 an acre, J.A. at 220, 306, the ICC found the basis for these valuations inadequately explained. Valuation Decision, J.A. at 388. The ICC relied instead on an appraisal by Edgington Realty that was based on sales of nearby land at between $1,500 and $2,150 an acre. J.A. at 222. While we have certain reservations about the Commission’s decision, we do not find it arbitrary or capricious. The ICC weighed conflicting evidence and, in reasoned fashion, explained why it found the Edgington Realty estimate to be the most credible.
4. The Emery Buildings
Petitioner charges that the ICC undervalued two buildings on the land at Emery, an industrial shop and an old car barn. We agree.
The ICC determined that Iowa Traction need not purchase the old car barn because it is not necessary to the operation of the line. Thus it placed no value on the structure. At the same time, however, the Commission concluded that the land underlying the barn was necessary to the line’s operation. To resolve this apparent dilemma, the Commission treated the land and structure as severable, noted that Iowa Traction had offered to pay rent for the barn after taking title to the land, and directed the parties to negotiate its disposition. Denial of Stay, J.A. at 471 n. 4.
We see nothing in the language or logic of section 10905 that would require a railroad intent on abandoning a line to become an unwilling landlord, or to dispose of less than its entire interest in a “facility” deemed necessary for the line’s continued operation. Buildings and the land on which they are situated are not normally sold independently of one another, and we find it arbitrary and capricious to require petitioner to do so in this instance. If the ICC is to place petitioner in the position it would have been in had it been permitted to abandon the line, the Commission on remand must determine the fair market value of the property, including the barn, to a non-rail user.
The Commission’s valuation of the industrial shop is also flawed. Both companies had the shop appraised. Petitioner’s appraiser placed the replacement cost of the building at $260,440. J.A. at 316. Iowa Traction’s appraiser placed it at $258,-300. J.A. at 219. Both agreed that the replacement cost must be depreciated to reach present fair market value; thus, Iowa Traction’s appraiser depreciated his cost by forty percent to reach a present value of $155,900. Id.
The ICC rejected these appraisals in favor of a third estimate, also offered by Iowa Traction, which valued the building at $90,000. The ICC rejected the higher appraisals for two reasons. First, the Commission noted that they both included the value of the land underneath the shop, and asserted that it was “unable to evaluate separately the value of the building from the land.” Valuation Decision, J.A. at 390. Second, the ICC rejected the appraisals because “the replacement-cost basis is not proper.” Id., J.A. at 391.
The ICC’s decision with respect to the industrial shop is neither rational nor consistent. The Commission could easily have arrived at the value of the building from the total valuation simply by subtracting the per acre values placed on adjoining land. See J.A. at 220, 306. Furthermore, the Commission’s reason for rejecting the higher appraisals, on the ground that “the replacement-cost basis is not proper,” is inconsistent with its acceptance of the third. The $90,000 estimate accepted by the Commission was derived in the same manner. The third appraiser began by determining that it would cost $150,000 to replace the building with one “[sjpecially designed for railroad use (detriment to non-railroad purchasers),” and then depreciated that cost by forty percent. J.A. at 198.
Contrary to what the ICC suggested, the distinction between this estimate and those it rejected lies not in its methodology, but in its premise. The third appraiser evidently thought his task was to determine the value of the building for rail use, hence the choice of a replacement model that may well be less suitable than the existing building for non-railroad users. If so, this contradicts the mandate of section 10905, which requires that assets be appraised at market value for nonrail rather than railroad use. Because the ICC did not adequately explain why the third estimate is the most reliable, the valuation must be rejected.
5. Rolling Stock
Based on estimates of useful service value provided by Iowa Traction, the Commission assigned a price of $3,500 each to petitioner’s electric locomotives (“motors”), and a value of $3,000 to its single box motor line car. In reaching this conclusion, the ICC rejected several written estimates offered by petitioner that set the total liquidation value of the four motors at between $77,550 and $138,950, and of the box motor line car at between $15,200 and $24,250. J.A. at 285.
The ICC rejected petitioner’s estimate for the motors because it was predicated on their spare parts and scrap values. Therefore, the Commission asserted, the estimate did not “establish[] the fair market value of the motors for operational purposes.” Valuation Decision, J.A. at 390 (emphasis added). Yet the operational value of the motors is irrelevant for the purposes of determining net liquidation value unless their operational value is higher than their scrap value. Chicago & North W., 678 F.2d at 669 (salvage value is the “constitutional minimum”). The ICC clarified its decision in the course of rejecting Iowa Terminal’s petition for a stay by explaining that petitioner’s prices were “far in excess of accepted scrap values” and that Iowa Traction had therefore “met its burden” by introducing evidence of their operational value. Denial of Stay, J.A. at 471.
This logic is flawed in two important respects. First, the ICC points to no evidence in support of its conclusion that petitioner’s valuations are “excessive.” Second, even if true, simply declaring that petitioner’s estimates are excessive does not mean that Iowa Traction satisfied its burden of establishing that the motors’ operational value exceeds their scrap value. The Commission may accept Iowa Traction’s figures only if it concludes, from record evidence, that this is the case. While Iowa Traction submitted a summary of conversations with various authorities concerning the value of the motors, J.A. at 114-19, the ICC never referred to or endorsed this evidence, or explained why this second-hand summary is more believable than the independent estimates submitted by Iowa Terminal. Because the Commission refused to consider the motors’ spare parts and scrap value, it is impossible for us to say that the ICC’s ultimate reliance on the operational value was justifiable.
The Commission also failed to explain adequately its decision to price the single box motor car at $3,000. The ICC disregarded estimates submitted by petitioner placing the value of the motor car at between $15,200 and $24,250, J.A. at 285, in favor of Iowa Traction s statement that the car “is believed ... to be worth $3,000.” J.A. at 119. We think the statute requires something more than a seat-of-the-pants statement by the purchaser to offset third-party appraisals offered by the seller.
III. Conclusion
We direct the Commission to reconsider the value of the rights-of-way, the ties located on the right-of-way subject to the contingent gift, the industrial shop and old car barn, and the rolling stock. In all other respects, the petition is denied.
So ordered. | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the second listed respondent. The nature of this litigant falls into the category "federal government (including DC)", specifically "other, not listed, not able to classify". Your task is to determine which specific federal government agency best describes this litigant. | This question concerns the second listed respondent. The nature of this litigant falls into the category "federal government (including DC)", specifically "other, not listed, not able to classify". Which specific federal government agency best describes this litigant? | [
"United States - in corporate capacity (i.e., as representative of \"the people\") - in criminal cases",
"United States - in corporate capacity - civil cases",
"special wartime agency",
"Other unlisted federal agency (includes the President of the US)",
"Unclear or nature not ascertainable"
] | [
0
] | songer |
JEFFERSON CONSTRUCTION CO. et al., Defendants, Appellants, v. UNITED STATES of America, for the Use and Benefit of Roy BACON, et al., Appellees. MEL TRUCKING & CONTRACTING CO., Inc., Defendant, Appellant, v. UNITED STATES of America, for the Use and Benefit of Roy BACON, Plaintiff, Appellee.
Nos. 5684, 5685.
United States Court of Appeals First Circuit.
Heard Oct. 6, 1960.
Decided Oct. 25, 1960.
Philip M. Cronin, Boston, Mass., and Withington, Cross, Park & McCann, Boston, Mass., on brief, for appellants in No. 5684.
Francis E. Sullivan, Boston, Mass., with whom John T. Bowes, Boston, Mass., and Sullivan, Bowes & Curley, Boston, Mass., were on brief, for appellant in No. 5685.
Joseph G. Kelly, Boston, Mass., with whom Samuel A. Valenti, Boston, Mass., was on brief, for appellees.
Before WOODBURY, Chief Judge, and HARTIGAN and ALDRICH, Circuit Judges.
ALDRICH, Circuit Judge.
These appeals involve the propriety of a summary judgment entered by the district court in an action under the Miller Act, 40 U.S.C.A. §§ 270a-270d. The defendants are Jefferson Construction Company, a general contractor on a government project, Mel Trucking and Construction Company, a subcontractor who contracted with the use plaintiff, hereinafter called plaintiff, and a number of surety companies on the bond of the general contractor. Paragraph 14 of the complaint alleged that, “under its subcontract with Mel,” plaintiff furnished labor and material on the project, and that the value thereof remaining unpaid was $73,004.58. Compliance with the 90-day notice provision of the act and timeliness of suit were also alleged. A copy of plaintiff’s contract was annexed, but there were no general allegations of performance of its terms, or that its conditions had been met or excused.
The answer of Jefferson and its sureties stated that said defendants “are without knowledge or information sufficient to form a belief as to the truth of the allegations” contained in paragraph 14. Mel denied the allegations of this paragraph. Thereafter the plaintiff filed a motion for summary judgment and an accompanying affidavit. The affidavit itemized the work and materials furnished, stated that the charges were computed at the agreed contract prices, and recited the payments already received. This constituted, in other words, a verified account annexed. A counteraffidavit was filed by one McNeal in which he stated that he was president of Mel, that he had “examined books and records of the said corporation” and had “spoken to employees of same, and on this basis” made a number of statements. On this record the court ordered summary judgment against all defendants for the full amount. They appeal.
We are faced at the outset with certain procedural matters. Plaintiff contends that Jefferson’s answer asserting lack of knowledge with respect to paragraph 14 of the complaint is insufficient, with the implication that it must be taken to have admitted these allegations. Federal Rule of Civil Procedure 8(b), 28 U.S.G., provides in part, “If [a party] is without knowledge or information sufficient to form a belief as to the truth of an averment, he shall so state and this has the effect of a denial.” This is a plain answer to plaintiff’s suggestion. It is not contradicted by United States for Use of Kolton v. Halpern, 3 Cir., 1958, 260 F.2d 590, cited by plaintiff, where the court remarked that an answer in this form was of no avail on a motion for summary judgment in the face of an affirmative affidavit. We agree with plaintiff that the facts stated in his affidavit stand admitted for the purpose of this motion if there is no sufficient counteraffidavit, but so they would had the answer been a specific denial. Cunningham v. Securities Investment Co. of St. Louis, 5 Cir., 1960, 278 F.2d 600.
Secondly, plaintiff contends that the McNeal counteraffidavit cannot be considered because it is not based upon personal knowledge. Rule 56(e), Fed. R.Civ.P., 28 U.S.C., states that “affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.” We might be prepared to say that the affidavit of a president of a corporation that the books and records of the company show certain facts to be so satisfies these requirements. But an affidavit based upon undisclosed conversations with unnamed employees clearly does not. See United States v. Halpern, supra. We consider, therefore, only the pleadings and plaintiff’s affidavit.
Apart from giving specific values to the labor and material furnished, plaintiff’s affidavit followed the course of the complaint in failing to state compliance with the contract, or performance of any conditions precedent. Inspection of the contract discloses that conditions in fact existed. For example, Article 3 provides, in part, that the “contract price is subject to the final measured quantities * * *. Payment will be made by the Contractor to the Subcontractor for work done in the preceding month on an estimated basis, said estimate to be governed by the final decision of the Architect or Owner. Ten per cent (10%) of the total amount of this contract shall be retained by the Contractor until final acceptance and approval by the General Contractor and Architect, and Owner. * * * Before final payment * * * the Subcontractor shall furnish * * * receipted invoices * * that all labor and bills of all nature for this project have been paid in full * When we asked counsel whether it was not incumbent upon plaintiff to allege and show compliance and performance he replied that this was not necessary; that under the terms of the Miller Act plaintiff could recover for materials furnished and labor performed, and “really did not need to allege the contract at all.”
We cannot take such an extraordinary view. The Miller Act does not substitute or furnish a cause of action on a quantum meruit in derogation of the provisions of an express contract. See United States for Use of Westinghouse Electric Supply Company v. Ahearn, 9 Cir., 1955, 231 F.2d 353, 356; United States for Use of Harrington v. Trione, D.C.D.Colo., 1951, 97 F.Supp. 522, 526; cf. Royal Indemnity Co. v. Woodbury Granite Co., 1938, 69 App.D.C. 364, 101 F.2d 689, 692, certiorari granted, 306 U.S. 627, 59 S.Ct. 645, 83 L.Ed. 1030, dismissed by stipulation, 308 U.S. 628, 60 S.Ct. 63, 84 L.Ed. 524. The cases of United States for Use of Bailey v. United Pacific Ins. Co., D.C. D.N.Mex.1954, 122 F.Supp. 48, and United States for Use of W. R. Ackerman v. Holloway Co., D.C.D.N.Mex.1954, 126 F. Supp. 347, on which plaintiff relies, are not to the contrary. In both the court pointed out that the plaintiff’s full compliance with the contract was unquestioned. It held that a condition that payment will not be due the subcontractor until the government has fully paid the general contractor, irrespective of the date of “final settlement,” is contrary to the policy of the act in view of the language of the statute of limitations, 40 U.S.C.A. § 270b (b). In the ease at bar the questions are much broader. Indeed, that particular one is not even involved, as it does not appear that final settlement has occurred. That is a matter administratively determined, and presumably would not be the last date of furnishing labor and materials. See Peerless Casualty Co. v. United States, 1 Cir., 1957, 241 F.2d 811; United States to Use and Benefit of Johnson v. Morley Const. Co., D.C.W.D.N.Y. 1936, 17 F.Supp. 378, 386, modified on other grounds, 2 Cir., 98 F.2d 781, certiorari denied sub nom. Maryland Casualty Co. v. United States, 305 U.S. 651, 59 S.Ct. 244, 83 L.Ed. 421.
In view of our decision, the portion of the judgment on the third-party complaint must equally fall.
Judgment will be entered vacating the judgment of the District Court and remanding the action for further proceedings not inconsistent herewith.
. In its memorandum allowing plaintiff’s motion for summary judgment the court stated, “The allowance of this motion is based upon the complaint, the answers and the affidavits.” This may indicate that the court accepted the McNeal counteraffidavit in spite of its apparent deficiencies. We do not find it necessary to determine in this case the extent to which it is permissible for a court to go beyond an affidavit submitted by a party opposing a motion in order to determine “what material facts are actually and in good faith controverted.” Rule 56(d). See also Rule 56(f). In view of our decision vacating the plaintiff’s judgment here without reference to the counter-affidavit, that issue is moot.
. Rule 9(c), Fed.R.Civ.P., 28 U.S.C., requires a general pleading to the effect that conditions have been met. If it did not appear that a contract contained any such conditions, this might be a superfluous allegation. But here the contract is a matter of record that cannot be overlooked.
. As the amended version of 40 U.S.C.A. § 270b (b), under which the statute of limitations begins to run on the last date of performing work or supplying material, does not govern this case, we do not attempt to anticipate any problems it might raise. | 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. | What is the nature of the first listed appellant? | [
"private business (including criminal enterprises)",
"private organization or association",
"federal government (including DC)",
"sub-state government (e.g., county, local, special district)",
"state government (includes territories & commonwealths)",
"government - level not ascertained",
"natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)",
"miscellaneous",
"not ascertained"
] | [
0
] | songer |
NATIONAL LABOR RELATIONS BOARD, Petitioner, v. INTERNATIONAL LONGSHOREMEN’S AND WAREHOUSEMEN’S UNION, LOCAL 12, Respondent.
No. 20914.
United States Court of Appeals Ninth Circuit.
April 18, 1967.
As Amended on Denial of Rehearing May 18, 1967.
Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Warren M. Davison, William Wachter, Attys., N.L.R.B., Washington, D.C., Thomas P. Graham, Director, N.L.R.B., Seattle, Wash., Robert J. Weiner, Officer-in-charge, N.L.R.B., Portland, Ore., for appellant.
Norman Leonard, Gladstein, Andersen, Leonard & Sibbett, San Francisco, Cal., Pozzi, Levin & Wilson, Portland, Ore., for appellee.
Before CHAMBERS and HAMLEY, Circuit Judges, and BYRNE, District Judge.
HAMLEY, Circuit Judge:
The National Labor Relations Board (Board) petitions for enforcement of its order of November 18, 1965, issued against respondent, International Longshoremen’s and Warehousemen’s Union, Local 12. The Board decision and order is reported at 155 N.L.R.B. No. 89.
The Board’s regional director alleged in his complaint that Local 12 had engaged in unfair labor practices in violation of section 8(b) (1) (A) and 8(b) (2) of the National Labor Relations Act (Act), 49 Stat. 452, as amended, 29 U.S.C. § 158(b) (1) (A) and (b) (2) (1964). Local 12 had violated these statutes, it was alleged, by failing to dispatch Donald Wilson, Bernard Warnken and Lee Thomas, the charging parties, from the dispatch hall, and by excluding them from the dispatch hall. The trial examiner entered findings and conclusions upholding the charges and upon agency review, the Board adhered to the trial examiner’s findings and conclusions.
The Board order requires Local 12, together with its officers and agents, to cease and desist from the specified unfair labor practices. It also requires them to make Wilson, Warnken and Thomas whole for loss of pay suffered by reason of such practices. In addition, the order contains the usual provisions concerning the posting of notices and the giving of notifications.
Wilson, Warnken and Thomas worked out of North Bend-Coos Bay, Oregon, longshoremen’s dispatch hall. The hall was established pursuant to a collective bargaining agreement between the International Longshoremen’s and Warehouse-men’s Union (ILWU), of which Local 12 is an affiliate, and an association of employers known as the Pacific Maritime Association (PMA). Under the terms of that agreement, the hall, which offers the only means longshoremen have of obtaining work in that area, is governed by a joint committee of union and employer representatives.
Under the terms of the agreement, longshoremen registered under the PMAILWU contract have first preference of dispatch. A longshoreman who is not so registered is known as a “casual,” and may be dispatched for employment if there are no registered longshoremen present, provided he pays his pro rata share of dispatching hall expenses. It is the practice for casual workers seeking employment to telephone for a recorded tape message which indicates whether there is any prospect for employment of casuals on that day. If there is such a prospect, the casuals who telephone may come to the dispatch hall, where available work is assigned out by a dispatcher.
Wilson, Warnken and Thomas were casuals. On August 18, 1964, Wilson complained to William Armstrong, president of Local 12, that the dispatchers were discriminating against them by preferring casuals who were sons of registered longshoremen. These three indicated to Armstrong their intention to picket unless the discrimination was discontinued. Receiving no assurance that the matter would be investigated, they picketed the hall for fifteen minutes on August 19, 1964. They discontinued this when Armstrong assured them that the joint committee would meet with them at 7:30 p. m. on August 21, 1964. The three were present at the time and place set for the meeting, but no meeting was held.
On August 29, 1964, Wilson was put in touch by telephone with W. B. Ferguson, a PMA representative of the joint committee, who told him to file with that committee a written statement of grievances. Wilson, Warnken and Thomas filed such a statement with the committee later that day. Wilson, Warnken and Thomas made an oral presentation of their grievances before the joint committee on September 2, 1964. The committee then agreed to take the matter under consideration and the three casuals stated that they would abide by the committee’s decision. No action having been taken by September 26, 1964, Wilson, Warnken and Thomas wrote to Ferguson complaining that the situation at the dispatch hall was much worse. Ferguson wrote back, assuring these men that the committee was investigating the grievances, and urging them to postpone “ * * * any unnecessary drastic action until our efforts have been expended. * * * ”
On October 5, 6 and 7, there were many ships in the bay and every casual working out of the dispatch hall was hired except Wilson, Warnken and Thomas. Rather than dispatch these three casuals, the dispatchers recruited men from taverns and from a nearby Air Force base to serve the ships then in the bay.
On October 8,1964, Thomas and Warn-ken were at the hall. Armstrong who was at the hall that day, testified that these men told other casuals who were present, “Go on up to the window; there’s plenty of work.” They were referring to the small window through which a prospective casual could talk to a dispatcher. This was contrary to the dispatcher’s practice of lining up casuals who were at the hall to select those needed for available jobs, rather than to dispatch casuals one at a time through the window.
Joe Jakovac, the relief dispatcher who was then on duty, did not know exactly what Thomas and Warnken were then doing, but testified that he knew that for several days they had been walking around the hall talking to others and trying to start a strike against the hiring procedures. On October 8, 1964, believing that Thomas and Warnken were disrupting established dispatch hall practices, Jakovac stopped the hiring and in the presence of Armstrong, president of Local 12, told them to leave the hall. As they started to leave they met Wilson and told him what Jakovac had said. All three then left. Later the same day, Thomas returned to the hall to talk to Jakovac, but Jakovac told him to “ * * * get out and stay out.”
Local 12 claimed in the Board proceeding that this eviction was intended to be for that day only. The trial examiner found, however, that in view of the entire context of events, including Jakovac’s last statement to Thomas, the eviction was not intended for just one day. The trial examiner also found that Wilson was correct in assuming that he was included in the eviction although Jakovac did not speak directly to him.
The three casuals advised Ferguson of their expulsion from the dispatch hall. Ferguson requested that they take no further action until they heard from him on October 13, 1964. Not having heard from him by that date, Wilson, Warnken and Thomas resumed picketing the dispatch hall the next day and continued to do so until the unfair labor practice charge was filed on October 20, 1964.
The charges came to the attention of the joint committee at a meeting held on October 21, 1964. At that meeting the employer representatives announced that they would have nothing further to do with the matter. The committee has-made no disposition of the grievance.
On or about November 13, 1964, a. Board representative advised the three-casuals to return to the hall and attempt, to obtain dispatch to employment. This-they did without success.
Based on findings to this general effect, the trial examiner further found that Local 12 discriminated against Wilson, Warnken and Thomas, by refusing to dispatch them when work was available, and by excluding them from the dispatch hall. The reason for such discrimination, the trial examiner found, was to effectuate reprisal for the concerted activities in which these three had engaged. These activities consisted of their concerted protest against Local 12’s method of operating the dispatch hall, manifested by picketing the hall, filing a grievance with the joint committee, and making a personal appeal to other casuals present at the dispatch hall on several occasions.
The trial examiner concluded that by reason of the discrimination practiced against these three casuals, Local 12 had committed an unfair labor practice within the meaning of section 8(b) (2) of the Act, by causing or attempting to cause employers to encourage membership in a labor organization in violation of section 8(a) (3) of the Act, 49 Stat. 452, as amended, 29 U.S.C. § 158(a) (3) (1964). Such encouragement, the trial examiner concluded, resulted when the three employees were made aware, through union-motivated discriminatory practices, that they could not expect employment unless they became members of the union and remained in good standing. The trial examiner also concluded that Local 12 committed an unfair labor practice within the meaning of section 8(b) (1). (A) of the Act, by restraining or coercing these three employees in the exercise of rights guaranteed in section 7 of the Act, 49 Stat. 452, as amended, 29 U.S.C. § 157 (1964), particularly the right to engage in concerted activities for the purpose of mutual aid or protection.
In resisting the petition for enforcement, respondent first contests the trial examiner’s holding, adopted by the Board, that Local 12 committed an unfair labor practice under section 8(b) (1) (A), by restraining or coercing Wilson, Warnken and Thomas in the exercise of rights guaranteed in section 7 of the Act.
Respondent argues that there is no showing that Wilson, Warnken and Thomas were restrained or coerced with respect to any protected activity. The issue raised by this argument is whether this particular finding of the trial examiner is supported by substantial evidence on the record considered as a whole, this being a proper subject of inquiry in a Board enforcement proceeding. See section 10(e) of the Act, 49 Stat. 453, 29 U.S.C. § 160(e) (1964)
Before these three casuals manifested their protest by picketing, and by filing a grievance with the joint committee, discriminatory hiring practices were limited to preferring of sons of union members over other casuals. After-wards, Wilson, Warnken and Thomas were not dispatched at all even when, because of the number of ships in the bay, it was necessary to recruit men from taverns and an Air Force base. When these three men, through concerted, activity, sought to call the attention of other casuals present in the dispatch hall to the discriminatory practices, they were ordered out of the dispatch hall. While a dispatcher testified that the exclusion was only intended to be for one day, Wilson, Warnken and Thomas were not so advised by the dispatchers, even when they resumed picketing of the dispatch hall.
While the evidence shows that work dropped off substantially in the last quarter of 1964, it is not contended that there was no work for casuals during that period. Respondent argues (citing Iron Workers Local 433, 151 NLRB 1092), that where it is not shown that any union representative exhibited hostility to, or resentment against, persons who were not dispatched, it may not be found that such failure was for the purpose of restraining or coercing protected concerted activity. Without passing upon the question of whether a showing of hostility or resentment is indispensable, we believe that hostility and resentment on the part of the dispatchers were demonstrated here. We also think there was a sufficient showing of a specific discriminatory motivation.
Respondent contends that the conduct of Wilson, Warnken and Thomas in the dispatch hall was not protected activity under section 7, pointing to testimony that they were disrupting the operation of the dispatch hall. If the three casuals were disrupting such operations, they should have been advised to this effect and asked to desist. Instead, without explanation, they were ordered to leave. Under these circumstances they were entitled to assume that they were being excluded because they sought support for their protest against the hiring practices.
Giving application to the rule of Universal Camera, supra note 3, we hold that there is substantial evidence supporting the Board finding that, by reason of the described conduct of the dispatchers, Wilson, Warnken and Thomas were restrained in their protected and concerted effort to protest the discriminatory hiring practices of the North Bend-Coos Bay dispatch hall.
Respondent next contends that there is no substantial evidence to support the finding of the Board that Local 12 caused employers to discriminate against Wilson, Warnken and Thomas, in violation of section 8(b) (2) of the Act. The trial examiner found, in effect, that such employer discrimination consisted m withholding employment from these three casuals. The effect of such discrimination, the trial examiner could reasonably conclude, was to encourage them to join the union in order to obtain work assignments.
Respondent argues that there is no evidence in this record which shows that Local 12 caused or attempted to cause employers to discriminate against these three casuals in the- manner just described. Again applying the Universal Camera test, we believe there was ample evidence of this kind. After Wilson, Warnken and Thomas had engaged in concerted activities in protest against the hiring practices, the employer discrimination was caused or attempted to be caused by Local 12 through the simple expedient of not dispatching these men to any of the employers. Respondent is chargeable with knowing that this employer discrimination, which respondent caused, would tend to encourage Wilson, Warnken and Thomas to become union members so that the discrimination would cease.
Respondent also argues that any liability which could arise from the two unfair labor practices discussed above, should not attach to Local 12, but to the International Union, which is not a party to these proceedings. The Board, however, adopted the trial examiner’s finding which stated that Local 12 could be held liable for the dispatcher’s acts on either a joint venture or an agency theory.
We need not decide whether the trial examiner’s joint venture theory has application here because, in any event, the agency theory provides an adequate ground for holding Local 12 liable for the acts of the dispatcher. See N.L.R.B. v. International Longshoremen’s and Warehousemen’s Union, 9 Cir., 210 F.2d 581; N.L.R.B. v. International Longshoremen’s and Warehousemen’s Union, Local 10, 9 Cir., 283 F.2d 558, note 5, 100 A.L.R.2d 348.
Moreover, since the examiner also properly found that Local 12 was bound directly by the acts of the dispatchers, it could be held responsible for the dispatcher’s conduct regardless of whether an agency relationship existed between International and Local 12.
Respondent contended before the trial examiner that it was not responsible for the unlawful operation of the dispatch hall because the hall was under the immediate control of the joint committee, half of whose members were employer representatives associated with PMA. The trial examiner concluded, however, that since Local 12 elected the dispatchers and paid for one-half the cost of maintaining the dispatching hall, it was responsible for the acts of dispatchers whom it selected and paid. This conclusion is consistent with this court’s opinion in N.L.R.B. v. I.L.W.U., 9 Cir., 210 F.2d 581, 584.
In addition, Armstrong, president of Local 12, was present when Wilson and Warnken were told to leave the dispatch hall and apparently acquiesced therein. Under this circumstance and the other circumstances discussed above, we are of the view that the trial examiner did not err in concluding that Local 12 could be held responsible for the discrimination which occurred.
Local 12 attacks the provision of the Board order which requires the local to make whole Wilson, Warnken and Thomas from October 5, 1964, for any loss of pay suffered by them as a result of the discrimination of Local 12 against them. The Board order provides that such payment shall be equal to the amount of wages they would have earned but for the discrimination practiced against them, computed on the basis of each separate calendar quarter or portion thereof, together with interest at the rate of six per cent per annum.
Local 12 asserts that this back-pay provision is contrary to the holding in N.L.R.B. v. Local 2, Etc., 2 Cir., 360 F.2d 428. In that case, the court modified a Board back-pay order which did not appear to contemplate an inquiry into the length of time the employer would have kept the charging parties at work.
As we read the order here in issue, it contemplates such an inquiry in the compliance proceeding. Such a compliance proceeding usually commences with the issuance, by a Board official, of a back-pay specification. If the answer thereto filed by the respondent presents an issue of fact, a hearing is held before a trial examiner. Therefore, no modification of the order in this regard is needed.
Finally, respondent argues that the proceeding should be remanded to the Board with directions that it consider whether the picketing by Wilson, Warn-ken and Thomas, and their submission of demands or requests, were protected activities within the meaning of section 7, in view of the fact that the collective bargaining contract contains a no-strike clause and provisions setting up grievance and arbitration procedures.
The no-strike provision of the collective bargaining agreement has no application in this case because the picketing and other activities of Wilson, Warnken and Thomas did not constitute a strike or work stoppage by employees against one or more employers. See N.L. R.B. v. Illinois Bell Telephone Co., 7 Cir., 189 F.2d 124, 127; THE POINT REYES, 5 Cir., 110 F.2d 608, 609-610; C. G. Conn, Ltd. v. N.L.R.B., 7 Cir., 108 F.2d 390, 397.
The question of the availability of the grievance procedure is not properly before us. Insofar as the record before us indicates, the only objection which respondent made before the agency with reference to whether respondent had restrained or coerced Wilson, Warnken and Thomas in engaging in a protected activity, had to do with their activity within the dispatch hall in seeking to enlist the support of other casuals. As to this particular occurrence, respondent’s only contention was that the activity was not protected because it involved a disruption of the dispatch hall — not because alternative grievance procedures were available.
Since the argument which respondent now advances was not the basis of any objection made in the agency proceeding, it is not available to respondent in this court. See section 10(e) of the Act, 49 Stat. 454, 29 U.S.C. § 160(e) (1964); N.L.R.B. v. Cheney California Lumber Co., 327 U.S. 385, 387-388, 66 S. Ct. 553, 90 L.Ed. 739; N.L.R.B. v. International Ass’n of Machinists, Lodge 942, AFL-CIO, 9 Cir., 263 F.2d 796, 798.
The petition will be enforced.
. The Board order modifies, in certain respects, the trial examiner’s recommended remedy.
. Wilson continued reporting to the hiring hall for about fifty days without securing employment. He obtained other employment on February 16, 1965. Warnken regularly went to the hiring hall between November 13, 1964 and March 23, 1965, the date of the hearing in this matter, without being dispatched. Thomas regularly went to the hall between November 13, 1964 and December 4 or 5, 1964, without being dispatched.
. In considering that question we are required to apply the rule announced in Universal Camera Corp. v. N.L.R.B., 340 U.S. 474, 488, 71 S.Ct. 456, 95 L.Ed. 456, that the substantiality of the evidence must take into account whatever in the record fairly detracts from its weight.
. Respondent argues that these three casuals made themselves unavailable for employment for work from October 8, 1964, when they were barred from the dispatch hall, until November 13, 1964, when they returned to the hall at the suggestion of the Board representative. However, we agree with the trial examiner that after these men were told to get out of the dispatch hall, it was the respondent’s responsibility to notify them that the dispatch hall was open to them before it could claim that these men had made themselves unavailable for dispatch.
. As noted above, section 8(b) (2) of the Act makes it an unfair labor practice for a labor organization to cause or attempt to cause an employer to discriminate against an employee in violation of 378 F.2d — 9 section 8(a) (3) of the Act. Section 8 (a) (3) prohibits employer discrimination against employees “to encourage or discourage membership in any labor organization : * * * ”
. Section 8.21 of the 1961-1966 agreement between PMA and ILWU provides that the personnel for each dispatching hall, with the exception of dispatchers, would be appointed by the joint committee. Dispatchers were to be selected by ILWU through elections. In application of these provisions, however, it was the membership of Local 12 which elected the dispatchers. | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "groups and associations". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. | What is the total number of respondents in the case that fall into the category "groups and associations"? Answer with a number. | [] | [
1
] | songer |
PLAIN DEALER PUBLISHING COMPANY, Plaintiff-Appellant, v. CLEVELAND TYPOGRAPHICAL UNION # 53 et al., Defendants-Appellees.
No. 75-1219.
United States Court of Appeals, Sixth Circuit.
Aug. 15, 1975.
James P. Garner, Elliott S. Azoff, Victor Strimbu, Jr., Don H. Pace, Baker, Hostetler & Patterson, Cleveland, Ohio, for plaintiff-appellant.
Norton N. Newborn, Melvin S. Schwarzwald, Metzenbaum, Gaines & Stern Co., LPA, Mark A. Rock, James L. Oakar, Cleveland, Ohio, for defendantsappellees.
Before PECK, McCREE and MILLER, Circuit Judges.
PER CURIAM.
This is an appeal from the denial of an injunction requested in a dispute between the Cleveland Plain Dealer and the craft unions representing some of its employees. It requires us to decide whether the exception to the anti-injunction provision of the Norris-LaGuardia Act, 29 U.S.C. § 104, carved out in Boys Market, Inc. v. Retail Clerks Union, Local 770, 398 U.S. 235, 90 S.Ct. 1583, 26 L.Ed.2d 199 (1970), permits an injunction against unions engaged in a work stoppage in deference to another union’s lawful picket line. We hold that it does not.
The Cleveland Newspaper Guild, not a party to this litigation was engaged in a lawful economic strike against the Plain Dealer in November, 1974, and members of the defendant unions did not cross the Guild picket lines. Mass picketing and incidents of violence attended the Guild strike, and a state court order limiting the number of pickets was not totally effective. Although members of two of the four defendant unions did attempt to report for work, they were unable to enter the Plain Dealer building because of the persistent violence.
The Plain Dealer brought suit in the district court to enjoin the work stoppage by the craft unions and to force them to arbitrate the dispute. The district court, in denying the motion for injunctive relief, stated that the narrowly circumscribed injunctive relief authorized in Boys Market did not extend to the prohibition of work stoppages generated by lawful labor disputes; that neither the violence nor the threats of violence on the Guild picket line violated the Guild-Plain Dealer collective bargaining agreement; and that equitable considerations favored the denial of the motion for the injunction. After the district court issued its order, the United States Court of Appeals for the Second Circuit considered the issue before us. In Buffalo Forge Co. v. United Steelworkers of America, 517 F.2d 1207 (1975), it determined that when members of a union not directly in conflict with an employer conduct a work stoppage out of respect for another interested union’s lawful picket line, and not because of a desire to avoid arbitration, the denial of injunctive relief accords with the national labor relations policy expressed in the Norris-LaGuardia Act.
For the reasons set forth in the Buffalo Forge decision and for the reasons set forth in the district court’s opinion, attached hereto as an appendix, the judgment is affirmed.
APPENDIX
MEMORANDUM
(Filed November 8, 1974)
BEN C. GREEN, J.:
This action was commenced on Friday, November 1, 1974, by the Plain Dealer Publishing Co. (hereinafter Plain Dealer) against three unions and the officers thereof in their official capacities. The union defendants so named were Cleveland Typographical Union, No. 53 (hereinafter Printers), Cleveland Stereotypers Union, No. 22 (hereinafter Stereotypers), and Cleveland Mailers’ Union, No. 12 (hereinafter Mailers). The complaint alleged the existence of continuing collective bargaining agreements between plaintiff and each of the said defendants, which contracts contained clauses obligating the parties thereto “to settle all differences that may arise between the parties” by conciliation or grievance procedures “and final and binding arbitration.” The complaint further alleged the existence of a dispute between plaintiff and each of the said defendants, in that each of the defendant unions had an obligation to provide workers for duty at the Plain Dealer, but that as of November 1, 1974, each of the unions:
indicating it was speaking for and on behalf of itself and its members indicated it would not supply the necessary men and cause them to report for work on their regularly scheduled shifts.
It was further alleged that the said disputes were arbitrable under the contracts, but that the defendants, nevertheless, “have caused a work stoppage in violation of the Agreement”.
The relief sought under the complaint was:
1) A preliminary injunction enjoining the work stoppage.
2) A decree that the collective bargaining agreements preclude a work stoppage during their terms and that the disputes alleged were subject to arbitration thereunder.
3) A finding that defendants were in violation of the agreements by failing to cause their members to report for work.
4) A permanent injunction against the work stoppage.
5) Retention of jurisdiction to enforce the injunctive orders and for determination of damages.
6) Recovery of fees, expenses, cost and disbursements of the action.
There was presented to the Court, with the complaint, a motion for temporary restraining order. Such motion sought an order upon defendants prohibiting the continuing of “their unauthorized strike now existing at the Company’s plant”. When counsel for plaintiff appeared with that request, counsel for defendant Printers was also present. The Court was advised that the factual background for the litigation was that The Cleveland Newspaper Guild Local No. 1 (hereinafter Guild) was engaged in a lawful economic strike against the Plain Dealer as of November 1, 1974, and that members of the defendant unions had not crossed the Guild picket lines which had been set up at 6:00 a. m. that morning. However, counsel for the Printers advised the Court that the failure to report for work by his clients was not voluntary, in that there was mass picketing at the Plain Dealer plant, with threats of harm and violence to anyone attempting to gain entry. Plaintiff’s counsel then advised that within the hour an order had been obtained in the Common Pleas Court of Cuyahoga County limiting the number of pickets permitted and prohibiting any interference with rights of others. He conceded, however, that it was not known whether such order had yet been served and what the actual conditions were at that time.
Based upon such representations the Court advised that the requested order would not be granted, but that action would be withheld until it was determined what conditions developed at the Plain Dealer premises following service of the Common Pleas order. The Court also advised that if necessary further proceedings could be had on Saturday.
A request for a Saturday hearing was made by plaintiff’s counsel, and the same was convened at about 3:00 p. m. At that time plaintiff filed an amended complaint, adding as a party defendant the Cleveland Newspaper Printing Pressmen’s Union No. 5 (hereinafter Pressmen) and the officers thereof in their official capacities. The allegations of the amended complaint as against the Pressmen were essentially the same as against the other defendants. A further motion for temporary restraining order against all defendants was presented. That proposed order was similar to the original request for temporary restraining order, but contained an added clause that:
nothing contained herein shall be construed as requiring any individual employee member of the defendant Unions who, upon attempting to enter the plaintiff’s premises, is unable to do so because of real fear of bodily harm to himself from the pickets of the Cleveland Newspaper Guild Local No. 1.
Plaintiff’s counsel advised that the Common Pleas order had been served shortly after 6:00 p. m. the preceding evening, that he believed it was then possible for the members of the craft unions to obtain entrance to the Plain Dealer Building, but that no members of the four defendants unions had reported for work.
Defendants’ counsel, on the other hand maintained that notwithstanding the Common Pleas order conditions at the premises were still such that the craft employees were being denied access to the plant, and that there existed a real danger to the safety of any person who might try to cross the Guild picket line.
Faced with such conflicting representations by counsel, the Court set the matter for evidentiary hearing on Monday, November 4, 1974. On Tuesday, November 5, it was agreed that the matter would be considered as a motion for preliminary' injunction upon the pleadings then before the Court. Such decision was reached based upon the extent of the record being developed and in order to afford appellate review from this Court’s determination.
The hearing having been concluded, and the Court having received briefs from counsel during the progress thereof, the matter is before the Court for decision.
At the outset, it must be borne in mind that this is a motion for preliminary injunction. As such, the criteria pertinent thereto are not the same as control on a decision on the merits. The standards which this Court should apply in determining whether a preliminary injunction is proper have been set forth in North Avondale Neighborhood Association v. Cincinnati Metropolitan Housing Authority, 464 F.2d 486 (CA 6, 1972), as follows:
1) Has petitioner made a strong showing of probable success at trial?
2) Has petitioner shown irreparable injury?
3) Would issuance of the preliminary injunction cause substantial harm to others?
4) Where lies the public interest?
Further, a determination made on a request to invoke the Court’s equitable powers involves consideration of factors beyond those which apply to a prayer for remedies at law. It is also important to note that this is an action against the unions themselves for concerted activity, and does not involve determination of action by any particular individual involved, except insofar as such conduct bears on the question of concerted activity.
In determining whether plaintiff has made a strong showing of probable success on the merits, the Court must consider the law controlling herein, and the application of such legal principles to the evidence upon the record.
The starting point for a discussion of the legal issues raised in this case should be the Supreme Court’s decision in Boys Markets, Inc. v. Retail Clerks Union, 398 U.S. 235, 90 S.Ct. 1583, 26 L.Ed.2d 199 (1970). In fact, the injunction being sought by plaintiff is of a nature now commonly referred to as a “Boys Market” injunction, and has been so designated in the course of this proceeding. Before the landmark Boys Markets decision, federal courts could not enjoin a strike, even in breach of a no-strike contractual obligation, in any case arising from a labor dispute, because of the all-encompassing language of the anti-injunction provisions of Section 4 of the Norris-LaGuardia Act. 29 U.S.C. § 104. In Boys Markets, however, the Supreme Court carved out a “narrow exception” to the Norris-LaGuardia Act in order to accommodate the Act to § 301(a) of the Labor Management Relations Act, 29 U.S.C. § 185(a), and the federal labor law policy which encourages arbitration as a method for settling disputes.
In Boys Markets, the union insisted that only its members and not supervisory personnel could rearrange merchandise in the frozen food cases of the employer’s market. When the employer refused to empty the shelves stocked by non-union employees, the union went out on strike. The dispute was subject to arbitration under the collective bargaining agreement and the strike was in violation of an express no-strike clause of that agreement. The Supreme Court held that the district court had properly enjoined the strike, stating that under § 301(a) the federal courts may enjoin a strike if it is found that the “strike is sought to be enjoined because it is over a grievance which both parties are contractually bound to arbitrate . . . ” and that the injunction is warranted under normal equity considerations. The Supreme Court’s holding is reflected in the following portion of its opinion:
Our holding in the present case is a narrow one. We do not undermine the vitality of the Norris-LaGuardia Act. We deal only with the situation in which a collective-bargaining contract contains a mandatory grievance adjustment or arbitration procedure. Nor does it follow from what we have said that injunctive relief is appropriate as a matter of course in every case of a strike over an arbitrable grievance. The dissenting opinion in Sinclair suggested the following principles for the guidance of the district courts in determining whether to grant injunctive relief — principles that we now adopt:
“A District Court entertaining an action under § 301 may not grant injunctive relief against concerted activity unless and until it decides that the case is one in which an injunction would be appropriate despite the Norris-LaGuardia Act. When a strike is sought to be enjoined because it is over a grievance which both parties are contractually bound to arbitrate, the District Court may issue no injunctive order until it first holds that the contract does have that effect; and the employer should be ordered to arbitrate, as a condition of his obtaining an injunction against the strike. Beyond this, the District Court must, of course, consider whether issuance of an injunction would be warranted under ordinary principles of equity— whether breaches are occurring and will continue, or have been threatened and will be committed; whether they have caused or will cause irreparable injury to the employer; and whether the employer will suffer more from the denial of an injunction than will the union from its issuance.” 370 U.S., at 228, 82 S.Ct., at 1346, 8 L.Ed.2d, at 460. (Emphasis in original.) 398 U.S. 235, 253-254, 90 S.Ct. 1583, 1594, 26 L.Ed.2d 199.
In Boys Markets, there was an express no-strike provision in the collective bargaining agreement. It was this express contractual duty which the Supreme Court held could be enforced by an injunction under § 301(a) of the Labor Management Relations Act. In a subsequent ruling, the Court has further held that an implied no-strike clause will also support a Boys Market injunction. Gateway Coal Co. v. United Mine Workers of America, 414 U.S. 368, 94 S.Ct. 629, 38 L.Ed.2d 583 (1974). In Gateway the Court noted that “a contractual commitment to submit disagreements to final and binding arbitration gives rise to an implied obligation not to strike over such disputes.” Id., at 381. The Court further stated that “the agreement to arbitrate and the duty not to strike should be construed as having coterminous application.” Id. at 382, 94 S.Ct., at 639.
Although Boys Markets is of relatively recent origin, there are a number of cases involving its application to fact situations similar to that before the Court.
It appears to the Court that while many of the decisions may be distinguishable on their precise facts, they do present two basically different jurisprudential views as to the proper construction and reach of Boys Markets.
On the one hand, there are a number of decisions which hold that a refusal of union members to cross a picket line established at their place of employment by another union is not enjoinable. The leading case representing that view is Amstar Corp. v. Amalgamated Meat Cutters and Butcher Workmen of North America, 468 F.2d 1372 (CA 5, 1972). Therein the Court stated:
The case sub judice is éntirely outside the scope of the exception to the Norris-LaGuardia Act delineated in Boys Markets. [Citations omitted] The strike by the Chalmette employees was not “over a grievance” which the parties were contractually bound to arbitrate. Rather, the strike itself precipitated the dispute — the validity under the Union’s no-strike obligation of the member-employees honoring the ILA picket line. Were we to hold that the legality of the very strike sought to be enjoined in the present situation constituted a sufficiently arbitrable underlying dispute for a Boys Markets injunction to issue, it is difficult to conceive of any strike which could not be so enjoined. The Boys Markets holding was a “narrow one,” not intended to undermine the vitality of the anti-injunction provision of the Norris-LaGuardia Act. Indeed, the Supreme Court specifically stated that its decision did not mean “that injunctive relief is appropriate as a matter of course in every case of a strike over an arbitrable grievance.” This appeal is such a case. The district court was without jurisdiction to enter the injunction. Id., at pps. 1373-74.
The same theory was stated much more succinctly in General Cable Corporation v. International Brotherhood of Electrical Workers, Local Union 1644, 331 F.Supp. 478 (D.Md., 1971), wherein the Court stated:
The only grievance or dispute between the Company and Local 1644 is the result of the strike and not the cause of the strike. It does not come within the narrow exception created by the rule in Boys Market to the applicability of the Norris-LaGuardia Act. Id., at p. 482.
The same conclusion was reached in Simplex Wire and Cable Co. v. Local 2208, International Brotherhood of Electrical Workers, 314 F.Supp. 885 (D.N.H., 1970).
Although not directly in point, in that it does not involve a refusal to cross picket lines, the decision in Parade Publications, Inc. v. Philadelphia Mailers Union No. 14, 459 F.2d 369 (CA 3, 1972), warrants mention. Therein union defendants having a no-strike and arbitration clauses in their contracts had engaged in a work stoppage in protest of the employer’s alleged setting up of a new concern to which the work being performed by the union members would be diverted. In reversing a Section 301 injunction, the court stated:
Parade’s argument that the strike itself clearly created an arbitrable issue of whether the union had violated the general “no strike” clause does not require a different result for two reasons. First, it is apparent from the court’s reference to “any dispute which underlies the alleged walkout” that it did not rest its decision to issue an injunction upon a finding that the strike itself created an issue which the parties have bound themselves to arbitrate. Second, this argument of Parade goes beyond anything decided in the Boys Market case. Indeed, if the Diversified situation caused the strike and does not present an issue which the parties have bound themselves to arbitrate, it would run contrary to the rationale of Boys Market to grant Parade an injunction. Id., at p. 374.
The contrary point of view proceeds from a line of authority represented by Monongahela Power Company v. Local No. 2332, International Brotherhood of Electrical Workers, 484 F.2d 1209 (CA 4, 1973). In that decision, although stating that:
The anti-injunction provision of Norris-LaGuardia still retained much of its vitality after Boys Markets, however, as the Court specifically limited its holding — that injunctive relief against labor disputes may be available — to a narrow fact situation,
the court found that by virtue of the “extremely broad and encompassing language” of the express no strike-no lockout and grievance-arbitration clauses of the collective bargaining agreement “the facts of the instant case clearly bring it within the narrow Boys Markets exception”. The Fourth Circuit again upheld a Boys Markets injunction in a picket line situation in Pilot Freight Carriers v. International Brotherhood of Teamsters Chauffeurs, Warehousemen and Helpers of America, 497 F.2d 311 (1974). The decision therein was predicated upon the fact that the collective bargaining agreement, which contained an express no-strike clause and a broad arbitration clause, had a clause which granted the union the right to refuse to cross a primary picket line. The court found that a dispute existed as to whether the picket line was primary or secondary and that the “relationship between the no-strike clause and the clause allowing individual employees to refuse crossing a primary picket line” was an arbitrable matter within the sense of Boys Markets. In NAPA Pittsburg, Inc. v. Automatic Chauffeurs, Parts and Garage Employees, Local Union 926, 502 F.2d 321 (CA 3, 1974), the court was also presented with a collective bargaining agreement containing a clause granting employees the right to refuse to cross a primary picket line. The decision therein was en banc, with a 6-3 vote affirming the granting of a § 301 injunction. The majority distinguished the Amstar line of authority on the basis that “In none of the cited cases was there a contractual provision restricting the union’s right to honor picket lines of other labor organizations”, while the dissent took the view under the rationale of Boys Markets that an injunction should not be granted in the factual context presented. In Barnard College v. Transportation Workers Union of America, 372 F.Supp. 211 (S.D.N.Y., 1974), the court based its injunction upon a contractual commitment to resolve “all differences” by arbitration with an obligation not to “call or countenance any form of strike”, while in Bethlehem Mines Corporation v. United Mine Workers of America, 3 Cir., 494 F.2d 726, a contract clause obliging the parties to arbitrate all differences under the contract and any differences “about matters not specifically mentioned in this agreement, or any local trouble of any kind ... at the mine” was sufficient to support a Boys Market injunction.
The uncertain state of the law on the issue before the Court is clearly brought home by the fact that within one week of each other two district courts reached conflicting conclusions on essentially the same facts and law as were later presented to the Fourth Circuit Court of Appeals in Pilot Freight, supra. On March 25, 1974, Judge O’Kelley of the Northern District of Georgia entered a § 301 injunction, applying the same theory adopted by the Fourth Circuit in its later decision. Pilot Freight Carriers, Inc. v. International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, 4 Cir., 497 F.2d 311. On April 1, Judge Stern of the New Jersey district denied an injunction sought on the same grounds as had been advanced in Georgia, adopting the view of Boys Markets contained in the Am-star line of authority. Pilot Freight Carriers, Inc. v. Local 560, International Brotherhood of Teamsters, D.N.J., 373 F.Supp. 19. Similarly, although the court sought to distinguish the ruling in the Maryland General Cable case, it appears to the Court that the decision in General Cable Corporation v. International Brotherhood of Electrical Workers, Local Union 1798, 333 F.Supp. 331 (W.D.Tenn., 1971), simply represents a different conclusion on basically the same facts in each case.
Having reviewed the considerations discussed in what this Court believes to be the two divergent lines of authority, this Court is of the opinion that the conclusion of the Amstar case is the sounder view.
In this Court’s opinion, there is a clear difference between a labor dispute which results from a work stoppage and a work stoppage which is the result of a labor dispute arising from conditions of employment. While Boys Markets teaches that the latter is enjoinable, the Court believes that an injunction as to the former cannot be reconciled with the express language of the Supreme Court in that decision. In this Court’s opinion, the philosophy represented by the Monongahela Power, NAPA, and Pilot Freight decisions runs counter to the Supreme Court’s admonition that the Boys Markets holding was a “narrow one”, not making injunctive relief “appropriate as a matter of course in every case of a strike over an arbitrable grievance”, and that the decision was not intended to “undermine the vitality of the NorrisLaGuardia action”, but rather represented an accommodation of the literal terms of Section 4 of Norris-LaGuardia to the provisions of Section 301(a) of the Labor Management Relations Act and the judicial policies favoring arbitration of labor disputes. 398 U.S. 235, 250, 253-254, 90 S.Ct. 1583, 1594, 26 L.Ed.2d 199. In this case, there was no dispute whatsoever between plaintiff and defendants until such time as the craft employees failed to report for work following posting of the Guild picket lines. It therefore follows that no injunction may issue herein against these defendants.
Although the Court’s decision as expressed above is determinative of the plaintiff’s motion, as previously stated, the Court intends to cover all issues presented in this proceeding. Consequently, assuming that this Court has too narrowly viewed Boys Markets and that the theory of the Monongahela Power, NAPA and Pilot Freight decisions applies, the Court will now consider the remaining issues. This is done so that in the event of an appeal, should the Court of Appeals disagree with this Court’s view of the law, it will not be necessary to remand the action for further findings.
In considering the remaining issues, which are matters of both fact and law, the burden of proving its case rests upon the plaintiff. An employer seeking an injunction has the burden of proving that he comes within the Boys Markets doctrine. He must provide the Court with an evidentiary basis for making the findings required by that case as a prerequisite to the issuance of an injunction. Parade Publications, Inc. v. Philadelphia Mailers Union Local No. 14, 459 F.2d 369, 373 (CA 3, 1972). While in a proceeding for preliminary injunction a plaintiff need not prove its case to the same degree as would be required at a trial upon the merits, the record must reflect sufficient evidence of the factors required to support a Boys Markets injunction to satisfy the “strong showing of probable success” test.
In order to satisfy its burden, plaintiff must demonstrate that the unions are in fact engaged in an unlawful work stoppage, that such work stoppage is over a grievance that the parties are contractually bound to arbitrate, and that the collective bargaining agreements contain no-strike clauses, express or implied, which afford a basis for an injunctive order. Avco Corp. v. Local Union # 787 of the International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, 459 F.2d 968, 972 (CA 3, 1972).
The first issue is whether these defendants are now engaged in an unlawful work stoppage. If they are not, then no injunction could issue.
We must start with the premise that a person who refuses to cross a picket line of another union as a matter of principle becomes a striker, but that one who refuses to do so by reason of physical fear does not act on principle and may not be considered a striker. National Labor Relations Board v. Union Carbide Corporation, 440 F.2d 54 (CA 4, 1971). See also, National Labor Relations Board v. Knight Morley Corp., 251 F.2d 753 (CA 6, 1958). This principle has been codified in § 502 of the Labor Management Relations Act, 29 U.S.C. § 143, which provides:
[N]or shall the quitting of labor by an employee or employees in good faith because of abnormally dangerous conditions for work at the place of employment of such employee or employees be deemed a strike under this chapter.
This recognition of a right to refuse to work provides a limited exception to an express or implied no-strike obligation. Gateway Coal Co. v. United Mine Workers of America, 414 U.S. 368, 94 S.Ct. 629, 38 L.Ed.2d 583 (1974).
While the express terms of § 502 would appear to apply to occupational safety hazards, it has been construed as extending to potential labor violence. Redwing Carrier, Inc., 130 N.L.R.B. 1208, enforced as modified, 117 U.S.App.D.C. 84, 325 F.2d 1011 (1963). Therefore, whether failure to report to work in the face of credible threats of violence be characterized as protected activity under § 502 or as not representing a breach of contract, the result is the same — there is no basis for an injunction mandating a return to work.
In this case there is a dispute between the parties as to whether the defendants have failed to report for work as a consequence of a bona fide fear for personal safety. This is a matter of fact which the Court must resolve.
The Court finds that the facts are not the same as to all defendants.
Approximately a week before the Guild went on strike, the possibility of that even was discussed at a Printers’ union meeting, and the membership was advised that they would be obliged to continue working.
On the evening that the Guild strike vote was taken,-the craft unions held a unity meeting at which the question of supporting the Guild strike was presented. All unions present, excepting the Pressmen and Mailers, voted to cross the picket lines and report for work if possible. The Pressmen and the Mailers abstained on the basis that they required instructions from their international unions.
Members of both the Printers and Stereotypers have attempted, either individually or collectively, to obtain entry into the Plain Dealer plant. The record reflects that in each instance they have been met with resistance and threats of violence. When a large body of Printers attempted to report on Sunday, November 3, they were met by an equally large body of strikers barring their way.
Plaintiff’s Director of Labor Relations testified that he believed the threats to be idle ones, and there has been the strong intimation by plaintiff that the Sunday mass confrontation was a neatly arranged scenario. The members of the defendant unions who testified stated they fully believed the threats, and honestly believed that violence would have ensued had they attempted to pass those barring their way.
It has been said that:
What constitutes unlawful intimidation depends on all the circumstances. Force threatened is the equivalent of force exercised. There may be unlawful intimidation without any direct threats or overt acts of violence. Words or acts which are calculated and intended to cause an ordinary person to fear an injury to his person, business, or property are equivalent to threats. The number of pickets, their methods, their placards, and their circulars may constitute intimidation. A display of force without actual use thereof may be intimidation. 48 Am.Jur.2d, Labor and Labor Relations, § 1390.
In the context of discussing the provisions of § 502, the Supreme Court stated in Gateway Coal that there must be some objective evidence of an abnormally dangerous condition for work. 414 U.S. 368, 386, 94 S.Ct. 629, 38 L.Ed.2d 583. This Court is satisfied that the evidence of the threats and confrontations meets that standard. The Court does not believe that it was incumbent upon the craft employees to further prove the dangerous conditions by going forward in the face of the threats of violence, in order to establish the validity of such threats.
In the Court’s opinion, the record is insufficient to support the conclusion that the Printers and Stereotypers have allied themselves with the Guild as a matter of principle. The evidence of their consistent avowed intent to work if possible cannot be disregarded in determining whether the unions are engaged in a concerted unlawful work stoppage.
As the Court cannot find that the Printers and Stereotypers are engaged in an unlawful work stoppage in violation of their contractual obligations, it necessarily follows that they could not be subjected to a mandatory order to discontinue such conduct.
However, as to the Pressmen and Mailers, there is no evidence that any of their members have attempted to report for work. There is likewise no evidence of the official position of the unions as regards the Guild strike. Consequently, it is just as reasonable to assume that the failure of those unions to report for work is by virtue of sympathizing with the Guild, as it is out of fear of the Guild. Absent any objective evidence that justifies the failure of those unions to report for work, this Court must conclude that they may be considered as strikers.
Having determined that the Pressmen and Mailers could be found to be engaged in an unlawful work stoppage, it must then be determined whether such a stoppage is subject to being enjoined under the Boys Markets standards, for as is pointed out therein, not every strike is subject to being enjoined. That issue is controlled by the terms of the parties’ collective bargaining agreements.
Consistent with the Court’s decision to treat on all issues inherent in this case, the Court will also consider the matter of whether the Printers and Stereotypers contracts will support a Boys Markets injunction, notwithstanding the conclusion reached as to those unions’ status as non-strikers.
The Court has examined the collective bargaining agreements of all defendant Unions. None of the said agreements contains an express no-strike clause comparable to those contained in the collective bargaining agreements in the cases previously considered herein in which mandatory orders were issued requiring the crossing of picket lines. Consequently, the obligation of these unions not to engage in work stoppages must be implied from the grievance-arbitration clauses of their contracts, and cannot exceed the scope of those clauses.
As to all the unions, plaintiff contends that “manning” provisions in each contract provide the basis for the finding of an arbitrable dispute, in that the work stoppages violate the unions’ obligations thereunder. This Court does not agree with that position. The actual dispute here is the right of the craft employees to refuse to cross the Guild’s picket line. To characterize the arbitrable dispute in terms of the manning provisions would bootstrap all work stoppages into arbitrable grievances. There can be many reasons for a work stoppage, and it is the validity of these reasons which is the proper subject for arbitration if the contract so provides, not the failure to work itself.
The Court finds that the Printers and Mailers contracts have reasonably broad grievance and arbitration clauses, although there are perhaps some ambiguities within the terms of the clauses. Those contracts also contain clauses pertaining to the subject of “Picket Line”. Bearing in mind that in Gateway Coal, a Boys Markets injunction action, the Supreme Court did reaffirm the federal policy favoring resolving doubts as to arbitrability in favor of arbitration, if this Court were to apply the Monongahela Power, NAPA, Pilot Freight standards the Court would conclude that an arbitrable grievance supportive of a § 301 injunction exists. However, by virtue of the absence of strong express no-strike clauses, the contracts would certainly be borderline situations.
As to the Stereotypers contract, while the grievance-arbitration clause is arguably broad, the Court finds no other contract provisions therein comparable to those which afforded the basis for the orders in the Monongahela Power line of decisions. Therefore, the failure to cross a picket line could present no arbitrable dispute under the contract, and hence no §301 injunction could issue.
In the Court’s opinion, the grievance-arbitration provisions of the Pressmen’s contract is of such a limited scope that it cannot be said to imply a no-strike obligation applicable to the facts of this case.
Finally, if this Court was of the opinion that the controlling law permitted the entry of an injunctive order, the Court, as dictated by both the Sixth Circuit Court of Appeals in the North Avondale decision and by the Supreme Court in Boys Markets, would have to take into account the general equitable considerations and the public interest as pertinent hereto. Injunction is an equitable remedy which should not be lightly indulged in, but used sparingly and only in a clear and plain case. 42 Am.Jur.2d, Injunction, § 2.
Mr. Justice Black recognized that honoring a picket line has been a respected tradition within the labor movement:
Section 7 of the Taft-Hartley Act [29 U.S.C. § 157] recognizes a right of employees to work together in “concerted activities” for their mutual aid and protection. One way some union men help others is to refrain from crossing picket lines. Habitual respect for union picket lines has long been the practice of union men. This practice has been a prized asset of the unions. The Taft-Hartley Act was designed to regulate and restrict the type of concerted activities in which employees could engage. But even that Act did not attempt to deprive unions of the advantage of a policy that required union men to respect picket lines. National Labor Relations Board v. Rocka way News Supply Co., 345 U.S. 71, 81, 73 S.Ct. 519, 525, 97 L.Ed. 832 (1953).
The Court can understand the emotional impact that attempts to cross a picket line might have in a community with a long history of strong unionism.
Throughout these proceedings defendants have emphasized the risk of violence on the picket lines. Although the CouH has some reservations about the evidence of certain of the altercations and confrontations between the defendant unions and the pickets, the Court does believe that an attempt to forcibly cross the picket line does present a real potential for violence.
In cases involving vindication of fundamental constitutional rights, the courts have granted injunctions even though aware that their decisions might result in violence and personal injury. However, this Court believes that in cases seeking vindication of contractual rights, the courts should draw a careful balance between the need to protect a litigant’s private interests and the potential for public disorder that such action might entail.
As the authority of the courts to order any picket line breached is of recent origin, this Court has little historical perspective to draw upon in determining whether an injunctive order would result in actual violence. However, the Court cannot ignore the fact that violence did occur at the Plain Dealer in 1971, when members of craft unions attempted to forcibly cross a Guild picket line established in an economic strike.
As the Court has stated that its conclusions on all issues will be expressed, it is this Court’s opinion that the equitable considerations would be sufficient to preclude the entry of a mandatory injunction herein, had it been necessary to reach that issue.
Plaintiff’s motion for preliminary injunction will be denied.
/s/ BEN C. GREEN
United States District Judge
ORDER
(Filed November 8, 1974)
. UPON CONSIDERATION of plaintiff’s motion for preliminary injunction,
IT IS HEREBY ORDERED that the said motion is denied; see this Court’s memorandum of even date. The Court’s ruling is certified pursuant to 28 U.S.C. § 1292(b).
/a/ BEN C. GREEN
United States District Judge | What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in civil law issues involving government actors. The issue is: "Did the court's interpretation of the substantial evidence rule support the government? For example, "such evidence as a reasonable mind might accept as adequate to support a conclusion" or "more than a mere scintilla". This issue is present only when the court indicates that it is using this doctrine, rather than when the court is merely discussing the evidence to determine whether the evidence supports the position of the appellant or respondent." Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". | Did the court's interpretation of the substantial evidence rule support the government? For example, "such evidence as a reasonable mind might accept as adequate to support a conclusion" or "more than a mere scintilla". This issue is present only when the court indicates that it is using this doctrine, rather than when the court is merely discussing the evidence to determine whether the evidence supports the position of the appellant or respondent. | [
"No",
"Yes",
"Mixed answer",
"Issue not discussed"
] | [
3
] | songer |
James H. THOMPSON and Mrs. La Vaye Thompson, Appellants, v. James T. STAPLES, Robert Kenneth Staples, Bob & Jake’s Steak House, Inc., and Fireman’s Fund Insurance Company, Appellees.
No. 21495.
United States Court of Appeals Fifth Circuit.
Feb. 18, 1965.
Rehearing Denied March 16, 1965.
Sylvia Roberts and H. Alva Brumfield, Baton Rouge, La., for appellants.
Maurice J. Wilson and Breazeale, Sachse & Wilson, Baton Rouge, La., for appellees.
Before WISDOM and GEWIN, Circuit Judges, and BOOTLE, District Judge.
PER CURIAM.
On December 9, 1961, plaintiff-appellant Mrs. Thompson sustained personal injuries when she slipped on the floor of a restaurant operated by the Staples. She and her husband instituted suit on January 8, 1964, against the Staples and their insurer to recover damages for her injui’ies. The complaint was filed approximately one year and thirty days, after the running of the one-year Louisiana prescription for damages “resulting from offenses or quasi offenses.” The plaintiffs sought to avoid the prescription statute by alleging that an insurance-adjuster representing appellee Fireman’s Fund had, by his actions and words,, made deliberate misrepresentations, detailed in the complaint, which led Mrs. Thompson reasonably to believe that the-insux’ance company fully intended to settle her claim. She asserted that these misrepresentations were the sole cause of her failux'e to obtain legal counsel or otherwise take action during the year prior to the running of the period of prescription. The trial court gx-anted defendants’ motion to dismiss the complaint for failux’e to state a claim on which relief could be granted, and the-plaintiffs appeal.
Since jurisdiction in this caséis based solely on diversity of citizenship, we are bound to apply the substantive law of Louisiana. Erie R. R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). We agree with the-trial court’s conclusion that plaintiffs” allegations do not set forth a claim for avoidance of the px'escription statute under the Louisiana decisions. See Green v. Grain Dealers Mutual Ins. Co., (La. App.1962) 144 So.2d 685; Ayres v. New York Life Ins. Co., 219 La. 945, 54 So.2d 409, 411-412 (1951). The judgment is. therefore affirmed.
. Art. 3536, LSA-Civ.Cocle. | 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. | What is the nature of the second listed respondent whose detailed code is not identical to the code for the first listed respondent? | [
"private business (including criminal enterprises)",
"private organization or association",
"federal government (including DC)",
"sub-state government (e.g., county, local, special district)",
"state government (includes territories & commonwealths)",
"government - level not ascertained",
"natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)",
"miscellaneous",
"not ascertained"
] | [
0
] | songer |
FISCHER & PORTER CO. v. BROOKS ROTAMETER CO.
No. 11012.
United States Court of Appeals Third Circuit.
Argued Feb. 16, 1954.
Decided April 7, 1954.
Leonard L. Kalish, Philadelphia, Pa., for appellant.
Ralph L Chappell) New York City (J< Edward Shinn Philadelphia, Pa., on the for appellee.
Before MARIS, KALODNER and STALEY, Circuit Judges.
PER CURIAM.
This is an appeal by the plaintiff from a judgment for the defendant entered by the district court n. o. v. in an action for damages for infringement of plaintiff’s Fischer patent No. 2,441,350 for a rotameter and metering tube therefor. The case was tried to a jury to which three issues only were submitted, all other issues being reserved by stipulation of the parties for the court. The three issues submitted to the jury were whether the patent involved invention, whether Fischer was the first and original inventor and the amount of damages, in the event of a verdict for plaintiff. The jury rendered a verdict for plaintiff in the sum of $14,177.36.
Thereafter the district court, upon motion of the defendant, entered the judgment in its favor from which the present appeal was taken. The court did so pursuant to its conclusion that the evidence, taken in its most favorable light for the plaintiff, failed to support a finding of invention and that in any event the claims of the patent were invalid for want of definiteness. These conclusions are set forth in a comprehensive opinion filed by Chief Judge Kirkpatrick, 107 F.Supp. 1010. We find ourselves in complete accord with his reasoning and conclusions and need add nothing thereto. They fully support the judgment appealed from.
The plaintiff urges that the district court erred in denying its subsequent motion for reargument or a new trial, in support of which it offered 25 documents as additional evidence which it alleged contradicted certain of the defendant’s evidence. The judgment n. o. v. was entered because of the insufficiency of the plaintiff’s evidence, however. Moreover the documents did not in any event qualify as after discovered evidence. We find no error in the denial of the motion.
The judgment of the district court will be affirmed. | 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". | What is the specific issue in the case within the general category of "economic activity and regulation"? | [
"taxes, patents, copyright",
"torts",
"commercial disputes",
"bankruptcy, antitrust, securities",
"misc economic regulation and benefits",
"property disputes",
"other"
] | [
0
] | songer |
Barry W. WOLFE, Appellant, v. John O. MARSH, Jr., Secretary of the Army, et al.
No. 86-5703.
United States Court of Appeals, District of Columbia Circuit.
May 13, 1988.
Donald G. Smith, Fairfax, Va., was on the motion for appellant.
Joseph E. diGenova, U.S. Atty., and R. Craig Lawrence and Bradley L. Kelly, Asst. U.S. Attys., Washington, D.C., were on appellee’s response to motion for reconsideration, etc.
Before BUCKLEY and WILLIAMS, Circuit Judges, and AUBREY E. ROBINSON, Jr., Chief Judge, United States District Court for the District of Columbia.
Sitting by designation pursuant to 28 U.S.C. § 292(a).
Opinion PER CURIAM.
PER CURIAM:
After our decision on the merits in this case, 835 F.2d 354 (D.C.Cir.1987), appellant filed a Motion for Reconsideration and Transfer. For the reasons set forth below, we deny the motion.
Appellant rests his motion on a provision of the Federal Courts Improvement Act, 28 U.S.C. § 1295(a)(2) (1982), which states that the Federal Circuit has exclusive jurisdiction of appeals from final decisions of a district court “if the jurisdiction of that court was based, in whole or in part,” on the Little Tucker Act, 28 U.S.C. § 1346(a)(2) (1982). 28 U.S.C. § 1295(a)(2). Wolfe claims that, because the district court purported to base its jurisdiction in part on the Little Tucker Act, we were without jurisdiction to hear his appeal.
In Vietnam Veterans of America v. Secretary of the Navy, 843 F.2d 528 (D.C.Cir.1988), we held that, where a plaintiff seeking an upgrade neither seeks nor is granted monetary relief, the mere fact that a government payment of money is an automatic concomitant of the requested relief does not support Little Tucker Act jurisdiction. Vietnam Veterans, at 533-535.
Upon reading Wolfe’s complaint, it appears that this case fits comfortably within the confines of Vietnam Veterans. In his complaint, Wolfe asked only for “mandatory injunctive relief” declaring his dishonorable discharge unlawful and directing reinstatement and an upgrade, and “other further, alternate, or equitable relief” including costs and fees. Complaint at 1, 5-6. The complaint contained neither a claim for money damages nor a suggestion that the requested relief would entail such damages.
Subsequent memoranda contain hints that Wolfe may have intended to assert a claim for money damages, however. Because the record is unclear as to whether the district court (and the parties) were operating under the assumption that the collateral consequences of equitable relief implicate the Little Tucker Act, or whether Wolfe intended to assert a distinct claim for money damages, and the district court discerned such an intent, we take this opportunity to sharpen the rule laid down in Vietnam Veterans.
The spectre of money damages was raised for the first time by the government in a motion for summary judgment on the grounds that the district court lacked Little Tucker Act jurisdiction over the case. The government suggested that Wolfe’s requested injunctive relief would require an award of over $10,000 in back pay, and thus that jurisdiction was proper only in the court of claims. Specifically, in its memorandum supporting its motion, the government noted that “[ijmplicit in his request ... is a request for the attendant back pay,” which the government calculated to be in excess of $50,000. Government’s Memorandum in Support of its Motion to Dismiss at 10 & n. 9.
The closest Wolfe came to putting forth a claim for money damages was in his Memorandum in Opposition to Defendant’s Motion to Dismiss and in Support of Plaintiff’s Cross-Motion for Summary Judgment (“Plaintiff’s Memo”). In order to counter the government’s argument that the collateral consequences of his request ed relief would exceed $10,000, Wolfe calculated the back pay award which would accompany an upgrade at approximately $3,300, and waived any damages in excess of $10,000. Plaintiff’s Memo at 6-7. The plaintiff then offered to file a specific waiver or to amend his complaint to show that he had waived back pay in excess of $10,-000. There is no indication in the record that he did in fact amend his complaint in any way or file a waiver. Moreover, as far as we can tell, Wolfe offered only to amend his complaint to waive any collateral money damages above $10,000, not to amend his complaint to add a specific claim for back pay.
Nevertheless, in its memorandum opinion denying the government’s motion to dismiss, the district court, after holding that it had jurisdiction over plaintiff’s equitable claims, relied on Wolfe’s waiver of back pay in excess of $10,000 in holding that jurisdiction was proper under the Little Tucker Act. Wolfe v. Marsh, Civil No. 85-1073, slip op. at 3-4 (D.D.C. Dec. 26, 1985). To the extent the district court (and the parties) believed that the collateral consequences of the equitable remedy of reinstatement implicates the Little Tucker Act, Vietnam Veterans makes clear its error. Collateral consequences of equitable relief do not implicate the Little Tucker Act, and therefore the district court did not in fact have jurisdiction under the Little Tucker Act, as the plaintiff had never made a claim of money damages, only a waiver of collateral relief in excess of $10,000.
It is possible that the district court read the complaint as requesting monetary relief. If so, it was in error. The plain terms of the complaint demanded only equitable relief. An award of the equitable relief requested — upgrade and reinstatement— would not encompass monetary relief. E.g., Ben-Shalom v. Secretary of the Army, 807 F.2d 982, 984-88 (Fed.Cir.1986) (noting that the Seventh Circuit had vacated the district court’s award of back pay entered in contempt proceedings initiated because the Army had not complied with reinstatement order, rejecting the Army’s argument that the complaint implicitly sought back pay and transferring the appeal to the Seventh Circuit). And this court has already held that a general request that the district court award costs and all other relief deemed just and proper is irrelevant to the Little Tucker Act jurisdiction inquiry. Sharp v. Weinberger, 798 F.2d 1521, 1524 (D.C.Cir.1986). Thus it is clear Wolfe’s complaint, by its own terms, did not seek monetary relief.
Moreover, we cannot say that Wolfe’s subsequent memoranda cured the pleading defect. As it related to a complaint which did not request monetary relief, Wolfe’s “waiver” is ambiguous at best; there was no monetary claim to waive. His offer to amend his complaint “to reflect the evidence of record,” Plaintiff’s Memo at 7, is likewise ambiguous, especially at the pretrial motion stage of the proceedings. Conspicuously absent, in his specific offer to amend and in both memoranda submitted by plaintiff requesting summary judgment, is a request that the district court award him back pay.
A claim for reinstatement is not a claim for monetary damages; and if a plaintiff seeks a court award of monetary damages in addition to reinstatement, he must say so in his complaint. The district court should not assume Little Tucker Act jurisdiction over implicit claims, cf. Ben-Shalom, 807 F.2d at 987 (rejecting the Army’s argument that the Federal Circuit had jurisdiction because a claim for reinstatement implicitly seeks back pay), but only over explicit claims for monetary relief. This bright line rule is especially appropriate in the area of Little Tucker Act jurisdiction, as the basis of the district court’s jurisdiction also controls the jurisdiction of the appellate court.
Therefore, even if Wolfe intended his waiver to be an affirmation of a distinct claim for monetary relief, we reject it as a valid basis upon which the district court may have assumed jurisdiction. Given the need for certainty as to jurisdiction, we cannot allow plaintiff’s subjective intent, ambiguously expressed, to control the issue. There is no reason why trial courts (or appellate courts) should have to resort to close scrutiny of ambiguous memoranda to glean an intent to set forth a monetary claim. In a matter as basic as whether the plaintiff is asking the trial court to award monetary relief, the trial court must be able to answer that question from the plain terms of the complaint. Therefore, we hold that to invoke the Little Tucker Act the plaintiff must demand monetary relief in his complaint or in an amended complaint.
As neither the collateral consequences of the prayed for relief nor Wolfe’s “waiver” in his memoranda provided a valid basis for invocation of jurisdiction under the Little Tucker Act, Wolfe’s motion must be denied. This court has twice held that a district court’s “subjective” reliance on Little Tucker Act jurisdiction — i.e. invocation of Little Tucker Act without a valid basis— does not require that an appeal proceed to the Federal Circuit. Sharp v, Weinberger, 798 F.2d 1521, 1522 (D.C.Cir.1986); Van Drasek v, Lehman, 762 F.2d 1065, 1068, 1071 (D.C.Cir.1985). Therefore the district court did not have proper Little Tucker Act jurisdiction over the case, and hence this court properly heard the appeal. Appellant’s motion is accordingly denied.
It is so Ordered.
. The government’s response to Wolfe’s motion appears to concede the issue. See Appellee’s Response to Appellant’s Motion for Reconsideration and for Transfer at 1-2. Because this response was filed prior to our decision in Vietnam Veterans of America v. Secretary of the Navy, 843 F.2d 528 (D.C.Cir.1988), however, we are disinclined to accord it much weight.
. Parenthetically, we note that it is an extremely rare plaintiff who has trouble asking for money, if that is what he wants. This is especially true for plaintiffs represented by counsel, as was Wolfe.
. There is no reason to read a complaint seeking solely equitable relief as also seeking monetary relief, even if the record reveals that the plaintiff expects that by obtaining equitable relief he will be entitled to receive back pay, which may or may not be the case. See Vietnam Veterans, at 535; Ben-Shalom, 807 F.2d at 984. In this area, a plaintiffs interest in equitable relief may far exceed his interest in a back pay award, whether it be collateral to his injunctive relief or as a direct monetary judgment of the court. In fact, the record in this case indicates that this is such a case. Wolfe’s back pay claim was relatively small, and his apparent aim throughout has been to upgrade his discharge so that he could reenlist. Indeed, during administrative proceedings before the Army Discharge Review Board ("ADRB”), his counsel specifically disavowed any interest in a monetary award, according to the ADRB Case Report: "Counsel pointed out that the applicant desires to return to the Army. Money is not a factor." ADRB Case Report and Directive at 9, reprinted in Exhibit I to Defendant’s Motion to Dismiss at 14 (emphasis added). Throughout Wolfe's expressed desire has been to upgrade his discharge; indeed, according to the administrative record, Wolfe’s only real complaint was that he thought he would get an honorable discharge, either originally or as a matter of routine upon request to have it upgraded. E.g., Application for Review of Discharge or Dismissal From the Armed Forces of the United States at 1, reprinted in Exhibit I to Defendant’s Motion to Dismiss at 21; see also Wolfe v. Marsh, Civil No. 85-1073, slip op. at 12 (D.D.C. Dec. 26, 1985). We do not, of course, intimate that these representations should be construed as a waiver of any back pay claim Wolfe may have had. But as Wolfe’s focus throughout has been on his equitable claims, it makes clear that Wolfe’s “waiver" of an unstated monetary claim was inadequate to invoke Little Tucker Act jurisdiction.
. At first blush, the strict pleading rule enunciated herein appears inconsistent with the rule that, even if the complaint omits essential jurisdictional averments, the court of appeals (or the Supreme Court) will deem the complaint amended so as to sustain the district court’s jurisdiction if the necessary, but omitted, aver-ments affirmatively appear in the record. See Schlesinger v. Councilman, 420 U.S. 738, 744 n. 9, 95 S.Ct. 1300, 1306 n. 9, 43 L.Ed.2d 591 (1975); Norton v. Larney, 266 U.S. 511, 515-16, 45 S.Ct. 145, 147, 69 L.Ed. 413 (1925); see generally 28 U.S.C. § 1653 (allowing amendments of defective allegations as to jurisdiction at appellate court level). It must be remembered, however, that this is an exception to the rule that a complaint that does not properly allege the requisite jurisdictional elements is defective, subject to dismissal with leave to amend. See Schlesinger, 420 U.S. at 744 n. 9, 95 S.Ct. at 1306 n. 9; Norton, 266 U.S. at 515-16, 45 S.Ct. at 147. The exception is permitted on grounds of judicial economy and to insure that a plaintiff is not denied his day in court on the basis of technical flaws in his pleading. Neither rationale is applicable here.
The judicial economy rationale excuses the absence of a necessary jurisdictional averment because otherwise the lower court proceedings would be for naught; the exception validates the lower court’s judgment so that it may be given effect and properly be heard on appeal. Without the exception there would be, in a technical sense, no proper lower court judgment to review. The district court’s judgment here needs no such validation. As the district court did not award monetary relief, its judgment is fully supportable by its assertion of jurisdiction over the equitable claims, the only claims made in the pleadings.
Moreover, Wolfe has received a full hearing on his underlying claim — that the discharge was illegal and that the Army Board for Correction of Military Records failed to discharge its mandate to "correct an error or remove an injustice,” 10 U.S.C. § 1552(a) (1982), when it refused to upgrade the discharge — in both the district court and in this court. Obviously, consideration of this substantive claim need not, and in this case did not, encompass consideration of a distinct claim for monetary damages.
Thus, requiring a plaintiff to demand monetary relief in his complaint to invoke Little Tucker Act jurisdiction will not in any way prejudice a plaintiff. But it will have the benefit of allowing this court to determine easily and definitively whether it has jurisdiction. | 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". | In what state or territory was the case first heard? | [
"not",
"Alabama",
"Alaska",
"Arizona",
"Arkansas",
"California",
"Colorado",
"Connecticut",
"Delaware",
"Florida",
"Georgia",
"Hawaii",
"Idaho",
"Illinois",
"Indiana",
"Iowa",
"Kansas",
"Kentucky",
"Louisiana",
"Maine",
"Maryland",
"Massachussets",
"Michigan",
"Minnesota",
"Mississippi",
"Missouri",
"Montana",
"Nebraska",
"Nevada",
"New",
"New",
"New",
"New",
"North",
"North",
"Ohio",
"Oklahoma",
"Oregon",
"Pennsylvania",
"Rhode",
"South",
"South",
"Tennessee",
"Texas",
"Utah",
"Vermont",
"Virginia",
"Washington",
"West",
"Wisconsin",
"Wyoming",
"Virgin",
"Puerto",
"District",
"Guam",
"not",
"Panama"
] | [
53
] | songer |
TOBIN, Secretary of Labor, v. RAMEY.
No. 14370.
United States Court of Appeals Fifth Circuit.
Aug. 31, 1953.
William S. Tyson, Sol., Washington, D. C., Bessie Margolin, Asst. Sol., U. S. Dept, of Labor, Washington, D. C., Earl Street, Regional Atty., U. S. Dept, of Labor, Dallas, Tex., Harry N. Routzohn, Sol., William A. Lowe, Sylvia S. Ellison, Attys., U. S. Dept, of Labor, Washington, D. C., for appellant.
Robert E. Leake, Jr., New Orleans, La., Deutsch, Kerrigan & Stiles, New Orleans, La., for appellee.
Before HOLMES, BORAH and RIVES, Circuit Judges.
HOLMES, Circuit Judge.
The appellee seeks a rehearing because the opinion in this case was written by a judge who did not sit during the oral argument. The petition asserts that the right of appeal contemplates a determination “in the Court of Appeals by at least three judges who have participated in the appellate hearing of the casé.” It further contends as follows:
“True, 28 USC 46(c) provides that in the courts of appeals, cases shall ‘be heard and determined by a court or division of not more than three judges,’ implying at first blush, when read out of context, that the hearing may be by less than three; but section 46(b), immediately preceding, states that ‘in each circuit the court may authorize the hearing and determination of cases and controversies by separate divisions, each consisting of three judges,’ thus fixing the number at that minimum.” Citing Western Pacific Railroad Corp. v. Western Pacific Railroad Co., 345 U.S. 247, 73 S.Ct. 656.
The absent judge was a member of the division of the court, consisting of three judges, which had been assigned to sit during the week that this case was argued and submitted, and the writing of the opinion was assigned to him by the two judges who heard the oral argument. His absence was due to the fact that on Monday morning of that week, while on his way to court, he met with a traffic accident, and was confined in a hospital when this case was argued orally. A majority of the number of judges thus authorized to constitute the court was present, heard the oral argument, and participated in the decision, as provided in 28 U.S.C. § 46(c) and (d).
Said section 46, Title 28, in substance, provides that circuit judges shall sit on the court and its divisions in such order and at such times'as the court directs; that each circuit court may authorize the hearing and determination of cases by separate divisions, each consisting of three judges, unless a hearing or rehearing is ordered be-for the court en banc-, and that a majority of the number of judges authorized to constitute the court or a division thereof shall constitute a quorum. Section 46(d) in full is as follows: “A majority of the number of judges authorized to constitute a court or division thereof, as provided in paragraph (c), shall constitute a quorum.”
In note 3 of its petition for rehearing, the appellee says: “This court’s own Rule 36-provides expressly ‘that whenever a full bench of three judges shall not be made up * * * so many of the district judges as may be necessary to make up a full court of three judges are hereby designated and assigned to sit in this court.’ ” This contention fails to notice the final clause of the single sentence that constitutes said rule 36. The entire rule is as follows:
“It is ordered that whenever a full bench of three judges shall not be made up by the attendance of the associate justice of the Supreme Court assigned to the circuit, and of the circuit judges, so many of the district judges, as may be necessary to make up a full court of three judges, are hereby designated and assigned to sit in this court; provided, however, that the court may, at any time, by particular assignment, designate any district judge to sit as aforesaid.”
The basic portion of this rule was formerly statutory, having been a part of the act of March 3, 1891, 26 Stat. 827, c. 517, § 3, as amended by the act of March 3, 1911, 36 Stat. 1132, c. 231, which is Section 120 of the Judicial Code that was approved March 3, 1911. The statute provided that the several district judges within each circuit should be competent to sit as judges of the circuit court of appeals within their respective circuits; and that, in case the full court at any time should not otherwise be made up, one or more district judges within the circuit should sit therein as members of the court. No designation by the senior circuit judge was required. The statutory basis as to the general competency of district judges to sit upon the court of appeals of their respective circuits, without any special designation by the chief circuit judge, was repealed by the Judicial Code, approved June 25, 1948, which became effective September 1, 1948. See Schedule of Laws Repealed, § 39, Revision of Title 28, United States Code, approved June 25, 1948. Prior to said Code of 1948, the circuit courts of appeals, by rule or particular assignments, designated the district judges to sit whenever a full bench of three judges was not in attendance upon that court; but Section 292(a) of the code of 1948 sets out an entirely new procedural legislative provision; it provides for the designation of district judges to sit upon the court of appeals whenever the business of that court so requires, the designation to be made by the chief judge of the circuit and to be in conformity with the rules or orders of the court of appeals.
Rule 36, above quoted, must be read in consonance with said section 292(a) ; and designations or assignments by the chief judge must be in conformity with said rule and section. See also Section 43(b) and Section 46 of the Judicial Code of 1948. In the instant case, there was no' designation or assignment of any district judge to sit on the court of appeals, and the court continued to he constituted of the three circuit judges who had been assigned to sit for that week although one of them was absent during the oral argument. Section 294(d) of said Title 28 provides that no retired justice or judge shall perform judicial duties except when designated and assigned. While no similar provision is in Section 292, it is implied that no district judge shall sit upon a court of appeals or a division thereof unless designated and assigned by the chief judge so to do.
It will be noted that rule 36 does not designate all district judges or any particular district judge to sit in this court, but only so many as this court may, at any time, by particular assignment, designate to sit as aforesaid; and the whole rule is limited by the final provision for a particular assignment and designation of any district judge. No statute authorizes a district judge to sit in the court of appeals of any circuit except Sections 43(b) and 292, Title 28, of the United States Code. Section 292, so far as applicable to this case, is as follows:
“(a) The chief judge of a circuit may designate and assign one or more district judges within the circuit to sit upon the court of appeals or a division thereof whenever the business of that court so requires. Such designations or assignments shall be in conformity with the rules or orders of the court of appeals of the circuit.”
No designation or assignment by the chief judge of any district judge to sit upon this Court was in effect at the time of the oral ax'gument or decision of this case. What then is the meaning of Section 46(d) of Title .28 of the United States Code, which provides that a majority of the nxxinber of judges authorized to constitute a division of the court, as provided in paragraph (c), shall constitute a quorum? The word quorum as therein used means such a number of the membei's of the court as may legally transact judicial business. The term arose from the Latin words which were used in the commission foimerly issued to justices of the peace in England, by which commission it was directed that no business of certain kinds should be done without the presence of one or more of certain justices specially designated. Webster’s International Dictionary.
Compare Ayrshire Collieries Corp. v. United States, 331 U.S. 132, 138, 67 S.Ct. 1168, 1171, 91 L.Ed. 1391, where the coui't contrasted the statute creating courts of appeals with the statxxtc creating three-judge district courts. The latter made no provision for a quorum of less than three judges. The court said: “Two judges of a three-judge circuit court of appeals, on the other hand, ordinarily constitute a statutory quorum for the hearing and determination of cases. 28 U.S.C. 212, 28 U.S.C.A. 212.” Also compare Alltmont v. United States, 3 Cir., 177 F.2d 971, at page 973, certiorari denied, 339 U.S. 967, 70 S.Ct. 999, 94 L.Ed. 1375, wherein the court said: “The number of judges authorized under paragraph (c) to constitute the United States Court of Appeals for the Third Circuit en banc being seven, four or more of them are clearly a quorum under paragraph (d).”
Accordingly, we think the petition for rehearing should be denied; and it is so ordered. | 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. | What is the total number of respondents in the case that fall into the category "private business and its executives"? Answer with a number. | [] | [
1
] | songer |
UNITED STATES of America ex rel. Tobias BUND, Petitioner-Appellant, v. J. Edwin LaVALLEE, Warden of Auburn State Prison, Auburn, New York, Respondent-Appellee.
No. 199, Docket 29160.
United States Court of Appeals Second Circuit.
Argued Nov. 30, 1964.
Decided April 5, 1965.
Emanuel Bund, New York City (Gerald Sultan, New York City, on the brief), for petitioner-appellant.
Joel Lewittes. Asst. Atty. Gen., Harold Roland Shapiro, Asst. Dist. Atty., New York County, New York City (Louis J. Lefkowitz, Atty. Gen., Samuel A. Hirsho-witz, First Asst. Atty. Gen., Iris Steel, Deputy Asst. Atty. Gen., New York City, on the brief), for respondent-appellee.
Before FRIENDLY and SMITH, Circuit Judges, and BLUMENFELD, District Judge.
Sitting by designation.
BLUMENFELD, District Judge.
This is an appeal from the district court’s denial of the appellant’s petition for a writ of habeas corpus. Bund was convicted in a New York state court after a trial by jury on each of three counts of first degree larceny in obtaining three separate advances of $5000 each from one Elson and his wife by means of false and fraudulent representations and on a fourth count for forging a stock certificate in a non-existent enterprise given to the Elsons in return for their investment. He was sentenced to be confined on each count for a term of not less than one year and three months nor more than two years and six months, the sentences to run concurrently. The main claim on this appeal is that Bund was denied his constitutional rights when the prosecution and the trial court refused to make the El-sons’ testimony before the Grand Jury available to him.
During the cross-examination of El-son, defense counsel alluded to the Grand Jury hearing, but made no request at that time for the production of the record. It was not until after the cross-examination of Elson and his wife had been completed that the trial judge stated he had examined the Grand Jury testimony and that there were no substantial variances between the Grand Jury testimony and that offered upon the trial. The Grand Jury minutes were returned at which time the trial judge remarked that he would follow the rule in People v. Walsh, 262 N.Y. 140, 186 N.E. 422 (1933), under which the Grand Jury minutes are not made available to the defense unless the court determines that it contains some substantial variances from the witness’ testimony at trial.
The record includes the Grand Jury minutes and the proceedings at the trial and on the appeal. The conviction was unanimously affirmed by the Appellate Division, People v. Bund, 18 App. Div.2d 638, Case #2 (1962). The New York Court of Appeals unanimously affirmed without opinion, People v. Bund, 13 N.Y.2d 766, 242 N.Y.S.2d 65,192 N.E.2d 31 (1963), and amended its remittitur by adding a clear statement that the appellant’s constitutional claims were denied. Certiorari was denied, 376 U.S. 919, 84 S.Ct. 676, 11 L.Ed.2d 614 (1964). The appellant has exhausted state remedies. United States ex rel. Weinstein v. Fay, 333 F.2d 815 (2d Cir. 1964).
It is plain that the concept of due process does not require that a witness’ Grand Jury testimony must always be turned over to the defense. In Pittsburgh Plate Glass Co. v. United States, 360 U.S. 395, 79 S.Ct. 1237, 3 L.Ed.2d 1323 (1959), a federal prosecution where the Supreme Court was free to exercise its supervisory powers over the administration of criminal justice and thus to go beyond constitutional requirements, it declined to apply its decision in Jencks v. United States, 353 U.S. 657, 77 S.Ct. 1007, 1 L.Ed.2d 1103 (1957), relying on the historic policy of secrecy surrounding Grand Jury proceedings. Although this Circuit requires its own trial judges to examine the Grand Jury testimony of witnesses who give evidence at a criminal trial and makes this available to the defense where inconsistencies exist, e. g., United States v. Zborowski, 271 F.2d 661, 666 (2d Cir. 1959); United States v. McKeever, 271 F.2d 669, 672 (2d Cir. 1959); United States v. Giampa, 290 F.2d 83 (2d Cir. 1961), there has been no hint that this procedure was thought to be compelled by the due process clause of the fifth amendment.
The absence of a constitutional requirement that Grand Jury testimony of a witness must always be made available to the defense does not necessarily mean that it never need be. It could be argued with some force that when the Grand Jury testimony is exculpatory and the trial testimony inculpatory, or even when both are inculpatory but so inconsistent as to cast serious doubt on the veracity of the witness, failure to make the Grand Jury testimony available on request is within the principle of decisions holding it to be a denial of due process for the prosecutor to fail to disclose known exculpatory evidence to the defense. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); Barbee v. Warden, 331 F.2d 842 (4th Cir. 1964); United States ex rel. Butler v. Maroney, 319 F.2d 622 (3d Cir. 1963). Whether a state could justify non-disclosure of Grand Jury testimony of that character against due process attack on the basis of the historic policy of preserving the secrecy of Grand Jury testimony is an issue on which the Supreme Court has yet to speak.
We find it unnecessary to decide that issue here. Upon his independent examination of that record, the District Judge found that at most what was at stake was whether the witness had told the Grand Jury that a promise to deliver a certificate of stock was made before he advanced money to the defendant or afterwards. The time relation between the two events was not an element in any of the crimes charged in the indictment and was not material for any purpose independent of the self-contradiction of the witness. The few sematic discrepancies stressed by the appellant were fragmentary. Their contrasts were oblique. We are unable to perceive any interpretation from the interconnexion of the Grand Jury testimony of the El-sons with that they gave at the trial, nor has any been suggested to us, which furnishes even a pretext for a claim that exculpatory evidence was suppressed.
A final point remains. The appellant claims that he was denied due process of law because the New York Court of Appeals refused to apply retroactively its own decision in People v. Rosario, 9 N.Y.2d 286, 213 N.Y.S.2d 448, 173 N.E.2d 881, cert. denied, 368 U.S. 866, 82 S.Ct. 117, 7 L.Ed.2d 64 (1961), a case decided after the appellant was convicted but before the Appellate Division affirmed the judgment. Eosario held that a prior statement of a witness, including his testimony before a Grand Jury, should be made available to the defense for possible use on cross-examination. There is nothing in the Constitution which requires a state to make its decisions retroactive. Warring v. Colpoys, 122 F.2d 642, cert. denied, 314 U.S. 678, 62 S.Ct. 184, 86 L.Ed. 543 (1941); cf. Griffin v. Illinois, 351 U.S. 12, 25, 76 S.Ct. 585, 100 L.Ed. 891, 55 A.L.R.2d 1055 (1956) (concurring opinion by Mr. Justice Frankfurter). The federal Constitution leaves the courts of New York as free to liberalize the state’s policy on disclosure of Grand Jury minutes only on a prospective basis as New York’s legislature would be.
Affirmed.
. The state "court disregarded any issue relating to the untimeliness of the request, and so do we.
. We do not find it necessary to consider the alternate ground relied on by the District Court that because the Grand Jury testimony of the Elsons had no relationship to the forgery count upon -which the appellant received a concurrent sentence, a writ of habeas corpus could not issue. See United States ex rel. Smith v. Martin, 242 F.2d 701 (2d Cir. 1957); Ingenito v. State of New Jersey, 146 F. Supp. 717, and cases cited at 718 (D. N.J.), aff’d, 238 F.2d 935 (3d Cir. 1956), cert. denied, 352 U.S. 1014, 77 S.Ct. 576, 1 L.Ed.2d 560 (1957).
. The New York Court of Appeals intended that the change in its policy of secrecy of Grand Jury minutes was not to be applied retroactively. The post-Rosario decisions have made it clear that there is no absolute right of reversal without a showing of actual prejudice. People v. Fiore, 12 N.Y.2d 188, 237 N.Y.S.2d 698, 188 N.E.2d 130 (1962); People v. Fasano, 11 N.Y.2d 436, 230 N.Y.S.2d 689, 184 N.E.2d 289 (1962); People v. Pereira, 11 N.Y.2d 784, 227 N.Y.S.2d 28, 181 N.E.2d 770, cert. denied, 370 U.S. 962, 82 S.Ct. 1619, 8 L.Ed.2d 829 (1962); cf. Shotwell Mfg. Co. v. United States, 371 U.S. 341, 357, 83 S.Ct. 448, 9 L.Ed.2d 357 (1963). | What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court rule that there was insufficient evidence for conviction?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". If the court answered the question in the affirmative, but the error articulated by the court was judged to be harmless, answer "Yes, but error was harmless". | Did the court rule that there was insufficient evidence for conviction? | [
"No",
"Yes",
"Yes, but error was harmless",
"Mixed answer",
"Issue not discussed"
] | [
4
] | songer |
Andrew REUTHER, Appellant, v. TRUSTEES OF the TRUCKING EMPLOYEES OF PASSAIC AND BERGEN COUNTY WELFARE FUND and United States of America and Ray Marshall, Secretary of Labor, (Defendant-Intervenors in D. C.). Appeal of REUTHER MATERIAL CO., INC.
No. 77-1986.
United States Court of Appeals, Third Circuit.
Argued March 30, 1978.
Decided April 28, 1978.
Brigadier & Margulies, Jersey City, N. J., for appellant; Robert E. Margulies, Jersey City, N. J., on brief,
Franzblau, Falkin & DiMarzio, Newark, N. J., for the Trustees of the Trucking Emp. of Passaic and Bergen County Welfare Fund; Gary L. Falkin, Newark, N. J., of counsel.
Carin Ann Clauss, Sol. of Labor, Washington, D. C., Francis LaRuffa, Regional Sol., New York City, Monica Gallagher, Associate Sol., Washington, D. C., Jonathan L. Goldstein, U. S. Atty., Newark, N. J., Mary S. Calfee, Atty., U. S. Dept, of Labor, Ray Marshall, Plan Benefits Security Division, Washington, D. C., for the United States and the Secretary of Labor.
Jones, Cuccio & Klinger, Hackensack, N. J., for John Ruzila, Peter Ruzila and Ruzi-la’s Exp. Service, Inc., as amicus curiae; Walter H. Jones, III, Hackensack, N. J., Donald G. Koch, Newark, N. J., on brief.
Before ALDISERT, GIBBONS and HIG-GINBOTHAM, Circuit Judges.
OPINION OF THE COURT
ALDISERT, Circuit Judge.
In this appeal we are asked to construe an important provision of the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. § 1001 et seq. The district court determined that a provision of the Act time-barred both the individual appellant, Andrew Reuther, and the corporate appellant, Reuther Material Co., Inc., which is partly owned by the individual appellant, from successfully asserting a claim for the return of contributions mistakenly paid into a pension fund. The court granted summary judgment in favor of the trustees of the pension fund, holding that the contributions were made by a mistake of fact and the claim for refund is thus barred by 29 U.S.C. § 1103(c)(1H2)(A):
(c)(1) Except as provided in paragraph (2) . . . , the assets of a plan shall never inure to the benefit of any employer and shall be held for the exclusive purposes of providing benefits to participants in the plan and their beneficiaries and defraying reasonable expenses of administering the plan.
(2)(A) In the case of a contribution which is made by an employer by a mistake of fact, paragraph (1) shall not prohibit the return of such contribution to the employer within one year after the payment of the contribution.
Because we hold that these provisions do not bar appellants’ claim,, we reverse the district court judgment.
I.
The facts are not in dispute. Andrew Reuther was employed by the Reuther Material Co. as a truck driver from 1947 until 1965. He subsequently served as a managerial employee of the company and is now vice president and part owner. From 1957 until April 2, 1976, the company made contributions on behalf of Andrew Reuther to a pension plan known as the Trucking Employees of Passaic and Bergen County Welfare Fund. The plan is a “defined benefit” plan under 29 U.S.C. § 1002(35), that is, “a pension plan other than an individual account plan”, which antedated the effective date of the relevant portions of ERISA, January 1, 1975.
Although Reuther applied for a pension in December 1975, it was not until April 8, 1976, that the trustees denied the application. In justifying the denial, the trustees stated that Reuther was “an integral part of the management” and thus was neither entitled to service credit after 1965, the year he became a managerial employee, nor eligible for a pension. Denied the pension, Reuther demanded the refund of $12,320.12, an amount representing all contributions made by the company for the hours he had worked. The trustees offered him $1,686.22, a sum representing contributions made for the year ending April 5,1976, but refused to refund the remainder on the ground that the application for the return of the contributions was barred by ERISA § 1103(c)(lH2)(A).
II.
ERISA provides for comprehensive federal regulation of employee pension plans. For the purposes of this case, certain statements of congressional findings and policy declarations assume special significance: •
(a) The Congress finds that the growth in size, scope, and numbers of employee benefit plans in recent years has been rapid and substantial; . . . that despite the enormous growth in such plans many employees with long years of employment are losing anticipated retirement benefits owing to the lack of vesting provisions in such plans; that owing to the inadequacy of current minimum standards, the soundness and stability of plans with respect to adequate funds to pay promised benefits may be endangered; that owing to the termination of plans before requisite funds have been accumulated, employees and their beneficiaries have been deprived of anticipated benefits; .
(c) It is hereby further declared to be the policy of this Act to protect interstate commerce, the Federal taxing power, and the interests of participants in private pension plans and their beneficiaries by improving the equitable character and the soundness of such plans by requiring them to vest the accrued benefits of employees with significant periods of service, to meet minimum standards of funding, and by requiring plan termination insurance.
29 U.S.C. § 1001. Thus it is readily apparent that the major concern of Congress was to ensure that bona fide employees with long years of employment and contributions realize anticipated pension benefits. Because ERISA is employee-oriented, Congress specifically provided that the assets of a plan “shall never inure to the benefit of any employer”. 29 U.S.C. § 1108(e)(1).
The starting point of our analysis is a recognition that two discrete issues confront us on appeal. The first is whether § 110S(c)(l)-(2)(A) applies retrospectively to bar the refund of contributions made before the effective date of the Act. The second issue concerns those contributions made by the corporate appellant after the effective date of ERISA; appellees concede that such an employer is entitled to the return of contributions, but only to the extent a claim is made “within one year after the payment of the contribution.” 29 U.S.C. § 1103(c)(2)(A). Although the parties did not treat these as separate issues, we believe that they raise considerations necessitating separate treatment.
A.
We turn first to the question whether an employer may seek the return of contributions made to a “defined benefit” plan prior to the effective date of the Act on behalf of a named employee whom the trustees later find to be unqualified for pension benefits. The trustees’ case stands or falls on the interpretation of one clause in the comprehensive statute: “a contribution which is made by an employer [may be returned] to the employer within one year after the payment of the contribution.” (Emphasis added). The provision went into effect January 1, 1975.
The trustees would have us expand the congressionally expressed present tense of the copulative verb, “is”, to the past tense, “was”, or the present perfect tense, “has been”, in order to encompass contributions made prior to the effective date of the Act. We believe that the plain meaning of the statutory language militates against this broad interpretation. Although we heed Learned Hand’s admonition “not to make a fortress out of the dictionary”, Cabell v. Markham, 148 F.2d 737, 739 (2d Cir. 1945), we must, in the Anglo-American tradition, respect Lord Atkinson’s venerable advice that “[i]f the language of a statute be plain, admitting of only one meaning, the Legislature must be taken to have meant and intended what it has plainly expressed . . . .” Vacher & Sons, Ltd. v. London Society of Compositers [1913] A.C. 107, 121 (House of Lords). Simply put, the use of the present tense “is” indicates that this provision is to apply only to contributions made after the effective date of ERISA; if Congress had intended otherwise, it could have stated “In the case of a contribution that is, was, or has been made by an employer”.
We find even more formidable support for appellants’ case when we examine the entire statutory schema for an understanding of Congress’ intention as to acts, omissions or circumstances which arose pri- or to ERISA’s effective date. ERISA’s supersedure provision declares that the Act “shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan . . ,” 29 U.S.C. § 1144(a), but it immediately qualifies this proposition with a provision that we believe is most persuasive, if not absolutely controlling, in our quest for congressional intention: “This section shall not apply with respect to any cause of action which arose, or any act or omission which occurred, before January 1, 1975/’ 29 U.S.C. § 1144(b)(1). This language compels the inference that acts or omissions that occurred prior to the effective date of ERI-SA are not controlled by the provisions of the Act.
Any doubt as to this reading has been totally dissipated by a recent pronouncement of the Supreme Court in a case involving pre-ERISA activities in a pension plan similar to the one before us: “Because ERI-SA did not become effective until January 1, 1975, and expressly disclaims any effect with regard to events before that date, it does not apply to the facts of this case.” E. I. Malone v. White Motor Corp., - U.S. -,-n.l, 98 S.Ct. 1185, 1187 n.l, 55 L.Ed.2d 443 (1978) (emphasis added). See also Bacon v. Wong, 445 F.Supp. 1189 (N.D. Cal. 1978). The contributions of Reuther Material Co. before January 1, 1975, were surely “events before that date”. Accordingly, we are satisfied that the district court erred in accepting the appellees’ contention that § 1103(c)(l)-(2)(A) is relevant to a refund of contributions made prior to January 1, 1975.
B.
The second issue commanding our attention is the status of contributions made between January 1,1975, the effective date of the Act, and April 5,1975, the beginning date of the one-year period of contributions authorized for refund by the trustees. Chronology is significant. Application for the pension was made in December 1975; it was rejected on April 8, 1976. The claim for refund followed in April 1976, and the trustees’ subsequent offer was predicated on the one-year period set forth in section 1103(c)(2)(A), to-wit, from April 1975 to April 1976. Had the trustees acted immediately on the pension request and decided the application in December 1975, Reuther Material Co. would not have made contributions from January to April 1976. The time lag between Reuther’s application and the trustees’ denial thus had a direct bearing on the denial of a refund of contribution paid from January 1975 to April 5, 1975.
Because Congress has emphasized “the equitable character” of the regulated pension plans, 29 U.S.C. § 1001(c), supra, we believe that equitable principles should be applied in this case. We are not persuaded that the December 1975 to April 1976 delay in reviewing the pension application can be attributed to Reuther. We are impressed that some action on the pension was initiated in December 1975, albeit by Andrew Reuther, and not the company. Under these unusual circumstances, we believe that the “equitable doctrine” of Holmberg v. Armbrecht, 327 U.S. 392, 397, 66 S.Ct. 582, 90 L.Ed. 743 (1946), should be considered. Holmberg dealt with fraud, and reaffirmed “the old chancery rule that where a plaintiff has been injured by fraud and ‘remains in ignorance of it without any fault or want of diligence or care on his part, the bar of the statute does not begin to run until the fraud is discovered, though there be no special circumstances or efforts on the part of the party committing the fraud to conceal it from the knowledge of the other party.’ Bailey v. Glover, 21 Wall. 342, 348, 22 L.Ed. 636.” 327 U.S. at 397, 66 S.Ct. at 585. The Court, speaking through Mr. Justice Frankfurter, stated: “This equitable doctrine is read into every federal statute of limitation.” Id.
While recognizing that the case before us does not involve fraud, we note that it does present a factual complex in which there was “no want of diligence or care” by appellants. Appellants did not discover that Andrew Reuther was not eligible for the pension until four months after the pension application; the date of determination of ineligibility, unlike the date of pension application, fell more than one year beyond the effective date of the Act. Under these circumstances, we believe that it would be congruent with the congressional emphasis on the “equitable character” of the pension plans to apply the Holmberg “equitable doctrine” here. We recognize that Holmberg is not, in John W. Salmond’s formulation, “authoritative precedent”, but it at least rises to the dignity of a “persuasive precedent”. Thus, we will treat the December application of Andrew Reuther for a pension as equivalent to the filing of a claim for refund by the corporate appellant. So perceived, it follows that it would be inequitable for the trustees to retain contributions made during the three months of 1976 when they were considering the pension application. Accordingly, without purporting to establish a rule, but deciding only that the unusual circumstances of this case call into play equitable principles, we conclude that the one-year period of § 1108(c)(l)-(2)(A) does not apply here to bar the application of the corporate appellant for refund of all contributions made on behalf of Andrew Reuther after the effective date of the Act.
III.
In sum, this case is an appeal from a summary judgment in favor of the pension fund trustees. In reversing that judgment, we do not decide that the corporate appellant is entitled to the return of all contributions made on behalf of Andrew Reuther, but only that the judgment was erroneously based on application of 29 U.S.C. § 1108(c)(l)-(2)(A). The employer may now attempt to show entitlement to the return of some or all of the mistaken contributions made before the effective date of the Act.
The judgment of the district court will be reversed and the cause remanded for further proceedings.
. The trustees’ position is also supported by the United States and the Secretary of Labor as intervenor-appellees.
. The Supreme Court addressed this basic tenet of statutory construction in Caminetti v. United States, 242 U.S. 470, 485-86, 37 S.Ct. 192, 194, 61 L.Ed. 442 (1917):
It is elementary that the meaning of a statute must, in the first instance, be sought in the language in which the act is framed, and if that is plain, and if the law is within the constitutional authority of the law-making body which passed it, the sole function of the courts is to enforce it according to its terms.
Where the language is plain and admits of no more than one meaning, the duty of inter-
pretation does not arise, and the rules which are to aid doubtful meanings need no discussion. . . .
Statutory words are uniformly presumed, unless the contrary appears, to be used in their ordinary and usual sense, and with the meaning commonly attributed to them.
. “It is elementary that the ultimate aim of rules of interpretation is to ascertain the intention of the legislature in the enactment of a statute, and that intention, when discovered, must prevail.” Temple v. City of Petersburg, 182 Va. 418, 422, 29 S.E.2d 357, 358 (1944).
. Because we hold that pre-1975 contributions are unaffected by § 1103(c)(l)-(2)(A), we need not consider at length the rule of Sohn v. Waterson, 84 U.S. 596, 21 L.Ed. 737 (1873), which is relied on by the appellees. In Sohn, the Supreme Court was faced with a statute of limitations contained in legislation which was intended by a state legislature to have retroactive application. To legitimate such application, the Court held that holders of past causes of action had to be granted the full statutory time, measured from the statute’s effective date, to bring their claims.
The century-old Sohn rule still enjoys great viability. See Superior Engraving Co. v. N. L.
R. B., 183 F.2d 783, 789 (7th Cir. 1950), cert. denied, 340 U.S. 930, 71 S.Ct. 490, 95 L.Ed. 671 (1951). The trustees would apply it to this case, contending that as to pre-ERISA contributions made by employers by mistake of fact, one making a claim for refund from January 1, 1975 through December 31, 1975, would be entitled to a full refund irrespective of when the contributions had been made, but any claim made after 1975 would be limited to only those contributions made within the year of the claim. However, since we, unlike the Sohn Court, deal with a statute intended by Congress to have prospective application only, the rule cannot apply.
. John W. Salmond, The Theory of Judicial Precedents, 16 Law Quarterly Rev. 376, 379-80 (1900). | 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. | What is the total number of respondents in the case? Answer with a number. | [] | [
99
] | songer |
W. Willard WIRTZ, Secretary of Labor, United States Department of Labor, Appellant, v. WOHL SHOE COMPANY, d/b/a Richardson Shoe Store, Appellee.
No. 24106.
United States Court of Appeals Fifth Circuit.
Aug. 18, 1967.
As Modified on Denial of Rehearing Oct. 23, 1967.
Bessie Margolin, Associate Sol., Donald S. Shire, Atty., Dept, of Labor, Washington, D. C., Charles Donahue, Sol. of Labor, Robert E. Nagle, Attorney, United States Dept, of Labor, Washington, D. C., Major J. Parmenter, Regional Atty., for appellant.
William M. Howard, Gaylord C. Burke, Thomas C. Walsh, St. Louis, Mo., M. Harvey Weil, Corpus Christi, Tex., Bryan, Cave, McPheeters & McRoberts, St. Louis, Mo., of counsel, for appellee.
Before BELL, GODBOLD and DYER, Circuit Judges.
DYER, Circuit Judge:
This appeal is from a judgment of the District Court dismissing an action brought by the Secretary of Labor under § 17 of the Fair Labor Standards Act to restrain appellee from violating the minimum wage, overtime and record keeping requirements, and from continuing to withhold wages due employees under the Act. We reverse.
The facts are not in dispute. Appellee is engaged in the retail sale of shoes, handbags, hosiery and sundries in over 350 leased department and family shoe stores located in 42 states and the District of Columbia. In addition, appellee is affiliated with approximately 40 corporations through either identical or majority stock ownership. These corporations operate approximately 214 family shoe stores and leased departments. In Texas appellee operates three stores in Corpus Christi, one in Victoria, one in Austin and one in El Paso. It also operates leased departments in eleven store locations in Texas.
Appellee maintains an office located on the second floor of one of its Corpus Christi stores where four persons are employed to perform clerical and administrative services for three stores in Corpus Christi and one store in Victoria, Texas. These four employees are the subject of this appeal.
Appellee does not engage in manufacturing. It purchases its stock at wholesale from the manufacturer for resale at its outlets. The goods are ordered and paid for by the appellee’s home office in St. Louis. Most of these goods originate outside of Texas. When shipments of merchandise are delivered to the four stores in question the carrier’s employees unload the goods and carry them inside. The sales personnel (not involved in this action) verify the shipments against the bills of lading, unpack the merchandise and place it on the shelves in the stockroom. Invoices from each of the stores are than sent to the Corpus Christi office, where the clerical employees prepare merchandise received reports and transmit them, together with the invoices or bills of lading, to the home office in St. Louis where appropriate adjustments of each store’s inventory records are made.
Each of the four stores deposits its daily receipts in a local bank and sends the deposit slips, with its sales and receipt tickets and cash register tapes to the Corpus Christi office. The clerical employees use these items to prepare daily cash and charge summaries for each store which, together with the deposit slips, are sent to the home office. The employees in question also prepare semi-monthly reports showing the total volume of sales and the total sales of each type of merchandise and these also are mailed to the home office. This information is posted to a merchandise report which serves as a perpetual inventory of goods in stock.
One or more of the four clerical employees do all of the work concerning credit sales made at the four stores. From the daily sales tickets and records, credit sales are posted to the customers’ accounts and they are billed monthly. Any cash received on an account is posted to the customer’s account.
The clerical employees also prepare their own payroll records and paychecks and, on the basis of weekly time records sent by the four stores to the office, prepare payment records and paychecks for the salesmen. The paychecks are drawn on an account at a Corpus Christi bank which has received deposits from the home office for this purpose. The original time sheets and payroll records are mailed weekly to St. Louis. In addition to the payroll, the employees at the Corpus Christi office pay postage and some c.o.d. bills, but all other bills received there are transmitted by them to the home office for payment.
The District Court found that these four employees were not engaged in commerce and, accordingly, were not within the coverage of the Act.
The limited question before us is whether, under the circumstances here presented, the four employees of the appellee are “engaged in commerce” as that term is defined in the Act.
There is no dependable touchstone or acceptable standard for ascertaining whether an employee is engaged in commerce. The enforcement of the Act and its application to particular fact situations require the courts to utilize an empirical process of drawing lines from case to case, with the courts having “the independent responsibility of applying ad hoc the general terms of the statute to an infinite variety of complicated industrial situations.” A. B. Kirschbaum Co. v. Walling, 1942, 316 U.S. 517, 523, 62 S.Ct. 1116, 1120, 86 L.Ed. 1638.
Applying practical considerations rather than technical conceptions in determining the coverage of the Act, the crucial test is the nature of the activities of the employee, rather than the general character of the employer’s business. Mitchell v. H. B. Zachry Co., 1960, 362 U.S. 310, 80 S.Ct. 739, 4 L.Ed. 753; Mitchell v. Lublin, McGaughy & Associates, 1959, 358 U.S. 207, 79 S.Ct. 260, 3 L.Ed. 2d 243; McLeod v. Threlkeld, 1943, 319 U.S. 491, 63 S.Ct. 1248, 87 L.Ed. 1538; Walling v. Jacksonville Paper Co., 1943, 317 U.S. 564, 63 S.Ct. 332, 87 L.Ed. 460; A. B. Kirschbaum Co. v. Walling, supra. As we recently put it in Wirtz v. B. B. Saxon Co., 5 Cir. 1966, 365 F.2d 457, 461, “* * * one is engaged in commerce only if his activities are ‘so closely related to such commerce as to be in practice and in legal contemplation a part of it.’ ” Thus an employer may be engaged in commerce although his employee may not be. McLeod v. Trelkeld, supra; Walling v. Jacksonville Paper Co., supra. Also, it is now settled that in enacting the FLSA Congress did not exercise the full scope of its authority to regulate the working conditions of employees whose activities merely affect commerce. Mitchell v. H. B. Zachry Co., supra; Mitchell v. Lublin, McGaughy & Associates, supra; McLeod v. Threlkeld, supra; A. B. Kirschbaum Co. v. Walling, supra.
Appellee does not dispute that it is engaged in commerce, but points out that the goods came to the end of their interstate journey upon reaching the stockroom shelf in one of the four stores and that interstate commerce then ceased. Walling v. Jacksonville Paper Co., supra. The clerical work being performed thereafter, appellee argues that its employees are not engaged in commerce. But the problem is not so easily solved. Appellee’s contention loses sight of the legal perspective that it is the employee’s activity with which we must concern ourselves, the test being “whether the work is so directly and vitally related to the functioning of an instrumentality or facility of interstate commerce as to be, in practical effect, a part of it, rather than isolated local activity.” Mitchell v. Lublin, McGaughy & Associates, supra, 358 U.S. at 212, 79 S.Ct. at 264. That the shoes are on the shelf is not enough. The critical inquiry remains: can the clerical work of these employees thereafter “be realistically compared to interstate activities which are merely incident to a local retail business,” Mitchell v. Kroger Grocery, 8 Cir. 1957, 248 F.2d 935, 939, or are they “so closely related to the stream of commerce as to form a part of it.” Donovan v. Shell Oil Co., 4 Cir. 1948, 168 F.2d 229, 231.
We are convinced that in the totality of the circumstances here shown the work of the appellee’s employees in question constituted not an isolated, local activity but an essential and integral part of appellee’s interstate business. We dealt with a comparable situation in Wirtz v. C & P Shoe Corporation, 5 Cir. 1964, 336 F.2d 21. C & P Shoe and its subsidiaries owned and operated twenty retail stores, a warehouse and a central office in Florida. Most of the shoes sold by the chain were first received at the warehouse from out of state manufacturers and were thereafter distributed to the retail stores where they were sold. A Mrs. Brent worked in the central office and devoted her full time to preparing weekly reports of the bank deposits and sales and receipts reports for all of the Florida stores. She received sales and inventory data from the stores and prepared reports comparing the sales and inventory records with each store’s bank deposits. These reports were sent to the employer’s office in New York or to the accountant in Boston or both. For about one month Mrs. Brent also prepared a buyers’ report to show what had been sold, what was on hand and what was needed in the different lines of shoes. All of the reports prepared by Mrs. Brent dealt with the disposition of the shoes after they had reached the retail stores. This court held that Mrs. Brent’s “activities constituted an essential and integral part of the defendant’s interstate activity, entitling this employer to the protection of the Act.” 336 F.2d at 27.
Appellee insists that C & P Shoe is of little precedental value because of the physical differences, size, and dissimilarity of the activities of the respective companies. We think that the size of the operation (reports on four stores as compared to twenty) and the physical differences (central office instead of one on the second floor of a retail store) are comparisons without value in the determination of the Act’s coverage. We emphasize again that the crucial criterion is the employees’ sphere of activity. Appellee’s employees performed the same general interstate duties as Mrs. Brent, but also performed duties more local in nature. However, their interstate duties are substantial enough in relation to their total activity that they are “engaged in commerce” within the meaning of the Act. Mitchell v. Sunshine Department Stores, Inc., 5 Cir. 1961, 292 F.2d 645.
Because the clerical duties performed by appellee’s employees were not undertaken until after the goods had come to rest and interstate commerce had ended the district court found lack of coverage. As we have pointed out this is not decisive, but the district court, misreading C & P Shoe, was apparently persuaded that this fact controlled. Distinguishing C & P Shoe, the district court said that “the goods with which the employees [there] worked, or with which their work was directly related, were goods in interstate commerce and those movements in such commerce had not yet ended.” This plainly is an incorrect statement of the evidentiary basis of G & P Shoe. The district court in that case found that Mrs. Brent’s reports dealt “solely with the disposition of the shoes after they had reached the retail stores” and concluded that Mrs. Brent’s employment was not in commerce. We, of course, reversed. We find no material factual basis upon which to distinguish C & P Shoe from this case. We are convinced that the district court’s finding that the appellee’s four clerical employees were not engaged in commerce from November 24, 1962, to November 24, 1964, is clearly erroneous. We hold that during the period in question they were engaged in commerce within the meaning and terms of the Act. The cause is remanded to the district court for further proceedings not inconsistent with this opinion.
Reversed and remanded.
. 29 U.S.C.A. § 217.
. 29 U.S.C.A. § 203 provides in pertinent part: “As used in this chapter — * * * ‘(b) “Commerce” means trade, commerce, transportation, transmission, or communication among the several States or between any State and any place outside thereof.’ ”
. We find no merit in appellee’s claim that the four employees are not covered by the Act because sending reports to the home office was only one of their duties. “Plaintiff [appellant] has shown that the four employees worked on interstate as well as intrastate business; that the two classes of work were commingled in defendant’s business operations and that defendant did not attempt to distinguish between the two in the payment of wages. Under such circumstances plaintiff has made a prima facie showing that those employees are entitled to the protection of the Act.” Wirtz v. First State Abstract & Ins. Co., 8 Cir. 1966, 362 F.2d 83, 89.
. 15 WH Cases 862, 47 Labor Cases, If 31,402. | 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". | What is the specific issue in the case within the general category of "labor relations"? | [
"union organizing",
"unfair labor practices",
"Fair Labor Standards Act issues",
"Occupational Safety and Health Act issues (including OSHA enforcement)",
"collective bargaining",
"conditions of employment",
"employment of aliens",
"which union has a right to represent workers",
"non civil rights grievances by worker against union (e.g., union did not adequately represent individual)",
"other labor relations"
] | [
2
] | songer |
UNITED STATES of America, Plaintiff-Appellant, v. STATE OF MISSOURI et al., Defendants-Appellees, Berkeley School District et al., Defendants-Appellees, Kinloch School District et al., Defendants-Appellees, Ferguson Reorganized School District R II, et al., Defendants-Appellees.
No. 75-1434.
United States Court of Appeals, Eighth Circuit.
Submitted Sept. 12, 1975.
Decided Oct. 2, 1975.
John C. Hoyle, Atty., Dept, of Justice, Washington, D. C., for plaintiff-appellant.
Norman C. Parker, St. Louis, Mo., and Marvin S. Wood, Clayton, Mo., for Kin-loch School District.
Before MATTHES, Senior Circuit Judge, HEANEY and STEPHENSON, Circuit Judges.
PER CURIAM.
The sole issue in this appeal is whether the district court on our remand (515 F.2d 1365) erred in directing that “[s]tudent and faculty desegregation required by the judgment of this Court of January 9, 1975 [388 F.Supp. 1058] shall be delayed until the commencement of the 1976-1977 school year, on or about September 1, 1976.” We remand with instructions.
This litigation originated in September 1971 with the filing of a complaint by the United States of America pursuant to Title IV of the Civil Rights Act of 1964, 42 U.S.C. 2000c-6, and the Four-_ teenth Amendment charging that defendants had created and maintained the Kinloch School District as an all-black district, denying equal educational opportunity to its students and thereby denying them equal protection of the law. In August 1973 the district court, in a decision reported at 363 F.Supp. 739, found that “the cumulative effect of the actions of the state and local defendants has been the creation, operation, support, and general supervision by the State of Missouri of a small school district which is unconstitutionally segregated and whose students are denied an equal educational opportunity.” 363 F.Supp. at 749. The court ordered “the state and other defendants to develop and implement a plan which will ‘achieve the greatest possible degree of actual desegregation, taking into account the practicalities of that situation.’ ” 363 F.Supp. at 750 (citations omitted).
After considering proposed desegregation plans submitted by the parties, the court found that a three-district plan submitted by the State and St. Louis County Boards of Education “is the least disruptive alternative which is educationally sound, administratively feasible, and which promises to achieve at least the minimum amount of desegregation that is constitutionally required.” 388 F.Supp. at 1058—59.
The district court’s judgment provided, among other things, that the Kinloch and Berkeley school districts be annexed to the Ferguson reorganized school district as of February 1, 1975, and ordered that student and faculty desegregation be implemented at the beginning of the 1975— 76 school year. 388 F.Supp. at 1061.
On May 14, 1975, this court en banc, in an opinion reported at 515 F.2d 1365, affirmed the district court’s decision “except with respect to the maximum tax rate which shall be no higher than that of the annexing district, which is $5.38 per hundred. Upon remand, the court is empowered to fix new dates for accomplishment of the annexation and make other adjustments in accordance therewith.” 515 F.2d at 1373.
On remand the district court, in an order dated June 7, 1975, directed that student and faculty desegregation required by its previous judgment be delayed until the commencement of the 1976— 77 school year.
On June 13, 1975, the United States filed notice of appeal and moved for summary reversal of the district court insofar as that order delayed student and faculty desegregation from the beginning of the 1975 — 76 school year until the beginning of the 1976-77 school year. We denied the government’s motion for summary reversal but established an expedited briefing schedule and directed the parties to include in their briefs a discussion of the following: “Justification (or lack thereof) for (1) the delay in integration of students, (2) thé delay in integration of faculty, and (3) the immediate increase in the tax rate in the district without significant integration of students and faculty and other benefits related thereto.”
The United States contends that no extraordinary circumstances that could justify delay in implementing desegregation have been shown in this case and that further delay is no longer constitutionally permissible. Alexander v. Holmes County Board of Education, 396 U.S. 19, 20, 90 S.Ct. 29, 24 L.Ed.2d 19 (1969); Carter v. West Feliciana Parish School Board, 396 U.S. 226, 90 S.Ct. 496, 24 L.Ed.2d 461 (1969); Dowell v. Board of Education, 396 U.S. 269, 90 S.Ct. 415, 24 L.Ed.2d 414 (1969); Christian v. Board of Education, 440 F.2d 608 (8th Cir. 1971). The government urges that we reverse that part of the order which delays implementation of effective desegregation until the beginning of the 1976 — 77 school year and that we direct that implementation of the desegregation plan be required no later than the beginning of the second semester of the 1975 — 76 school year.
Appellees, Ferguson Reorganized School District R II and Berkeley School District, urge that we affirm the district court’s order of June 7, 1975. They contend that (1) the order is in full compliance with our opinion and mandate; (2) there is no delay in carrying out the district court’s order of annexation as speedily as the circumstances permit; and (3) the Equal Educational Opportunity Act of 1974 prohibits transportation of students during the academic year 1975 — 76 and then only after all appeals have been exhausted.
We are persuaded that the representations made by appellees with respect to the steps that have been taken and that are being taken to implement fully the desegregation plan should govern our present action herein.
Appellees point out that this is not a single-district case; there are many more complications involved in the amalgamation of three separate heretofore autonomous districts. Further, the district court acted promptly upon receipt of our mandate:
(1) By ordering the immediate annexation of Berkeley School District and Kinloch School District by the Ferguson Reorganized School District R II;
(2) Berkeley and Kinloch were directed to deliver all property, records, books and papers and transfer all funds to the reorganized district by June 30, 1975;
(3) Berkeley and Kinloch were prohibited from hiring any new employees or entering into any new contracts or obligations (except with respect to further appeals they might elect to take);
(4) Designation of new school board members was to be reported to the court on or before June 30, 1975;
(5) The 1975 school tax levy was set at a rate no higher than $5.38;
(6) Administration of the reorganized district in 1975 — 76 was directed to include the present superintendent of Ferguson, with the superintendents of Berkeley and Kinloch serving as assistant superintendents;
(7) Defendants were ordered to commence immediately all actions necessary to plan for successful student and faculty desegregation, including the establishment of a biracial committee pursuant to the provisions of the Revised Plan; the establishment of in-service training programs to prepare administrators, teachers, board members, students and the community for desegregation; the implementation of the community education requirements of the revised plan; the development of non-discriminatory regulations and procedures concerning student discipline; and the development of nonracial objective faculty evaluation criteria, required by Singleton v. Jackson Municipal Separate School District, 419 F.2d 1211 (5th Cir. 1970); further, that the biracial advisory committee shall actively participate in these efforts and shall be assigned such other duties by the school board as may be necessary to prepare for effective desegregation;
(8) The Court retained jurisdiction to insure effective implementation of desegregation and to enter such further orders from time to time as it deemed necessary.
During the course of oral argument, counsel for the Ferguson Reorganized School District R II advised us that since entry of the district court’s order of June 7, 1975, the following has been accomplished:
(1) The annexation has been completed as directed — the new boundaries were fixed;
(2) As of July 1, 1975, the new school board was organized as directed, with one member each from Kinloch and Berkeley, and it is functioning;
(3) Additional buses required (17) have been ordered;
(4) The biracial committee has been appointed, confirmed and ratified by the district' judge;
(5) The administrative staff has already been completely merged;
(6) Various programs formerly not available to Kinloch are open to them now; i. e., audio-visual presentations, swimming classes, and preschool courses;
(7) Teacher orientation programs are in the process of being carried out;
(8) Student orientation programs are planned for next semester;
(9) Four new teachers have been assigned to Kinloch commencing with the present 1975-76 term, and the services of some 20 curriculum consultants have been made available;
(10) Every reasonable effort is being made to bring the educational program in Kinloch up to the level in Berkeley and Ferguson — the money being spent in Kinloch this year will be several hundred thousand dollars more than Kinloch had in its budget last year;
(11) The school board and other officials concerned recognize they must plan now in order to make desegregation completely effective by the beginning of the 1976-77 school year;
(12) The order of January 9, 1975, required the school authorities to make a progress report on or before October 15, 1975, with respect to the accomplishment of desegregation. This report, although formerly geared to desegregation of students and teachers beginning with the 1975— 76 school year, will now cover the steps that have been taken to raise immediately the level of the educational program at Kinloch as well as accomplish the complete desegregation of the reorganized district commencing with the beginning of the school year 1976-77. It will include, among other things, the matters mentioned above.
We conclude that this court should refrain from taking any further action in this case pending the filing of the October 15, 1975, progress report by the reorganized school district. The district court shall grant all parties a reasonable length of time in which to respond to the report, hold hearings if necessary, and make such further orders deemed appropriate to equalizing the level of the educational program at Kin-loch and accomplishing complete student and faculty desegregation commencing with the beginning of the school year 1976— 77. The district court, in order to insure that there is no delay in the full and timely implementation of the desegregation plan, is directed to require additional periodic reports prior to June 1, 1976.
Remanded for further action consistent with this opinion.
. The government also points out that it is difficult for it to respond to this court’s inquiries concerning the justification for delay in integration of students and faculty and the immediate increase in the tax rate because the district court without explanation delayed desegregation for one year. No hearings were held or evidence taken regarding the need for delay in implementing the desegregation ordered in January 1975. Appellees respond that although no formal hearings were held, extensive conferences were held, attended by government counsel and all other parties; further, that the only conduct on the part of the government indicating a negative attitude toward the order was at the time it was signed when counsel for the government indicated he could not bind the Department of Justice and may have added, “We may appeal.” Government counsel maintains that he made known the government’s view that the plan ought to be implemented with the beginning of the fall (1975-76) term.
. Under explicit holdings of the Supreme Court, it is the obligation of every school district to terminate dual school systems at once. Delays pending appeals, absent extraordinary circumstances, will not be tolerated. Alexander v. Holmes County Board of Education, 390 U.S. 19, 96 S.Ct. 29, 24 L.Ed.2d 19 (1969); Carter v. West Feliciana Parish School Board, 396 U.S. 226, 90 S.Ct. 496, 24 L.Ed.2d 461 (1969). Nothing in the Equal Educational Opportunity Act of 1974, 20 U.S.C. § 1701 et seq., prohibits full and complete implementation of the desegregation plan by the beginning of the academic year 1976-77. See Swann v. Board of Education, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971); Drummond v. Acree, 409 U.S. 1228, 93 S.Ct. 18, 34 L.Ed.2d 33 (1972) (Powell, J., in chambers). | 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". | 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? | [
"No",
"Yes",
"Mixed answer",
"Issue not discussed"
] | [
3
] | songer |
JEFFERSON CONSTRUCTION CO. et al., Defendants, Appellants, v. UNITED STATES of America, for the Use and Benefit of Roy BACON, et al., Appellees. MEL TRUCKING & CONTRACTING CO., Inc., Defendant, Appellant, v. UNITED STATES of America, for the Use and Benefit of Roy BACON, Plaintiff, Appellee.
Nos. 5684, 5685.
United States Court of Appeals First Circuit.
Heard Oct. 6, 1960.
Decided Oct. 25, 1960.
Philip M. Cronin, Boston, Mass., and Withington, Cross, Park & McCann, Boston, Mass., on brief, for appellants in No. 5684.
Francis E. Sullivan, Boston, Mass., with whom John T. Bowes, Boston, Mass., and Sullivan, Bowes & Curley, Boston, Mass., were on brief, for appellant in No. 5685.
Joseph G. Kelly, Boston, Mass., with whom Samuel A. Valenti, Boston, Mass., was on brief, for appellees.
Before WOODBURY, Chief Judge, and HARTIGAN and ALDRICH, Circuit Judges.
ALDRICH, Circuit Judge.
These appeals involve the propriety of a summary judgment entered by the district court in an action under the Miller Act, 40 U.S.C.A. §§ 270a-270d. The defendants are Jefferson Construction Company, a general contractor on a government project, Mel Trucking and Construction Company, a subcontractor who contracted with the use plaintiff, hereinafter called plaintiff, and a number of surety companies on the bond of the general contractor. Paragraph 14 of the complaint alleged that, “under its subcontract with Mel,” plaintiff furnished labor and material on the project, and that the value thereof remaining unpaid was $73,004.58. Compliance with the 90-day notice provision of the act and timeliness of suit were also alleged. A copy of plaintiff’s contract was annexed, but there were no general allegations of performance of its terms, or that its conditions had been met or excused.
The answer of Jefferson and its sureties stated that said defendants “are without knowledge or information sufficient to form a belief as to the truth of the allegations” contained in paragraph 14. Mel denied the allegations of this paragraph. Thereafter the plaintiff filed a motion for summary judgment and an accompanying affidavit. The affidavit itemized the work and materials furnished, stated that the charges were computed at the agreed contract prices, and recited the payments already received. This constituted, in other words, a verified account annexed. A counteraffidavit was filed by one McNeal in which he stated that he was president of Mel, that he had “examined books and records of the said corporation” and had “spoken to employees of same, and on this basis” made a number of statements. On this record the court ordered summary judgment against all defendants for the full amount. They appeal.
We are faced at the outset with certain procedural matters. Plaintiff contends that Jefferson’s answer asserting lack of knowledge with respect to paragraph 14 of the complaint is insufficient, with the implication that it must be taken to have admitted these allegations. Federal Rule of Civil Procedure 8(b), 28 U.S.G., provides in part, “If [a party] is without knowledge or information sufficient to form a belief as to the truth of an averment, he shall so state and this has the effect of a denial.” This is a plain answer to plaintiff’s suggestion. It is not contradicted by United States for Use of Kolton v. Halpern, 3 Cir., 1958, 260 F.2d 590, cited by plaintiff, where the court remarked that an answer in this form was of no avail on a motion for summary judgment in the face of an affirmative affidavit. We agree with plaintiff that the facts stated in his affidavit stand admitted for the purpose of this motion if there is no sufficient counteraffidavit, but so they would had the answer been a specific denial. Cunningham v. Securities Investment Co. of St. Louis, 5 Cir., 1960, 278 F.2d 600.
Secondly, plaintiff contends that the McNeal counteraffidavit cannot be considered because it is not based upon personal knowledge. Rule 56(e), Fed. R.Civ.P., 28 U.S.C., states that “affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.” We might be prepared to say that the affidavit of a president of a corporation that the books and records of the company show certain facts to be so satisfies these requirements. But an affidavit based upon undisclosed conversations with unnamed employees clearly does not. See United States v. Halpern, supra. We consider, therefore, only the pleadings and plaintiff’s affidavit.
Apart from giving specific values to the labor and material furnished, plaintiff’s affidavit followed the course of the complaint in failing to state compliance with the contract, or performance of any conditions precedent. Inspection of the contract discloses that conditions in fact existed. For example, Article 3 provides, in part, that the “contract price is subject to the final measured quantities * * *. Payment will be made by the Contractor to the Subcontractor for work done in the preceding month on an estimated basis, said estimate to be governed by the final decision of the Architect or Owner. Ten per cent (10%) of the total amount of this contract shall be retained by the Contractor until final acceptance and approval by the General Contractor and Architect, and Owner. * * * Before final payment * * * the Subcontractor shall furnish * * * receipted invoices * * that all labor and bills of all nature for this project have been paid in full * When we asked counsel whether it was not incumbent upon plaintiff to allege and show compliance and performance he replied that this was not necessary; that under the terms of the Miller Act plaintiff could recover for materials furnished and labor performed, and “really did not need to allege the contract at all.”
We cannot take such an extraordinary view. The Miller Act does not substitute or furnish a cause of action on a quantum meruit in derogation of the provisions of an express contract. See United States for Use of Westinghouse Electric Supply Company v. Ahearn, 9 Cir., 1955, 231 F.2d 353, 356; United States for Use of Harrington v. Trione, D.C.D.Colo., 1951, 97 F.Supp. 522, 526; cf. Royal Indemnity Co. v. Woodbury Granite Co., 1938, 69 App.D.C. 364, 101 F.2d 689, 692, certiorari granted, 306 U.S. 627, 59 S.Ct. 645, 83 L.Ed. 1030, dismissed by stipulation, 308 U.S. 628, 60 S.Ct. 63, 84 L.Ed. 524. The cases of United States for Use of Bailey v. United Pacific Ins. Co., D.C. D.N.Mex.1954, 122 F.Supp. 48, and United States for Use of W. R. Ackerman v. Holloway Co., D.C.D.N.Mex.1954, 126 F. Supp. 347, on which plaintiff relies, are not to the contrary. In both the court pointed out that the plaintiff’s full compliance with the contract was unquestioned. It held that a condition that payment will not be due the subcontractor until the government has fully paid the general contractor, irrespective of the date of “final settlement,” is contrary to the policy of the act in view of the language of the statute of limitations, 40 U.S.C.A. § 270b (b). In the ease at bar the questions are much broader. Indeed, that particular one is not even involved, as it does not appear that final settlement has occurred. That is a matter administratively determined, and presumably would not be the last date of furnishing labor and materials. See Peerless Casualty Co. v. United States, 1 Cir., 1957, 241 F.2d 811; United States to Use and Benefit of Johnson v. Morley Const. Co., D.C.W.D.N.Y. 1936, 17 F.Supp. 378, 386, modified on other grounds, 2 Cir., 98 F.2d 781, certiorari denied sub nom. Maryland Casualty Co. v. United States, 305 U.S. 651, 59 S.Ct. 244, 83 L.Ed. 421.
In view of our decision, the portion of the judgment on the third-party complaint must equally fall.
Judgment will be entered vacating the judgment of the District Court and remanding the action for further proceedings not inconsistent herewith.
. In its memorandum allowing plaintiff’s motion for summary judgment the court stated, “The allowance of this motion is based upon the complaint, the answers and the affidavits.” This may indicate that the court accepted the McNeal counteraffidavit in spite of its apparent deficiencies. We do not find it necessary to determine in this case the extent to which it is permissible for a court to go beyond an affidavit submitted by a party opposing a motion in order to determine “what material facts are actually and in good faith controverted.” Rule 56(d). See also Rule 56(f). In view of our decision vacating the plaintiff’s judgment here without reference to the counter-affidavit, that issue is moot.
. Rule 9(c), Fed.R.Civ.P., 28 U.S.C., requires a general pleading to the effect that conditions have been met. If it did not appear that a contract contained any such conditions, this might be a superfluous allegation. But here the contract is a matter of record that cannot be overlooked.
. As the amended version of 40 U.S.C.A. § 270b (b), under which the statute of limitations begins to run on the last date of performing work or supplying material, does not govern this case, we do not attempt to anticipate any problems it might raise. | 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". | 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? | [
"No",
"Yes",
"Mixed answer",
"Issue not discussed"
] | [
3
] | songer |
In the Matter of Theodore A. WATKINS, Bankrupt-Appellant, v. William B. GROVER, Trustee in Bankruptcy, Appellee.
No. 71-1087.
United States Court of Appeals, Ninth Circuit.
Dec. 20, 1971.
Theodore A. Watkins, in pro. per.
Philip M. Arnot, Eureka, Cal., for appellee.
Before CHAMBERS, KOELSCH and KILKENNY, Circuit Judges.
PER CURIAM:
On December 2, 1970, Watkins filed a notice of appeal from orders of the district court, entered respectively on October 30 and November 24, and which affirmed decisions of the referee in bankruptcy with reference to unrelated matters arising in Watkins’ bankruptcy proceedings.
To the extent the appeal involves the order of October 30, it was untimely and hence must be dismissed. Rule 4(a) F.R.App.P.
By the order of November 24, the district court affirmed the referee’s denial of a discharge in bankruptcy to Watkins and additionally affirmed his determination and judgment that Watkins and several other persons were jointly liable to the trustee for rent accruing on their use of real property belonging to the bankruptcy estate.
We agree with the district judge that, on the record made, the referee was acting well within his discretion in refusing to grant Watkins a discharge; that the evidence was sufficient to support the award of money damages, and that those orders should be affirmed.
It is so ordered. | 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. | What party initiated the appeal? | [
"Original plaintiff",
"Original defendant",
"Federal agency representing plaintiff",
"Federal agency representing defendant",
"Intervenor",
"Not applicable",
"Not ascertained"
] | [
0
] | songer |
UNITED STATES of America, Appellee, v. Joseph J. C. DiCARLO and Ronald C. MacKenzie, Defendants, Appellants.
No. 78-1026.
United States Court of Appeals, First Circuit.
Argued March 6, 1978.
Decided April 20, 1978.
Francis J. DiMento and Earle C. Cooley, Boston, Mass., with whom DiMento & Sullivan and Hale & Dorr, Boston, Mass., were on brief, for appellants.
Edward J. Lee, First Asst. U. S. Atty., Boston, Mass., with whom Edward F. Harrington, U. S. Atty., and Alan D. Rose, Asst. U. S. Atty., Boston, Mass., were on brief, for appellee.
Before COFFIN, Chief Judge, ALDRICH and CAMPBELL, Circuit Judges.
ALDRICH, Senior Circuit Judge.
This is an appeal from the denial of a new trial. Appellants, Joseph J. C. DiCarlo and Ronald C. MaeKenzie, hereinafter defendants, were found guilty after a jury trial in the district court of conspiracy to violate, and of substantive violations of, the Hobbs and Travel Acts, 18 U.S.C. §§ 1951 and 1952. The offenses involved the extortion by defendants, then Massachusetts state senators, of $40,000 from McKee-Berger-Mansueto, Inc. (MBM), a New York based construction management firm, in connection with a report by a legislative committee chaired by DiCarlo concerning a state contract with MBM. While their principal appeal was pending, defendants moved the district court for a new trial, alleging, (1) constitutionally defective representation by defense counsel because of a conflict of interest, and because of incompetence; (2) a due process violation by the U. S. Attorney’s failure, in response to a discovery request, to turn over certain letters allegedly having impeachment value in regard to a key government witness; (3) jury misconduct; and (4) newly discovered evidence, in the form of recantation of the testimony of certain witnesses. In connection therewith, defendants requested an ev-identiary hearing.
In an extensive opinion, the district court denied defendants’ motion. Almost coincidentally, we rejected the principal appeal. United States v. DiCarlo, 1 Cir., 1977, 565 F.2d 802. Being of the view that our decision was uncertworthy, First Circuit Rule 17, we denied bail pending petition therefor. Certiorari was thereafter denied,-U.S. -, 98 S.Ct. 1487, 55 L.Ed.2d 517 (1978). In addition, in an unpublished memorandum, we refused to stay the district court’s refusal of bail pending the present appeal.
At the outset is the threshold issue of the proper standard of review for a case in this posture. The government, focusing upon the fact that the relief sought is a new trial, argues that the decision below may not be reversed absent proof that the trial court committed an abuse of discretion — the standard applied for motions for new trials under F.R.Crim.P. 33. See United States v. Zannino, 1 Cir., 1972, 468 F.2d 1299, 1303, cert. denied, 410 U.S. 954, 93 S.Ct. 1419, 35 L.Ed.2d 687. The district court, however, although defendants were not then in custody, treated their first three claims as falling under 28 U.S.C. § 2255, and only the last as of the discretionary scope of Rule 33. We agree.
In seeking collaterally to attack their convictions under section 2255, defendants bear the burden of establishing by a preponderance of the evidence that they are entitled to relief. Coon v. United States, 5 Cir., 1971, 441 F.2d 279, cert. denied, 404 U.S. 860, 92 S.Ct. 160, 30 L.Ed.2d 103. This includes the burden of showing that they are entitled, if they claim it, to an evidentiary hearing. Rule 4(b) of the Rules Governing Section 2255 Proceedings provides that the trial court may examine the record, the moving papers and any exhibits and affidavits submitted therewith and, on the basis of those materials, may summarily dismiss the motion if it “plainly appears . that the movant is not entitled to relief.” See Miller v. United States, 1 Cir., 1977, 564 F.2d 103,106; Moran v. Hogan, 1 Cir., 1974, 494 F.2d 1220. While genuine issues of material fact may not be resolved without a hearing, see Blackledge v. Allison, 1977, 431 U.S. 63, 80-81, 97 S.Ct. 1621, 52 L.Ed.2d 136, a hearing is not necessary “when a § 2255 motion (1) is inadequate on its face, or (2) although facially adequate, is conclusively refuted as to the alleged facts by the files and records of the case.” Moran v. Hogan, ante, 494 F.2d at 1222. Moreover, if the claim is based upon facts with which the trial court, through review of the record or observation at trial, is familiar, the court may make findings without an additional hearing, and, as is the case for findings of the trial court generally, those findings will not be overturned unless they are clearly erroneous. Bartelt v. United States, 5 Cir., 1974, 505 F.2d 647; Zovluck v. United States, 2 Cir., 1971, 448 F.2d 339, cert. denied, 405 U.S. 1043, 92 S.Ct. 1327, 21 L.Ed.2d 585.
Ineffective assistance of counsel.
Defendants’ attack upon trial counsel is in three layers. One is, broadly, that they were incompetent. This is a serious accusation to make against reputable and experienced attorneys. The court found it in no way borne out. We need not detail the court’s reasons, nor consider the matter further, except to express surprise that, in light of their additional burden to overcome the district court’s findings, they continue to press a charge that was baseless to begin with.
Secondly, it is claimed that in deciding not to elicit from certain witnesses the names of Senate President Kevin B. Harrington and former Governor Francis W. Sargent as recipients of questionable MBM payments, trial counsel were moved by concern for them rather than the interests of the defendants. Finally, defendants say that if, in fact, their counsel considered solely defendants’ best interests, there was, nonetheless, a constitutionally impermissible conflict of interest which required a new trial.
Taking first the issue whether trial counsel in fact gave weight to the interests of Harrington and Sargent, there is no direct testimony, nor could any reasonably be expected. Defendants must establish their claim by inference from the circumstances'. The circumstances are these. About one year prior to the return of the indictments in this case, DiCarlo was informed by Harrington that DiCarlo was the object of federal criminal investigation. Harrington suggested that DiCarlo obtain the services of an attorney. He recommended Walter J. Hurley, an experienced criminal defense lawyer, at all times relevant to this case associated in the practice of law with Thomas M. Joyce. Joyce was a well known lobbyist, with many friends in Massachusetts political circles, including Harrington and then Governor Sargent. DiCarlo met with Joyce, who stated that he knew someone in the Justice Department who would keep him abreast of the progress of the investigation, and thus enable him to alert Hurley of any developments.
DiCarlo retained Hurley. Thereafter, learning from Hurley that MacKenzie was also under investigation, DiCarlo so informed MacKenzie. MacKenzie told DiCar-lo that he intended to retain his present counsel, Earle C. Cooley, and DiCarlo reported this to Hurley. Hurley urged Di-Carlo to persuade MacKenzie to retain, instead, Robert V. Mulkern, a lawyer unconnected with him, or Joyce, but who he believed would cooperate in a coordinated defense. MacKenzie acceded, but, at various times thereafter, expressed dissatisfaction. DiCarlo, at Hurley’s prompting, reassured MacKenzie that Mulkern was properly handling the case. It is unclear from the record whether Hurley was a partner of Joyce, or simply an associate, but, in any event, Joyce said he would set the fee, and ultimately did so. DiCarlo’s checks to Hurley were endorsed for deposit to the account of Joyce’s law firm.
On the sixth day of trial, the Assistant U. S. Attorney, Edward J. Lee, furnished Hurley and Mulkern with materials containing reports of FBI interviews with MBM president McKee, who was then on the stand, and MBM officer, Jack Thomas, who had yet to testify. These materials revealed, inter alia, statements of MBM officials that they had made payments to certain Massachusetts politicians, including $2,000 to Harrington and two $10,000 payments to one Albert Manzi, at least one alleged to be a political contribution to then Governor Sargent. On receipt of this material, defense counsel asked their clients whether the information should be used for the defense. DiCarlo’s affidavit states that he told his counsel to use the information, “if it’s helpful. Bring it out. Withhold nothing.” The trial transcript reveals that both defense counsel used the general material extensively. During cross-examination of the MBM witnesses, who were crucial to the government’s case, the issue of MBM’s political contributions, nationwide, was probed in great detail, but the names of these recipients were not mentioned. Defendants now claim their counsel improperly refrained out of consideration for Harrington and Sargent.
We agree with the court’s finding that there were substantial risks involved in using these names which prudent counsel might very reasonably wish to avoid. The jury might have viewed the dragging of prominent figures into the case a desperate, but not exculpatory, tactic, particularly if they had responded and denied receipt. Conversely, if it should appear that these contributions were in fact made, and illegal — there is some suggestion that the second alleged payment to Manzi was the result of raw political blackmail — it is hard to see how this would have helped persuade a jury that MBM had not been subject to, and capitulated to, similar conduct by defendants.
In this posture defendants argue that, if, in fact, MBM had made these prior payments it would have had “friends in high places” enabling it to resist importunities by defendants. The suggestion that $2,000 purchased all-risk insurance, or that Harrington, for that amount, if requested, would have gone to DiCarlo and said, “You lay off,” is not credible. Even less persuasive would be the thought that Sargent, the Republican governor, could have gone to the Democratic chairman purportedly investigating the propriety of a Republican-let contract, and said that MBM had paid enough already.
We accept the court’s view that defendants have offered nothing to persuade it that defendants’ counsels’ decision was not a wise one. Nor is this overcome by defendants’ claim that Hurley had a motive that conflicted with a decision to bring Harrington’s and Sargent’s names into the case —Joyce’s friendship with these individuals. Concededly, Harrington and Sargent would have preferred not to be mentioned as recipients of possibly illegal payments, but, aside from that publicity, they have not been shown to have any other interest inconsistent with those of the defendants. In fact, Harrington, at least, could be thought to have had a substantial interest in defendants’ acquittal. One need not read the newspapers to conceive the pall cast upon the legislature as a whole by an extortion conviction of two prominent senators.
It is true that Joyce, as a lobbyist, wanted to cultivate friends with political power. Any concern for Sargent, however, would have been diminished by the fact that he was out of office by the time of trial. While he was friendly with Harrington, so he was with DiCarlo, who had already risen to a position of power. To put it crassly, we may wonder how it would improve his stature as a lobbyist if he were to sell out one senator, who was his client, for an incidental benefit to another, who was not.
Defendants respond that the circumstances were such that they needed to prove no more than a possible conflict of interest, not an actual conflict. Concededly, there are such cases, but this was not one. In Miller v. United States, 1 Cir., 1977, 564 F.2d 103, we announced the standard by which claims of ineffective assistance of counsel based upon a conflict of interest are to be tested. There we distinguished between cases involving the joint representation of codefendants by one attorney, or members of the same firm, and cases of dual representation where an attorney presently has, or in the past has had, a legal relationship with a hostile party or witness. In the case of joint representation of codefendants we held that only a relatively slight showing of actual prejudice is required to establish ineffective assistance of counsel, because there an attorney “is particularly susceptible to disabling conflicts.” Id. at 106; Holloway v. Arkansas, - U.S. -, -, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978). However, where dual representation is involved, the danger of conflicts is not so great. Accordingly, a real conflict of interest or a specific instance of prejudice must be shown. Id. at 106; see United States v. Jeffers, 7 Cir., 1975, 520 F.2d 1256, cert. denied, 423 U.S. 1066, 96 S.Ct. 805, 46 L.Ed.2d 656; United States v. Donatelli, 1 Cir., 1973, 484 F.2d 505.
Defendants contend that their case presents similar dangers of conflict and thus should be governed by Miller’s joint representation standard. However, the special scrutiny given to instances where codefendants are represented by single counsel is not warranted here. First, obviously, there was no actual joint representation; each defendant had separate, unrelated counsel. Secondly, defendants do not claim that there ever was any attorney-client relationship between Joyce, Hurley or Mulkern and Harrington or Sargent. Finally, it is unsound to analogize the position of Harrington and Sargent to that of code-fendants. Neither had been charged nor brought to trial. Disclosing their names to the jury as recipients of MBM’s payments could not have increased their potential criminal liability, nor could any tactic by defendants’ counsel have decreased that liability. Even if their names were not used, neither Harrington or Sargent, nor Joyce or Hurley could insure that the information, which the government already had, would not be revealed.
We, of course, do not suggest that an attorney may not have a pecuniary interest creating what we would term a per se disabling conflict. See, e. g., United States v. Hurt, 1976, 177 U.S.App.D.C. 15, 543 F.2d 162. When, however, the pecuniary interests are solely speculative — “the mere possibility of additional work for a former client,” — “the presumption [is] that the lawyer will subordinate his pecuniary interests and honor his primary professional responsibility to his clients in the matter at hand.” United States v. Jeffers, ante, at 1265; see, also, United States v. McCord, 1974, 166 U.S.App.D.C. 1, 8-10, 509 F.2d 334, 351-53, cert. denied, 421 U.S. 930, 95 S.Ct. 1656, 44 L.Ed.2d 87.
Particularly is there a heavy burden on a defendant when the facts were known to him from the beginning, United States v. James, 5 Cir., 1975, 505 F.2d 898, cert. denied, 421 U.S. 1000, 95 S.Ct. 2397, 44 L.Ed.2d 667, or, as in this case, long before the trial ended instead of afterwards. Defendants selected Hurley precisely because Joyce had political connections. Such connections are not simplistic, but extend in many directions. The least defendants could expect was the possibility of some interface. The least that, in turn, could be expected of defendants would be to make their own decisions when some such matters surfaced. Defendants were in no respect naive or unsophisticated. Nothing was concealed from them, including the fact that day after day the trial was proceeding without their counsel disclosing the names to the jury. They do not excite our sympathy when, having lost their case, they malign their counsel, and say they were put upon. Defendants have failed to allege or establish a real conflict of interest or any actual prejudice. They are entitled to no relief. Miller v. United States, ante. Brady violation.
Defendants next contend that the government’s failure to disclose two letters written by Assistant U. S. Attorney Lee to prospective customers of MBM violated their right to a fair trial under Brady v. Maryland, 1963, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215. The letters were written prior to trial in response to inquiries by certain governmental agencies that were considering awarding contracts to MBM. After describing the indictment, MBM’s role, and its cooperation with the government, the letters conclude that the U. S. Attorney was “not aware of any reason why [MBM] should be disqualified from public work.” In their discovery request, defendants sought,
“23. All statements or promises or rewards of any kind, or tending in any way, directly or indirectly, do induce or encourage the giving of testimony, which statements have been made to any persons whom the Government intends to call as witnesses at the trial of the indictment herein.
“24. All evidence of any kind favorable to the defendants material either to guilt or punishment, including without limitation that which may tend to be exculpatory, to impeach or discredit incriminatory evidence or to mitigate the crime charged, or which may lead to evidence of such character.”
Defendants maintain that the letters were recommendations of MBM by the government that would have been of value for impeaching MBM witnesses.
Since defendants posit their principal argument upon United States v. McCrane, 3 Cir., 1976, 547 F.2d 204, re-affirming, after remand, 427 U.S. 909, 96 S.Ct. 3197, 49 L.Ed.2d 1202, for further consideration in light of United States v. Agurs, 1976, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342, United States v. McCrane, 3 Cir., 1975, 527 F.2d 906, we start with an examination of that case. There the defendants requested,
“all material known to the government . which is exculpatory in nature or favorable to the defendant, or may lead to the discovery of exculpatory material or material which may be used to impeach prosecution witnesses . . .”
In response to a request by counsel for the principal prosecution witness, the U. S. Attorney wrote letters about the witness to parties proposing to enter into contractual relations with him, corresponding much, in general outline, to the case at bar. In the earlier case of Brady v. Maryland, ante, the prosecuting attorney, in response to a request, had failed to disclose a statement of a third party that could be regarded as exculpatory. The Court held,
“[Suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” 373 U.S. at 87, 83 S.Ct. at 1196.
The first McCrane court, after noting that impeaching evidence fell within Brady, stated that a promise of preferential treatment given to a witness by the government is admissible for impeachment purposes. It went on to say that “jurors might have felt that the mere act of writing the letters was preferential treatment.” 527 F.2d at 911-12. It, accordingly, found a violation of Brady and ordered a new trial.
Although in Brady the Court made no point of it, the request called for all statements of a designated individual, and hence was, in fact, a “specific” request. In the initial McCrane opinion the court did not discuss the nature of the request. In United States v. Agurs, 1976, 427 U.S. 93, 96 S.Ct. 2392, 49 L.Ed.2d 342, however, the Court distinguished between general and specific requests. Refusal of a “specific and relevant” request “is seldom, if ever, excusable.” 427 U.S. at 106, 96 S.Ct. 2392. This kind of request calls for any material evidence, i. e., “evidence [that] might have affected the outcome of the trial.” Id. at 104, 96 S.Ct. at 2398. On the other hand, the Court said that a general request, e. g., “all Brady material,” or “anything exculpatory,” involves a very different standard.
“The proper standard of materiality must reflect our overriding concern with the justice of the finding of guilt. Such a finding is permissible only if supported by evidence establishing guilt beyond a reasonable doubt. It necessarily follows that if the omitted evidence creates a reasonable doubt that did not otherwise exist, constitutional error has been committed. This means that the omission must be evaluated in the context of the entire record. If there is no reasonable doubt about guilt whether or not the additional evidence is considered, there is no justification for a new trial. On the other hand, if the verdict is already of questionable validity, additional evidence of relatively minor importance might be sufficient to create a reasonable doubt.” Id. at 112-13, 96 S.Ct. at 2401. [Footnotes omitted.]
Upon remand for reconsideration in the light of Agurs, the McCrane court concluded that its prior decision was correct under either alternative. If the defendant’s request were to be construed as merely general, the evidence met Agurs’ standard of materiality. But also, and it is for this that defendants seek to rely on it, the court regarded the request as specific, hence imposing the more liberal standard of materiality. In resolving this latter issue in favor of defendant the court relied on a statement in the government’s brief which, although the government expressly denied that the request was specific, the court construed as a concession that it was. We will not pursue the correctness of the court’s construction; the government makes no such statement here. However, unless the government had so conceded, we consider the McCrane request a classic example of a non-specific request as defined in Agurs, and decline to accept McCrane’s contrary view. See United States v. Hearst, N.D.Cal., 1977, 435 F.Supp. 29, 30-31, aff’d, 9 Cir., 563 F.2d 1331, 1352.
We also reject McCrane’s above-quoted statement that “the mere act of writing the letters was preferential treatment,” unless read in conjunction with the evidence, elsewhere noted, that they were written at the request of the witness’s counsel. This, however, brings us to the case at bar, where defendants claim that No. 23 was a specific request.
In construing No. 23 as not calling for the U. S. Attorney’s letters the district court said,
“The subject letters were not ‘recommendations,’ were not communications to or requested by MBM and were neutral in their impact.”
For present purposes we will assume the incorrectness of part of this statement; the letters were sufficiently recommendatory that we would consider them to be “rewards” if, but only if, a statement had been made to a MBM witness which put them in that light. There was no impeaching significance in the letters themselves. They were not relevant unless, as the final clause of the request specified, they were intended to influence the witness. Clearly, they could not influence the witness unless there had been a statement to him, either a promise that they would be written, or, at the least, subsequent communication enabling him to realize that he had been rewarded. Not only is this clear, but the request itself, which appears carefully drawn, recognizes there would have had to have been a “statement” to the witness. The specificity of the request, in other words, related to any statement, not to the letters themselves. There is nothing to overcome the U. S. Attorney’s response that there was no such statement.
It may be conceded that the letters fell within the terms of a general request, of which No. 24 was a good example, seeking anything that might lead on to something else. Here, however, because of its generality, the government does not face the strict sanction which attends the refusal of a specific request. The district court properly applied the general test, and found that defendants failed. We have considered the record, and find no reason to disagree.
Misconduct by jurors.
We may pass quickly over defendants’ complaint, supported by the statements of two alternate jurors, that the jury was exposed to certain unspecified newspaper and television accounts of the trial, and that the jurors discussed the case among themselves. The district court held these assertions to be “insubstantial” and that the documents submitted revealed no “material derogation of the defendants’ right to a fair trial,” and thus neither an evidentiary hearing nor a new trial was warranted.
Defendants waived sequestration of the jury, thereby assuming the risk that the jurors would come in contact with some publicity concerning the trial. No relief is warranted without a showing that the publicity resulted in prejudice. United States v. Perrotta, 1 Cir., 1977, 553 F.2d 247; United States v. D’Andrea, 3 Cir., 1974, 495 F.2d 1170, cert. denied, 419 U.S. 855,95 S.Ct. 101, 42 L.Ed.2d 88. Court and counsel carefully monitored the press coverage of the trial. On two occasions a potentially prejudicial article and television report were brought to the court’s attention. Following the procedures required by Perrotta, the court polled the jurors as to whether they had seen them. In each case, all jurors responded that they had not.
Defendants now claim that similar inquiry should have been made as to other unspecified publicity allegedly seen or heard by the jurors. The court was correct in rejecting this claim. Absent specification of particular pieces of publicity, and a showing of their potentially prejudicial effect, it had no duty to inquire further.
The court also found insubstantial defendants’ claim of pre-deliberation discussion of the case by the jurors, and consideration by the jurors of defendants’ failure to testify. We agree. Quite apart from the fact that the alternate juror, who was the source of the statement that the jurors considered the defendants’ failure to testify, was not present during the jury’s deliberations following the court’s charge, this claim flies in the face of the familiar principle that a verdict may not be impeached by a juror’s testimony that the jury was guilty of misconceptions of fact or law, employed unsound reasoning, indulged in improper argument, etc. See, e. g., Young v. United States, 10 Cir., 1947, 163 F.2d 187, cert. denied, 332 U.S. 770, 68 S.Ct. 83, 92 L.Ed. 355; 6A J. Moore, Federal Practice, 159.-08[4] at 148-49 (2d ed. 1974). While there are exceptions, the present case is far from such.
Newly discovered evidence.
Defendants submitted three unsworn statements, two by witnesses at the trial, and one by the wife of one such witness, to support their claim, pursuant to F.R. Crim.P. 33, for a new trial on the ground of newly discovered evidence. The purported evidence takes the form of the recantation of two witnesses, Harding and Shields, concerning the July 6, 1972 meeting in New York City at which some of defendants’ extortionate threats allegedly were made. The witnesses did not retract their testimony as to the fact of the meeting, but only suggested that they had been mistaken as to its date, which they now believe to have been sometime during the spring of 1972.
So much was deficient with respect to these statements that we merely list the areas. Passing the fact that the court expressly disbelieved Shield’s new version, and impliedly did so as to Mr. and Mrs. Harding, whose statements, it found, were at least in part dictated by DiCarlo’s new counsel, no explanation is offered for six months’ delay, rather than eliciting this testimony at trial, or is offered to meet the “considerable skepticism,” Lemire v. McCarthy, 1 Cir., 1978, 570 F.2d 17, 21, which attends recantation. The trial court’s findings will not be disturbed. United States v. Johnson, 1946, 327 U.S. 106, 111-12, 66 S.Ct. 464, 90 L.Ed. 562.
We have considered the other arguments advanced by defendants and find them to be without merit. The order of the district court is affirmed.
. We agree with the trial court that of all the alleged shortcomings of trial counsel, the only one with any plausible relationship to the alleged conflict of interest is failure to use these names.
. The record in no way supports some seeming suggestion in defendants’ brief that Joyce said he would himself pay the fee.
. Defendants also complain of their counsels’ failure to accept the government’s offer to locate one William Masiello and secure his presence at the trial, allegedly because he had been a former client of Mulkern. Quite apart from the fact that Masiello’s purported testimony was supplied only by a hearsay affidavit, cf. 6 J. Moore, Federal Practice, -1 56.11 [1.-2] at 200 (2d ed. 1976), the court found that he would have been a dangerous witness (“foolhardy”) for defendants to call. We agree with the court that the failure to call Masiello in no way prejudiced the defendants. See United States v. Donatelli, 1 Cir., 1973, 484 F.2d 505.
. In light of the present widespread concern over the MBM matter, of which we may take judicial notice, viewed by hindsight it would have been a considerable benefit to Harrington to have avoided the subject of the $2,000 check, provided that such silence would have ended the matter. However, this information was in the government’s possession to begin with, and silence could not have been assured, regardless of whether defense attorneys pursued this line of inquiry.
. For the benefit of the bar we do not read this phrase as corresponding with a later remark by the Court that “a jury’s appraisal of a case ‘might’ be affected by an improper or trivial consideration as well as by evidence giving rise to a legitimate doubt on the issue of guilt.” Id. at 108-9, 96 S.Ct. at 2400. Rather, we would apply the usual rule of demonstrably harmless error. Chapman v. California, 1967, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705. Nor, of course, must a request be answered just because it is specific. The initial question is whether it is Brady material.
. We do, however, note the extraordinary claim in present defendants’ brief that the concession by government counsel in this unrelated case in another circuit estops the government here. This would be extraordinary even if defendants could claim, which they make no pretense of doing, that they knew and relied on it, a necessary condition of estoppel.
. Alternatively, if the request sought more, it failed to meet the basic requirement of a specific request, “notice of exactly what the defense desired.” Agurs, 427 U.S. at 106, 96 S.Ct. at 2398.
. “[The] letters would not in my view have created a reasonable doubt as to the guilt of the defendants, in the light of strong and persuasive evidence of guilt introduced at the trial. In the language of the Supreme Court the omission to furnish these letters was not material ‘in the context of the entire record.’ United States v. Agurs, supra, 112 [96 S.Ct. 2392].”
. As to Shield’s testimony, the court noted, “Mr. Shield was an extremely articulate, assured and self-possessed witness. His manner was somewhat hostile to the United States Attorney. I cannot credit [defendants’ claim] that untrue testimony was extracted from him against his will.” | 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 | What is the nature of the counsel for the appellant? | [
"none (pro se)",
"court appointed",
"legal aid or public defender",
"private",
"government - US",
"government - state or local",
"interest group, union, professional group",
"other or not ascertained"
] | [
3
] | songer |
UNITED STATES of America, and Frank Camp, Special Agent of the Internal Revenue Service, Appellees, v. John L. COTTON, Appellant.
No. 77-2042.
United States Court of Appeals, Tenth Circuit.
Dec. 23, 1977.
Lawrence A. Bobbitt, III, Asst. U. S. Atty. (Charles E. Graves, U. S. Atty. and Toshiro Suyematsu, Asst. U. S. Atty., Cheyenne, Wyo., with him on the brief), for appellees.
John L. Cotton, pro se.
Before McWILLIAMS, BREITENSTEIN and DOYLE, Circuit Judges.
PER CURIAM.
Appellant-respondent Cotton is a tax protestor who refused to comply with a court order enforcing an Internal Revenue Service Summons. Jurisdiction lies under 26 U.S.C. §§ 7402(b) and 7604(a). Appellant was found in civil contempt and sentenced to a 40-day jail term with provision that he could purge himself of the contempt by obedience to the summons. We have expedited the appeal, reviewed the complete record, and considered the brief and oral argument of respondent who appeared pro se.
The facts are substantially the same as those considered in United States v. Carroll, 10 Cir., 567 F.2d 958, opinion filed this day. Our discussion in Carroll of the claims of rights and privileges under the federal Constitution applies here and need not be repeated. It suffices to say that respondent has been denied no constitutional right or privilege. Our Carroll opinion is also dis-positive of all other issues raised by respondent except two.
Respondent claims that production of the required records would violate the marital privilege which precludes one spouse from becoming an adverse witness against the other. Hawkins v. United States, 358 U.S. 74, 75, 79 S.Ct. 136, 3 L.Ed.2d 125. The wife did not raise the issue of privilege. There is no showing that any of the records were a communication between husband and wife or were confidential as between them within the protection of the marital privilege. United States v. Ashby, 5 Cir., 245 F.2d 684, 686. We have held that the production of the records, in the circumstances presented, violated no constitutional rights of the husband. By the same reasoning the wife could not claim self-incrimination. See In re Grand Jury Proceedings Susan Rovner, Witness, E.D.Pa., 377 F.Supp. 954, 955; affirmed, 3 Cir., 500 F.2d 1400, cert. denied 419 U.S. 1106, 95 S.Ct. 776, 42 L.Ed.2d 802. The claim of marital privilege has no validity.
Respondent sought to disqualify Judge Brimmer and complains of Judge Brimmer’s actions at the trial. Respondent made no effort to comply with the provisions of 28 U.S.C. §,§ 144 and 455 pertaining to the disqualification of a judge. The record shows that Judge Brimmer conducted all hearings of the matter with fairness, impartiality, patience, and restraint.
Affirmed. | 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". | In what state or territory was the case first heard? | [
"not",
"Alabama",
"Alaska",
"Arizona",
"Arkansas",
"California",
"Colorado",
"Connecticut",
"Delaware",
"Florida",
"Georgia",
"Hawaii",
"Idaho",
"Illinois",
"Indiana",
"Iowa",
"Kansas",
"Kentucky",
"Louisiana",
"Maine",
"Maryland",
"Massachussets",
"Michigan",
"Minnesota",
"Mississippi",
"Missouri",
"Montana",
"Nebraska",
"Nevada",
"New",
"New",
"New",
"New",
"North",
"North",
"Ohio",
"Oklahoma",
"Oregon",
"Pennsylvania",
"Rhode",
"South",
"South",
"Tennessee",
"Texas",
"Utah",
"Vermont",
"Virginia",
"Washington",
"West",
"Wisconsin",
"Wyoming",
"Virgin",
"Puerto",
"District",
"Guam",
"not",
"Panama"
] | [
50
] | songer |
UNITED STATES of America, Appellee, v. Clifford J. BROWN, Defendant, Appellant. UNITED STATES of America, Appellee, v. Juan Guzman LOPEZ, Defendant, Appellant.
Nos. 71-1373, 71-1374.
United States Court of Appeals, First Circuit.
Argued Feb. 24, 1972.
Decided March 31, 1972.
Charlotte Anne Perretta, Boston, Mass., with whom Joseph S. Oteri, Crane, Inker & Oteri, and Edward J. Kelley, Boston, Mass., were on the brief, for appellants.
Henry H. Hammond, Asst. U. S. Atty., with whom Joseph L. Tauro, U. S. Atty., was on the brief, for appellee.
Before ALDRICH, Chief Judge, and McENTEE and COFFIN, Circuit Judges.
McENTEE, Circuit Judge.
Defendants Brown and Lopez were convicted of conspiring to receive, conceal, sell, and dispose of motor vehicles moving in interstate commerce, knowing them to be stolen and of receiving, concealing, selling, and disposing of twelve stolen motor vehicles. They appeal contending that the district court should have suppressed certain physical evidence and statements made by Lopez. Brown’s appeal is totally dependent on the favorable resolution of the issues raised by Lopez. Since we resolve these issues adversely to Lopez, we address ourselves only to the facts underlying his conviction.
On the morning of September 24, 1969, the police in Norton, Massachusetts were informed that a late model automobile with no registration plates had been seen in the middle of the woods in the southeast section of Norton. They investigated, found the vehicle in question, and discovered two other late model vehicles nearby. Upon learning that two of the three vehicles had been stolen in New York, they requested assistance from the Massachusetts State Police. About 1:30 that afternoon State Police Sergeant O’Neil and Trooper Anderson arrived in Norton, and together with Officers Brugliera and Clark of the Norton Police proceeded to the place where the three cars were located. There they ascertained that the third vehicle was also stolen. These cars were within three hundred yards of each other and each was adjacent to a cart path through the woods. The only access to this path was across property occupied by Lopez which was situated approximately a quarter of a mile to the north.
About 3:30 that afternoon the four officers drove onto Lopez’s property where he and another man were working on an automobile. Lopez approached the officers, who identified themselves and told him about the three cars in the woods. The four officers and Lopez then walked down the path to view the vehicles and returned to the yard. During this walk Lopez admitted that he controlled access to the path and stated that he had placed two piles of brush across it to prevent its unauthorized use. He denied, however, knowing anything about the ears in the woods. On returning to the yard, the officers, observing that the defendant had become increasingly nervous, told him that he was under suspicion and informed him of his rights. Lopez then requested and was granted permission to make some telephone calls. After several unsuccessful attempts to reach his attorney, and after a private conversation with his wife, he told Officer Brugliera that he knew about the cars and wanted to talk to Sergeant O’Neil. He told O’Neil that he had bought the cars from a man in a bar for $100 each and that he still owed this individual $100 for the third vehicle. He professed to be unable to tell the police either the man’s name or where he could be reached. Lopez was then placed under arrest and taken to the Norton Police Station. Later that evening he was questioned in the presence of his attorney and repeated essentially the same story in more detail.
Sometime after Lopez’s arrest, a tow truck summoned by the police arrived at his house to remove the three vehicles from the woods. In the process of removing brush that was blocking the cart path, Trooper Anderson observed a partially stripped Ford behind a shed on the Lopez property. When he approached it, he saw automobile parts strewn about the area behind the shed, a homemade rig for removing automobile engines and the chassis of another stripped vehicle. This occurred at about 8 p. m. There were also New York license plates lying on the ground and evidence that an attempt had been made to destroy the identity of the stripped vehicles by removing and burning vehicle identification number (VIN) plates and other components. The police searched the piles of rubble and the nearby ash can and discovered VIN plates which formed the basis of several of the substantive counts.
Lopez contends that the automobiles, license plates and VIN plates discovered by the officers after his arrest were the fruits of an illegal search. Initially, he argues that since the officers had no more evidence when they arrested him than they had when they first went on his property, if the arrest was proper then they must have had probable cause for their initial entry and should have obtained a warrant. This argument is without merit because, if the officers had probable cause for an arrest they needed no warrant to peaceably enter the property to effect an arrest. Moreover, even in the absence of probable cause the police were entitled to pursue their investigation and to go upon the land to question him. See Ellison v. United States, 93 U.S.App.D.C. 1, 206 F.2d 476 (1953). The above argument is also unsupported by the record since it was not until Lopez admitted that he controlled the cart path, appeared nervous, and made contradictory statements regarding the vehicles in the woods that the officers had probable cause to arrest him.
Lopez further argues that the partially stripped Ford discovered by Trooper Anderson in the process of clearing the path was not in plain view. However, the testimony establishes that the vehicle was clearly visible once the brush had been removed, so the only question here is whether the officer was properly in a position to view it. Coolidge v. New Hampshire, 403 U.S. 443, 465, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). We hold that he was. The police had a duty to remove and secure the three stolen vehicles found in the woods, and to accomplish this they had a license to enter upon the property and, if necessary, move the piles of brush hindering the removal operation. They were not required to go about this task with their eyes closed. See Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968); Fagundes v. United States, 340 F.2d 673 (1st Cir. 1965). That Lopez had already been arrested for receiving these vehicles is not significant. Moreover, since Trooper Anderson had reasonable grounds to suspect that the partially stripped Ford might be a stolen vehicle, he did not violate Lopez’s fourth amendment rights in approaching the vehicle for the limited purpose of ascertaining its identity. See United States v. Dadurian, 450 F.2d 22 (1st Cir. 1971).
The validity of the subsequent search of the vicinity of the shed and of the stripped cars as a result of which various VIN plates and New York license plates were discovered rests on a different rationale. The testimony renders untenable any assertion that all the items were in plain view, and we assume without deciding that they were not abandoned. However, the exigent circumstances of this particular case justify the police in proceeding without a search warrant. The discovery of the two partially stripped vehicles, the rig for removing automobile engines, the various vehicle components strewn about and the obvious attempt to render the vehicles impossible to identify, cast new light on the situation. This evidence gives rise to the likelihood that the police were dealing with more than a single receiver of stolen automobiles. Since it was already evening and since only Lopez was in custody, there was substantial danger that evidence pertaining to other vehicles might be removed or destroyed during the night. Under these circumstances the police were justified in extending the search.
Lopez also contends that statements made by him subsequent to being told that he was under suspicion and prior to the arrival of his attorney at the police station should have been suppressed. He was informed of his constitutional rights on several occasions: (1) when he was told he was under suspicion; (2) when he was placed under arrest; and (3) when he was taken to the Norton Police Station. He expressed no unwillingness to answer questions, and in fact, after a private conversation with his wife, volunteered to make his original statement about purchasing the stolen vehicles. This statement was not the result of police interrogation, nor was he in custody at the time it was made. Therefore, we cannot accept Lopez’s assertion that his unsuccessful attempt to reach his attorney indicated a desire to remain silent, nor do we believe that the police should have construed it as such. Cf. United States v. Priest, 409 F.2d 491 (5th Cir. 1969); United States v. Nielsen, 392 F.2d 849 (7th Cir. 1968). The record indicates that the government has sustained its burden of showing that Lopez’s statements were voluntarily made. See Lego v. Twomey, 404 U.S. 477, 92 S.Ct. 619, 30 L.Ed.2d 618 (1972).
In view of the above and since Brown’s only contention is that evidence improperly admitted against Lopez was also improperly admitted against him, the judgment of the district court is affirmed.
. Violations of 18 U.S.C. §§ 2313 and 371 (1970). Defendants Brown and Lopez, together with one Joe Guzman, were charged with conspiracy in Count I. Guzman’s trial was severed. Brown was charged with receipt of three vehicles, Counts II, III, and IV. Lopez was charged with receipt of ten vehicles, Counts III, V, VI, VII, VIII, IX, X, XI, XII, and XIII.
. The record is obscure concerning which items were found in the rubbish piles and ash barrel and which were found elsewhere. We are, therefore, reluctant to address ourselves to the difficult issues of whether this evidence had been abandoned or whether it was within the “curtilage” protected by the fourth amendment. See Rosencranz v. United States, 356 F.2d 310 (1st Cir. 1966), and compare Work v. United States, 100 U.S.App.D.C. 237, 243 F.2d 660 (1957) ; People v. Edwards, 71 Cal.2d 1096, 80 Cal.Rptr. 633, 458 P.2d 713 (1969) ; with United States v. Minker, 191 F.Supp. 683 (E.D.Pa.1961), aff’d, 312 F.2d 632 (3d Cir. 1962), cert. denied, 372 U.S. 953, 83 S.Ct. 952, 9 L.Ed.2d 978 (1963) ; See also Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) ; Hester v. United States, 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898 (1924). | What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "criminal - federal offense". | What is the specific issue in the case within the general category of "criminal - federal offense"? | [
"murder",
"rape",
"arson",
"aggravated assault",
"robbery",
"burglary",
"auto theft",
"larceny (over $50)",
"other violent crimes",
"narcotics",
"alcohol related crimes, prohibition",
"tax fraud",
"firearm violations",
"morals charges (e.g., gambling, prostitution, obscenity)",
"criminal violations of government regulations of business",
"other white collar crime (involving no force or threat of force; e.g., embezzlement, computer fraud,bribery)",
"other crimes",
"federal offense, but specific crime not ascertained"
] | [
6
] | songer |
EARWOOD v. UNITED STATES.
No. 8248.
Circuit Court of Appeals, Fifth Circuit.
June 2, 1937.
See, also, (C.C.A.) 76 F.(2d) 557.
Wm. T. Townsend, of Cartersville, Ga., and Thomas Howell Scott, of Atlanta, Ga., for appellant.
Thomas E. Walsh, Julius C. Martin, and Wilbur C. Pickett, Attys., Department of Justice, all of Washington, D. C., and Slaton Clemmons, Atty., Department of Justice, Lawrence S. Camp, U. S. Atty., and A. Sidney Camp, Asst. U. S. Atty., all of Atlanta, Ga., for the United States.
Before FOSTER, HUTCHESON, and HOLMES, Circuit Judges.
FOSTER, Circuit Judge.
This is a suit brought by the guardian of an insane person to recover on a policy of war risk insurance, issued to him while serving as a soldier in the armies of the United .States, on the ground that the policy matured through his becoming totally and permanently disabled because of insanity. Error is assigned to the direction of a verdict- for defendant.
The policy lapsed for nonpayment of premiums on August 31, 19.19. Demand for payment of installments under the policy was not made until February 26, 1925, more than five years after the policy lapsed. Payment was refused on April 23, 1925. Suit was not brought on the policy until July 3, 1931, nearly six years thereafter. It would serve no good purpose to extensively review the evidence. It tended to show that after his return from the army the insured was nervous and irritable, contrary to his usual demeanor before he was inducted into service. However, he had no medical treatment for his mental condition until long after the policy lapsed, and was able to pursue his previous vocation as a farmer to some extent. We agree with the District Court that appellant did not sustain the burden of proving with reasonable certainty that the insured became totally and permanently disabled so as to mature the policy before payment of premiums ceased. Lumbra v. U. S., 290 U.S. 551, 54 S.Ct. 272, 78 L.Ed. 492; U. S. v. Spaulding, 293 U.S. 498, 55 S.Ct. 273, 79 L.Ed. 617; Miller v. U. S., 294 U.S. 435, 55 S.Ct. 440, 79 L.Ed. 977.
The record presents no reversible error.
Affirmed. | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
Your task is to determine the nature of the counsel for the respondent. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party | What is the nature of the counsel for the respondent? | [
"none (pro se)",
"court appointed",
"legal aid or public defender",
"private",
"government - US",
"government - state or local",
"interest group, union, professional group",
"other or not ascertained"
] | [
3
] | songer |
Betty Ann LACY, Plaintiff-Appellant, v. GENERAL FINANCE CORPORATION, Defendant-Appellee.
No. 80-7213.
United States Court of Appeals, Fifth Circuit. Unit B
July 27, 1981.
Joseph H. King, Jr., Atlanta, Ga., for plaintiff-appellant.
Lewis N. Jones, Atlanta, Ga., for defendant-appellee.
Before HILL and FRANK M. JOHNSON, Jr., Circuit Judges, and SCOTT , District Judge.
District Judge of the Middle District of Florida, sitting by designation.
JAMES C. HILL, Circuit Judge:
Betty Ann Lacy bought a used car. General Finance Corporation agreed to lend her the balance of the purchase price. This mundane transaction has effected considerable litigation. First, Lacy sued General Finance, alleging that the creditor had violated the Truth in Lending Act, 15 U.S.C. § 1601 et seq. (TILA). Eventually she prevailed, and General Finance no longer challenges her entitlement to damages. In the interim, however, Lacy also defaulted on the underlying loan. General Finance repossessed and sold the car, but the proceeds from the sale were insufficient to satisfy the remaining debt. So General Finance, while defending against Lacy’s TILA claims, bought a compulsory counterclaim for the balance of the loan. A jury returned a verdict favorable to General Finance on the counterclaim. Lacy appeals and asks this court to consider three issues. We disagree with all of her contentions.
I.
First, Lacy argues that General Finance is not entitled to recover any of the deficiency between the sale price of the car and the unpaid balance of the loan because it failed to reasonably notify her of the impending sale of the car. Georgia law governs our disposition of this argument. The Georgia commercial code permits a secured creditor to dispose of the collateral if the debtor defaults, but before the creditor can pursue a deficiency balance it must reasonably notify the debtor “of the time and place of any public sale or ... of the time after which any private sale or other intended disposition is to be made .... ” Ga.Code § 109A-9-504(l), (3). The code itself does not tell us what sort of notification is reasonable; Georgia case law emphasizes that a creditor must perform in good faith its obligations in disposing of the collateral. See Geohagan v. Commercial Credit Corp., 130 Ga.App. 828, 204 S.E.2d 784 (1974).
Because the thing financed here is a car, the provisions of Georgia’s Motor Vehicle Sales Finance Act are also relevant. That Act provides, in part:
When any motor vehicle has been repossessed after default .. ., the seller or holder shall not be entitled to recover a deficiency . . . unless within 10 days after said repossession he forwards by registered or certified mail to the address of the buyer shown on the contract, or later designated by said buyer, a notice of the seller’s or holder’s intention to pursue a deficiency claim against said buyer.
Ga.Code § 96-1007.
The record here reveals that General Finance complied with the requirements of the Motor Vehicle Sales Finance Act. It sent the statutorily required notification via certified mail to the address she provided in the finance contract. The post office returned the notification undelivered and marked “MOVED, LEFT NO ADDRESS.” Lacy had not designated a forwarding address in the finance contract. General Finance made no other attempt to locate and notify Lacy. General Finance was able to locate the collateral at another address, however, and Lacy contends that even though nothing suggests that she could have been reached at that address General Finance ought to have sent notification to her there.
We disagree. We think that § 96-1007 complements § 109A-9-504 and provides some guidance as to what constitutes reasonable notice in this case. Although we hesitate to dictate that Georgia law mandates that compliance with the requirements of § 96 — 1007 is enough to satisfy the requirements of § 109A-9-504 in every instance, we are convinced that the jury had good reason to decide that General Finance reasonably notified Lacy of the impending sale of the car. Under facts of this case, we see no reason to reject the judgment of the jury.
II.
Second, Lacy suggests that she should recover from General Finance the attorney’s fees she incurred in defending against its counterclaim. We recently considered this very suggestion and, as an evenly divided en banc court, we affirmed a district court’s holding which denied a TILA plaintiff’s “recovery of attorney’s fees for time spent in defending the compulsory counterclaim . .. . ” Lawrence v. Credithrift of America, Inc., 644 F.2d 506 (1981). An affirmance by an evenly divided court, however, has no precedential value, see generally Hertz v. Woodman, 218 U.S. 205, 213-14, 30 S.Ct. 621, 622-23, 54 L.Ed. 101 (1910), so we are required to explain here why we think Lacy should not recover the attorney’s fees chargeable to her defense against the counterclaim.
Lacy premises her suggestion on 15 U.S.C. § 1640, which provides in pertinent part:
(a) Except as otherwise provided in this section, any creditor who fails to comply with any requirement imposed under this part ... with respect to any person is liable to such person in an amount equal to the sum of—
(3) in the case of any successful action to enforce the foregoing liability, the costs of the action, together with a reasonable attorney’s fee as determined by the court.
See also id. § 1692k(a)(3). She argues that “the costs of the action” include the costs of defending against General Finance’s counterclaim and thus that she, as a successful TILA plaintiff, is entitled to those costs. She misreads the statute. It plainly provides that attorney’s fees may be awarded if they are incurred “to enforce the foregoing liability.” “Foregoing liability” refers to the claims established by TILA; a plaintiff is not enforcing a TILA liability when he or she is defending against a state law debt claim.
Congress, by enacting TILA, created a new claim for failure to disclose certain terms associated with the extension of credit. A borrower may properly and successfully pursue a TILA claim even though he has defaulted on the underlying debt. The voluntary release of the debtor by the creditor does not extinguish the TILA claim. Proof of liability for the underlying debt is no defense to the TILA claim. The TILA claim may be won or lost regardless of the outcome of a claim for the underlying debt; likewise, a claim for the underlying debt may be won or lost regardless of the outcome of the TILA claim. When Congress enacted TILA, it added nothing to the rights of the parties vis-a-vis the indebtedness created by the credit transaction. Congress did provide that the successful TILA claimant could recover attorney’s fees incurred in prosecuting it. It did not provide attorney’s fees for parties to any other claim or controversy.
Undeniably, a TILA claim and a state law debt claim which concern the same loan are related. Both claims arise from one transaction. This relationship renders General Finance’s claim on the underlying loan a compulsory counterclaim. See Plant v. Blazer Financial Services Inc. of Georgia, 598 F.2d 1357 (5th Cir. 1979). This relationship, however, does not transform the debt action into a TILA action.
loser.” Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 247, 95 S.Ct. 1612, 1616, 44 L.Ed.2d 141 (1975). There are, of course, exceptions to this general rule, but Congress has not extended any roving authority to the judiciary to allow counsel fees as costs or otherwise whenever the courts might deem them warranted. What Congress has done, however, while fully recognizing and accepting the general rule, is to make specific and explicit provisions for the allowance of attorneys’ fees under selected statutes granting or protecting various federal rights.
Id. at 260, 95 S.Ct. at 1623. In enacting TILA, Congress clearly created an exception to this “American Rule,” no doubt in order to encourage those with valid TILA claims to pursue them. In no way, however, did Congress specifically arid explicitly provide for the allowance of attorney’s fees incurred in the defense against a claim which did not arise under TILA.
Accordingly, Lacy is not entitled to recover from General Finance any attorney’s fees which were charged for time spent in defending against the company’s counterclaim.
III.
Third, Lacy contends that the attorney’s fees she properly recovered, that is, those incurred in the pursuit of her valid TILA claim, should be enhanced by one-third because of the contingent nature of the recovery. We recognize that the contingent nature of a fee is one factor to consider when evaluating the adequacy of an attorney’s fee award. See Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 718 (5th Cir. 1974). We nevertheless believe that the amount awarded here is appropriate.
Thus the disposition of this case by the district court is AFFIRMED.
Our interpretation of the statute is buttressed by the “American Rule” concerning the recovery of attorney’s fees: “the prevailing litigant is ordinarily not entitled to collect a reasonable attorney's fee from the | 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). | What is the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court)? | [
"Trial (either jury or bench trial)",
"Injunction or denial of injunction or stay of injunction",
"Summary judgment or denial of summary judgment",
"Guilty plea or denial of motion to withdraw plea",
"Dismissal (include dismissal of petition for habeas corpus)",
"Appeals of post judgment orders (e.g., attorneys' fees, costs, damages, JNOV - judgment nothwithstanding the verdict)",
"Appeal of post settlement orders",
"Not a final judgment: interlocutory appeal",
"Not a final judgment: mandamus",
"Other (e.g., pre-trial orders, rulings on motions, directed verdicts) or could not determine nature of final judgment",
"Does not fit any of the above categories, but opinion mentions a \"trial judge\"",
"Not applicable (e.g., decision below was by a federal administrative agency, tax court)"
] | [
0
] | songer |
PATHWAY BELLOWS, INC., Plaintiff-Appellee, v. Robert W. BLANCHETTE, Richard C. Bond and John H. McArthur, Trustees of the Penn Central Transportation Co., Defendants-Appellants.
No. 882, Docket 79-7860.
United States Court of Appeals, Second Circuit.
Argued March 19, 1980.
Decided Sept. 2, 1980.
Kenneth R. Feit, David H. Deitsch, Gates, Singer & Deitsch, Rockville Centre, N. Y., for plaintiff-appellee.
Hyman Hillenbrand, Bleakley, Platt, Schmidt & Fritz, New York City, for defendants-appellants.
Before WATERMAN, MANSFIELD and TIMBERS, Circuit Judges.
WATERMAN, Circuit Judge:
Defendant-appellants, Trustees of the Penn Central Transportation Co. (Penn Central), appeal from a judgment entered in the United States District Court for the Southern District of New York (Sand, District Judge), which granted the motion of plaintiff-appellee Pathway Bellows for summary judgment. For the reasons stated below, we reverse the judgment of the district court.
The parties agreed upon all the relevant facts, and the case was submitted to the court below on cross-motions for summary judgment. We briefly summarize those facts before our review of the reasoning and decision of the district court.
On September 24, 1974 Pathway Bellows contracted with the receiving carrier, the San Diego & Arizona Eastern Railway Co. (SD & A) to transport a shipment of metal expansion joints from El Cajon, California to the Gouverneur Iron Works in Oswego, New York. The shipment arrived at its destination on October 22, 1974, where it was delivered by Penn Central, the delivering carrier, in a damaged condition. Pursuant to a telephone request, a Penn Central agent examined the shipment and prepared a Freight Inspection Report dated October 22, 1974, which noted damage, damage which the parties later stipulated totaled $40,000.
One of the provisions of the bill of lading issued by SD & A for this shipment required Pathway Bellows to submit any damage claims in writing, and to file them with an appropriate carrier within 9 months of the date of delivery of the damaged property. The parties have agreed that this 9 month period began on October 22, 1974, and expired on July 22, 1975.
On May 12, 1975, Pathway Bellows sent to Penn Central the following letter:
Although we have contacted your company earlier, the purpose of this letter is to state, in writing, that we are in the process of filing a claim for freight damage of a shipment to Gouverneur Iron Works, Oswego, New York.
This letter also made reference by caption to the Freight Inspection Report, the Way Bill covering the shipment and the railroad car in which the shipment was transported.
On July 22, 1975, Pathway Bellows sent to SD & A a more detailed letter, which SD & A received the following day. This letter asserted the claim of Pathway Bellows for damages to the shipment of expansion joints, and advanced a specific dollar amount for the alleged liability.
In the district court the sole question for resolution was whether Pathway Bellows had complied with the contractually imposed condition precedent to maintain an action to recover its damages, /. e., whether Pathway Bellows had timely filed with an appropriate carrier a proper written claim. With reference to Pathway Bellows’s letter of May 12, 1975, the court below held that, although timely filed, the letter was formally deficient in several important respects, and therefore could not qualify as a proper written claim. We shall defer further discussion of this ruling until we have addressed the district court’s treatment of the July 22, 1975 letter.
Penn Central conceded that Pathway Bellows’s July 22, 1975 letter contained all elements necessary to classify it as a proper written claim, but maintained that the letter was not timely filed, because although mailed by Pathway Bellows on the final day of the 9 month claim period, it was not received by SD & A until the day after the claim period had expired. Because “filed” was not defined in the bill of lading or in the applicable statute and regulations, the court below regarded the term as somewhat ambiguous. Although recognizing that the word “filed” had a well-established technical meaning in other areas of the law, and that such meaning implicitly equated a filing with the date of receipt of the item to be filed, the court concluded that such a technical construction was inappropriate to a situation involving only private parties. The court noted that, as between private parties, papers are “served” rather than “filed,” and the date of service is equated with the date of mailing. Applying this construction of the term “filed” to the facts of this particular case, the court below held that, because Pathway Bellows had mailed a proper written claim on the final day of the .9 month claim period, the claim had been timely filed and the terms of the bill of lading had been timely complied with. Accordingly, the district court denied Penn Central’s motion for summary judgment and granted Pathway Bellows’s motion, from which grant the defendant-Trustees appeal.
As an initial matter, we agree with the defendant-Trustees that the district court’s construction of the word “filed” finds neither support nor precedent in case law. Indeed, relevant authority is uniformly to the effect that a paper will not be considered “filed” until it has been delivered to and received by the party with whom it is to be filed. See United States v. Lombardo, 241 U.S. 73, 36 S.Ct. 508, 60 L.Ed. 897 (1916); Laser Grain Co. v. United States, 250 F. 826 (8th Cir. 1918); In re Imperial Sheet Metal, Inc., 352 F.Supp. 1149 (M.D.La.1973); President & Dirs. of Manhattan Co. v. Laimbeer, 108 N.Y. 578, 15 N.E. 712, 71 N.Y.S.App. 656 (1888); Schaffer v. Pennsylvania R.R., 127 N.Y.S.2d 466 (Mun.Ct.1950), aff’d, 127 N.Y.S.2d 468 (Sup.Ct. App. Term 1952).
We do not believe the present case is sufficiently distinguishable from prior case law to warrant a different construction of the word “filed,” and we find that the court below erred in holding that the claim of Pathway Bellows was filed when the letter of July 22, 1975 was deposited in the mail. Instead, we hold that, because SD & A did not receive this letter until the day after the 9 month claim period had expired, the claim was not timely filed as required by the terms of the bill of lading.
We now return to the district court’s treatment of the May 12, 1975 letter. In addressing this issue, the court below first determined that the requisite characteristics of a proper written claim had been codified in certain regulations issued by the Interstate Commerce Commission. The district court then examined the May 12, 1975 letter and found that it lacked two of the three minimum claim filing requirements established by the regulations, for it failed to assert that Penn Central was liable for any loss, and it failed to claim a specified or ascertainable amount of money as damages. Thus the court ruled that the Pathway Bellows letter of May 12,1975 was not a proper written claim within the meaning of the regulations.
Although we do not agree with Pathway Bellows’s argument that the facts do not support the district court’s findings relative to the May 12, 1975 letter and that its ruling thereto should be reversed as clearly erroneous, a case recently decided by the U.S. Court of Appeals for the Seventh Circuit appears to suggest that the regulations relied on in the court below do not provide the proper standard for assessing the sufficiency of contested claims.
In that case, Wisconsin Packing Co. v. Indiana Refrigerator Lines, 618 F.2d 441 (7th Cir. 1980) (en banc), cert., denied, U.S. -, 101 S.Ct. 112, 66 L.Ed.2d 44 (1980), the court declared that the subject regulations were intended to apply to voluntary dispositions of claims by carriers so as to insure that the process of claims settlement by carriers would be more expeditious and less subject to discriminatory manipulation, Id. at 445. Where, however, the mechanisms of voluntary claims settlement were not employed, i. e., where a carrier disputed its liability and a judicial determination of the validity of the disputed claim was sought, the Wisconsin Packing court concluded that the subject regulations did not dictate the form a claim must take. Rather, the sufficiency of a claim in such a situation was to be assessed under the case law in existence prior to the regulations issued by the I.C.C.
From our examination of the regulations and the relevant source material, we do not believe that the dual standards for assessing the sufficiency of claims, depending upon whether the carrier voluntarily decides to settle a claim or to contest its liability, were either intended or mandated. Although we agree with the Wisconsin Packing court that the ICC’s principal aim in promulgating these regulations was to encourage parties to settle claims instead of resorting to costly time-consuming litigation, and although we recognize that the ICC lacks the adjudicative authority to pass on the merits of claims, we point out that there is a vast difference between prescribing the form a properly constituted claim must take and that of determining the substantive merits of that claim.
Furthermore, the regulations impose numerous obligations upon carriers, which are triggered by the receipt of a “claim.” Having thus required a carrier to take certain actions once a claim is received, we think it is neither inappropriate nor beyond the authority of the ICC at the same time to provide a carrier with some guidance as to what constitutes a claim, so that a carrier may know one when it sees one. Therefore, we agree with the court below that the regulations provide the appropriate standard for assessing the sufficiency of all claims irrespective of the way they may subsequently be resolved or adjudicated.
In summary, we agree with the ruling of the district court that the Pathway Bellows letter of May 12, 1975 was inadequate in form to constitute a written claim. However, we conclude that the district court erred in finding that the Pathway Bellows letter of July 22, 1975 was timely filed when mailed, for we hold that, because this letter was received after the 9 month claim period had expired, it cannot qualify as a timely filed claim. We, therefore, hold that as Pathway Bellows failed to comply with the contractually imposed condition precedent to maintain an action to recover its damages, the defendant-Trustees were entitled to prevail on their motion for summary judgment. Although it may appear Draconian to require that Pathway Bellows lose a $40,000 recovery because its claim letter was received one day late, Pathway Bellows has identified no special circumstances that would entitle it to be relieved of the admittedly severe consequences of its own procrastination.
The judgment of the district court is reversed, and the cause is remanded for entry of judgment in favor of the defendant-Trustees.
. At the time this lawsuit arose, section 20(11) of the Interstate Commerce Act, 49 U.S.C. § 20(11), commonly known as the Carmack Amendment, provided in relevant part that “it shall be unlawful for any . . . carrier to provide ... a shorter period for the filing of claims than nine months . . .” On October 17, 1978, the Interstate Commerce Act was revised, codified, and enacted, without substantive change, as subtitle IV of Title 49 of the United States Code. The relevant portion of the Carmack Amendment currently appears, with minor changes in phraseology, as 49 U.S.C. § 11707(e) (Supp. II 1978). Carriers have implemented this statutory directive by including in the Uniform Bill of Lading the following provision, which has been approved and prescribed by the Interstate Commerce Commission:
2(b) As a condition precedent to recovery, claims must be filed in writing with the receiving or delivering carrier . . . within nine months after delivery of the property. . Where claims are not filed or suits are not instituted thereon in accordance with the foregoing provisions, no carrier hereunder shall be liable, and such claims will not be paid.
. Pathway Bellows subsequently sent letters to both Penn Central and SD & A, which amended the amount of damages claimed.
. Although the court below stated that “were we required to resolve the question . whether in all cases a claim is ‘filed’ upon mailing or upon receipt by the carrier, we would be inclined to conclude that a claim is filed when it is mailed by the claimant,” it made every effort to appear not to rely explicitly on this approach but attempted to limit its holding to the factual situation presented in this case. Accordingly, the court framed its holding as follows:
[A]t least where the shipper has furnished written notice within the period required by the bill of lading that it is in the process of filing a claim for damages, and identifies that claim with some specificity, such a claim when subsequently made and received by the carrier will be deemed to have been filed when it is deposited in the mail, not when it is received by the carrier.
. These regulations appear at Part 1005 of Title 49 of the Code of Federal Regulations. The court below found the following sections to be controlling:
§ 1005.2 Filing of claims.
(b) Minimum filing requirements. A communication in writing from a claimant, filed with a proper carrier within the time limits specified in the bill of lading or contract of carriage or transportation and: (1)' Containing facts sufficient to identify the baggage or shipment (or shipments) of property involved, (2) asserting liability for alleged loss, damage, injury, or delay, and (3) making claim for the payment of a specified or determinable amount of money, shall be considered as sufficient compliance with the provisions for filing claims embraced in the bill of lading or other contract of carriage.
(c) Documents not constituting claims. Bad order reports, appraisal reports of damage, notations of shortage or damage, or both, on freight bills, delivery receipts, or other documents, or inspection reports issued by carriers or their inspection agencies, whether the extent of loss or damage is indicated in dollars and cents or otherwise, shall, standing alone, not be considered by carriers as sufficient to comply with the minimum claim filing requirements specified in paragraph (b) of this section.
. The governing standard initially was set forth by the Supreme Court in Georgia, Fla. & Ala. Ry. v. Blish Milling Co., 241 U.S. 190, 36 S.Ct. 541, 60 L.Ed. 948 (1916), where the Court made clear that satisfaction of the shipper’s obligation to submit to the carrier a written claim “does not require documents in a particular form. It is addressed to a practical exigency and it is to be construed in a practical way.” Id. at 198, 36 S.Ct. at 545.
Through the years, courts occasionally have attempted to refine the very general Blish Milling standard. See, e. g., Insurance Co. of North America v. Newtowne Mfg. Co., 187 F.2d 675 (1st Cir. 1961) (written claim requirement will be satisfied by submission of “a written document, however informal in expression, indicating an intention on the shipper’s part to claim reimbursement from the carrier for a loss asserted to have occurred in the past, and sufficiently identifying the shipment in question . . . Id. at 681).
However, because the case law has not brought the contours of a properly constituted claim into very sharp focus, and because of the well-recognized policy underlying the written claim requirement, i. e., not to permit the carrier to escape liability, but to insure that the carrier may make a prompt and thorough investigation of the claim, see Blish Milling, supra, 241 U.S. at 198, 36 S.Ct. at 545, courts applying the case law standard have been extremely reluctant to conclude that the written claim requirement has not been satisfied in any situation where a carrier has seen a written document noting damage to a particular shipment and implying the carrier’s responsibility therefor. See Wisconsin Packing Co., supra, 618 F.2d at 446 and cases there cited.
We do not believe that the ICC, in promulgating the claim- filing regulations, intended a radical departure from the claim investigation policy underlying the written claim requirement. To the contrary, the applicable section of the regulations and the relevant source material indicate a clear intention to encourage the investigation of claims by carriers. See 49 C.F.R. § 1005.4; Ex Parte No. 263, supra, 340 I.C.C. at 559 -68.
Neither do we believe that the ICC, by specifying minimum claim-filing requirements, intended to afford carriers an unfair opportunity to escape liability. The minimum filing requirements appear to call for no more information than one ordinarily would expect a claim for damages to contain, and compliance with these requirements is neither onerous nor unreasonable. To the extent that carriers may escape liability, such “windfalls” may be properly traced, not to the existence of the regulations, but to shippers’ unexcused failure to comply with a reasonable condition contained in bills of lading.
However, we do agree with the implicit conclusion of the Wisconsin Packing court that the very fact that the regulations identify a properly constituted claim as one that contains certain minimum filing requirements distinguishes the standard established by the I.C.C. regulations from the standard established by the case law.
. The regulations were formulated in a rather extensive rulemaking proceeding conducted by the ICC. Ex Parte No. 263: Rules, Regulations, and Practices of Regulated Carriers with Respect to the Processing of Loss and Damage Claims, 340 I.C.C. 515 (1972). In addition, certain prefatory material accompanied the publication of the regulations in the Federal Register. 37 Fed.Reg. 4257 (March 1, 1972).
. Certainly, there is no explicit expression in the regulations themselves that their applicability is intended to be limited solely to those claims that carriers decide to settle voluntarily. To the contrary, 49 C.F.R. § 1005.1, the section dealing specifically with the applicability of the regulations, provides as follows:
The regulations set forth in this part shall govern the processing of claims for loss, damage, injury, or delay to property transported or accepted for transportation, in interstate or foreign commerce, by each [carrier] . . subject to the Interstate Commerce Act ....
Moreover, the ICC quite clearly stated that:
We are persuaded by the record in this proceeding that our regulations should embrace the full range of matters relating to the filing of claims, including a prescription of minimum filing requirements and a consideration of documents that do not constitute claims, and claims for uncertain amounts.
. Thus, the rules set forth in sections 1005.1 and 1005.2 first establish their overall applicability and then set out the manner and form in which loss and damage claims must be filed by claimants in order to accomplish the improvements shown to be required in the public interest in this area.
Ex Parte No. 263, supra, 340 I.C.C. at 55-56.
It appears, therefore, that the ICC intended to promulgate regulations that would apply generally to all claims and we can perceive no lack of statutory authority vested in the Commission which would frustrate it from fulfilling its intention. See discussion of statutory and case law basis for the Commission’s authority to promulgate these regulations in Ex Parte No. 263, supra. 340 I.C.C. at 542-46.
. The ICC itself was well aware of the limits of its jurisdiction in this area: “This Commission has consistently held that it does not have jurisdiction to determine the merits or the measure of damages of particular loss and damage claims, those being cognizable only in the courts.” Ex Parte No. 263, supra, 340 I.C.C. at 539.
In an attempt to remedy this lack of jurisdiction, the ICC proposed certain legislation that would have conferred on the Commission original jurisdiction to adjudicate the merits of loss and damage claims. See Ex Parte No. 263, supra, 340 I.C.C. at 588-97, 721-22. Congress, however, did not follow the Commission’s recommendation and declined to enact the necessary enabling legislation.
. See, e. g., § 1005.3(b) (carrier must create individual file and assign file number to claim upon receipt of same); § 1005.3(a) (carrier shall acknowledge receipt of claim within 30 days of receiving same); § 1005.5 (carrier shall pay, decline, or make firm settlement offer in writing to claimant within 120 days after receipt of claim).
. Had any conduct on the part of Penn Central misled Pathway Bellows into believing that there was no need to file a claim, or that the letter of May 12, 1975 was sufficient to constitute a claim, Penn Central might be held es-topped from insisting on Pathway Bellows’s compliance with the timely written claim requirement contained in the bill of lading. See, e. g., Perini-North River Associates v. Chesapeake & O. Ry., 562 F.2d 269, 272-73 (3d Cir. 1977). Similarly, if Pathway Bellows could not, in the exercise of reasonable diligence, have ascertained the extent of its loss within the 9 month claim filing period, untimely filing of a completed claim might be viewed as excusable. See ex Parte No. 263, supra, 340 I.C.C. at 554-55.
Nothing in the present case, however, indicates that the reason for the untimely submission of Pathway Bellows’s claim was attributable to either of these factors or to any factors beyond Pathway Bellows’s control. | 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. | 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? | [
"agriculture",
"mining",
"construction",
"manufacturing",
"transportation",
"trade",
"financial institution",
"utilities",
"other",
"unclear"
] | [
9
] | songer |
Eugene RICE, Petitioner-Appellee, v. Ronald C. MARSHALL, Respondent-Appellant.
No. 86-3408.
United States Court of Appeals, Sixth Circuit.
Argued Jan. 30, 1987.
Decided April 24, 1987.
Cordelia A. Glenn, Asst. Atty. Gen., Columbus, Ohio, Beverly Yale (argued), for respondent-appellant.
Michael G. Dane (argued), Cleveland, Ohio, for petitioner-appellee.
Before LIVELY, Chief Judge, and JONES and GUY, Circuit Judges.
LIVELY, Chief Judge.
This habeas corpus action concerns a claim of ineffective assistance of counsel on the part of an attorney who overlooked the collateral estoppel rule enunciated by the Supreme Court in Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970). After conducting an evidentiary hearing the magistrate filed a report in which he recommended granting the writ. The district court adopted the magistrate’s recommendation and declared the petitioner’s conviction void, while acknowledging the right of the state to retry him within a reasonable time. Since the petitioner had served more than four years in prison as a result of this conviction the district court ordered his immediate release. The state has appealed.
I.
A.
Eugene Rice was indicted by a grand jury of Summit County, Ohio on March 11, 1982. The indictment contained three charges, all growing out of an incident that occurred on February 24, 1982. Rice was charged with rape (Count 1), kidnapping (Count 2), and having a weapon while under disability (Count 3). Rice pled not guilty and went to trial with retained counsel on May 17, 1982. At the conclusion of the trial the jury found Rice not guilty of Count 3, the weapon charge, but it failed to reach a verdict on the other two counts. The state trial court declared a mistrial, and at the prosecution’s request, set the case for retrial on the two charges that had resulted in a hung jury.
Rice was unable to pay his attorney for a second trial and the trial court relieved the retained attorney and appointed a member of the local bar to defend Rice. The court made this appointment on June 16, 1982 and scheduled the second trial for July 26. At the conclusion of the second trial the jury found Rice guilty of rape and kidnapping, and he was sentenced to consecutive, lengthy prison terms.
B.
At the first trial Rice admitted a prior felony conviction for aggravated robbery which created a disability that made it illegal for him to possess a weapon. Ohio Revised Code (ORC) § 2923.13(A)(2). The evidence concerning the charges of kidnapping and rape was similar at the two trials. The complaining witness, who was 19 years old, testified that late in the afternoon of February 24 she was walking along a street in Akron, on her way to a store. She said that Rice pulled alongside her in a car, pointed a gun at her and told her to get into the car or he would kill her. She described the gun as a black revolver with a long barrel. The witness testified that she entered the car and that Rice drove to a vacant lot behind a church where he threatened to kill her if she did not have intercourse with him. She testified that he held the gun in his hand while he was driving and was still holding it when he told her to remove her clothes. The witness testified that Rice told her he had killed a lot of people “in the war” and that it would not bother him to kill her. She said she struggled to avoid being raped, and tried to get out of the car, but that the knob on the inside lock on the passenger side had been removed. The witness stated that Rice never struck her, but did hold her down when she tried to fight him off. No weapon was produced at either trial.
Rice’s appointed attorney at the second trial did not move to suppress evidence of the revolver or object to such evidence during the testimony of the complaining witness or that of an investigating police officer. He also made no objection to references to a gun in opening statement and closing arguments of the prosecutor. Rice did not testify at the second trial, but his attorney attempted to establish by cross-examination of the complaining witness that she had agreed to have sex with Rice in exchange for money and that she was angry when he refused to pay after the act was completed. Rice had testified at the first trial that he offered the complaining witness fifty dollars when he picked her up and that he refused to pay her after they had intercourse. The attorney at the second trial attempted to attack the complaining witness’s credibility, particularly with respect to the presence of a weapon.
C.
Following Rice’s conviction his attorney appealed to the Ohio Court of Appeals, raising the single issue of sufficiency of the evidence. The court of appeals reviewed the evidence, remarking that the victim was abducted at gun point, that there were repeated threats to kill her, and that she struggled and attempted to escape. From this review of the evidence the court of appeals concluded that the evidence was sufficient to show “force and involuntary submission rather than consent,” and affirmed. Counsel did not seek review in the Ohio Supreme Court.
In January 1983 Rice filed a petition for relief after judgment, proceeding pro se. Ineffective assistance of counsel was raised- as an issue in this petition; Rice cited both the Constitution of the United States and the Constitution of Ohio. The trial judge entered findings of fact and conclusions of law in denying the petition. With respect to the issue of effectiveness of counsel the court found that under all the circumstances Rice had a fair trial, citing Ohio cases making this the test. The Ohio Court of Appeals affirmed denial of relief and Rice petitioned the Supreme Court of Ohio for review. In his memorandum in support of jurisdiction Rice relied on the double jeopardy guarantee of the Fifth Amendment and claimed a violation as follows:
Attorney Ciccolini’s failure to file any pre-trial Motions pursuant to Criminal rule 12, or any other under the criminal rules of procedure in Ohio resulted in appellant being twice placed in jeopardy for the same offense.
The failure to (sic) attorney Ciccolini to file a motion to suppress or object to the statements that appellant had a gun by, Officer Bennett, Diana Barkley (the complaining witness), Detective Constos and
even Prosecutor Robert Bulford constituted prejudicial error, and rendered the trial as a whole fundamentally unfair.
In its memorandum opposing jurisdiction the state responded to the double jeopardy contention as follows:
Lastly, Appellant argues that defense counsel was ineffective in that he did not file a motion to suppress the testimony of Officer Bennet, Diana Barkley, and Det. Contos in regard to Appellant having a gun.
The State asserts that the trial court did not err in denying Appellant an evidentiary hearing on his post-conviction relief motion.
The State contends that Appellant failed to meet his initial burden to submit “evidentiary documents containing sufficient operating facts” to support his claim of ineffective assistance of counsel. A criminal defendant is not automatically entitled to such a hearing. State v. Jackson, 64 Ohio St.2d 107 [413 N.E.2d 819] (1980). The claim of ineffective assistance of counsel does not always require a hearing. Appellant’s bare, general, conclusory allegations are entirely unsupported and “without meaning absent a showing that this (alleged) action as it pertains to this case was a violation of the defense counsel’s duty to his client.” State v. Nabozny, 54 Ohio St.2d 195 [375 N.E.2d 784] (1978).
Where as here, Appellant submits nothing more than his own unsupported conclusory allegations, the State contends that an evidentiary hearing should be denied, Jackson, Nabozny, and that, therefore, the appellate court’s decision should be affirmed.
The state did not contend that counsel for Rice had waived the defense of double jeopardy by failing to object to the evidence of the weapon or by not moving to have it suppressed. Instead, the state argued that Rice had failed to support his pro se claim of ineffective assistance of counsel with evidentiary documents. Thus, the state did not rely on a procedural default by trial counsel as a ground for denying post trial relief. The Supreme Court of Ohio denied review, dismissing the appeal “for the reason that no substantial constitutional question exists herein.”
II.
In his pro se petition in the district court Rice again relied on a claim of ineffective assistance of counsel, referring specifically to his attorney’s failure to prevent the admission of evidence concerning a weapon at the second trial. In its “return of writ” the state argued the merits of the ineffective assistance claim and the law of double jeopardy. It did not raise the issue of counsel's procedural default. The magistrate found that counsel’s failure to object or to seek suppression of evidence of the weapon constituted a procedural default which would foreclose consideration of the double jeopardy issue unless “cause” and “prejudice” were established, citing Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). The magistrate then found that the appointed attorney had rendered ineffective assistance which constituted cause for the procedural default, and that Rice was clearly prejudiced by his attorney’s deficient performance.
The magistrate erred in requiring Rice to demonstrate cause and prejudice. The Court made it clear in Wainwright v. Sykes that the cause and prejudice requirement for federal review of a state conviction where a procedural default has occurred is based upon considerations of comity. Considerations of comity do not require a federal court to abstain from deciding a constitutional claim on grounds of procedural default where the state courts have not enforced a given state procedural rule. As we pointed out in McBee v. Grant, 763 F.2d 811, 813 (6th Cir.1985), “[t]he cause and prejudice standard is not applied, however, when the state court overlooks the procedural default and instead disposes of the issue on the merits.” See also Raper v. Mintzes, 706 F.2d 161, 163 (6th Cir.1983) (“In such a case, the rationale of Sykes is inapplicable since the state itself has chosen not to apply its procedural rules so as to bar the claim and the state has had the first opportunity to address the constitutional question.”); Hockenbury v. Sowders, 620 F.2d 111, 115 (6th Cir.1980), cert. denied, 450 U.S. 933, 101 S.Ct. 1395, 67 L.Ed.2d 367 (1981) (“the failure to comply with a state’s contemporaneous objection requirement cannot be deferred to as a separate and independent procedural ground precluding federal review if the state itself did not preclude review on the basis of that requirement.”).
The record makes it clear that this is not a case for application of the cause and prejudice requirement. The Ohio courts had several opportunities to deny review on the basis of counsel’s failure to make a contemporaneous objection to introduction of the evidence that Rice had a weapon in his possession during the events of February 24, 1982 and chose not to enforce the state’s procedural requirements.
IIL
We turn now to the merits of Rice’s claim of ineffective assistance of counsel.
A.
At the evidentiary hearing before the magistrate, the attorney who defended Rice at the second trial acknowledged familiarity with the concepts of double jeopardy and collateral estoppel. He testified that he knew there had been evidence of a weapon at the first trial and that Rice had been acquitted of the charge of possessing a weapon while under disability. While he had heard of Ashe v. Swenson, he did not believe it applied since Rice was not being tried a second time on the charge of which he had been acquitted previously. The attorney stated that he attempted to emphasize features of the complaining witness’s testimony that impaired her credibility, believing that if the jury found her unbelievable in any respect they would easily disregard evidence of the presence or use of a revolver.
It did not occur to the attorney that Rice’s acquittal of the weapon charge at the first trial would foreclose testimony at the second trial that the defendant had used a gun to force the complaining witness into the car. He testified further that there was other evidence of force and threats of force sufficient to satisfy these elements of the kidnapping and rape charges. He chose to attack the complaining witness’s version of what happened after she entered the car rather than her story of why she entered it in the first place.
B.
In Ashe v. Swenson the Supreme Court held that collateral estoppel is “an established rule of federal criminal law.” 397 U.S. at 443, 90 S.Ct. at 1194. The Court defined collateral estoppel as follows:
It means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.
Id. The application of this rule in criminal cases was described as follows:
The federal decisions have made clear that the rule of collateral estoppel in criminal cases is not to be applied with the hypertechnical and archaic approach of a 19th century pleading book, but with realism and rationality. Where a previous judgment of acquittal was based upon a general verdict, as is usually the case, this approach requires a court to “examine the record of a prior proceeding, taking into account the pleadings, evidence, charge, and other relevant matter, and conclude whether a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration.” The inquiry “must be set in a practical frame and viewed with an eye to all the circumstances of the proceedings.” Sealfon v. United States, 332 U.S. 575, 579, 68 S.Ct. 237, 239, 92 L.Ed. 180. Any test more technically restrictive would, of course, simply amount to a rejection of the rule of collateral estoppel in criminal proceedings, at least in every case where the first judgment was based upon a general verdict of acquittal.
Id. at 444, 90 S.Ct. at 1194 (footnotes omitted).
The magistrate reasoned in this case that the first jury had necessarily found that Rice did not have a gun when the incidents of February 24, 1982 occurred since he admitted a prior felony conviction and the jury acquitted him of having a weapon while under disability resulting from such a felony conviction. He concluded that “[a] rational jury could have grounded its verdict of acquittal only upon the issue of whether the petitioner knowingly had or used a gun on the day in question.” The magistrate further found that it was unreasonable for Rice’s attorney not to have objected to evidence that a gun was used and not to have moved to suppress this evidence “since a lawyer of ordinary skill and training” would have filed such a motion. He found that there was prejudice because consideration of all the evidence demonstrated a “reasonable probability that but for counsel’s failure to suppress the gun testimony the result of the second trial would have been different.” Thus, Rice was convicted in violation of the constitutional guarantee against double jeopardy because of his attorney’s deficient performance at trial.
IV.
On appeal the state argues that it was not necessary to prove that Rice had a weapon at the time of the occurrences involving the complaining witness, but only that she was detained and compelled to engage in sexual intercourse by the use of force or threat of force. The trial court charged the jury at the second trial that “[tjhreat of such force includes direct threat or threat by innuendo.” The state seeks to avoid the application of Ashe v. Swenson by arguing that when the testimony concerning use of a weapon during the encounter with the complaining witness is excluded, there is sufficient other evidence of force and threats of force to support a guilty verdict on rape and kidnapping charges. This being so, the state argues collateral estoppel did not bar the handgun evidence and there was no basis for finding the attorney’s performance deficient. This argument misses the point, as it concerns sufficiency of the evidence rather than the constitutional claim now before us.
The state maintains that no error by Rice’s attorney was so egregious as to deprive Rice of “counsel” within the meaning of the Sixth Amendment. United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984). Thus, it argues, the issue is one of effective assistance of counsel, not deprivation of counsel. We agree. Turning to the question of the effectiveness of counsel, the state argues that the attorney was familiar with double jeopardy principles, but reasonably did not believe they applied, and pursued tactics at trial that he felt were more likely to create doubts in the minds of the jury rather than concentrating on whether or not Rice had a weapon. The state relies particularly upon the following statement in Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 2065, 80 L.Ed.2d 674 (1984):
Judicial scrutiny of counsel’s performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel’s assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. Cf. Engle v. Isaac, 456 U.S. 107, 133-134 [102 S.Ct. 1558, 1574-1575, 71 L.Ed.2d 783] (1982). A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action “might be considered sound trial strategy.” See Michel v. Louisiana, supra, [350 U.S. 91] at 101 [76 S.Ct. 158, at 164, 100 L.Ed. 83 (1955)].
The petitioner responds that any reasonably competent attorney would have recognized the double jeopardy implications of the evidence of a weapon at the second trial, and that appointed counsel’s performance was seriously deficient. Relying on Strickland he argues that the magistrate correctly found that there was more than a reasonable probability that the result of the second trial would have been different if the evidence of a gun had been excluded. Rice points out that the complaining witness was never struck or beaten and that she claimed he was holding the gun when he threatened her life. Without evidence of a weapon there would have been no credible evidence of force or threats of force.
V.
Ashe v. Swenson concerned the robbery of six individuals involved in a poker game. Ashe was tried initially for robbing one of the players and acquitted. Later he was tried for robbing a different player and convicted. Both trials involved the same robbery, but the state “refined” its evidence at the second trial. The Supreme Court found that the situation was “constitutionally no different” than if the state had sought to try Ashe again with stronger identification evidence, for robbery of the player named as the victim at the first trial. 397 U.S. at 446, 90 S.Ct. at 1195.
The present case differs factually from Ashe v. Swenson. Here there was no attempt to resurrect the weapon charge for which Rice had been acquitted. He was retried only on charges that resulted in a hung jury at the first trial, a practice that does not result in double jeopardy. No doubt this is what threw counsel off. The attorney testified that he investigated a possible double jeopardy defense based on the similarity and simultaneous happening of the events involved in the kidnapping and rape charges. Nevertheless, he failed to appreciate the fact that Rice’s acquittal of the weapon charge constituted a finding that he did not have a gun and precluded the introduction of contrary evidence at the subsequent trial. Since Rice’s prior felony conviction had been stipulated at the first trial, thus establishing his disability, the only issue presented by the weapon charge was whether Rice did in fact have a weapon in his possession during the encounter with the complaining witness. We do not perceive how “a rational jury could have grounded its [not guilty] verdict upon an issue other than” the possession of a weapon at that time. Ashe v. Swenson, 397 U.S. at 444, 90 S.Ct. at 1194.
Indulging the presumption of effective representation mandated by Strickland, 466 U.S. at 689, 104 S.Ct. at 2065, does not lead to a different conclusion. Rice’s appointed attorney forthrightly stated at the evidentiary hearing that it did not occur to him that acquittal of the weapon charge would foreclose the admission of testimony about a gun at the second trial. This being the case, his failure to seek exclusion of that evidence cannot be attributed to trial tactics. His strategy of seeking to question the complaining witness’s credibility would not have ruled out an effort to exclude the evidence of a gun. The two objectives would not have been inconsistent.
Having concluded that counsel’s representation was deficient, the further conclusion that Rice was prejudiced is inescapable. While there was some evidence of other force and threats of force, testimony about the presence of the gun and the way it was handled and brandished was far more pervasive and direct. It is at least reasonably probable that a jury which heard all the other evidence at the second trial, but none of the evidence concerning the presence or use of a gun, would have failed to convict Rice.
The judgment of the district court is affirmed. | 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". | In what state or territory was the case first heard? | [
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] | [
35
] | songer |
Lois Elaine WILSON, Plaintiff-Appellant, v. BICYCLE SOUTH, INC., a Georgia Corporation, et al., Defendants-Appellees.
No. 89-8522.
United States Court of Appeals, Eleventh Circuit.
Oct. 30, 1990.
Robert H. Benfield, Jr., Middleton & Anderson, Atlanta, Ga., for Lois Elaine Wilson.
Stephen F. Dermer, Smith Gambrell & Russell, Atlanta, Ga., for Trek Bicycle.
Jonathan Mark Engram, Swift Currie McGhee & Hiers, Atlanta, Ga., for Bicycle South.
Tommy T. Holland, Christopher N. Shu-man, Carter & Ansley, Atlanta, Ga., for Opportunities, Inc.
Palmer H. Ansley, David A. Sapp, Long Weinberg Ansley & Wheeler, Atlanta, Ga., for Skid Lid.
Before CLARK, Circuit Judge, MORGAN and HILL , Senior Circuit Judges.
See, Rule 34-2(b), Rules of the U.S. Court of Appeals for the Eleventh Circuit.
HILL, Senior Circuit Judge:
I. INTRODUCTION
This appeal concerns a products liability action based upon alleged breach of warranty, strict liability, and negligence resulting in injuries to Lois Elaine Wilson (“Wilson”), appellant. Wilson incurred head injuries during an accident in Georgia while on a cross-country bicycle trip. The jury returned a verdict in favor of Wilson and against one defendant on a bicycle helmet defect claim, and against Wilson and in favor of three defendants on a bicycle wheel defect claim. The district court granted a judgment notwithstanding the verdict on the helmet claim. Plaintiff appeals this grant and also alleges several other errors by the district court concerning the bicycle wheel claim.
A. Issues Presented
Appellant raises four distinct categories of issues on appeal. First, appellant claims that the district court erred in granting appellee Skid Lid Manufacturing Company’s (“Skid Lid”) motion for a judgment notwithstanding the verdict. Second, appellant contends that the district court improperly commented on the evidence. Third, she asserts that the district court committed reversible error by refusing to admit “similar accident” evidence. Finally, appellant maintains that the district court erred in charging the jury on the defense of “legal accident.”
We hold that the trial court did not err in granting the JNOV. Nor do the trial judge’s comments on the evidence provide cause for reversal. Similarly, we find appellant’s third and fourth contentions to be meritless.
B. Factual and Procedural History
On January 6, 1983, appellant purchased a Trek 614 touring bicycle. Trek Bicycle Corporation (“Trek”) manufactured the bicycle, Opportunities, Incorporated (“Opportunities”) assembled the bike’s rear wheel according to Trek’s specifications, and Bicycle South, Inc. (“Bicycle South”) sold the bike to appellant. The latter three parties will be referred to collectively as “the bicycle defendants.” On February 9, 1983, appellant also purchased, from a company not a party to this lawsuit, a bicycle helmet manufactured by Skid Lid. Rather than purchase a helmet covering her entire head, appellant chose one that only covered the top half of her head, coming down to about the top of her ears.
Wilson purchased the bike and helmet for a cross-country bicycling trip from Florida to California. Eight days into her trip, on April 23, 1983, Wilson sustained head injuries in a fall from the bicycle while she was riding downhill on a two-lane Georgia highway between Plains and Americus, Georgia. Between January 6 and April 23, Wilson had ridden approximately 1200 to 1600 miles on the bicycle.
The cause of appellant’s fall is disputed by the parties. Appellant maintains that the rear wheel collapsed into a saddle-like shape as a result of an improper manufacturing process and a failure to retrue the spokes of the wheel after the rim was assembled. Under this theory, the tension in the wheel, which was not released after the rim was formed and the wheel assembled, caused the spokes to loosen after use and led to the collapse. The bicycle defendants, on the other hand, maintain that the fall did not result from the wheel collapse, but that the wheel collapsed as a result of appellant’s fall from the bike.
The point of initial impact between Ms. Wilson’s head and the pavement was behind her left ear and below the edge of the helmet. As a result of the impact, she claims that she sustained three injuries. The first two, a basilar skull fracture and occipital scalp laceration, were not particularly serious and do not comprise the more serious damage. The more serious injury was a “contre-coup” (an injury to the opposite side of the head from the point of initial impact) brain contusion.
Alleging defects in the bicycle wheel and helmet, Ms. Wilson filed a complaint in this products liability action based upon breach of warranty, strict liability, and negligence. During the trial, appellant attempted to introduce evidence of a prior bicycle wheel defect claim brought by another party against Trek, Opportunities, and another bicycle store, alleging that the incidents were substantially similar. The trial court excluded the earlier incident.
At the beginning of his charge, the trial judge explained to the jury:
As a federal judge, I have the right, power, and duty to comment on the facts, to express my opinion with respect thereto ... but remember, in the last analysis, every factual issue in this case must be decided by you, by you alone, and anything that anybody else in this room says about the facts is a mere opinion, not binding upon you.
Subsequently, referring to witness testimony, the judge again emphasized that “as sole judges of the facts, you, the jury, and you only, must determine which of the witnesses you believe and what portion of their testimony you accept and what weight you attach to it.” Prior to analyzing and giving his opinion of the evidence that Ms. Wilson presented, the judge again cautioned the jury that “you, as jurors, are at liberty to disregard each, every, and all comments of the court in arriving at your own findings of the facts.” At the conclusion of his remarks, the trial judge further emphasized:
Let me stress as strongly as I can that you, the jury, are the sole and only judges of the facts. The past several minutes I have been giving you my opinion with respect to matters committed solely to your decision, not mine. My comments are and can only be expressions of a personal opinion and are not binding on you in any way, shape, or form. Remember that in considering every issue in this case, including those to which I have just alluded, you must resort to your own recollection of the evidence, not that which I have just stat-ed_ You must, in the diligent performance of your duty, rely on your recollection of all the evidence and not merely that which I may have called to your attention and emphasized.
On April 13, 1989, the jury returned a verdict in favor of appellant against appel-lee Skid Lid in the amount of $265,000 on the helmet claim. On the bicycle wheel claim, the jury returned a verdict against appellant and in favor of the bicycle defendants.
On April 21, 1989, appellee Skid Lid moved for a judgment notwithstanding the verdict, and on May 24 the trial court entered an Order granting the motion. The court did so because it found that Ms. Wilson had “assumed the risk of injury as to parts of her body patently not covered by the helmet.”
II. DISCUSSION
A. The Helmet & the Judgment Notwithstanding the Verdict
We review the district court’s grant of a JNOV under the same standard as the district court used in determining whether to grant a JNOV. As we stated in Castle v. Sangamo Weston, Inc., 837 F.2d 1550, 1558 (11th Cir.1988):
All of the evidence presented at trial must be considered “in the light and with all reasonable inferences most favorable to the party opposed to the motion.” A motion for judgment n.o.v. should be granted only where “reasonable [people] could not arrive at a contrary verdict. ...” Where substantial conflicting evidence is presented such that reasonable people “in the exercise of impartial judgment might reach different conclusion, [sic]” the motion should be denied, (citations omitted)
In applying this standard for the sufficiency of evidence, we also look to Georgia substantive law to determine whether Skid Lid deserved judgment as a matter of law. See Erie v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938); Salter v. Westra, 904 F.2d 1517, 1524 (11th Cir.1990).
Defendants in products liability actions have asserted two similar defenses in attempting to steer clear of liability, assumption of the risk and the “open and obvious rule.” While the trial judge in this case based the JNOV on assumption of the risk, we also address the open and obvious rule because affirmance of the JNOV is proper even if based on a different rationale. See Paisey v. Vitale, 807 F.2d 889, 890 (11th Cir.1986).
We need not reach the assumption of the risk issue if the helmet was not defective because Skid Lid would have breached no duty to Ms. Wilson. We thus initially address the open and obvious rule. The open and obvious rule states that a product is not defective if the peril from which injury could result is patent or obvious to the user. Stodghill v. Fiat-Allis Construction Machinery, Inc., 163 Ga. App. 811, 295 S.E.2d 183, 185 (1982). This determination regarding the peril is made on the basis of an objective view of the product. Weatherby v. Honda Motor Co., Ltd., 195 Ga.App. 169, 393 S.E.2d 64, 66 (1990) (certiorari denied June 21, 1990). In assessing what is obvious, it must be remembered that, contrary to the belief of some, the American public is not child-like. Stodghill is instructive in this respect. In Stodghill, the plaintiff was using a bulldozer manufactured by the defendants to clear felled trees from a construction site when a tree jumped over the bulldozer blade and struck him in the chest. The plaintiff claimed that the machine was defective because it had no protective metal cage surrounding the driver’s seat. The Georgia Court of Appeals recognized that the plaintiff “was obviously aware that the bulldozer he was operating had no protective cage and that the absence of this safety device exposed him to the danger of being injured by anything which might strike the driver’s compartment.” Id. 295 S.E.2d at 184. The court concluded that
“[bjecause the failure of the appellees in this case to install a protective cage over the driver’s seat of the bulldozer was an obvious characteristic of the machine which created no hidden peril and did not prevent the machine from functioning properly for the purpose for which it was designed, it cannot reasonably be considered a design or manufacturing defect under Georgia law.”
Id. at 185.
Similar to the absence of the protective cage on the bulldozer, it is or should be apparent to one who purchases an article of clothing or protective gear that the article can only protect that portion of the body which is covered. A person purchasing a bullet proof vest cannot realistically claim that he expected it to protect him from a bullet in the leg. Likewise, one purchasing a sleeveless t-shirt cannot protest that it should have protected him from a scrape on the arm. In the case at bar, rather than selecting a helmet covering her entire head, appellant elected to purchase a helmet that she knew covered only the top half of her head. She did know, or certainly should have known, that the helmet with less extensive coverage would not protect her from an impact to an area not covered by the helmet. Unlike a full helmet, the half-helmet was not designed to protect against impacts anywhere on the head. The extent of coverage was “an obvious characteristic of the [helmet] that created no hidden peril and did not prevent the [helmet] from functioning properly for the purpose for which it was designed.” Stodghill, 295 S.E.2d at 185. We thus find, as a matter of law, that the helmet was not defective under Georgia law.
Even if the failure to cover the full head were a defect, it is still beyond peradventure that appellant assumed the risk of injury to the parts of her body patently not covered by the helmet. Under Georgia law, “ ‘[i]f the user or consumer discovers the defect and is aware of the danger, but nevertheless proceeds unreasonably to make use of the product, he is barred from recovery.’ ” Center Chemical Co. v. Parzini, 234 Ga. 868, 870, 218 S.E.2d 580 (1975) (citation omitted). The first part of the test, actual knowledge of the defect and danger, is fulfilled because appellant had subjective knowledge that the helmet she purchased only covered a portion of her head. Had appellant, somehow, been unaware that the helmet only partially covered her head, the result might be different. As counsel for appellant admitted at oral argument, however, there is no evidence that she thought the helmet covered more of her head than it did cover, or that she believed it would protect her from injury to parts of her body not covered. Nor do we find, after our careful review of the transcript, any testimony to that effect. As for the second portion of the test, unreasonable use, it seems axiomatic to say that it is unreasonable to use a helmet to protect a portion of the body that the helmet clearly does not cover.
In sum, the district judge properly granted appellee Skid Lid’s motion for a JNOV.
B. Comments on the Evidence
At the close of the case, the district judge employed the time-honored, though little used, right and duty of a federal trial judge to comment on the evidence. As the Supreme Court stated in Quercia v. United States, 289 U.S. 466, 469, 53 S.Ct. 698, 698-99, 77 L.Ed. 1321 (1932):
In a trial by jury in a federal court, the judge is not a mere moderator, but is the governor of the trial for the purpose of assuring its proper conduct and of determining questions of law. (citation omitted) In charging the jury, the trial judge is not limited to instructions of an abstract sort. It is within his province, whenever he thinks it necessary, to assist the jury in arriving at a just conclusion by explaining and commenting upon the evidence, by drawing their attention to the parts of it which he thinks important; and he may express his opinion upon the facts, provided he makes it clear to the jury that all matters of fact are submitted to their determination, (citations omitted) Sir Matthew Hale thus described the function of the trial judge at common law: “Herein he is able, in matters of law emerging upon the evidence, to direct them; and also, in matters of fact to give them a great light and assistance by his weighing the evidence before them, and observing where the question and knot of the business lies, and by showing them his opinion even in matters of fact; which is a great advantage and light to laymen, (citation omitted)
The trial judge will not be reversed unless his comments “excite a prejudice which would preclude a fair and dispassionate consideration of the evidence.” Id. at 472, 53 S.Ct. at 700. See also United States v. Hope, 714 F.2d 1084, 1088 (11th Cir.1983) (“[a] trial judge may comment upon the evidence as long as he instructs the jury that it is the sole judge of the facts and that it is not bound by his comments and as long as the comments are not so highly prejudicial that an instruction to that effect cannot cure the error”). It is only where this prejudice exists that the substantial rights of the parties are affected and Fed. R.Civ.P. 61 permits disturbing a judgment. In assessing whether this prejudice exists and has affected the parties’ substantial rights, we consider the record as a whole and not merely isolated remarks. See Newman v. A.E. Staley Mfg. Co., 648 F.2d 330, 334-335 (5th Cir. Unit B June 1981). “[T]he test is not whether the charge was faultless in every particular but whether the jury was misled in any way and whether it had understanding of the issues and its duty to determine those issues.” Bass v. International Bhd. of Boilermakers, 630 F.2d 1058, 1065 (5th Cir.1980) (citations omitted).
Appellants allege that the district judge went too far in commenting on the evidence and on the testimony of their expert, Mr. Green. We do not doubt that a trial judge could misuse his authority. After careful review of the record, however, while we are not prepared in this case to suggest the outside limits on a trial judge’s comments, we are satisfied that the district judge here did not overstep his bounds. As recounted in Part I.B. of this opinion, he went to great lengths to assure that the jury understood that it was the sole fact-finder in the case. When his remarks are considered in their entirety, on the facts of this case we find no prejudice affecting the substantial rights of the parties.
In the course of his remarks, appellant also contends that the trial judge improperly restricted her case to the testimony of her one expert, Mr. Green. In stressing the importance of Mr. Green’s testimony to appellant’s case, the judge stated as follows:
In this case, as in every case, there are the two big main issues: one, liability, and, two, the amount of any damages proximately flowing therefrom. The plaintiff has the burden of proving each and every element of the plaintiff's case. The plaintiff’s entire case here, and in meeting the elements which must be proved, rests upon the expert testimony, that is, the expert opinion, of Mr. Green. Except for Mr. Green’s testimony, the plaintiff has not made out a case of liability. With Mr. Green’s testimony, the plaintiff has made out a legal case on liability; therefore, the court suggests that the first, immediate, and crucial issue in the case for you to determine is the credibility or the believability of Mr. Green.
After studying the record, we find no merit in appellant’s contention. We are. inclined to agree with the trial judge that, without Mr. Green, the case would not have been one for the jury.
In sum, we find that on the facts of this case the trial judge’s comments to the jury, when taken as a whole, neither excited a prejudice affecting the substantial rights of the parties nor incorrectly instructed the jury-
C. The Allegedly Similar Accident
Appellant argues that the trial court erred by refusing to admit evidence of the collapse of another wheel manufactured by appellees Trek and Opportunity. Appellant sought to show appellees’ notice of a defect in the wheel, the magnitude of the danger, appellees’ ability to correct a known defect, the lack of safety for intended purposes, the strength of the product, the standard of care, and causation.
The trial judge denied the proffer on the grounds that the evidence was not probative because of the necessity for a considerable amount of extrinsic evidence to determine whether the incidents were sufficiently similar to meet the standards of Fed.R. Evid. 403. A trial judge has broad discretion over the admission of evidence, Borden, Inc. v. Florida East Coast Ry. Co., 772 F.2d 750, 754 (11th Cir.1985), and we find that the district judge did not abuse his discretion.
D. The Charge on “Legal Accident”
In his instructions to the jury, the judge included a charge on “legal accident.” To determine whether such a charge is appropriate, we first look to Georgia substantive law. See Erie v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938); McCullough v. Beech Aircraft Corp., 587 F.2d 754, 759 (5th Cir.1979). Georgia law permits a charge on “legal accident” where there is evidence in the record authorizing a finding that the occurrence was an “accident.” Chadwick v. Miller, 169 Ga.App. 338, 344, 312 S.E.2d 835, 840 (1983). Where appropriate, the charge is valid in a products liability case. Kemp v. Bell-View, Inc., 179 Ga.App. 577, 579, 346 S.E.2d 923, 926 (1986).
Because the manner of giving jury instructions is procedural rather than substantive, it is governed by federal rather than state law. McCullough, 587 F.2d at 759. In reviewing alleged errors in jury instructions, we must determine whether the trial court’s charge, considered as a whole, “sufficiently instruct[s] the jury so that the jurors understand the issues involved and are not misled.” Mark Seitman & Assocs., Inc. v. R.J. Reynolds Tobacco Co., 837 F.2d 1527, 1531 (11th Cir.1988) (citation omitted). We will only reverse if we are left with “a substantial and ineradicable doubt as to whether the jury was properly guided in its deliberations.” Id. (citation omitted).
After careful review, we find evidence in the record that supports a charge on legal accident as defined by Georgia law. We are therefore satisfied that the district judge properly guided the jury with respect to this issue.
III. CONCLUSION
For the foregoing reasons, we AFFIRM the judgment of the district court.
. The actual cause of the fall does not affect the issues currently before this Court.
. The trial judge focused especially on items of derogatory information with respect to appellant’s expert, Mr. James Green.
. This rule is also known as the "patent danger rule” and has its roots in a New York decision involving negligence law, Campo v. Scofield, 301 N.Y. 468, 95 N.E.2d 802 (1950). New York later abandoned the rule in Micallef v. Miehle Co., 39 N.Y.2d 376, 384 N.Y.S.2d 115, 348 N.E.2d 571 (1976).
. We note that Georgia courts have been careful to avoid treating the American public as children where a peril is obvious or patent and the product thus not defective. In Weatherby, the five-year old plaintiff had been a passenger on an off-road motorcycle that did not have its gas cap in place. During the ride over uneven terrain, gasoline splashed from the open tank and ignited, causing burns to the plaintiff. The court found that an open fuel tank “surely suggests the possibility of spillage," that because the fuel tank is located above the engine “gravity can be anticipated to bring the spilled fuel in contact with the engine and spark plug,” and that the dangers of spilled gasoline coming into contact with an engine are generally known. 393 S.E.2d at 67. The court consequently concluded as a matter of law that the peril of an open fuel tank resting over the engine and its spark plug was "an obvious or patent peril," and that the product was thus not defective. Id. at 68.
. This test, in contrast to the open and obvious rule, looks to the subjective perceptions of the user or injured party. Another difference between assumption of the risk and the open and obvious rule is that while the latter places the burden of proof on the plaintiff, the former places it on the defendant. Weatherby, 393 S.E.2d at 66. See also Annotation, Products Liability: modern status of rule that there is no liability for patent or obvious dangers, 35 A.L.R. 4th 861, 865 (1985) (discussing open and obvious rule and the differences from assumption of the risk).
. Other circuits have adopted similar language regarding a trial judge’s right to comment on the evidence. See, e.g., White v. City of Norwalk, 900 F.2d 1421 (9th Cir.1990); Johnson v. Helmerich & Payne, Inc., 892 F.2d 422 (5th Cir.1990); Vaughn v. Willis, 853 F.2d 1372 (7th Cir.1988); United States v. Munz, 542 F.2d 1382 (10th Cir.1976), cert. denied, 429 U.S. 1104, 97 S.Ct. 1133, 51 L.Ed.2d 555 (1977); Mihalic v. Texaco, Inc., 377 F.2d 978 (3d Cir.1967); Meadows v. United States, 144 F.2d 751 (4th Cir.1944); A number of practitioners and commentators have also assessed the role of the judge in a jury trial. See, e.g., Bancroft, Jury Instructions, Communications, Juror Substitutions and Special/Partial Verdicts: Selected Topics — The Principal Law, 340 Prac.L.Inst. 611 (1987); Loeffler, Project — Seventeenth Annual Review of Criminal Procedure: United States Supreme Court and Courts of Appeals 1986-1987 (III. Tri al: Authority of the Trial Judge), 76 Geo.L.J. 986 (1988); Murphy, Errors in the Charge, 14 Litig. 39 (1988).
. Fed.R.Civ.P. 61 provides in part:
"No error ... is ground for granting a new trial ... unless refusal to take such action appears to the court inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.”
. Perhaps one of the best examples of a jury charge that would constitute an abuse of authority today, but was permitted prior to Quercia, is Judge Emory Speer’s eight and one-half hour, 92 page charge in United States v. Greene, 146 F. 803 (S.D.Ga.1906), cert. denied, 207 U.S. 596, 28 S.Ct. 261, 52 L.Ed. 357 (1907). In testimony before a congressional committee looking into the possibility of impeaching Judge Speer, Alexander Lawrence (one of Greene’s defense attorneys) characterized the judge and his charge as follows;
[H]e knows the jury, knows how to play on their passions, on their prejudices, as no living man that I have seen could do it; he has a faculty for marshalling evidence that I have never seen another living man able to marshal; and in that Greene & Gaynor case he charged that jury for eight hours and I will challenge any six prosecuting attorneys in the United States, from the Attorney General down, all of them together, to take that mass of testimony taking three months’ time that Judge Speer heard, and then put it down in as ingenious an argument against the defense as Judge Speer put it in that thing. It was a masterpiece of oratory, but a very poor thing when you come down to look at it from a judicial standpoint.
H.Res. 234, 63rd Cong., 2d Sess. (1914) (Minority Report of Representative Volstead).
Since, Quercia, many appeals courts have overturned cases where the trial judge has gone too far. See, e.g., Bentley v. Stromberg-Carlson Corp., 638 F.2d 9, 11 (2d Cir.1981) (trial judge’s comments to the jury gave all the arguments for the defendant, being "tantamount to directing a verdict” for defendant); McCullough v. Beech Aircraft Corp., 587 F.2d 754, 761 (5th Cir.1979) (trial judge’s mistaken assertions virtually destroyed appellant's circumstantial case, requiring reversal); Maheu v. Hughes Tool Co., 569 F.2d 459, 471-472 (9th Cir.1978) (trial judge’s comments amounted to “personal character reference” for witness and thus "went too far”).
.It seems that the jurors responded to the trial judge’s direction that they were the sole fact-finders. The judge brought to their attention that appellant’s expert had been prepared to testify that the helmet was defective because of one set of facts and then shifted his reasoning when that set of facts was disproven; nevertheless, the jury still awarded appellant $265,000 against the helmet manufacturer.
. The cause of the alleged similar incident had never been established because that case settled out of court. The parties in the instant case vigorously dispute the actual cause, demonstrating that even had the trial court reached the issue of whether the two incidents were similar this issue would have required a trial within a trial.
. Because of our.disposition of this issue, we need not reach the question of whether the two incidents were actually similar, and if so, whether the prior incident would have been properly excluded under Fed.R.Evid. 403.
. This portion of the charge reads as follows:
Now, let me tell you that the mere fact that an accident happened or an occurrence happened from which injury stemmed standing alone does not permit a jury to draw any inference that the occurrence was caused by anyone’s negligence or by any defect.
Now, I have used the word "accident” loosely, as I think is commonly the practice, is interchangeable with the word occurrence producing injury, but in Georgia law accidental injury means, in connection with personal injury actions such as this, any injury which occurs without being caused by the negligence either of the plaintiff or of the defendants. The idea of accident removes responsibility for the cause of the injury if found to have occurred by reason of a legal accident as defined under Georgia law, that is, one which is caused by the negligence neither of the plaintiff or the defendants.
It is necessary that you find from a preponderance of the evidence in this case, in order to find for the plaintiff, that the occurrence and/or resulting injuries were the result of defect and/or negligence and/or breach of warranty to the exclusion of legal accident, as I have defined that term to you, because the plaintiff has the burden of proof, as I will charge you later, to demonstrate by a preponderance of the evidence that the occurrence did, in fact, result from defect and/or negligence and/or breach of warranty, to the exclusion of legal accident.
.“Accident" is defined as "an occurrence which takes place in the absence of negligence and for which no one would be liable.” Chadwick, 169 Ga.App. at 344, 312 S.E.2d 835.
. Appellant cites Seaboard Coastline R.R. Co. v. Delahunt, 179 Ga.App. 647, 347 S.E.2d 627 (1986), for the proposition that a charge on "legal accident" can be given only where there is no evidence of negligence on the part of either party. The Georgia Court of Appeals recognized in Stiltjes v. Ridco Exterminating Co., 192 Ga.App. 778, 386 S.E.2d 696, 697 (1989), however, that Delahunt had misstated the law in Georgia. | 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". | From which district in the state was this case appealed? | [
"Not applicable",
"Eastern",
"Western",
"Central",
"Middle",
"Southern",
"Northern",
"Whole state is one judicial district",
"Not ascertained"
] | [
6
] | songer |
UNITED STATES of America v. Marvin W. THORNE, Appellant.
No. 72-1780.
United States Court of Appeals, District of Columbia Circuit.
Argued Oct. 30, 1975.
Decided Dec. 17, 1975.
Michael A. Kramer, Alexandria, Va., for appellant.
James M. Hanny, Asst. U.S. Atty., with whom Earl J. Silbert, U.S. Atty., John A. Terry and Stuart M. Gerson, Asst. U.S. Attys., were on the brief for appellee.
E. W. Cole, Washington, D.C., filed a brief amicus curiae.
Before TAMM and WILKEY, Circuit Judges, and LUMBARD, Senior Circuit Judge for the Second Circuit.
Sitting by designation pursuant to 28 U.S.C. § 294(d).
PER CURIAM:
Appellant Marvin W. Thorne and Jerome Fortney were charged in a seven-count indictment with two counts of armed robbery (22 D.C.Code §§ 2901, 3202), two counts of robbery (22 D.C. Code § 2901), two counts of assault with a dangerous weapon (22 D.C.Code § 502), and one count of possession of a prohibited weapon (22 D.C.Code § 3214(a)), all growing out of the May 19, 1971, robbery of a gasoline station and an off-duty employee of that station who was sleeping in a nearby automobile. Appellant was tried alone 2before a jury and was convicted on all counts. The trial court, the Honorable William B. Jones presiding, sentenced appellant to a prison term of eight to twenty-four years on each of the armed robbery counts, three to ten years on each of the assault counts, and one year on the count charging possession of a dangerous weapon. Appellant raises only two claims of any substance in this appeal. First, appellant contends that the trial court erred in refusing to charge the jury with a precautionary instruction relating to “an informer’s testimony” respecting the testimony of Fortney, the government’s principal witness, rather than with an instruction relating to the testimony of an accomplice. Secondly, appellant claims that the trial court improperly sentenced him as an adult in violation of the provisions of the Federal Youth Corrections Act, 18 U.S.C. § 5010. We find no merit in either of appellant’s claims and, accordingly, we affirm his conviction on all counts.
Appellant’s argument that the court erred in denying his request for an instruction on informer’s testimony is premised on the contention that Fortney occupied the dual status of accomplice and informer. We reject this contention. The definition of “informer” upon which appellant relies was not included in the 1966 version of the Criminal Jury Instructions available to the trial judge. Even if that definition had been available, we believe that the trial judge properly exercised his discretion in concluding that Fortney was more properly considered an accomplice than an informer. Moreover, we believe the comments of the trial judge and the instruction given adequátely cautioned the jurors and informed them of Fortney’s interest. During Fortney’s testimony, the court announced that
the witness Fortney has entered a plea of guilty in this court yesterday and was promised that the Government would move to dismiss the remaining counts of the indictment at the time of sentence on the plea of guilty to armed robbery.
In other words, he plead guilty to armed robbery and at the time of sentence, which isn’t yet, the Government will move to dismiss the remaining counts of the indictment.
Tr. 134. It was made clear to the jury that Fortney’s promise to testify was one of the conditions demanded in return for dismissal of the remaining counts against him. Counsel for appellant cross-examined Mr. Fortney concerning his motive for testifying. In addition, the court, sua sponte, then gave the following cautionary instruction:
Ladies and gentlemen, you just heard the testimony of Jerome Fortney. Jerome Fortney in law is known as an accomplice. An accomplice is anyone who knowingly and voluntarily cooperates with, aids, assists, advises or encourages another in the commission of a crime regardless of his — that is, the accomplice’s — degree of participation.
Accomplices in the commission of a crime are competent witnesses and the Government has the right to use them as a witness. The testimony of an accomplice should be received with caution and scrutinized with care. You should give it such weight as in your judgment it is fairly entitled to receive.
You should consider the motives of an accomplice in testifying and the circumstances under which his testimony is offered. You may convict a person accused of crime upon the uncorroborated testimony of an accomplice only if you believe that the testimony of the accomplice proves the guilt of the defendant beyond a reasonable doubt.
Tr. 146-47.
Under the circumstances, we find no reversible error in the decision of the trial judge refusing to instruct the jury concerning informer’s testimony.
Appellant’s second contention, that the trial judge failed to make the requisite findings that appellant would not benefit from sentencing under the Federal Youth Corrections Act, 18 U.S.C. § 5010, requires no elaborate discussion. The Supreme Court enunciated the standard by which courts are to make this determination in Dorszynski v. United States, 418 U.S. 424, 94 S.Ct. 3042, 41 L.Ed.2d 855 (1974). The Court held that § 5010(d) requires that, before a sentencing judge may incarcerate a youthful offender under an adult sentence, he must make a finding on the record that the offender would not benefit from sentencing under subsections (b) and (c). This finding need not be accompanied by reasons, however, because the purpose of the “no benefit” finding is designed merely to ensure that the sentencing judge was aware of the Act and that the youth offender before him was eligible for the treatment it provided. Id. at 442-43, 94 S.Ct. 3042.
The requirement of the “no benefit” finding was designed to insure that the sentencing judge exercised his discretion in choosing not to commit a youth offender to treatment under the Act. ■
Once it is clear that the sentencing judge has considered the option of the treatment under the Act and rejected it, however, no appellate review is warranted.
Id. at 443, 94 S.Ct. at 3052. The record clearly demonstrates that the trial judge met this standard and properly exercised his discretion to sentence appellant as an adult. Having made the requisite “no benefit” finding, the trial judge was under no obligation to justify further his decision not to sentence appellant under the Federal Youth Corrections Act.
For these reasons, we conclude that appellant’s claims are without merit and, accordingly, we affirm.
So ordered.
. The day before appellant’s jury trial Fortney pleaded guilty to count one of the indictment (armed robbery) and was subsequently sentenced under the Federal Youth Corrections Act, 18 U.S.C. § 5010(b). The remaining' charges against Fortney were dismissed. Apparently, appellant was offered the same disposition prior to his trial. Tr. 171; Gov’t Br. at 6 n. 7.
. The requested instruction is now embodied in Instruction No. 2.23, Criminal Jury Instructions for the District of Columbia (2d Ed. 1972), and provides in relevant part:
An informer’s testimony should be examined by you with greater care than the testimony of an ordinary witness. You should scrutinize it closely to determine whether it is colored in such a way as to place guilt upon the defendant in order to further the witness’ own interest. You should (receive such testimony with suspicion and) act upon such testimony with caution.
.
He (informer) is one whose services are availed of by the Government to obtain introduction to persons suspected of violating the law or to obtain other similar information for pay, or for immunity from punishment, or for personal advantages or vindication.
Criminal Jury Instructions for the District of Columbia, Instruction No. 2.23 (2d Ed. 1972).
. When counsel for appellant requested the instruction on informer’s testimony, the court replied:
I don’t think he is an informer here. He is an accomplice. He testified that he confessed his own guilt and he said in this case joined in this robbery with me was Thorne. He is not an informer something like in the narcotics business.
I think that this witness Fortney is probably considered an accomplice. I think that the instruction given, which is Standard 17 in the red book, with the modification that comes from the case of Steth [Stith] v. United States [124 U.S.App.D.C. 81, 361 F.2d 535 (1966)] [is appropriate] ....
Tr. 147-48.
. The court repeated this instruction during its general charge to the jury. Tr. 317-18.
. The prosecutor made the following statement in the presence of the jury:
[THE PROSECUTOR] Mr. Fortney, you remember yesterday at the time that you pleaded guilty to armed robbery—
[MR. FORTNEY] Yes, sir.
[THE PROSECUTOR] — and I stated to the Court that one of the conditions the Government set was that we were willing to let you plead to armed robbery in return for — if you plead to armed robbery we would dismiss the remaining counts of the indictment at the time of sentencing with the additional condition that you testify as you had previously agreed?
[MR. FORTNEY] Yes, sir.
Tr. 138.
. The “no benefit” requirement is articulated in 18 U.S.C. § 5010(d):
If the court shall find that the youth offender will not benefit from treatment under subsection (b) and (c), then the court may sentence the youth offender under any other applicable penalty provision.
. At the time of sentencing, Judge Jones stated:
I concluded that Marvin W. Thome would not benefit from the Youth Corrections Act. I agreed with the Board of Parole and the Youth Center that he has a degree of sophistication and he has become deeply involved in streetwise activity.
I cannot believe that Mr. Thome with this degree of sophistication would benefit from the Youth Corrections Act and I do not think that those who are over there with some hope for their rehabilitation will be benefited by having Mr. Thorne in the population.
S.Tr. 9-10 (emphasis added). | 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. | What party initiated the appeal? | [
"Original plaintiff",
"Original defendant",
"Federal agency representing plaintiff",
"Federal agency representing defendant",
"Intervenor",
"Not applicable",
"Not ascertained"
] | [
1
] | songer |
Charles F. KRAUSE, Administrator and Personal Representative of George T. Stubbs, for and on behalf of Janet Lenora Baker Stubbs, and the minors Mary Margaret Stubbs and Laurie Lucille Stubbs, Libelants-Appellees, v. SUD-AVIATION, SOCIETE NATIONALE DE CONSTRUCTIONS AERONAUTIQUES, Respondent-Appellant. Dorothy Cobb WADE, as Administratrix and Personal Representative of Luke Hampton Wade, Jr., deceased, and for and on behalf of herself and Linda Anne Wade, David Lawrence Wade and Michael Alan Wade, and Norma Delatte Nicol, as Administratrix and Personal Representative of Harold J. Nicol, deceased, for and on behalf of herself and Barbara Ann Nicol, Rebecca Marie Nicol, Theresa M. Nicol, Joette Y. Nicol, and Harold J. Nicol, Jr., Libelants-Appellees, v. SUD-AVIATION, SOCIETE NATIONALE DE CONSTRUCTIONS AERONAUTIQUES, Respondent-Appellant.
Nos. 410, 411, Dockets 32944, 32945.
United States Court of Appeals Second Circuit.
Argued March 5, 1969.
Decided July 2, 1969.
Charles F. Krause, New York City (Speiser, Shumate, Geoghan, Krause & Rheingold and Peter J. Magee, New York City, on the brief), for libelants-appellees.
William Rand, New York City (Coud-ert Brothers, New York City, on the brief), for respondent-appellant.
Before LUMBARD, Chief Judge, SMITH, Circuit Judge, and McLEAN, District Judge.
Of the Southern District of New York, sitting by designation.
LUMBARD, Chief Judge:
These suits in admiralty, based upon the Death on the High Seas Act, 46 U.S.C. § 761 et seq., arose out of the crash of an Alouette II helicopter in the Gulf of Mexico off Leeville, Louisiana on November 30, 1959, killing the pilot and two passengers. , Libelants, in their representative capacities, sought recovery from Sud-Aviation, Societe Nationale De Constructions Aeronautiques (SUD), the manufacturer of the helicopter, claiming that a defect in the construction of the helicopter caused the crash. After a seven-day trial without a jury, on the issue of liability alone, the district court found against SUD, holding that the aircraft had been negligently manufactured and that SUD had breached an implied warranty of fitness.
This appeal by SUD questions whether the district court properly allocated the burden of persuasion and whether there was sufficient evidence to support the finding of liability. Since we find no error, we affirm the judgment of the district court.
The Alouette II helicopter, U. S. registration #N519, was built by appellant SUD in France and sold to Republic Aviation Corporation in 1957. It was delivered to Republic in France in February 1959 and shipped to the United States in a partially disassembled state by Republic, who reassembled it and used it for approximately 437 flight hours as a demonstration model. On August 1, 1959, Republic leased it to Petroleum Helicopters, Inc. (PHI) for use in its business of supplying air transportation to companies conducting oil exploration in the Gulf of Mexico. The crash occurred on November 30, 1959, while PHI pilot George Stubbs was ferrying Luke H. Wade, Jr. and Harold J. Nicol, employees of the Gulf Oil Corp., to an off-shore rig in the Gulf of Mexico. All three were killed when the helicopter fell into the water while Stubbs was attempting to return the disabled craft to land.
It is agreed that the crash resulted from a break or “failure" in the structural steel of the helicopter’s tail, on the upper right longeron (one of the three steel tubes making up the tail boom) at a point where the horizontal stabilizer bracket was welded to the longeron. At issue is whether the break was caused by a defective weld at the point of failure, or by some other cause for which the manufacturer would not be responsible.
At the trial libelants attempted to prove that the longeron broke because of “incomplete root penetration” in the weld, which caused unusual stress on the longeron and led to the failure. Appellant, on the other hand, maintained that the weld was not defective and that some unusual shock or strain, resulting from mishandling by PHI, caused a crack in the longeron, near the weld, which progressed over a period of time to a complete fracture.
Evidence to support the theory that a defective weld caused the accident came largely from libelants’ expert witnesses, William L. Holshouser, whose deposition was read into the record at length, and Isaac Stewart, who testified in person. Holshouser, a Bureau of Standards metallurgist, deposed that his .examination of the broken pieces revealed insufficient root penetration in the weld around which the break occurred. The root of a weld is the point at which the surfaces of the two pieces of metal being welded come together, at right angles in the present case. Incomplete root penetration occurs when the weld metal does not sufficiently penetrate this area where the surfaces of the metals are in contact. Holshouser testified that incomplete root penetration would result in increased stress concentration at the point where the weld metal is joined to the tubing, near the root of the weld, and would reduce the load which could be transmitted between the horizontal stabilizer bracket and the longeron. Expert Stewart testified, largely from close-up photographs of the broken pieces, that there was definitely lack of root penetration. He testified in detail to the effect that incomplete root penetration in the weld would cause normal stresses originating in the horizontal stabilizer to be sidetracked through the weld metal to a necessarily weaker and more brittle part of the weld area rather than being passed directly through the root of the weld.
SUD’s case consisted mainly of testimony from three experts in support of its theory that it was not a defect in the manufacturing which caused the accident. Two of these experts, Everett Chapman and William Cobey, testified that their examinations of the broken pieces revealed nothing unusual about the weld and that it appeared to be a good weld. They also testified that the break which led to the crash could have been initiated by an incident which occurred about three months before the crash, when the tail rotor blades of the helicopter were accidentally dipped into the water during flight. Although there was testimony from libelants’ witnesses that this tail-dipping was not severe, and that the damage caused thereby was minor, there was evidence that extensive repairs were made after the incident. SUD also brought out that the helicopter operating company, PHI, had not conducted a 600 hour inspection, which would have included an examination of the welding to check for cracks, at the time of the crash, which occurred at 622 hours. SUD also introduced testimony concerning the high quality of the welding techniques used in its manufacturing of Alouette helicopters.
Judge Croake, in a detailed opinion, found that libelants “displaced stress” theory presented the most probable explanation of how the break in the lon-geron occurred. In addition to crediting Mr. Stewart’s testimony on this matter, the court stated:
“The fact that one breakline ran along the edge of the bracket lends support to the theory that a bending stress was applied that the longeron was unable to withstand. It appears that the bracket may have acted as a fulcrum around which the longeron was bent when the displaced stress was applied at a point on the longeron some distance away from the root of the weld.”
* * * * * *
“The fact that the second breakline runs along the edge of the weld fillet also supports the theory that some of the stress was displaced through the weld metal to the weaker, heat-affected zone.”
The court expressly rejected SUD’s theory that “rough handling” by PHI caused the accident, finding that this explanation had many weaknesses and was not persuasive. On the basis of these findings, the court concluded that SUD was liable in both negligence and implied warranty.
On appeal SUD contends that libel-ants did not establish by a preponderance of the evidence that the weld was defective and that the defect in the weld caused the crash, the two elements admittedly essential for a finding of liability based upon negligence or breach of warranty. In support of this position, SUD argues that the district court, rather than basing its finding of liability upon findings that the weld was defective and that this caused the crash, based it upon SUD’s inability to prove that the weld was not defective or that something other than a defective weld caused the accident. In other words, SUD claims that the court erroneously placed the ultimate .burden of persuasion upon it rather than upon libelants.
While we agree with the appellant that the ultimate burden of proof remains on the libelants throughout a case such as this, Swain v. Boeing Airplane Co., 337 F.2d 940 (2 Cir. 1964), we do not agree that the trial court erroneously placed this burden on SUD.
It is true that the court’s discussion of the burden of proof is ambiguous, especially where it speaks of appellant’s “burden of establishing as a cause of the accident some factor unrelated to a defective part.” We think, however, that the opinion read as a whole makes it sufficiently clear that the court accepted libelants’ insufficient root penetration explanation, together with the fact that the failure occurred during normal operating conditions, as establishing that the weld was defective and that this probably caused the crash. This placed upon SUD a burden of going forward with evidence of another possible cause; the rejection of SUD’s evidence left the failure of the defective part as the cause. In short, we think the court left the ultimate burden of persuasion on the libelants, holding that their proof and the inferences drawn from it (together with the absence of any other plausible explanation) established that it was more likely than not that faulty manufacturing caused the accident. Cf. Swain v. Boeing Airplane Co., 337 F.2d 940 (2 Cir. 1964); Prosser, Torts, at 215-216 (3 ed. 1964)
The evidence adequately supports the court’s findings. There was testimony, which the court credited, that there was a defective weld and that this defect would have caused abnormal stress in the area of the break. This evidence, together with the inferences which the district court drew from it and from the other evidence in the case, provides ample support for holding the manufacturer liable. Cf. United States v. Springfield, 276 F.2d 798 (5 Cir. 1960).
We also find that there was evidence to support the district court’s rejection of SUD’s claim that the accident was caused by rough handling rather than by faulty manufacturing. One of the reasons for rejecting this claim, which we find persuasive, is that the fracture apparently was not a “fatigue” fracture but was a sudden or “brittle” fracture. For rough handling to have caused the crash, a crack would probably have resulted from the tail-dipping incident, three months before the crash, and progressed by fatigue until the final failure. In addition, it is apparent from the opinion below that the court credited testimony that the tail-dipping incident was not severe and that the repairs made thereafter were largely precautionary in nature.
We cannot overturn the district court’s factual determinations, which were made after a full trial and which obviously involved the credibility of the witnesses who testified, unless on all the evidence we are left with a definite and firm conviction that a mistake has been committed. United States v. United States Gypsum Co., 333 U.S. 364, 396, 68 S.Ct. 525, 92 L.Ed. 746 (1948); Montgomery v. Goodyear Aircraft Corp., 392 F.2d 777 (2 Cir. 1968); Fed.R.Civ. P. 52(a). After reviewing the entire record on appeal, we cannot say that Judge Croake’s findings are clearly erroneous.
Judgment affirmed.
. Libelants also sought recovery in this suit from Republic for negligence and breach of warranty in failing to properly inspect the aircraft. The district court held in favor of Republic on this matter and dismissed the claims against it. No appeal is taken from the part of the judgment involving Republic.
In 1960, libelants Wade and Nicol brought actions, separate from the present ones, in the Eastern District of Louisiana, against SUD, Republic and PHI. The actions against PHI were settled and apparently releases were executed. The actions against SUD were dismissed for lack of jurisdiction.
. Other periodic inspections had been made, however, and there was testimony that the 600 hour inspection was not yet overdue, under the appropriate regulations, at the time of the crash. Because of its findings discussed below, the trial court did not determine whether PHI had wrongfully failed to conduct the 600 hour inspection. See note 3, infra.
. The court also rejected SUD’s claim that the pilot, George Stuhbs, was contribu-torily negligent because he attempted to return to the base after the first sign that something was amiss, rather than immediately setting the helicopter down on the water. We agree that under the circumstances, Stubbs was not negligent.
Judge Croake also held that, since he had rejected the theory of a fatigue crack initiated at the tail-dipping, the failure to make the 600 hour inspection, even if negligent, could not have proximately caused the crash.
. Had libelants established only that defective manufacturing was one of two or more equally possible causes, it would not, of course, have satisfied its burden of proof. Prosser, supra, at 215-216; cf. Smith v. General Motors Corp., 227 F. 2d 210, 213 (5 Cir. 1955); Alexander v. Inland Steel Co., 263 F.2d 314 (8 Cir. 1958).
. Although there was some evidence that this might have been a fatigue break, there was considerable testimony from the experts that the characteristic fatigue markings were not present and that it probably was not a fatigue fracture. Appellant’s own witness, Chapman, first stated that “it was not a fatigue crack,” although he later revised this opinion.
. In this respect, the district court indicated that SUD’s expert Chapman was inconsistent and that Cobey was evasive. The appearance and demeanor of the other witnesses undoubtedly also played a part in the court’s evaluation of their testimony. | What follows is an opinion from a United States Court of Appeals.
Your task is to identify the second most frequently cited federal rule of civil procedure in the headnotes to this case. Answer "0" if less than two federal rules of civil procedure are cited. For ties, code the first rule cited. | What is the second most frequently cited federal rule of civil procedure in the headnotes to this case? Answer with a number. | [] | [
0
] | songer |
UNITED STATES v. BROTHMAN et al.
No. 290, Docket 22039.
United States Court of Appeals Second Circuit.
Argued June 14, 1951.
Decided July 26, 1951. .
See also 93 P.Supp. 924.
John McKim Minton, New York City, (William F. McNulty, New York City, of counsel) for appellant Brothman.
William L. Messing, New York City, for appellant Moskowitz.
Irving H. Saypol, U. S. Atty., New York City, for appellee; (Bruno Schachner, Roy M. Cohn, John M. Foley and Stanley D. Robinson, Assts. U. S. Attys., New York City, of counsel), for appellee.
Before SWAN, Chief Judge, AUGUSTUS N. HAND and L. HAND, Circuit Judges.
SWAN, Chief Judge.
These are appeals from judgments of conviction and sentence upon an indictment which charged both appellants with the crime of conspiracy, 18 U.S.C. § 88 (1946 ed.), and Brothman alone with the substantive offense of endeavoring to persuade a witness to give false testimony before a federal grand jury, 18 U.S.C. § 241 (1946 ed.). Brothman was sentenced to consecutive terms of. 2 and 5 years and fines of $10,000 and $5,000 on the respective counts; Moskowitz was sentenced to 2 years’ imprisonment and fined $10,000. Brothman’s appeal raises a single issue, namely, failure to prove venue of the substantive offense. The appeal of Moskowitz challenges the sufficiency of the evidence to prove her participation in the conspiracy, and asserts prejudicial error in the prosecution’s summation.
We address ourselves first to the conspiracy count. In the summer of 1947 a federal grand jury in and for the southern district of New York was conducting an investigation of possible violations of the espionage laws. Brothman and one Gold were summoned to appear as witnesses before this grand jury. The conspiracy count charged that both appellants together with Gold, who was named as a conspirator but not as a defendant, agreed that Brothman should give false testimony before the grand jury, should inform Gold thereof, and Gold should likewise give false testimony consonant with Broth-man’s. The case against the appellants was made largely by the testimony of Gold. Moskowitz does not question the sufficiency of the evidence to prove that such a conspiracy existed between Brothman and Gold, but contends that she was not shown to have been a party to it. An examination of the record convinces us beyond doubt that the contention is groundless. Without discussing the evidence in detail it will suffice to refer to a few incidents which indicate that she repeatedly assisted in making jibe the false stories of the two main actors. After Gold had been interviewed by agents of the Federal Bureau of Investigation, he recounted in the presence of Brothman and Moskowitz what he had told the agents,’ and Brothman remarked that he had made “a very fine choice of a •story.” The inference that the story was false must have been obvious to Moskowitz. She was also present when Gold refused to tell Brothman about his espionage activities because Brothman “was already deeply enough'’ involved.” When Broth-man was considering testifying before the grand jury tó a story different from that he had originally told the F. B. I. agents Moskowitz expressed concern and told Gold she was going to tell Brothman to try to stick to the original story;, and she later told Gold that she and attorney Needleman persuaded Brothman to- do so. Finally, on the night before Gold was to testify, Moskowitz said that she wished to go home early “so that Abe [Brothman] and I would have plenty of time to match our stories before my c appearance before the grand jury the next morning.”
The next contention of appellant Moskowitz is that she was prejudiced by repeated' statements in the prosecutor’s summation that the defense had failed to contradict the government’s testimony. It is conceded that as a general rule a reference to the testimony for the prosecution as uncontradicted is not an indirect comment on the defendant’s failure to testify, but the appellant contends that an exception exists where the only persons who could contradict the testimony ¿re the defendants themselves. Assuming arguendo that such an exception should be recognized, we do not think that the appellant’s case falls within it. The prosecutor’s comments were general and made without express reference to Moskowitz. It is possible to explain them as covering occurrences as to which contradiction could have come from others than this appellant. For example,'the comment to which objection was first interposed was the following: “The truth of the testimony offered here by Miss Bentley, Gold and others is conclusively established by the failure of the defense to produce one solitary word contradicting any of this testimony.” In overruling t-he objection the court stated, “I will deal with that later properly myself.” And in his charge the judge instructed the jury that they may not “infer guilt nor even draw a single unfavorable inference against the defendants because they did not take the stand.” We think this was all that was required.
We turn now to Brothman’s appeal. The court’s charge limited the substantive crime to endeavoring to influence Gold to give false testimony, and the jury was told that the Government did not have to prove the success of the endeavor. Concededly all of Brothman’s “endeavors” to influence Gold’s testimony took place in the eastern district of New York, although Gold’s testimony was given in the southern district. The contention on appeal -is failure of proof of venue. At the close of the prosecutor’s case, Brothman moved for a directed verdict on count 2 on the ground that the evidence was insufficient. This motion was renewed at the end of the entire case. The Government’s only answer to the appellant’s argument is that Broth-man waived, his constitutional privilege to be tried where the crime was committed by goi-ng to trial in the southern district without objection. Where the indictment discloses lack of venue, going to trial without objection to venue is a waiver. United States v. Jones, 2 Cir., 162 F.2d 72, 73. There is a dictum in United States v. Michelson, 2 Cir., 165 F.2d 732, 734, affirmed, 335 U.S. 469, 69 S.Ct. 213, 93 L.Ed. 168, that the same result may follow if the defendant is warned of the defect during the course of the trial. In the case at -bar Brothman could not know that venue would not be proved until the prosecutor’s evidence was closed; he then moved for a directed verdict. We may assume arguendo that had he argued the motion and said nothing about failure to prove venue, he might be held to have waived the defect. But the motion was denied without argument being heard. In United States v. Jones, 7 Cir., 174 F.2d 746, Judge Min-ton (now Mr. Justice Minton), speaking for the court, held that a motion for acquittal made at the conclusion of all the evidence properly raised the question of venue in the court below. Such a motion need not specify the grounds therefor. We agree with the Seventh Circuit decision. , Accordingly Brothman’s conviction on count 2 must be reversed. The conviction of both appellants on the conspiracy count is affirmed.
. 1948 Revised Criminal Code, 18 U.S.C. A. § 371.
. 1948 Revised Criminal Code, 18 U.S. C.A. § 1503.
. See Linden v. United, States, 3 Cir., 296 F. 104; Barnes v. United States, 8 Cir., 8 F.2d 832.
. See Lefkowitz v. United States, 2 Cir., 273 F. 664, 668, certiorari denied 257 U.S. 637, 42 S.Ct. 49, 66 L.Ed. 409; United States v. Shapiro, 2 Cir., 103 F.2d 775, 776; United States v. Di Carlo, 2 Cir., 64 F.2d 15, 17; United States v. De Vasto, 2 Cir., 52 F.2d 26, 30, 78 A.L.R. 336, certiorari denied 284 U.S. 678, 52 S.Ct. 138, 76 L.Ed. 573; Boehm v. United States, 8 Cir., 123 F.2d 791, 810. | 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. | What is the nature of the second listed respondent whose detailed code is not identical to the code for the first listed respondent? | [
"private business (including criminal enterprises)",
"private organization or association",
"federal government (including DC)",
"sub-state government (e.g., county, local, special district)",
"state government (includes territories & commonwealths)",
"government - level not ascertained",
"natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)",
"miscellaneous",
"not ascertained"
] | [
6
] | songer |
UNITED STATES of America, Plaintiff-Appellee, v. Richard A. LAUCHLI, Defendant-Appellant.
No. 82-2868.
United States Court of Appeals, Seventh Circuit.
Argued Dec. 6, 1983.
Decided Jan. 4, 1984.
Rehearing Denied Feb. 13, 1984.
Richard A. Lauchli, Collinsville, Ill., for defendant-appellant.
Laura J. Jones, Asst. U.S. Atty., Frederick J. Hess, U.S. Atty., East St. Louis, Ill., for plaintiff-appellee.
Before CUMMINGS, Chief Judge, and PELL and WOOD, Circuit Judges.
HARLINGTON WOOD, Jr., Circuit Judge.
In June 1982, the defendant while fishing with his wife from a power boat on the Kaskaskia River below Carlyle Lake in Clinton County, Illinois, ordinarily a peaceful pastime, got himself into serious trouble. Their fishing lines got tangled with the lines of several people fishing from the shore. The defendant cut one of the lines of a shore fisherman and as a consequence one of them threw rocks at the defendant and his wife, but there were no hits. In response the defendant drew a revolver, later identified as a 357 Ruger, and waved it toward the fishermen. One shore fisherman ran while the defendant and his wife pulled away in their boat and went for the sheriff. A deputy came to the scene, but when he was informed by the shore fishermen that the defendant had waved a pistol at them, the complainant was then on his way to becoming the defendant. The deputy turned to the defendant and asked him if he had a pistol. The defendant admitted that he did and that it was on the boat. The deputy and the defendant then proceeded to the boat dock. As they approached the dock, the defendant suffered a change of heart, declining to pursue the matter further with the deputy. The deputy put the defendant in the patrol car and went aboard the boat, where the defendant’s wife had remained. In the first drawer he opened, he found the loaded Ruger in a red pouch. He looked no further and left with the gun and the defendant.
Three different charges resulted: a federal petty offense charge for possessing a loaded firearm on a water area of a water resource development project in violation of 36 C.F.R. § 327.13, a state firearm charge, and this federal indictment charging the defendant with a violation of 18 U.S.C. § 1202(a)(1) Appendix for possessing a firearm in interstate commerce after having been previously convicted of a felony. It was stipulated that the defendant was a convicted felon and that the pistol had traveled in commerce.
In the petty offense proceeding, the defendant sought the return of the gun and suppression of it as evidence. That motion was heard by the magistrate. After the subsequent federal indictment for violating 18 U.S.C. § 1202(a)(1) Appendix, it was agreed that the district judge would decide the suppression issue on the basis of the record made before the magistrate. The motion was denied. A jury trial followed and the defendant was found guilty and sentenced by the district judge to six months in a jail-type institution followed by probation for a year and a half. However, the six-month sentence was to be served on a work release program.
The defendant, who has been pro se throughout, raises a multiplicity of issues, only four of which require consideration as the others are clearly without merit, one of which, the request for appointment of counsel, was not urged at oral argument by the defendant.
The principal issue concerns the denial of defendant’s motion to suppress and the introduction of the Ruger into evidence at trial. We understand the defendant’s position to be that the arrest took place on the bank where the deputy interviewed the shore fishermen, and that the deputy should have given the defendant his Miranda warnings at that time. The actual arrest appears to have occurred later, when the defendant changed his mind about cooperating and was handcuffed and placed in the patrol car while the officer boarded the boat. In any event, even prior to when the defendant claimed the arrest occurred, the shore fishermen had advised the deputy about the gun the defendant had displayed on the boat, and the defendant had admitted that he had a gun. Nothing the defendant said or did after that time was in fact used against him or used to establish probable cause to enable the deputy to board the boat and seize the pistol without consent from the defendant.
On its merits, we find that the fourth amendment was not violated. The deputy, although without a warrant, had probable cause to promptly search the boat before it could be moved, or some disposition made of the pistol. A boat on water is as elusive as a car on a highway, with ample opportunity to dispose of evidence or contraband over the side. In United States v. Adams, 484 F.2d 357, 360 (7th Cir.1973), this court, relying on Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925) and Coolidge v. New Hampshire, 403 U.S. 443, 459-60, 91 S.Ct. 2022, 2034, 29 L.Ed.2d 564 (1971), quoted from Coolidge:
The underlying rationale of Carroll and of all the cases that have followed it is that there is
a necessary difference between a search of a store, dwelling house or other structure in respect of which a proper official warrant readily may be ■ obtained and a search of a ship, motor boat, wagon or automobile for contraband goods, where it is not practicable to secure a warrant because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought. 267 U.S. at 153, 45 S.Ct. at 285.
(Emphasis added).
It is true that the state court in its proceedings did find this same search to be invalid and suppressed the evidence. Defendant argues that the prior state determination is binding upon us. That, however, is not the law. United States v. Panebianco, 543 F.2d 447, 456 (2d Cir.1976), cert. denied, 429 U.S. 1103, 97 S.Ct. 1128, 51 L.Ed.2d 553 (1977).
The defendant also claims he was entitled to a favorable ruling on his Motions for Judgment or Acquittal and Motion for a Directed Verdict, principally because the pistol could not be positively identified as the actual gun he used. The defendant claims that he waved at the shore fishermen only a flare gun that he kept in the back of the boat. He further claims that the flare gun would not be encompassed in the prohibition of the Act. The evidence was sufficient to submit the case to the jury, and the jury accepted the pistol version. Defendant’s various motions were properly disposed of by the district court.
The defendant also objects to various standard instructions given to the jury, which we find to be appropriate under the circumstances. The defendant objects particularly to the standard instruction advising the jury that when a defendant does not testify, it is a defendant’s right not to and the fact that he did not testify cannot be considered in arriving at the verdict. The defendant objected to the giving of the instruction because he claimed it would call attention to and emphasize the fact that he did not testify. The government claims that the instruction must always be given.
The giving of the instruction even over the defendant’s objection does not constitute reversible error, Lakeside v. Oregon, 435 U.S. 333, 98 S.Ct. 1091, 55 L.Ed.2d 319 (1978); United States v. Bailey, 526 F.2d 139, 142 (7th Cir.1975), cert. denied, 424 U.S. 972, 96 S.Ct. 1472, 47 L.Ed.2d 740 (1976), but the defendant raises a legitimate concern. Contrary to the government’s view, the instruction need not always be given regardless of the defendant’s objection. See Lakeside, 435 U.S. at 340, 98 S.Ct. at 1095. The defendant must be given a say about it and the matter then left to the discretion of the trial judge, particularly where the defendant appears pro se.
Finally, the defendant objects to certain comments made by the district judge at sentencing which the defendant interprets to mean the judge had heard prejudicial comments about the defendant outside the record. In context, the court’s comments can reasonably be given a narrower interpretation. At sentencing the district judge and the defendant had a full discussion about his background. The trial judge throughout handled the case carefully and fairly, and with due regard for the pro se status of the defendant.
Affirmed.
. The defendant does not deny his conversation with the deputy, but at oral argument the defendant advised the court that his wife owned both the gun and the boat. Those factual assertions by the defendant raise some doubt about his standing to object to the search, although the government did not raise the issue. See United States v. Salvucci, 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980).
. The government stated in its brief that it was unable to find any cases where an individual defendant objected to the giving of the instruction that a presumption of guilt could not be drawn from the defendant’s failure to testify. This court, however, was able to locate a number of such cases, including one heard by the Supreme Court. See, e.g., Lakeside v. Oregon, 435 U.S. 333, 98 S.Ct. 1091, 55 L.Ed.2d 319 (1978); United States v. Bailey, 526 F.2d 139, 142 (7th Cir.1975), cert. denied, 424 U.S. 972, 96 S.Ct. 1472, 47 L.Ed.2d 740 (1976); United States v. Rimanich, 422 F.2d 817, 818 (7th Cir.1970); United States v. Wick, 416 F.2d 61, 63 (7th Cir.), cert. denied, 396 U.S. 961, 90 S.Ct. 436, 24 L.Ed.2d 425 (1969). Each of these cases clearly held that the giving of the instruction, even over the defendant’s objection, does not constitute error. | 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. | What is the nature of the first listed appellant? | [
"private business (including criminal enterprises)",
"private organization or association",
"federal government (including DC)",
"sub-state government (e.g., county, local, special district)",
"state government (includes territories & commonwealths)",
"government - level not ascertained",
"natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)",
"miscellaneous",
"not ascertained"
] | [
6
] | songer |
LEVY et al. v. UNITED STATES FIDELITY & GUARANTY CO.
No. 7103.
Circuit Court of Appeals, Fifth Circuit.
Jan. 10, 1934.
Walter Brower and J. Kirkman Jackson, both of Birmingham, Ala., for appellants.
Frank E. Spain, of Birmingham, Ala., for appellee.
Before BRYAN, FOSTER, and HUTCH-ESON, Circuit Judges.
HUTCHESON, Circuit Judge.
Bessemer Engineering & Construction Company obtained a highway construction contract in Alabama, and sublet it in its entirety to Flowers. Union Indemnity Company was Bessemer’s surety to the state for the performance of its contract; appellee, Flowers’ surety to Bessemer. It brought this suit as Bessemer’s assignee to hold appellee on its bond for sums paid out on account of the contract which it is claimed Flowers and his surety had obligated themselves to pay.
This ease has been here before [56 F.(2d) 147]. Then the indemnity company was ap-pellee; appellee, appellant. We reversed that judgment on a point of pleading. This time the error claimed runs through the case. It goes to the merits. It is fundamental. Adequately raised in different ways and at different stages of the ease, and adequately preserved and pressed here, it may be simply and comprebensively stated thus: The District Judge erred in holding that the obligation of Flowers and his surety to hold Bessemer harmless did not extend to paying the claims for feedstuffs and supplies which Flowers had incurred to the extent of some $14,000 before he defaulted. Under the influence of this view, the District Judge struck these items from the account. Under its influence, he instructed the jury that there could he no recovery for them. Under its influence, he instructed them that, if the indemnity company refused to permit appellee to take over the work as provided in its bond, because appel-lee had refused to accept responsibility for these claims, this would be a breach of the bond discharging appellee. This in effect instructed a verdict against appellants, for it was their position throughout that by denying responsibility for these claims appellee had breached and abandoned its obligations and made it necessary for Bessemer and his surety to take the contract over. We take the point up to examine it.
Appellants insist that it is of controlling importance here that Flowers took Bessemer’s contract completely over, and, agreeing to perform it and every part of it as the contractor had agreed to do, was a subcontractor in the fullest sense of the term, Linde Dredging Co. v. Southwest L. E. Myers Co., 67 F.(2d) 969; and that in his bond, after reciting that ho had agreed with Bessemer “for the furnishing of all labor in the construction of the project,” he had agreed to indemnify and hold Bessemer harmless from loss on account thereof. They argue that the special provisions of Flowers’ contract, regarding the payment of labor and material; aside, its general provisions and those of the bond, obligated Flowers and his surety to pay and discharge all feedstuff and supply bills incurred by him in carrying on the work, because Bessemer’s contract which he took over had written into it as a statutory term that all such bills must be paid, and Flowers’ agreement to perform that contract and save Bessemer harmless from its nonperformance necessarily included this term. U. S. F. & G. Co. v. Benson Hardware Co., 222 Ala. 429, 132 So. 622; Forst v. Leonard, 112 Ala. 296, 20 So. 587; Keyes v. Anderson (C. C. A.) 262 F. 748; American Bridge Co. v. Crawford (C. C. A.) 31 F.(2d) 708, 68 A. L. R. 1246. Finally, they claim to find in this clause, “The sub-eontractor shall protect the contractor and the State Highway Department against all liens or claims of workmen or other, persons furnishing any material or labor for carrying out of completion of said work,” and in this one, “Should there prove to be any such claims after all payments are made, the sub-contractor shall refund to the contractor all moneys which the latter may be compelled to pay in discharging such liens or indebtedness,” specific agreements in terms to pay and discharge these bills. Franzen v. Southern Surety Co., 35 Wyo. 15, 246 P. 30, 46 A. L. R. 496; United States Fidelity & Guaranty Co. v. Henderson County (Tex. Com. App.) 276 S. W. 203; Brogan v. National Surety Co., 246 U. S. 257, 38 S. Ct. 250, 62 L. Ed. 703, L. R. A. 1918D, 776; Equitable Casualty & Surety Co. v. Helena Wholesale Groc. Co. (C. C. A.) 60 F.(2d) 380; Fitzgerald v. Neal, 113 Or. 103, 231 P. 645, 650; United States v. W. H. French Dredging & Wrecking Co. (D. C.) 52 F.(2d) 235; Early & Daniel Co. v. American Surety Co. (C. C. A.) 5 F.(2d) 670.
Appellee looks at the case quite differently. It admits that Flowers took over Bessemer’s contract with the state, but it urges that the payment of the bills for supplies and feedstuffs was no part of that contract; that Bessemer’s agreement to pay them was not found in his contract, but in the bond he made, and that it is unreasonable to state that Flowers took over or agreed to pay Bessemer’s bond. It argues further that, while it may not be denied that the cases do generally hold that, when used in statutory bonds required in connection with public projects, an agreement to pay material and labor bills is construed liberally, and usually so as to include feedstuffs and supplies, the bond it signed -is not a statutory, but a common-law, bond. It urges that the term “materials” when used in such a bond Requires a construction more in accordance with its natural meaning, and that this is made more manifest by contrasting the language of the statutory bond given by Bessemer with that of the co-mmon-law bond given by Flowers. It urges that no other construction can be drawn from the use in the one bond of the additional words, “supplies and feedstuffs” and their omission from the -other, than that it was the intention of Bessemer and Flowers to contract with each other more narrowly in this respect than Bessemer and the state had contracted; that this view makes inapplicable the authorities cited by appellants for a broad construction.
We cannot at all agree with appellee that anything in the record even color ably supports the view, that, in the sense of a real and actual intent, Bessemer intended to turn over to Flowers the entire performance of his contract without substituting Flowers in his place throughout, both as to performance and as to liability. We think it would be unreasonable to find such an intent. We cannot then attribute to the choice of the language in Flowers’ contract with Bessemer the intention to limit Flowers’ liability to him, nor construe the words used, in the light of such supposed intent. We must construe them in the light of the entire situation, of the other portions of the contract, and of their accepted judicial meaning. So construing them, we are without doubt that Flowers was bound, and his surety was, to pay and discharge all the claims he had properly incurred in connection with the prosecution of the work for feedstuffs and supplies, and that appellants, having paid them, may recover them back.
The judgment is reversed, and the cause is remanded for further proceedings not inconsistent herewith. | What follows is an opinion from a United States Court of Appeals.
Your task is to determine whether there are two issues in the case. By issue we mean the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. | Are there two issues in the case? | [
"no",
"yes"
] | [
0
] | songer |
NATIONAL LABOR RELATIONS BOARD v. PIQUA MUNISING WOOD PRODUCTS CO.
No. 8233.
Circuit Court of Appeals, Sixth Circuit.
Feb. 16, 1940.
ARANT, Circuit Judge, dissenting in part,
Alvin J., Rockwell, of Washington, D. C. (Charles Fahy, Robert B. Watts, Mortimer B. Wolf, and Allen Heald, all of Washington, D. C., on the brief), for petitioner.
E. W. LeFever, of Cleveland, Ohio (Jones, Day, Cockley & Reavis, of Cleveland, Ohio, on the brief), for respondent.
Before SIMONS, HAMILTON, and ARANT, Circuit Judges.
'HAMILTON, Circuit Judge.
This case arises out of a petition of the National Labor Relations Board filed pursuant to Section 10(c) of the National Labor Relations Act (49 Stat. 449, U.S.C. Supp. Ill, Title 29, Sec. 151, et seq., 29 U.S.C.A. § 151 et seq), to enforce its order theretofore issued against the respondent, an Ohio corporation, engaged in the business of manufacturing woodenware, with its 'principal office in Cleveland, Ohio.
Upon an appropriate complaint; which was denied in its material allegations by respondent’s answer, the Board found that respondent had engaged in unfair labor practices within the meaning of Section 8(1) of the Act by interfering with its employees’ right to self organization and of Section 8(5) by refusing to bargain with Federal Labor Union Local 18,787, its employees’ representative and an affiliate of the American Federation of Labor, hereinafter referred to as the “Union.”
So far as material here, the complaint stated that all of the employees of the respondent,- excluding those in clerical and supervisory positions, were an appropriate unit for the purpose of collective bargaining and that on or before July 27, 1937, and thereafter, a majority of them had designated the Union as their representative for that purpose. -It was then alleged that the respondent had refused to recognize the unit and its agency and had interfered with, restrained and coerced its employees, in the exercise of their rights under Section 7 of the Act, 29 U.S.C.A. § 157, and was so continuing.
The respondent resists the enforcement of the order on the following grounds:
(a) That substantial evidence is lacking to support the finding that a majority of the members of the unit designated the Union as their bargaining representative;
(b) That there was no violation of the Act by a refusal to bargain until there had been a prior determination by the Board of the appropriate unit and agency;
(c) That an unlawful refusal to recognize a bargaining representative is a violation of Section 8(5) of the Act, not of Section 8(1);
(d) That the Board’s order is. in excess of its jurisdiction because it found the respondent guilty of an unfair labor practice without supporting complaint;
(e) That the Board’s order is void,because respondent’s refusal to bargain occurred subsequent to the execution and filing of the charge.
There is substantial evidence to support the Board’s finding that respondent’s production and maintenance employees, exclusive of those in clerical and supervisory positions, constituted a unit appropriate for collective bargaining. National Labor Relations Board v. Lund, 8 Cir., 103 F.2d 815; National Labor Relations Board v. Colton, 6 Cir., 105 F.2d 179.
The evidence shows that respondent had 143 employees, eight of whom occupied supervisory or clerical positions, which left 135 in production. The Board’s finding that the Union represented a majority of the unit for bargaining is supported by 82 application cards signed by employees seeking membership in the Union. Of these, two had discontinued their employment before July-27, 1937. Twelve of the cards are undated and one is post-dated September 21, 1937, leaving 67 members.
Respondent concedes that four employees were members of the Union prior to July 27, 1937, whose names do not appear on application cards. Employees Spangler and Pittman, whose names also did not appear, testify without contradiction that they had been members for several years prior to July 27, 1937. This makes a total of 73 out of the appropriate unit.
Respondent’s contention that some of the cards lack probative value because dated in 1935 and 1936 is without merit. It is a well-established rule of evidence that when the existence of a personal relationship or state of things is once established by proof, the law presumes its continuance until the contrary is shown or until a different presumption arises from the nature of the subject matter. National Labor Relations Board v. National Motor Bearing Company, 9 Cir., 105 F.2d 652. The question as to the presumption of the continuation of membership in the Union was one of fact and rested within the sound discretion of- the Board to be decided in the light of the facts and circumstances before it. Hiser, the Union president, testified that the persons whose names appeared on the membership cards were members of the Union.
Respondent’s contention that the Board erred in assuming that the unit contained the some number of employees belonging to the Union on August 8, 1937, as of July 27, 1937, must be denied. The Act defines “employee” to “include * * * any individual whose work has ceased as a consequence of, or in connection with, any current labor dispute or because of any unfair labor practice, and who has not obtained any other regular and substantially equivalent employment.” 29 U.S.C.A. § 152(3). The act also defines “labor dispute” to include “any controversy concerning terms, tenure or conditions of employment, or concerning the association or representation of persons in negotiating, fixing, maintaining, changing, or seeking to arrange terms or conditions of employment, regardless of whether the disputants stand in the proximate relation of employer and employee.” 29 U.S.C.A. § 152(9).
During the period between July 27, 1937, and August 8, 1937, the dispute between the respondent and its employees was current. The relationship of the parties had not been so completely terminated as to give rise to the presumption that any one of them had discontinued his employee relationship or had obtained regular and substantially equivalent employment elsewhere. Jeffrey-De Witt Insulator Co. v. National Labor Relations Board, 4 Cir., 91 F.2d 134, 112 A.L.R. 948; National Labor Relations Board v. Carlisle Lumber Co., 9 Cir., 94 F.2d 138; Black Diamond S. S. Corporation v. National Labor Relations Board, 2 Cir., 94 F. 2d 875.
Respondent challenges three of the application cards for membership in the Union upon the ground that they are undated as shown by the printed summary. The original exhibit shows dates and is controlling. The respondent also contends that four or five names should be eliminated from the list because Hiser, Union president, testified they were on the fence and wanted, to play both sides, and further that respondent’s manager testified that two who had signed application cards stated to him they did not want to be members of the Union and that one whose signature appeared on a card, testified he was not - a member. These objections go to the credibility and weight of the testimony and are matters for the determination of the Board. There is other evidence in the record tending to support the Board’s finding that the Union had been designated by a majority of the unit. Its finding in that respect is supported by substantial evidence. National Labor Relations Board v. Louisville Refining Company, 6 Cir., 102 F.2d 678.
Some of respondent’s employees had belonged to the Union for several years before it was selected as a bargaining agency. From October 24, 1935, the plant operated under the management’s written declaration of policy, copy of which was furnished plant employees. In November, 1936, the Union, as bargaining representative for the employees, submitted a written contract to respondent’s officers which was rejected by its plant manager and there is substantial evidence -that he gave as his reason that it was not the policy of the company to recognize the Union and there is also substantial evidence that about this time respondent’s president stated that he would not recognize the American Federation of Labor as a bargaining representative but would negotiate with a committee of the employees.
In April, 1937, respondent’s president presented to the employees’ committee, a bargaining agreement without mentioning the Union, and when it insisted on the name of the Union being inserted, he stated that before doing so, he would shut down the shop. As a counterproposal, he offered to increase wages five percent which the committee accepted. On June 14, 1937, he informed the committee that a tentative increase in wages provided in the April agreement would be impossible, but he would make every effort to provide steady work and there would be no shut down for inventory. He stated, however, if there were too much labor unrest, the plant would be shut down temporarily or possibly permanently. The Union committee then called in a representative of the American Federation of Labor to assist in negotiating with respondent and on July 27, 1937, the president of the local union posted a notice on the plant bulletin board announcing a meeting for that afternoon at which such representative would be present. About an hour later respondent’s manager posted a notice on the board that the plant would close that night for inventory, pursuant to a proposed sale or lease, and that the employees would be advised later when to report back for work. The next day the Union endeavored without success to arrange a conference between the president of respondent and the representative of the American Federation of Labor.
Prior to May, 1937, the respondent was negotiating with the Robin Hood Woods Products Company of California for a sale or lease of part of its plant and on July 27, 1937, it was notified that the contract had been closed and that the Company was shipping machinery and equipment to Piqua, Ohio, for installation. On July 27, 1937, respondent closed its plant for inventory pursuant to this agreement and the Union employees began to picket it that afternoon and so continued.
On August 3, 1937, respondent mailed to all of those who were its employees on July 27, 1937, a notice that inventory would be completed August 4, 1937, and the plant re-opened on August 5, at the regular time. It re-opened on that date but none of the employees began working. Some started into the plant but after being approached by members of the picket line, turned back.
On August 8, 1937, respondent’s president asked a committee of its employees to meet with him, but informed them before negotiations commenced that he would not recognize or deal with the Union. He promised continuance of the 40-hour week and a raise in wages when profits permitted if they would return to work. The Board’s finding that the respondent refused to bargain with the Union is supported by abundant evidence. National Labor Relations Board v. Griswold Mfg. Co., 3 Cir., 106 F.2d 713.
Respondent does not seriously question this finding but insists it was not compelled to bargain collectively until the Board had first determined the appropriate unit of employees for that purpose and had designated the bargaining agency under Section 9(a) and (b) of the Act, 29 U.S.C.A. § 159(a, b). This position is untenable.
The National Labor Relations Act is in no way concerned with mediation or arbitration, nor with wages, hours or working conditions. Its sole purpose is to encourage the practice and procedure of collective bargaining and to protect the workers in the exercise of full freedom of association, self-organization and designation of representatives. National Labor Relations Board v. Jones-Laughlin Steel Co., 301 U.S. 1, 42, 57 S.Ct. 615, 81 L.Ed. 893, 108 A.L.R. 1352.
In the preamble to the Act, its purpose is declared to be “to eliminate the causes of certain substantial obstructions to the free flow of commerce * * * by encouraging the practice and procedure of collective bargaining and by protecting the exercise by workers of full freedom of association, self-organization, and designation of representatives of their own choosing * 29 U.S.C.A. § 151. To make this declared policy effective, the Act imposes on the Board two principal functions; the first defined by Section 9, headed “Representatives and Elections” is certification of the name or names of representatives for collective bargaining of an appropriate unit of employees after appropriate investigation and a hearing; the second, defined by Section 10, headed “Prevention of Unfair Labor Practices” is the prevention by order of the Board after a hearing and by further appropriate proceeding in court of the unfair labor practices set out in Section 8, one of which is the refusal of an employer to bargain with the employees’ representative of the appropriate unit.
• [10] The Act assumed the existence of a quasi or constructive contract whereby a legal obligation was imposed on the employer, even against his intention, to deal with an appropriate unit of his employees, through their chosen representative concerning the matters referred to in the statute and the Board is without jurisdiction until the employer has violated his obligation and a complaint has been lodged with the Board pursuant to Section 10(c) of the Act. The employer acts at his peril in refusing to recognize a duly selected bargaining agency of an appropriate unit of his employees unless the facts show that in the exercise of reasonable judgment he lacked knowledge of the appropriateness of the unit or the ‘selection of the majority representative.
The respondent makes no contention that the unit found by the Board which existed at the beginning of the controversy was , not an appropriate one for collective bargaining nor does it question the right of the Union to act as a bargaining representative if selected by a majority of the unit.
The Board in its cease and desist order directed the respondent to refrain from interfering with, restraining or coercing its employees in their right to self-organization under Sedtion 7 of the Act, 29 U.S.C.A. § 157. It also directed it upon request to bargain collectively with the Union. Respondent attacks this part of the order on three grounds ; first, that there is no charge laid in the complaint that it engaged in an unfair labor practice within the meaning of Section 8(1) of the Act; second, that the facts as found by the Board constituted a violation of Section 8(5) and not of 8(1) and third, that its refusal to bargain with the designated representative as found by the Board occurred on August 8, 1937, which was after the verification of the charge on which the Board issued its complaint.
Section 10(b) of the Act, 29 U.S. C.A. § 160(b) provides that, if any person has engaged in or is engaging in any unfair labor practice defined by the Act, the Board shall issue and cause to be served upon the offender a complaint stating the charges which may be amended by the Board in its discretion at any time prior to issuance of an order based thereon. The person complained of is accorded the right to file an answer to the original or amended complaint and to appear in person or otherwise and give testimony at a time and place fixed in the complaint. The Board must conform to the standards established in the Act. Myers v. Bethlehem Corporation, 303 U.S. 41, 49, 58 S.Ct. 459, 82 L.Ed. 638.
An examination of the complaint shows respondent was properly charged with violation of Section 8(1) and there is substantial evidence to support this charge. It, therefore, follows that the application of Section 8(5) becomes immaterial.
The sole function of the complaint is to advise the respondent of the charges constituting unfair labor practices as defined in the Act, that he may have due notice and a full opportunity for hearing thereon. The Act does not require the particularity of pleading of an indictment or information, nor the elements of a cause like a declaration at law or a bill in equity. All that is requisite in a valid complaint before the Board is that there be a plain statement of the things claimed to constitute an unfair labor practice that respondent may be put upon his defense. Texas & Pacific Railroad Co. v. Interstate Commerce Commission, 162 U.S. 197, 215, 16 S.Ct. 666, 40 L.Ed. 940; Cincinnati, Hamilton & Dayton Railway Company v. Interstate Commerce Commission, 206 U.S. 142, 149, 27 S.Ct. 648, 51 L.Ed. 995.
,, The complaint here under consideration stated clearly that labor practices denounced by the Act were being pursued by respondent which would continue unless a cease and desist order was issued. The complaint did not set out the particular facts constituting the unfair labor practice as finally found but this was not necessary as all parties to the proceedings knew its basis.
The order of the Board was prospective in operation, not retroactive. Pennsylvania Co. v. United States, 236 U.S. 351, 361, 35 S.Ct. 370, 59 L.Ed. 616; National Labor Relations Board v. Mackay Co., 304 U.S. 333, 351, 58 S.Ct. 904, 82 L.Ed. 1381.
In considering whether the complaint is sufficient to support the order of the Board, it is necessary to bear in mind the nature of the proceedings under review, which is preventive, not punitive, and taken in the interest of the general public. The order complained of does not afford compensation for any injury alleged to have resulted from the matter charged. The National Labor Relations Act is a new device in administrative machinery introduced by the Congress in the hope of eliminating labor unrest and maladjustment in industry.
Our conclusion is that while the order may have been technically outside the issues raised by the pleadings, it was still germane to the subject matter before the Board. The real question before it and in the minds of all the parties was whether the respondent was engaged in unfair labor practices denounced by the National Labor Relations Act. New York Central & H. Railroad Co. v. Interstate Commerce Commission, C.C., 168 F. 131.
The complaint filed was sufficiently definite to support evidence of unfair labor practices after the verification of the charge. There is substantial evidence to sustain the findings and the order of the Board. N.L.R.B. v. Mackay Company, supra. A decree for enforcement will issue in conformity with the prayer of the petition. | What follows is an opinion from a United States Court of Appeals.
Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider liberal in suits against management, for union, individual worker, or government in suit against management; in government enforcement of labor laws, for the federal government or the validity of federal regulations; in Executive branch vs union or workers, for executive branch; in worker vs union (non-civil rights), for union; in conflicts between rival union, for union which opposed by management and "not ascertained" if neither union supported by management or if unclear; in injured workers or consumers vs management, against management; in other labor issues, for economic underdog if no civil rights issue is present; for support of person claiming denial of civil rights. Consider the directionality to be "mixed" if the directionality of the decision was intermediate to the extremes defined above or if the decision was mixed (e.g., the conviction of defendant in a criminal trial was affirmed on one count but reversed on a second count or if the conviction was afirmed but the sentence was reduced). Consider "not ascertained" if the directionality could not be determined or if the outcome could not be classified according to any conventional outcome standards. | What is the ideological directionality of the court of appeals decision? | [
"conservative",
"liberal",
"mixed",
"not ascertained"
] | [
1
] | songer |
UNITED STATES of America, Appellee, v. GARCIA, Victor Monsalve, Palacio, Defendants. Appeal of Victor MONSALVE, Defendant-Appellant.
No. 335, Docket 90-1243.
United States Court of Appeals, Second Circuit.
Argued Nov. 20, 1990.
Decided Nov. 30, 1990.
See also 735 F.Supp. 484.
Steven D. Jacobs, New Haven, Conn., for defendant-appellant.
Theodore B. Heinrich, Asst. U.S. Atty., Bridgeport, Conn. (Stanley A. Twardy, Jr., U.S. Atty., District of Connecticut, of counsel), for appellee.
Before Van Graafeiland and Walker, Circuit Judges, and Dearie, District Judge.
United States District Judge for the Eastern District of New York, sitting by designation.
PER CURIAM:
The defendant Victor Monsalve appeals from the refusal of the district court at his sentencing to reduce his offense level, pursuant to § 3B1.2 of the Sentencing Guidelines, by two levels for what he claims to have been his minor participation in the offense based upon his role as a courier in a drug transaction.
At 1:35 P.Mi on October 31, 1989, an undercover officer with a joint federal, state and local drug enforcement task force met Monsalve’s co-defendant, Oscar Garcia, outside the McDonald’s restaurant near Interstate 95 in Fairfield, Connecticut to purchase a kilogram of cocaine for $23,000. The meeting was preceded by several telephone conversations between the officer and Garcia during which the negotiations for the transactions were completed. Garcia drove alone to the meeting place. However, he was followed closely by a second car that contained a second co-defendant, John Palacio, and Monsalve. Garcia and Palacio left their cars and entered the undercover officer’s ear where the officer showed them the “buy money.” Palacio returned to his car and conferred with Monsalve. When Palacio told Monsalve that he was afraid to deliver the package, Monsalve replied that somebody had to deliver it, so he would. Monsalve got out of his car carrying the package of cocaine, entered the undercover’s car and handed the package to the undercover officer while Garcia counted the money. Moments later, Garcia, Palacio and Monsalve were arrested.
Thereafter all three defendants gave statements. Read together, the statements indicated that Garcia and Palacio knew each other previously but did not know Monsalve. Garcia had looked to Palacio to help him find a source for the cocaine and Palacio had contacted a source who directed Palacio to a Bridgeport shopping center. Garcia and Palacio went to the shopping center where they met Monsalve for the first time. Garcia was to receive $1000 and Palacio from $500 to $700 for the transaction. According to Monsalve, he was to be paid $150 to deliver the cocaine by the source whose name was “Wally”. Mon-salve, accompanied by Palacio, then drove his rental car with the cocaine under the back seat to the meeting place that Garcia had pre-arranged with the undercover officer.
On February 2, 1990, Monsalve entered a plea of guilty to a single count of conspiracy to distribute cocaine in violation of 21 U.S.C. §§ 841 and 846. The presentence report, prepared by the probation office, calculated the Guideline range applicable to Monsalve to be 51-63 months imprisonment based on an adjusted offense level of 24 after a two level reduction for acceptance of responsibility. The report indicated no reduction pursuant to § 3B1.2 of the Guidelines for defendant’s role in the offense.
At Monsalve’s sentencing on March 30, 1990, his counsel argued for the first time that Monsalve should receive a two level downward adjustment for his “minor role” as a courier. The district court denied the reduction. The district court found that Monsalve’s conduct was essential to the transaction “without which there was no deal.” The district judge did not agree with Monsalve that Garcia was the “mastermind” of the conspiracy, nor did he agree that Monsalve was simply carrying out orders. He also discredited Monsalve’s claim that “he did what he did for simply $150.” The court imposed a prison sentence of 55 months. In doing so, the court stated: “I do that based on the nature of the offense, including the weight and purity of the cocaine, coupled with your closeness to the source of the cocaine.”
Monsalve argues that the district court’s ruling denying the minor role adjustment was clearly erroneous. He also argues that the district court’s findings regarding Monsalve’s role violated his fifth and sixth amendment rights because they were without support in the record and thus cannot support the court’s ruling. We reject both arguments.
Monsalve claims minor role status based upon the following view of the facts: Garcia negotiated the transaction; Garcia arranged with Palacio to obtain the cocaine from a source known to the latter; Mon-salve was given the package of cocaine by an individual known to him as “Wally” who instructed him to drive with Palacio to the meeting site; Monsalve delivered the package to the undercover officer whom he had never met; and Monsalve was to receive $150 for his part whereas Garcia and Pala-da were to receive, respectively, $1000 and from $500 to $700 for theirs. In short, Monsalve asserts: “Garcia was the coordinator, Palacio the steerer and Monsalve the courier.” Under such circumstances, Mon-salve maintains, the district court’s refusal to find that he was a “minor” participant pursuant to § 3B1.2 and to reduce his offense level by two levels was clearly erroneous.
To the extent that Monsalve claims that one who is simply a courier is automatically entitled to a § 3B1.2 minor role adjustment based on that status, we reject his argument. Whether a defendant may be accorded the benefit of a “minor” or “minimal” role adjustment under § 3B1.2 does not turn solely upon his status or his assigned task in the criminal enterprise. Such a cramped view of “role” is inconsist-• ent with the prescription in the Guidelines that this determination is to be made not with regard to status in the abstract but rather with regard to the defendant’s culpability in the context of the facts of the case. See § 3B1.2 Background Commentary, stating that the range of adjustments in § 3B1.2 are “for a defendant who plays a part in committing the offense that makes him substantially less culpable than the average participant” and that the determination “is heavily dependent upon the facts of the particular case.”
Our sister circuits, when faced with the argument that the district court erred in not awarding courier status with a downward adjustment for a minor or minimal role in the offense, have similarly rejected it. United States v. Paz-Uribe, 891 F.2d 396, 399 (1st Cir.1989), cert. denied, _ U.S. _, 110 S.Ct. 2216, 109 L.Ed.2d 542 (1990); United States v. Ellis, 890 F.2d 1040, 1041 (8th Cir.1989); United States v. Williams, 890 F.2d 102, 104 (8th Cir.1989); United States v. Hewin, 877 F.2d 3, 4-5 (5th Cir.1989); United States v. White, 875 F.2d 427, 434 (4th Cir.1989); United States v. Buenrostro, 868 F.2d 135, 138 (5th Cir.1989), cert. denied, _ U.S. _, 110 S.Ct. 1957, 109 L.Ed.2d 319 (1990).
While in certain cases and on particular facts, a district court might conclude that a defendant courier was “substantially less culpable than the average participant” and thus make a downward adjustment pursuant to § 3B1.2, this conclusion is by no means mandated. Although the second Application Note accompanying this section of the Guidelines does state that a minimal participant downward adjustment would be appropriate, for example, “in a case where an individual was recruited as a courier for a single smuggling transaction involving a small amount of drugs,” this comment does not automatically entitle a courier to a downward adjustment, it only suggests that some couriers may receive a reduction, based upon their culpability in light of the specific facts. United States v. Buenrostro, 868 F.2d at 138.
Couriers are indispensable to the smuggling and delivery of drugs and their proceeds. The culpability of a defendant courier must depend necessarily on such factors as the nature of the defendant’s relationship to other participants, the importance of the defendant’s actions to the success of the venture, and the defendant’s awareness of the nature and scope of the criminal enterprise. See Application Note 1 to § 3B1.2 (“lack of knowledge or understanding of the scope and structure of the enterprise” indicative of minimal role). As the Guidelines comment, such a determination is heavily dependent upon the facts of the particular case as found by the district court. In the circumstances of this case, the district court’s refusal to adjust downward pursuant to § 3B1.2 was not clearly erroneous.
Monsalve also claims that his fifth and sixth amendment rights were violated because the district court’s findings at sentencing in support of its denial of the § 3B1.2 reduction were without support in the record. To the contrary, there was ample record support for the district court’s findings. The court found Mon-salve’s participation to be essential to the transaction and, in concluding that Garcia was not the “mastermind,” rejected Mon-salve’s claim that he was substantially less culpable than Garcia. This conclusion was justified based on the fact that Monsalve was personally entrusted with and ultimately delivered to the undercover officer, after Palacio became afraid to do so, cocaine worth $23,000. The court also discredited Monsalve’s assertion that he was only carrying out orders and was only being paid $150 as compared to $1000 for Garcia and $500-700 for Palacio. In determining culpability, the district court “need not accept the defendant’s self-serving account of his role in the drug organization,” United States v. Buenrostro, 868 F.2d at 138. In imposing sentence, the district court emphasized “the nature of the offense, including the weight and purity of the cocaine” as well as Monsalve’s “closeness to the source of the cocaine.” It is the defendant’s burden to establish by a preponderance of the evidence that his level of culpability entitles him to a minor role reduction. United States v. Urrego-Linares, 879 F.2d 1234, 1236 (4th Cir.1989), cert. denied, _ U.S. _, 110 S.Ct. 346, 107 L.Ed.2d 334 (1989). Here the defendant failed to carry that burden and the district court’s findings neither lacked record support nor were clearly erroneous.
Judgment affirmed. | What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in civil law issues involving government actors. The issue is: "Did the court's interpretation of the substantial evidence rule support the government? For example, "such evidence as a reasonable mind might accept as adequate to support a conclusion" or "more than a mere scintilla". This issue is present only when the court indicates that it is using this doctrine, rather than when the court is merely discussing the evidence to determine whether the evidence supports the position of the appellant or respondent." Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". | Did the court's interpretation of the substantial evidence rule support the government? For example, "such evidence as a reasonable mind might accept as adequate to support a conclusion" or "more than a mere scintilla". This issue is present only when the court indicates that it is using this doctrine, rather than when the court is merely discussing the evidence to determine whether the evidence supports the position of the appellant or respondent. | [
"No",
"Yes",
"Mixed answer",
"Issue not discussed"
] | [
3
] | songer |
UNITED STATES of America, Appellant, v. FRANKLIN STEEL PRODUCTS, INC., Appellee.
No. 71-2428.
United States Court of Appeals, Ninth Circuit.
July 16, 1973.
Rehearing Denied Sept. 10, 1973.
Michael H. Stein (argued), L. Patrick Gray, III, Asst. Atty. Gen., Washington, D. C., Wm. Mathew Bryne, Jr., Robert L. Meyer, U. S. Attys., Larry L. Dier, Asst. U. S. Atty., Los Angeles, Cal., Walter H. Fleischer, Civil Div., Dept, of Justice, Washington, D. C., for appellant.
Albert A. Dorn (argued), Los Angeles, Cal., for appellee.
Before HAMLIN and CHOY, Circuit Judges, and SKOPIL, District Judge.
The Honorable Otto R. Skopil, Jr., United States District Judge for the District of Oregon, sitting by designation.
CHOY, Circuit Judge:
The United States sued under 28 U.S. C. § 1345 to recover the contract price plus consequential damages from Franklin Steel Products, Inc. (Franklin) for breach of express warranty to provide aircraft engine bearings which conformed to contract specifications. After a non-jury trial, the district court entered judgment for Franklin. We reverse.
In 1962 Franklin entered into two contracts to furnish the Aviation Supply Office of the Department of the Navy 321 master rod bearings, Curtis-Wright aircraft engine part number 171815, at a cost of $90 each. The contracts required that all bearings be in new and unused condition and meet particular specifications, including a certain percentage of tin to reduce corrosion and steel of a certain hardness to resist stress and fatigue. Failure of the bearings to conform to these specifications could cause complete engine failure and loss of both aircraft and pilots.
The contracts called for inspection by the government before acceptance. Inspection procedures were to include mag-naflux or zyglo or the equivalent thereof and were specified as 100% final inspection by the Navy’s O & R Shop for con-formaee to the applicable specifications. In addition, the contract contained the following warranty clause:
(a) Notwithstanding inspection and acceptance by the Government of articles furnished under this contract or any provision of this contract concerning the conclusiveness thereof, the Contractor warrants that at the time of delivery (i) all materials delivered under this contract will be free from defects in material or workmanship and will conform with the specifications, and all other requirements of this contract; .
(b) Within one year after the delivery of any article under this contract, written notice may be given by the Government to the Contractor of any breach of the warranties in paragraph (a) of this clause as to such article. Within a reasonable time after such notice, the Contracting Officer may either (i) require the prompt correction or replacement of any article or part thereof (including preservation, packaging, packing, and marking) that did not at the time of delivery conform with the requirements of this contract within the meaning of paragraph (a) of this clause, or thereafter does not so conform in consequence of any such breach; or (ii) retain such article, whereupon the contract price thereof shall be reduced by an amount equitable under the circumstances and the Contractor shall promptly make appropriate repayment . . .
* * * * * *
(e) The remedies afforded the Government by paragraph (b) of this clause shall be exclusive as to any breach of the warranties in paragraph (a) of this clause, except any such breach involving latent defects, fraud or such gross mistakes as amount to fraud.
The bearings supplied by Franklin did not comply with the specifications. The tin content was unacceptable; the steel was of insufficient strength; and the part number was in the wrong place. (This last noncomformity did not diminish the functional integrity of the bearing.) In fact, the bearings were not numbered 171815 bearings, but obsolete bearings which had been replated and renumbered so as to resemble the bearings called for in the contract.
The failure to meet specifications was not discovered by the Navy until after all of the bearings had been accepted and 180 of the bearings installed in engines. The enormity of the hazard actuated the Navy to recall all engines in which Franklin bearings had been installed and to refit them with a proper new bearing. This retrofit operation cost the Navy $817 per engine ($147,060).
The district court held that the government had a duty to inspect the bearing and to determine whether they complied with applicable specifications; that by accepting the bearings the government waived any rights by its failure to discover the defects during its inspection; that the warranty provisions were superseded by the inspection provisions; and that in any case, any rights stemming from the breach of the warranty were waived by the government’s failure to return the bearings or make any other demand for breach of the warranty. We disagree.
The 100% inspection clause imposes no duty on the government in favor of Franklin. A reading of the clause and the testimony at trial establish that the clause was inserted only to give further protection to the government beyond that afforded by the warranty. Franklin cannot benefit by the government’s failure to take advantage of this protection. We note that this same issue was raised in United States v. Aerodex, Inc., 469 F.2d 1003 (5th Cir. 1972) and was also rejected there.
Even if the government were obliged to inspect the bearings, the contract specifically provides that inspection and subsequent acceptance are not conclusive “as regards latent defects, fraud, or such gross mistakes as to amount to fraud.” The inspection failed to uncover at least three deviations from the specifications. One of these, the improper placement of the serial numbers, was patent and could have been discovered during visual inspection. Acceptance of the bearings precludes the government from now objecting to this nonconformity. But acceptance does not bar objection to the latent deficiencies in steel and tin not discoverable by visual inspection. The tests specified in the contracts, magnaflux or zyglo or the equivalent thereof, are not directed at discovering either the hardness of steel or tin content. Thus, the inspection clause in no way absolves the contractor from liability for these two major latent defects in the bearings.
In any event, the contract specifically provides that notwithstanding inspection and acceptance the contractor warrants that the goods will conform with the specifications. The warranty supersedes the inspection clause. This reading of the contract applies the settled principle that in the case of an express warranty “it is no defense that the buyer, had he inspected, might have found out the falsity of the seller’s statements” 8 Williston on Contracts, § 973, at 500 (3rd ed. 1964); General Electric Co. v. United States Dynamics, Inc., 403 F.2d 933 (1st Cir. 1968).
The question still remains whether Franklin has an adequate defense to the recovery of damages for the breach of warranty. The warranty clause itself provides for exclusive remedies in case of a breach and the government admittedly did not pursue these remedies. But this does not afford Franklin a defense to the breach of warranty claim because breaches involving latent defects are specifically excepted from the exclusivity provision. Aerodex, supra 469 F.2d at 1012. There being at least two major latent defects in the bearings, government recovery for the breach of the warranty can be sustained.
Furthermore, the district court erred in concluding that the government waived its rights under the warranty clause because it failed to return the bearings or make any demand for breach of warranty. First, the bearings were not returned because they were counterfeit, and it would have been irresponsible for the government to allow them to return to the stream of commerce. At the close of the trial, Franklin agreed that the bearings should be destroyed. Second, Franklin was informed by letter of the breach of the warranty in August 1963, well within the one year period specified in the contract. Third, this suit was brought within the six year limitation period specified for contract actions by the United States. 28 U.S.C. § 2415.
Finally, we must decide the measure of damages awardable to the government. The main issue presented is whether in addition to the contract price paid for the discrepant bearings ($28,890) the govei'nment may recover consequential damages for the retrofit operation ($147,060). In Aerodex, supra the government was permitted to recover both such damages. While in Aerodex the court held that the contractor was also liable for fraud, for purposes of damages, that factor does not differentiate our case from Aerodox since the contracts here treat breaches involving fraud and latent defects alike.
We agree again with Aerodex in holding that Franklin is liable for all damages which are the direct and proximate result of the breach of warranty. Schlottman v. Pressey, 195 F.2d 343 (10th Cir.), cert. denied, 344 U.S. 817, 73 S.Ct. 12, 97 L.Ed. 636 (1952). Such consequential damages may include replacement of defective goods or damages for injuries caused by these defective goods. Grace & Co. (Pacific Coast) v. Pittsburgh Testing Laboratory, 249 F.2d 165 (9th Cir. 1957).
The costs of replacing the bearings were necessary and reasonable. The Navy needed the bearings on an emergency basis and installed them as soon as practicable after they were accepted into airplanes necessary to support the fleet in the Mediterranean and Far East. Since the planes posed a great hazard because of the defective bearings, it was essential that the emergency retrofit opez-ation be conducted. Franklin knew or should have known that unless it supplied the government with the proper bearings such consequences would follow.
We reverse and remand for further proeeedings in conformity herewith.
. As to acceptance, the contract provided: . . . Acceptance or rejection of the supplies shall be made as promptly as practicable after delivery, except as otherwise provided in this contract; but failure to inspect and accept or reject supplies shall neither relieve the Contractor from responsibility for such supplies as are not in accordance with the contract requirements nor impose liability on the Government therefor.
. Aerodex, supra presents the same issues raised in this appeal. The only distinction between the cases is that the contractor in Aerodex was also held liable for fraud.
. The facts of the case suggest that the government could have charged the contractor with fraud or gross mistakes as to amount to fraud in light of the counterfeit nature of the bearings. See United States v. Aerodex, supra. However, since - the government did not argue this theory, we do not consider it on this appeal.
. Simple, inexpensive, nondestructive tests exist by which the government could have discovered these deficiencies, but such tests were not specified in the contract. The government had every right to rely on Franklin’s express warranty that the bearings would conform to the specifications. “The buyer is justified in taking the seller at his word, and in relying upon the seller’s statement rather than his own examination.” Williston, on Contracts, § 793 at 500 (3d ed. 1964); General Electric Co. v. United States Dynamics, Inc., 403 F.2d 933 (1st Cir. 1968); Norton v. Lindsay, 350 F.2d 46 (10th Cir. 1965); Union Pipe & Machinery v. Luria Steel & Trading Corp., 225 F.2d 829 (6th Cir. 1955). While the government may have been “contributorily negligent” in not conducting a more thorough inspection, that is not a defense to a breach of warranty claim. Brown v. Chapman, 304 F.2d 149 (9th Cir. 1962).
. We see no merit in Franklin’s argument that other Navy regulations should be read to supersede the warranty clause under the so-called “Christian doctrine.” G. L. Christian & Associates v. United States, 312 F.2d 418, cert. denied, 375 U.S. 954, 84 S.Ct. 444, 11 L.Ed.2d 314 (1963). Those regulations do not apply where the intent of a contract is for visual inspection and the purpose of the warranty is protection of the government against latent defects. | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
Your task is to determine the nature of the counsel for the respondent. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party | What is the nature of the counsel for the respondent? | [
"none (pro se)",
"court appointed",
"legal aid or public defender",
"private",
"government - US",
"government - state or local",
"interest group, union, professional group",
"other or not ascertained"
] | [
3
] | songer |
Elery Erigen BROWN, Appellee, v. John W. GARDNER, Secretary of Health, Education, and Welfare, Appellant.
No. 11354.
United States Court of Appeals Fourth Circuit.
Submitted on Briefs Nov. 6,1967.
Decided Dec. 7, 1967.
Barefoot Sanders, Asst. Atty. Gen., Morton Hollander and Jack H. Weiner, Attys., Dept, of Justice, and Milton J. Ferguson, U. S. Atty., on the brief for appellant.
Ned H. Ragland, Beckley, W. Va., on the brief for appellee.
Before HAYNSWORTH, Chief Judge, MARVIN JONES, Senior Judge, and BUTZNER, Circuit Judge.
Sitting by designation.
HAYNSWORTH, Chief Judge:
We affirm the District Court’s allowance of an attorney’s fee in this Social Security case upon the assumption that it included, and was not entirely in addition to, a fee previously allowed by the Secretary and upon the lawyer’s disclaimer of any right to collect both.
After an administrative denial of a claim for disability benefits, a proceeding was brought in the District Court, which concluded in an acceptance of the Secretary’s findings and conclusions. An appeal was taken to this Court, and we directed a remand of the ease to the Secretary. Brown v. Celebrezze, 4 Cir., 367 F.2d 455. Meanwhile, upon an administrative suggestion, a second claim was filed, and a determination was made that the claimant had been disabled since March 31, 1964. Thereafter in further proceedings on the remand directed by this Court, there was a determination that the disability dated from 1960 and the payment of additional benefits was authorized.
Upon the finding that the disability began in 1964, accrued benefits aggregating $5,260.30 were paid. Out of that the District Court allowed a fee of $616, being twenty-five per cent of that portion of the benefits paid attributable to the primary claim. Benefits payable to dependents were excluded from the fee base.
Upon the later finding that disability dated from 1960, additional accrued benefits of $11,573.30 were paid, and the Secretary allowed the lawyer a fee of $1,487.90 for his services in the administrative proceedings. Thereafter the Court made a supplemental fee award of $2,877.07, and it is from that order that the Secretary has appealed.
We have no doubt of the Court’s power to award a reasonable fee to the lawyer for services rendered in this case. While the administrative suggestion of the filing of a second claim was made during the pendency of the case on appeal in this Court, the award entered upon it had a consequential relation to the judicial proceedings, while the later, larger award was the direct result of the remand directed by this Court. In every sense the conclusion of the judicial proceeding was favorable to the claimant.
In light of the relationship between the judicial proceedings and the successive administrative awards and the Secretary’s incapacity to allow any . compensation for services rendered in Court, we think the claimant was entitled to all benefits paid by reason of the favorable judgment of this Court within the meaning of 42 U.S.C.A. § 406(b) (1). Conner v. Gardner, 4 Cir., 381 F.2d 497.
The order of the District Court allowing a supplemental fee of $2,877.07 is not clear in its inclusiveness of the $1,487.90 allowed by the Secretary for services in the administrative proceedings. The lawyer’s representations in this Court and his disclaimer of any intention to collect both allowances, however, supplies the clarity the order previously lacked. The supplemental fee award of $1,389.17 ($2,877.07 — $1,487.-90) added to the initial allowance of $616, makes the total award for legal services' in the judicial proceedings $2,005.17. That is certainly not an unreasonable fee for extensive services rendered in the District Court and, on appeal, in this Court, and it is far below the statutory maximum of twenty-five per cent of the $16,833.60 paid in the aggregate as accrued benefits on the primary and dependent claims.
Construing the supplemental order as we do, as authorizing the payment of an additional fee of $2,877.07 for services in both the administrative and judicial proceedings and inclusive of the $1,487.-90 allowed by the Secretary, it is affirmed.
Affirmed.
Had the Secretary made no determination of an appropriate fee for the administrative services, the Court would not have been authorized to do so. Robinson v. Gardner, 4 Cir., 374 F.2d 949. | 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. | What is the general category of issues discussed in the opinion of the court? | [
"criminal and prisoner petitions",
"civil - government",
"diversity of citizenship",
"civil - private",
"other, not applicable",
"not ascertained"
] | [
1
] | songer |
In the Matter of FEDERAL SHOPPING WAY, INC., a Washington corporation, Debtor-Appellant.
No. 24199.
United States Court of Appeals, Ninth Circuit.
Sept. 28, 1970.
Rehearing Denied Nov. 16, 1970.
J. R. Cissna (argued), Federal Way, Wash., Frederick Paul (argued), Seattle, Wash., Thomas Henderson, Tacoma, Wash., Frank Payne, Federal Way, Wash., for appellant.
Daniel Brink (argued), Tretheway, Brink & Wilson, James E. Newton, S.E. C., Jack H. Bookey, Atty., Seattle Regional Office, S.E.C., Frederick Paul (argued), Stanley A. Carlson (argued), Davis, Wright, Todd, Reise & Jones, Seattle, Wash., Phillip A. Loomis, Gen. Counsel, Paul Gonson (argued), Asst. Gen. Counsel, David Ferber, Sol., Warren G. Stolusky and Stuart A. Morse, Attys., S.E.C., Washington, D. C., for intervenors-appellees.
Before JERTBERG, WRIGHT and KILKENNY, Circuit Judges.
EUGENE A. WRIGHT, Circuit Judge:
This is -an appeal from an order adopting a report by a referee in bankruptcy, sitting as a special master. It approved an involuntary petition for the reorganization of the debtor-appellant, Federal Shopping Way, Inc., pursuant to Chapter X of the Bankruptcy Act (Act), 11 U.S.C. § 501 et seq. Jurisdiction is conferred on this court by Sections 121 and 24 of the Act, 11 U.S.C. §§ 521 and 47.
The parties to this appeal are the appellant debtor corporation and, as appellees, the petitioning creditors, the Securities and Exchange Commission (S.E. C.), and the trustee appointed by the district court below. The S.E.C. entered the case because, two months prior to the filing of the involuntary reorganization petition, it had filed a petition for an injunction and appointment of a receiver under the antifraud provisions of Section 17(a) of the Securities Act of 1933, 15 U.S.C. § 77q(a). The result of the latter litigation is the subject of a companion appeal, S.E.C. v. Federal Shopping Way, Inc., 433 F.2d 148 (9th Cir. September 28, 1970).
The debtor was incorporated under the laws of the State of Washington on May 24, 1955. Since that time its principal business has been the ownership, operation and management of a 25-acre shopping center in Federal Way, Washington, between Seattle and Tacoma. The debtor has also been engaged in the acquisition, development and sale or leasing of 120 acres of adjacent land.
The involuntary petition was filed on November 13, 1967 by holders of debt- or’s debentures. Hearings on the petition began on March 18, 1968, and continued for three weeks, during which time testimony was heard and voluminous exhibits were introduced. The report of the referee-special master consumes 68 pages of the clerk’s transcript on appeal.
Aside from the issue of the value of the debtor’s holdings on the date the petition was filed, most of the testimony and exhibits deal with the maze of transactions between the debtor, Federal Old Line Life Insurance Company, and approximately 60 “cooperating companies.” Federal Old Line, a Washington mutual insurance company, was the major creditor of the debtor. Both were controlled by the same management. At the time the involuntary petition was filed, Federal Old Line was under the control of the State Insurance Commissioner pursuant to a Statutory rehabilitation procedure. The “cooperating companies” were likewise under the control of the same management, having been created to avoid restrictions on investments by Federal Old Line under the Washington State Insurance Code.
We cannot attempt to cover all of the facts in this opinion. Suffice it to say, we have examined much of the record and many of the exhibits called to our attention.
We affirm the findings of the referee on those issues which are essentially factual: (1) At the time the petition was filed, the debtor was insolvent in the “equity sense” in that it was “unable to pay its debts as they mature.” Section 130(1) of Act, 11 U.S.C. § 530.(2) The petition was filed in “good faith.” Section 146 of Act, 11 U.S.C. § 546.
The legal issues which we have been able to discern and which merit discussion are these:
A. Were the petitioning creditors disqualified because they also held stock in the debtor?
B. Was the appointment of a receiver pendente lite in the S.E.C. litigation sufficient to meet the requirements of Section 131(2) of Act, 11 U. S.C. § 531?
C. Was the debtor denied due process at any point in the proceedings ?
We discuss each issue in turn.
-A. Were the petitioning creditors disqualified from joining in the petition because of their stock ownership?
Debtor contends that the petitioning debenture holders are disqualified because they hold stock in the debt- or corporation.
Assuming, without deciding, that Section 59(e) (2) of the Act, 11 U.S.C. § 95, is applicable to Chapter X petitions, that section simply disqualifies shareholders “in computing the number of creditors of a bankrupt for the purpose of determining how many creditors must join in the petition. * * * ” It does not exclude shareholder-creditors from joining in the petition itself. In re Super Vent Window Co., 52 F.Supp. 356, 357 (D.C.Fla.1943); Perkins v. Dorman, 206 F. 858, 860 (D.C.N.M.1913). 3 Collier on Bankruptcy § 59e(2) at 633 (14 ed., Supp. 1969).
Appellant also contends that petitioners are disqualified because their claims are not liquidated and are contingent. Section 126 of Act, 11 U.S.C. § 526. This contention, however, was not presented to the referee or the district court on the petition for review, and we decline to consider it on appeal.
B. Was the appointment of a receiver pendente lite in the S.E.C. litigation sufficient to meet the requirements of Section 131(2) of the Act?
In addition to the requirements for all petitions for reorganization enumerated in Section 130 of the Act, 11 U.S.C. § 530, Section 131 requires proof of at least one of five alternative requirements for involuntary petitions. One is “that a receiver or trustee has been appointed for or has taken charge of all or the greater portion of the property of the corporation in a pending equity proceeding.” Subsection (2).
Two months prior to the filing of the involuntary petition under Chapter X, the S.E.C. commenced an action in the district court for alleged violations of the antifraud provisions of the Securities and Exchange Act of 1933. A receiver pendente lite was appointed in that litigation to
“ * * * take immediate custody, control and possession of all of the property and assets of any kind, real or personal of or in the possession or under the control of the defendant Federal Shopping Way, Inc., a Washington corporation, or of any corporations under its control, wheresoever situated, with full power to sue for, collect, receive and take into possession all goods, chattels, rights, securities, credits, monies, effects, lands, notes, mortgages, leases, contracts, and all books and records and documents of or in the possession of said Federal Shopping Way, Inc., a Washington corporation, or of any corporations under its control; and said receiver pendente lite shall conserve, hold and manage all such property and assets above described pending further order of this court.” (Record, vol. 2 at 300.)
The debtor contends that the appointment of the receiver in the S.E.C. litigation does not meet the requirements of Section 131(2) of the Act.
In Los Angeles Trust Deed & Mortgage Exchange v. Securities and Exchange Commission, 285 F.2d 162, 179-182 (9th Cir. 1960), we held that it was within the power of the district court “as a court of equity * * * ” to appoint a receiver to protect investors from further depletion of their property or rights. We conclude that the appointment of the receiver in the S.E.C. litigation was the appointment of a receiver “in a pending equity proceeding” within the meaning of Section 131(2). See also, Bryan v. Welch, 74 F.2d 964, 970 (10th Cir. 1935).
C. Was the debtor denied due process at any point in the proceedings ?
The debtor contends that it was denied due process because the temporary restraining order in the S.E.C. litigation was issued without notice and hearing, because its officers were not állowed funds to hire attorneys and experts, and because it was given insufficient time to prepare for the Chapter X hearing.
We have examined each of these arguments and find them to be patently frivolous. The temporary restraining order was issued after notice and hearing pursuant to Rule 65, Federal Rules of Civil Procedure, the debtor’s attorney has received funds for his expenses and there is nothing to indicate that the officers could not hire their own attorneys or experts, if they so desired, and the Chapter X hearing did not occur until four months after the filing of the petition.
The order confirming the referee-special master’s report and appointing a reorganization trustee is
Affirmed.
. The history of the litigation between Federal Old Line and the State Insurance Commissioner, culminating in the rehabilitation proceedings primarily because of the over concentration of investments in the Federal Way area, is reported in two decisions of the Washington Supreme Court, Kueckelhan v. Federal Old Line Ins. Co., 74 Wash.2d 304, 306, 444 P.2d 667 (1968), and 69 Wash.2d 392, 418 P.2d 443 (1966).
The State Insurance Commissioner, who was a party to the bankruptcy proceedings below, initially filed an appeal from the order approving the Chapter X petition. At oral argument the Commissioner moved to dismiss his appeal and the motion was granted.
. After reviewing the numerous delinquent claims against the debtor, the referee made the following statement which is fully supported by the record:
“In summary, whatever objective information is available, whether furnished by the alleged debtor or the adverse parties, in the form of audits conducted in accordance with generally accepted accounting standards and procedures, tax returns, reports to the Securities and Exchange Commission, and the testimony and records generally in this proceeding, all show that the debtor has been and is unable to meet substantial obligations as they have matured, and that its liabilities exceed its assets. Countervailing testimony is argumentative and, at best, based upon the materialization of promotional and speculative programs which the debtor’s management has for years attempted to execute without success.” (Record, vol. 2 at 290-291.)
. For such reasons we would be fully justified in dismissing the appeal. See Thys Co. v. Anglo Calif. Nat’l Bank, 219 F.2d 131 (9th Cir. 1955). We refrain from doing so only because of the many investors and public agencies interested in the ultimate decision of these appeals.
. Assuming the debt is liquidated and not contingent, Section 126 of Act, 11 U.S.C. § 526, contains no limitation on the type of creditor who may file an involuntary petition. Appellees argue that Section 95 (e), if found to contain a limitation, is inconsistent with Section 126, and therefore the latter section is inapplicable to Chapter X proceedings. Section 102 of Act, 11 U.S.C. § 502. However, since we find no inconsistency under our interpretation of Section 95(e), we do not express a view on this issue. | What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Consider the following categories: "criminal" (including appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence), "civil rights" (excluding First Amendment or due process; also excluding claims of denial of rights in criminal proceeding or claims by prisoners that challenge their conviction or their sentence (e.g., habeas corpus petitions are coded under the criminal category); does include civil suits instituted by both prisoners and callable non-prisoners alleging denial of rights by criminal justice officials), "First Amendment", "due process" (claims in civil cases by persons other than prisoners, does not include due process challenges to government economic regulation), "privacy", "labor relations", "economic activity and regulation", and "miscellaneous". | What is the general issue in the case? | [
"criminal",
"civil rights",
"First Amendment",
"due process",
"privacy",
"labor relations",
"economic activity and regulation",
"miscellaneous"
] | [
7
] | songer |
WATKINS et al. v. HUDSON COAL CO.
No. 8651.
Circuit Court of Appeals, Third Circuit
Argued Jan. 11, 1945.
Decided Sept. 5, 1945.
Rehearing Denied Oct. 2, 1945.
McALLISTER, Circuit Judge, dissenting in part.
James G. McDonough and Stanley F. Coar, both of Scranton, Pa. (J. Frank Connolly, of Scranton, Pa., on the brief), for appellants.
George Szabad, of Washington, D. C. (Douglas B. Maggs, Sol., and Bessie Margolin, Asst. Sol., both of Washington, D. C., Ernest N. Votaw, Regional Atty., of Philadelphia, Pa., and Harry M. Leet, Atty., United States Department of Labor, of Washington, D. C., on the brief), for Wage and Hour Division, amicus curiae.
R. S. Houck, of Scranton, Pa. (Francis D. Mahon, of Scranton, Pa., and Thomas L. Ennis, of New York City, on the brief), for appellee.
Before GOODRICH and McALLISTER, Circuit Judges, and GIBSON, District Judge.
GOODRICH, Circuit Judge.
This is a civil action based on the “Fair Labor Standards Act of 1938”, to recover unpaid overtime wages claimed under § 7 (a) and liquidated damages, reasonable attorney’s fee and court costs claimed under § 16(b). Defendant is the owner and operator of certain coal mines in Pennsylvania in and around which plaintiffs are employed. That these employees are within the Act is not disputed.
Thirty-eight employees filed complaint seeking recovery as indicated. Defendant coal company in answer to the complaint made application for stay of suit until arbitration had been had. Plaintiffs’ reply to the application was that the contracts set out in defendant’s answer and upon which defendant affirmatively relied were illegal and void as against public policy and contrary to the Act. The District Court ordered that trial be “stayed until arbitration has been had in accordance with the terms of the agreements * * * This is the order appealed from. A brief has also been filed for the Administrator of the Wage and Hour Division, United States Department of Labor as amicus curiae. Certain matters of fact were stipulated by the parties, which will be considered later in conjunction with the requirements of the Act. Our conclusion is that the matter should proceed to arbitration, but only in accordance with the rulings of law as hereinafter set out.
The events separate naturally into three distinct time periods, each of which centers upon a different problem under the Act. The first period extends from the effective date of the Act, October 24, 1938, until November 1, 1939, when an alleged formula method for overtime was announced. The second period extends from November 1, 1939, until May 1, 1941, when the Union-Operators Agreement of that day went into effect. The third period covers time subsequent to May 1, 1941.
1. First Period, October 24, 1938 to November 1, 1939.
During this first period some of the plaintiffs were paid straight hourly rates and others straight monthly salaries. The defendant coal company admits that neither group of employees were paid any time and one-half overtime wages before November 1, 1939, but contends that the overtime due for the period was later paid by means of an “accord and satisfaction”. This conclusion is disputed by plaintiffs on the ground that whatever was done by employees was a mere “waiver” and ineffective to change their rights under the Act.
Since plaintiffs were employed during the period under contention and since they were not paid the time and one-half rate provided in the Act for weekday hours over forty-four, it is perfectly clear that prima facie there is indicated on behalf of such employees a claim for the pay that they were entitled to under the Act, together with liquidated damages and attorney’s fee. But, says the company, we settled all that controversy by the agreement of May, 1941, made between the union and the company with the union as the authorized bargaining agent for these employee-plaintiffs. We settled it by the provision in the contract that “The wage adjustments provided herein for employees customarily working forty-two hours a week, or more, constitute full settlement and satisfaction of all their claims, if any, for overtime against any signatory operator arising out of employment prior to May 1, 1941.”
What is the effect of this clause in the agreement ? It is now authoritatively settled that a waiver by an employee, even by a release under seal, of his rights against an employer under the Act is not effective to bar him from subsequent assertion of those rights. Brooklyn Savings Bank v. O’Neil, and its companion cases, 65 S.Ct. 895, 900, decide this, as do the flock of well considered cases in the District Courts and Circuit Courts of Appeal. But in the Brooklyn Savings Bank decision the Court indicated that other considerations might apply if the sum paid by an employer to an employee was the “result of the settlement of a bona fide dispute * * * with respect to coverage or amount.” The inference is that if there were, between employer and employee, a dispute either as to whether an employee was covered by the Act or, if so. how much he had coming to him by reasons of the provision of the Act, settlement between the two parties of their dispute may, under proper circumstances, be upheld.
But we do not see how the facts of this case, at any rate on the state of the record now before us, bring the claim here involved within the exception mentioned by the Supreme Court as legally permissible. The identity of these employees is established through their lawsuit. We do not understand that the hours or terms upon which they worked prior to May, 1941, is subject to serious dispute. That their employment is covered by the Act is conceded. The amount which in May, 1941, was due them under the Act may be mathematically calculated by simple arithmetic once the hours are separated into regular and overtime hours. We have then no settlement of a dispute with respect to coverage or amount involved here. We have, instead, the question of whether a purported settlement can be effected by a modification upward of the wage scale formerly existing. In other words, the company, to meet its obligation incurred by reason of its failure to pay the employees, says that in the future it will pay its men so much. That, it says, may be stipulated as a settlement of claims under the Act which have accrued to the employee. We do not think this is compliance with the Act. The history of the discussions concerning it and the judicial interpretation of the intent of the Act have been developed for us by the Supreme Court and brought into highlight by various dissenting opinions. We think that the change in wage scale is not a settlement for amounts admitted due under the Act prior to the adoption of the new scale and that that case is like the waiver case which the Supreme Court has declared not valid settlement under the statute.
The soundness of this conclusion is demonstrated, we think, by a little further analysis of the considerations which might bear on the differences between a waiver and the settlement under bona fide dispute mentioned by the Supreme Court. The company urges the increased payments under wage adjustments and the advantage of having these adjustments permanently incorporated in the wage scale as the equivalent of the payment which complies with the Act. It must be remembered, however, that the right of time and one-half for overtime, plus liquidated damages for failing to get it, is an individual right of the employee, not a criminal sanction nor even a general right given to the employees’ bargaining unit. Unless an individual employee remained in the company’s employ for long enough after the adoption of this increased wage scale to be paid whatever he had coming under the Act before the wage scale went into effect, he has not been compensated as the Act requires. Furthermore, we do not know, nor see how it could be demonstrated, how much of the increased wage scale was for payment of compensation due under the Act and how much of it may have resulted from economic pressure by the bargaining agent or how much of it came naturally on a rising wage scale market. The contested clause states that the wage adjustments apply to “all claims, if any, for overtime”. We think the very nature of the language used shows that the inclusion of the overtime claims was but part, perhaps only a nominal part, of the bargaining by which the new wage scale was determined. Our conclusion is that the terms of the new wage scale is not a settlement sufficient under the Act in the light of the Supreme Court decisions above cited.
2. Second Period, November 1, 1939, to May 1, 1941.
The second period running from November 1, 1939, to May 1, 1941, involves the interpretation of a resolution of the Board of Conciliation of September 5, 1939, providing: “(1) In compliance with the basic hour and rate provision of the Fair Labor Standards Act of 1938, which provides for a maximum of forty hours per week in October, 1940, plus punitive rates for time in excess thereof, it is agreed that the forty hours per week shall be the basis for a formula, which will produce earnings that shall be the same as earnings of such employees for equal time worked;”. It is readily apparent that this clause gives rise to two problems: First, whether the formula described was actually instituted, and, second, whether if instituted it was valid under the Act. If the formula was not actually applied to determine wages then obviously its legality is irrelevant. If it was applied then its legality turns upon precisely the same considerations as the central question of the third period, and would better be considered in conjunction with that question.
The central question of the second period, that is, whether a formula was really adopted, can be answered only by considering what was paid and how it was paid. The language of the clause itself is not at all revealing. The words “forty hours per week shall be the basis for a formula” producing equal earnings for equal time worked indicates nothing beyond an intent expressed on the part of the Conciliation Board to adopt a formula which intent might be imputed to the parties on principles of agency. Our problem is, however, not with intent but with realization of intent. As the District Court pointed out, the effect of the resolution and the entire series of agreements which all provided for action by the Arbitration Board, “was to authorize each employer in the industry to adopt any formula which would comply with the Act * * *. There is no doubt that * * * a formula * * * could be worked out.” The coal company used the same reasoning to go one step further and say “Id certum est quod certum reddi potesti.” But it is one thing to say that a formula was authorized, even let us say intended, and quite a bit more to conclude that it was actually applied.
The defendant urges that “the Board of Conciliation by the resolution of September 5, 1939 sought to provide a general formula * * * leaving the mere mathematics of determining each individual rate to bookkeepers.” But the “mere mathematics” of bookkeeping, far from substantiating the view that a formula was in operation, does exactly the opposite. It indicates clearly that however readily a formula might have been made operative none in fact actually was.
Thus we may take a specific example: that of John Sawczak for whom representative due bills are photostatically reproduced and before us. The coal company says: “the plaintiff, John Sawczak’s regular rate of pay during the period from October 29, 1939 to October 27, 1940 was $0.60 per hour for the first 42 hours worked in each week, which was the regular hourly rate established for the work done by plaintiff John Sawczak in accordance with the resolution of the Board of Conciliation * * * and one and one-half times that rate for all hours worked by him in excess of 42 hours in any week.”
It will be noted that the base or regular rate was acknowledged to be $0.60 per hour under the resolution of the Board of Conciliation for the first two-thirds of the second period.
Now let us take a due bill and compare. There is reproduced the due bill for November 1-15, 1939. This period comprises two weeks and one day, during which 112 hours were worked and $82.64 earned. If we assume that 8 hours were worked on the extra day then we have a total of 92 hours at regular rate of $0.60 ($55.20) plus 20 hours at time and one-half rate of $0.90 ($18.00) or a total of $73.20. If we assume that the employee did not work at all on the fifteenth day we have, by the same method of computation, a total of $75.60. If we assume that he worked 12 hours on that extra day we only reach a total of $72, or to go still further and assume he worked 16 or 24 hours on that fifteenth day we get respectively $70.80 and $68.40. No computation except one can yield the wages shown on the due bill for the hours worked and that one is under the old rate. When the old rate of $0.7379 shown on the due bills prior to the second period is multiplied by the 112 hours worked we get the precise amount of $82.64 shown as earned and computed to the half cent.
The same procedure could be followed with the other due bills of John Sawczak. Similarly the facts hold for John K. Hohn whose due bills are also photostatically reproduced. And since the parties agree that these samples are indicative of the whole, it is clear what our conclusion must be. The formula under the resolution was never applied. The wages received for the hours worked squared only with the old rates and not with any possible formula rates. The formula may have been easy to apply but the fact is that it was not applied. And the formula can not stand as adopted simply by incantation of the Conciliation Board’s resolution. It can only be shown to have been adopted by utilization. The very ease with which the formula could have been applied — a matter of “mere mathematics” and “bookkeeping” — renders all the more striking the conclusion that it was not done. As to this period it appears that the plaintiffs, at least those whose situation is like that of the employees shown on the samples of due bills introduced by stipulation, can recover for this period without decision of any question of legal validity of any formula. The point is that the old rate was in fact paid and no formula was applied. The effect of the 1941 agreement on the claim has already been disposed of by the discussion under division one of this opinion.
3. Third Period, May 1, 1941, and Following.
The third period covers time subsequent to May 1, 1941. Section 7 of the Wage Agreement of May 20, 1941, gave birth to a new specific formula about which the controversy of the third period turns. The section reads: “(7) The hourly rates of employees, exempted from the provisions of the seven-hour day under the Agreement of May 7, 1936, who have not been adjusted to a forty-hour basis and who regularly worked a fixed number of hours of forty-two hours per week or more, shall be established for the period May 1, 1941 to September 30, 1941, by adding 7%% to their weekly earnings as calculated under the provisions of said agreement and dividing the sum by the hours regularly employed weekly plus one-half the hours worked in excess of forty hours; and for the period October 1, 1941, to April 30, 1943 by adding 10% to their weekly earnings as calculated under the provisions of said agreement and dividing the sum by the hours regularly employed weekly plus one-half the hours worked in excess of forty hours.”
The formula here, unlike that of the second period, is specific, detailed and clear. We are confronted with two questions. Was the formula, in fact, applied? Second, if so, is it a valid mode of meeting the requirements of the Act?
The wage increases were clearly granted. Wage increases, however, were not required by the Act, but left to the bargain between the parties. What the statute requires is a fixed rate for the regular hours and a time and one-half rate for overtime hours. But for this period, as for the second period, we find that the old rates and not the formula rates fixed the amount of the employee’s pay.
It is not necessary to repeat similar arithmetical calculations. Suffice it to add that of the four sample due bills submitted for John Sawczak for this third period, one actually carries the rate printed on it as “.8116”. Now if the number of hours on this due bill, 120, are divided into the earnings, $97.36, we get a straight-rate quotient of $.8113, a difference of only 3/100 of a cent. It is obvious that the actual rate used was a straight-time rate and not the formula rate. Employees’ wages were figured just as before. There was no application of the regular rate and overtime rate at all. Instead, there was complete reliance upon the fact that a formula had been determined and announced in writing in a wage agreement. But in the one place where an announcement of rates actually used might really be determinative, i.e., on the due bills, there was not merely silence as to regular and overtime rates but obvious evidence that the straight rate method had been used. It is true that on this very due bill, there also appeared the following: “the earnings shown on this due bill have been computed in accordance with the provisions of section (7) of agreement of May 20, 1941.” But, of course, the law does not recognize the mere recital of an act as done, as the equivalent of the actual doing of the act.
Even the method of taking deductions for absences was premised on a straight-rate system rather than the required method. Thus the May, 1941 agreement provides : “To avoid undue deductions for absences the parties agree that the rate of deduction per day from weekly earnings for absence of any such employee shall be determined by dividing his weekly earnings, when regularly employed, by the number of days in his regular work week.” On a straight-rate basis it will be seen the total earnings divided by days worked gives a perfectly fair figure per day. But on a regular plus overtime basis, the particular day in the week that is missed is the chief factor since it may be an overtime day rather than a regular rate day.
So for this period, as well as the second period, the conclusion is clear that formula and practice did not follow each other. The employees continued to be paid on a straight time basis and not by a giving of the increased amount for overtime provided in the statute.
The Formula
Consideration of the formula is the next step, lest it be concluded that a change in method of computation on a due bill would show compliance with the Act.
The Supreme Court in a series of cases extending from June, 1942, until June, 1945, has laid down the outlines within which a formula must fall to meet the statutory requirements. The crux of the matter is that the regular rate, however established, must be a bona fide rate and not a fictitious one. In Overnight Motor Transportation Co., Inc., v. Missel, 1942, 316 U.S. 572, 62 S.Ct. 1216, 86 L.Ed. 1682, which together with Walling v. A. H. Belo Corp., 1942, 316 U.S. 624, 62 S.Ct. 1223, 86 L.Ed. 1716, decided on the same day, constitutes the first sharp analysis by the Supreme Court of the question, the court laid down the principle that enabled a regular rate to be determined when it was not specifically stated. The court there said [316 U.S. 572, 62 S.Ct. 1221]: “Neither the wage, the hour nor the overtime provisions of sections 6 and 7 on their passage spoke specifically of any other method of paying wages except by hourly rate. But we have no doubt that pay by the week, to be reduced by some method of computation to hourly rates, was also covered by the act.” To determine the regular hourly rate thus became a mere matter of division under the Missel case rationale. See Walling v. Helmerich & Payne, Inc., 1944, 323 U.S. 37, 40, 65 S.Ct. 11.
But whether the regular rate was explicitly stated or had to be figured out as indicated, the essential test of its sufficiency was whether it was an actual regular rate or a fictitious one. The defendant here, as defendants have in other cases under the Act, relies heavily on the Belo decision, supra. In that case the C6urt upheld a contract rate as a legal regular rate. Belo is readily distinguished from the instant case. There only the overtime varied, though never below the 150% minimum provided by law. Thus the Court said [316 U.S. 624, 62 S.Ct. 1227]: “To be sure, $1,753 is more than 150% of $.67. But the Act does not prohibit paying more; it requires only that the overtime rate be ‘not less than’ 150% of the basic rate. It is also true that under this formula the overtime rate per hour may vary from week to week. But nothing in the Act forbids such fluctuation.” Furthermore, in the Belo situation the expressed purpose was not to keep the pay levels exactly the same as before the Act (which would at least put one on inquiry as to whether the so-called regular rate was fictitious) but only to do so insofar as possible under the Act.
In the instant case we have neither the limitation of purpose to make the new wage payment plan a duplicate of the old insofar as possible nor the limitation of fluctuation only to the overtime rate. Both regular and overtime fluctuate in our formulae. Both these limitations apply to the Belo case and serve to distinguish it on principle. Furthermore, in the words used by the Supreme Court to distinguish the Belo case from Walling v. Youngerman-Reynolds Co., 65 S.Ct. 1242, 1246, 1250: “This Court’s decision in Walling v. A. H. Belo Corp., 316 U.S. 624, 62 S.Ct. 1223, 86 L.Ed. 1716, lends no support to respondent’s position. The particular wage agreements there involved were upheld because it was felt that in fixing a rate of 67 cents an hour the contracts did in fact set the actual regular rate at which the workers were employed. The case is no authority, however, for the proposition that the regular rate may be fixed by contract at a point completely unrelated to the payments actually and normally received each week by the employees.”
Following the ground clearing decisions of the Missel and Belo cases came three Supreme Court decisions which we think directly applicable to the instant case. In Walling v. Helmerich & Payne, Inc., 1944, 323 U.S. 37, 65 S.Ct. 11, 12, the attempt to maintain wage levels as before was by means of contracts under the so-called Pox-on or split-day plan. The actual mechanics of the Poxon formula were that each tour was arbitrarily split in half and the first part compensated by regular wage rates while the second part received the overtime rate of 150%. There was thus an apparent compliance with the Act. But actually because of the figures at which the new regular rate was set, exactly the same wages as before were paid. This is precisely what has occurred under the formula of the instant case. The Court’s analysis of the workings of the Poxon plan shows to what full degree it is the essence of the formulae of the instant case: “These so-called ‘regular’ and ‘overtime’ hourly rates were calculated so as to insure that the total wages for each tour would continue the same as under the original contracts, thereby avoiding the necessity of increasing wages or decreasing hours of work as the statutory maximum workweek of 40 hours became effective. Only in the extremely unlikely case where an employee’s tours [of duty] totalled more than 80 hours in a week did he become entitled to any pay in addition to the regular tour wages that he would have received prior to the adoption of the split-day plan. Until more than 80 hours had been worked the plan operated so that the employee could not be credited with more than 40 hours of ‘regular’ work, the remaining time being denominated ‘overtime.’ Hence, since the wages under the old system and under the split-day plan were identical, the original tour rates could be used as the simple method of computing wages for each pay period. The actual and regular workweek was accordingly shorn of all significance'.” And the conclusions of the Court in the Helm erich case apply equally well to our case: “The vice of respondent’s plan lay in the fact that the- contract regular rate did not represent the rate which was actually paid for ordinary, non-overtime hours, nor did it allow extra compensation to be paid for true overtime hours. It was derived not from the actual hours and wages but from ingenious mathematical manipulations, with the sole purpose being to perpetuate the pre-statutory wage scale.” “Any other conclusion in this case would exalt ingenuity over reality and would open the door to insidious disregard of the rights protected by the Act.”
Any formula, whatever its type, whether Poxon plan or a plan similar to that used in the case at bar or some other plan, so long as it is conditioned entirely upon maintaining actually and essentially the same mode of payment as before the Act, is inevitably illegal in that it creates a fictitious regular rate. In Walling v. Youngerman-Reynolds Hardware Co., 65 S.Ct. 1242, 1250, a formula was devised which although conditioned upon maintaining the old mode of payment unaltered was patterned in general terms upon the Belo formula’s guaranty requirement in an attempt to run the gantlet of the Act. But the very guaranty feature was so devised that under it employees would be paid by a piece rate as before. The plan failed to meet the statutory requirement.
In Walling v. Harnischfeger Corp., 65 S.Ct. 1246, 1248 (decided the same day as the Youngerman-Reynolds case, supra, June 4, 1945) the Court further added: “Our attention here is focused upon a determination of the regular rate of compensation at which the incentive workers are employed. To discover that rate, as in the Youngerman-Reynolds case, we look not to contract nomenclature but to the actual payments, exclusive of those paid for overtime, which the parties have agreed shall be paid during each workweek.”
From what has been said in this review of Supreme Court opinion it is clear that for a formula to be productive of a regular rate and overtime rate such as will meet the requirements of the Act, it must not be a mere mathematical cloak under which to continue the same payment practices as hitherto. The rate established as the regular rate, in order to be adjudged actual and not fictitious, must either (1) bear a real relation to actual earnings as deduced by the Missel case principle or (2) it must be a genuine contractual decrease in wages, based upon bargaining individual or collective. Under such a test of the requirements of the Act, the formulae of the instant case clearly fail. The evidence already marshalled is clearly indicative that the formulae were directed only to one goal, i.e., to continue the old methods of payment for work while ostensibly meeting the requirements of the Act technically and technicalities are not enough.
Arbitration
Our final problem has to do with the question of arbitration. As stated above the District Court stayed the lawsuit until arbitration could be had. The provision in the contract of the parties for arbitration goes clear back to the year 1903 following the settlement in the famous anthracite coal strike of that period. There are three points with regard to the arbitration here.
The first point; has to do with the question whether the formula and the waiver provisions which we have found to be insufficient under the Act so completely vitiate the contract for illegality that no reference to arbitration can be made. We think this question must be answered in the negative. The sufficiency of the wage formula and the provision for waiver are entirely separable elements of the contract between the parties. We do not refer to arbitration the question of legality of the formula. That is a question of law which the Court must take responsibility in answering. All we are saying upon this point is that the arbitration provision is not rendered ineffective because the contract contains one clause, setting out the formula, and another clause setting forth a provision for waiver which we deem insufficient under the statute.
The next point is whether there is anything to refer to arbitration. We think the answer to this question is yes. After the rights of claimants have been determined as a matter of law there is still the not inconsiderable problem of determining how much each claimant is entitled to. That involves his identity as an employee of the defendant, the question of the days and hours on which he worked and the calculation of the amount of money to which he may be entitled under the Act. It is the kind of problem which is properly referable either to a special master or an arbitrator, and since the parties by contract have provided for arbitration we think the reference is appropriate in this instance.
The third question has to do with the application to this situation of the United States Arbitration Act, 9 U.S.C.A. § 1 et seq. We have already answered that question in Donahue v. Susquehanna Collieries Co., 1943, 138 F.2d 3, 149 A.L.R. 271, and the District Court followed that decision in making the order which it did. Our analysis of the problem involved has found support since in a decision by, the Fourth Circuit in Agostini Bros. Bldg. Corp. v. United States, 1944, 142 F.2d 854. The Sixth Circuit has doubted the correctness of our result. Gatliff Coal Co. v. Cox, 1944, 142 F.2d 876.
Without repeating the discussion of the problem which we made in the Donahue decision, we adhere to the result there reached and for the reasons there given. We think the criticism made by our colleagues in the Sixth Circuit is not convincing. While it is true that in defining commerce in section 1 contracts of employment of specified types of employees were excluded, it should be noted that this exclusion was only in the definition of commerce in that section. Section 3 of the statute does not use the term commerce. We do not think that the limitation in the definition in section 1 should be applied as an over-all limitation elsewhere to the section where the defined term is not used. We, therefore, adhere to the Donahue decision and with increased confidence because of its emphatic approval by the Fourth Circuit in the case just cited.
The stay order, in the District Court, by which the action is stayed pending arbitration, should be modified so that the proceedings in arbitration will be conducted under the rules of law as set out herein. As thus modified the order of the Court below is affirmed.
Act of Congress June 25, 1938, Chapter 676, 29 U.S.C.A. § 201 et seq.
§ 207(a) of Title 29 U.S.C.A. provides:
“No employer shall, except as otherwise provided in this section, employ any of his employees who is engaged in commerce or in the production of goods for commerce—
“(1) for a workweek longer than forty-four hours during the first year from the effective date of this section,
“(2) for a workweek longer than forty-two hours during the second year from such date, or
“(3) for a workweek longer than forty hours after the expiration of the second year from such date, unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed.”
§ 216(b). of Title 29 U.S.C.A. provides:
“Any employer who violates the provisions of section 206 and section 207 of this title shall be liable to the employee or employees affected in the amount of their unpaid minimum wages, or their unpaid overtime compensation, as the case may be, and in an additional equal amount as liquidated damages. * * * The court in such action shall, in addition to any judgment awarded to the plaintiff or plaintiffs, allow a reasonable attorney’s fee to be paid by the defendant, and costs of the action.”
“Agreement as to Facts
“For the purposes of preliminary hearing in the above entitled case upon the separate and distinct defense of Defendant’s Answer averring agreement for arbitration and its application for stay of all proceedings before this court until such arbitration has been had, the parties by their attorneys agree to the following facts:
“(1) The several contracts pleaded in Defendant’s Answer were made as therein alleged and the copies thereof attached to said Answer as exhibits are true and correct copies of the original contracts.
“(2) The defendant, the Hudson Coal Company, is a party to these contracts.
“(3) Plaintiffs were members of District No. 1 of the United Mine Workers of America at all times involved in these proceedings.
“(4) Plaintiffs were at all times employed in ‘occupations continuously manned’ within the meaning of that phrase as used in the last paragraph of section (3) of the Agreement of May 7, 1936.
“(5) Plaintiffs were employed at all times in occupations in and about defendant’s mines necessary to the mining and preparation of anthracite coal for market in the capacities stated in the Complaint and Answer, and none of the power, electric or otherwise, produced in any plant in which any of them worked was used in transportation other than in hauling the unprepared coal out of the mines to the breaker where it was prepared for market.
“(6) That the various due bills of John Sawczak are correct photostatie copies of original due bills issued to him by defendant and are illustrative of all due bills received by the various plaintiffs herein originally employed on an hourly basis.
“That the various due bills of John K. Hohn are correct photostatic copies of original due bills issued to him by defendant and are illustrative of all due bills received by the various plaintiffs herein originally employed on a monthly basis.
“While defendant has agreed to the foregoing stipulation in reference to due bills at the request of plaintiffs, it refrains from offering any explanation of said due bills or any evidence relating to the conduct of the parties subsequent to effective dates of the respective Wage Agreements involved, because it believes that such due bills, explanations and evidence are irrelevant and immaterial to the issues before the Court upon this preliminary hearing and motion, and may not properly be heard and considered at this time.”
Section 7, Wage Agreement of May, 1941.
Fleming et al. v. Post et al., 2 Cir., 1944, 146 F.2d 441; Seneca Coal & Coke Co. v. Lofton, 10 Cir., 1943, 136 F.2d 359; Rigopoulos v. Kervan, 2 Cir., 1943, 140 F.2d 506, 151 A.L.R. 1126; Birbalas v. Cuneo Printing Industries, 7 Cir., 1944, 140 F.2d 826; Atlantic Co. v. Walling, 5 Cir., 1942, 131 F.2d 518; Johnson v. Dierks, Lumber & Coal Co., 8 Cir., 1942, 130 F.2d 115; Carleton Screw Co. v. Fleming, 8 Cir., 1942, 126 F.2d 537; Fleming v. Warshawsky, 7 Cir., 1941, 123 F.2d 622; McNorrill v. Gibb, D.C.E.D.S.C.1942, 45 F.Supp. 363; Hutchinson v. Wm. C. Barry, Inc., D.C.D.Mass.1942, 44 F.Supp. 829; Travis v. Ray, D.C.W.D. Ky.1941, 41 F.Supp. 6.
While we later conclude that such matters as determination of regular and overtime hours from total hours agreed upon as worked is a matter for arbitration, that does not imply that it is a matter of dispute. For the Award of the Strike Commission of 1903, continued in all subsequent agreements between the parties, states, "that any difficulty” as well as “disagreement * * * either as to * * * interpretation or application, or in any way growing out of the relations of the employers and employed” which is “of a scope too large” to “be settled or adjusted by consultation between the superintendent or manager of the mine or mines, and the miner or miners directly interested * * * shall be referred to * * * a Board of Conciliation”.
This resolution as well as the contracts between the parties were all incorporated in defendant’s Answer and stipulated true in par. (1) of the Agreement As To Facts (See f.n.4).
Defendant’s answer admits ratification: “Sucb decisions of the Board of Conciliation * * * have been expressly ratified, confirmed and continued * And both parties are bound by agreement to accept the Board’s resolutions.
This third period formula is devised, set up and ready to be put in operation; the only remaining step is the actual application of the formula. The second period formula, on the other hand, was never set up, nor even devised beyond the Board’s direction that “forty hours per week shall be the basis for a formula” producing equal earnings for equal time worked.
Of the 15 Illustrative due bills in the record only one carries a breakdown of total hours into regular and overtime. This is the due bill of John K. Hohn for January 1-15, 1943. It shows a total of 120 hours work, of which 85% are listed as regular and 34% are listed as overtime hours. The rates shown on the due bills are $.7954 per regular hour and $1.1931 per overtime hour. If the mathematics are carried out the result will be found to be $109.08. But the amount actually shown on the due bill as taxable wages received is $110.33. It is obvious that this amount was not arrived at by the computation shown on the due bill. This computation is actually fictitious, as can be shown even more readily if the old straight-time rate of $.83583 per hour (arrived at by dividing the pre-Act wages by pre-Act hours as shown on the September 1-15 1938 due bill) is increased by the 10% provided for in the May, 1941, contract. The new straight hourly rate then becomes $.91941. When this figure is multiplied by the total number of hours worked (120) the total wage comes to exactly $110.33. The amount received actually squares only with a straight-rate computation. The regular rate and overtime rates shown on the due bill are fictitious, not real. The formula was never actually applied.
“The Commission adjudges and awards: That any difficulty or disagreement arising under this award, either as to its interpretation or application, or in any way growing out of the relations of the employers and employed, which cannot be settled or adjusted by consultation between the superintendent or manager of the mine or mines, and the miner or miners directly interested, or is of a scope too large to be so settled or adjusted, shall be referred to a permanent joint committee, to be called a Board of Conciliation, to consist of six persons, appointed as hereinafter provided. That is to say, if there shall be a division of the whole region into three districts, in each of which there shall exist an organization representing a majority of the mine workers of such district, one of the said Board of Conciliation shall be appointed by each of said organizations, and three other persons shall be appointed by the operators, the operators in each of said districts appointing one person.
“The Board of Conciliation thus constituted shall take up and consider any question referred to it as aforesaid, hearing both parties to the controversy, and such evidence as may be laid before it by either party; any award made by a majority of such Board of Conciliation shall be final and binding on all parties. If, however, the said Board is unable to decide any question submitted, or point related thereto, that question or point shall be referred to an umpire, to be appointed, at the request of said Board, by one of the circuit judges of the third judicial circuit of the United States, whose decision shall be final and binding in the premises.”
The actual total amount due, obviously depends on the number of overtime hours worked. While the illustrative due bills show the total hours worked, they do not yield a break-down into regular and overtime hours. Nor can we simply apply the maximum hour provision and say that all hours above it are obviously overtime. Another glance at the due bills will show why. The “hourly” -employees were paid as John Sawczak was; his due bills show payments covering 15 and sometimes 10 days at a time, since he was paid twice a month. The “monthly” employees of whom John K. Hohn was representative, were also paid twice a month. Taking the case of either group, the hours in any pay period represent work for two weeks and some days. While we can readily figure the regular hours for the two weeks on a maximum hours per week basis, we have no way of knowing the apportionment of the remaining hours between overtime for the two weeks and regular time for the one or two odd days. It is true th^.t in many, perhaps most instances we could add pay checks until we reached an even number of weeks without fractional parts remaining. But in an employee group of our size we cannot be sure that this technique would apply to everyone, particularly in view of the fact that three time periods of differing, -uneven lengths are involved.
The Agostini decision, came down June 2, 1944; the Gatliff case June 1, 1944. Obviously, neither Court had the benefit of the consideration of the question by the other.
Section 3. “Stay of proceedings where issue therein referable to arbitration. If any suit or proceeding be brought in any of the courts of the United States upon any issue referable to arbitration under an agreement in writing for such arbitration, the court in which such suit is pending, upon being satisfied that the issue involved in such suit or proceeding is referable to arbitration under such an agreement, shall on application of one of the parties stay the trial of the action until such arbitration has been had in accordance with the terms of the agreement, providing the applicant for the stay is not in default in proceeding with such arbitration.” | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine which of these categories best describes the income of the litigant. Consider the following categories: "not ascertained", "poor + wards of state" (e.g., patients at state mental hospital; not prisoner unless specific indication that poor), "presumed poor" (e.g., migrant farm worker), "presumed wealthy" (e.g., high status job - like medical doctors, executives of corporations that are national in scope, professional athletes in the NBA or NFL; upper 1/5 of income bracket), "clear indication of wealth in opinion", "other - above poverty line but not clearly wealthy" (e.g., public school teachers, federal government employees)." Note that "poor" means below the federal poverty line; e.g., welfare or food stamp recipients. There must be some specific indication in the opinion that you can point to before anyone is classified anything other than "not ascertained". Prisoners filing "pro se" were classified as poor, but litigants in civil cases who proceed pro se were not presumed to be poor. Wealth obtained from the crime at issue in a criminal case was not counted when determining the wealth of the criminal defendant (e.g., drug dealers). | This question concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Which of these categories best describes the income of the litigant? | [
"not ascertained",
"poor + wards of state",
"presumed poor",
"presumed wealthy",
"clear indication of wealth in opinion",
"other - above poverty line but not clearly wealthy"
] | [
0
] | songer |
COMMISSIONER OF INTERNAL REVENUE v. FOREST GLEN CREAMERY CO.
No. 6292.
Circuit Court of Appeals, Seventh Circuit.
June 29, 1938.
Rehearing Denied Oct. 3, 1938.
James W. Morris, Asst. Atty. Gen., Sewall Key and F. E. Youngman, Sp. Assts. to Atty. Gen., and Michael L. Igoe, U. S. Atty., of Chicago, Ill., for petitioner.
George J. Dreiske, of Chicago, Ill., for respondent.
Before SPARKS and TREANOR, Circuit Judges, and LINDLEY, District Judge.
TREANOR, Circuit Judge.
This case is brought to this court by a petition for review filed by the Commissioner of Internal Revenue. The questions presented for review, as stated by the petitioner, are as follows:
1. Did the Commissioner of Internal Revenue determine a deficiency in the taxpayer’s tax liability for the calendar year 1927, or for the period from January 1, 1927, to June 30, 1927, inclusive?
2. Did the notice of deficiency which was sent by the Commissioner to' the taxpayer constitute a sufficient notice of deficiency for the calendar year 1927?
The Board of Tax Appeals was of the opinion that the evidence did not establish as a fact that the Commissioner determined a deficiency for the calendar year 1927, but, in the opinion of the Board, “if the proof were sufficient on that point, the notice sent to the taxpayer certainly did not constitute a notice of deficiency for the calendar year 1927.” ^he Board held that it had jurisdiction to redetermine the taxpayer’s liability only for the period from January 1, 1927, to June 30, 1927; that the deficiency, if any, was the result of profit derived from the sale of the taxpayer’s assets, which profit was received subsequently to June 30, 1927. In view of the foregoing, the Board of Tax Appeals held that it was without jurisdiction to determine the tax liability of the taxpayer for the calendar year 1927.
The taxpayer, a corporation organized under the laws of Illinois, transferred all of its assets to its successor in business during the calendar year 1927. By agreement the sale of the taxpayer’s assets was effective as of June 30, 1927, although the taxpayer’s books were not closed as of that date. On March 10, 1928, the taxpayer filed its federal income tax return, which return purported to be for the calendar year 1927. The tax return contained no item of gain or loss from the sale of its assets during the year.
As a result of an examination of the taxpayer’s income tax return for 1926 and 1927 the agent who made the examination recommended that an additional tax be assessed against the taxpayer in the sum of $27,394.17. The principal adjustment made by the Agent to the income reported by the taxpayer in its 1927 return was the addition of $200,293.20, which represented the profit realized by the taxpayer from the transfer of its assets in 1927.
When the taxpayer was notified of the foregoing adjustment it filed a protest with the Internal Revenue Agent. The objections to the adjustment, as set out in the written protest, went to the merits of the changes and did not challenge the proposed deficiency assessment on the ground that the amount of income in question was not earned during the period January 1, 1927, to June 30, 1927. The protest referred to “a deficiency in taxes in the amount of $27,394.17 for the period from January 1 to June 30, 1927, as detailed in Revenue Agent Edwin W. Sivertsen’s report dated April 27, 1928, on the audit of the Corporation’s tax returns for the period from January 1, 1926 to June 30, 1927.”
Upon receipt of the taxpayer’s protest a supplemental examination of the taxpayer’s 1927 return was madé by another agent and another notice was issued by the Commissioner under date of November 10, 1930. And after receipt of the Commissioner’s notice the taxpayer filed a petition with the Board of Tax Appeals on January 8, 1931. for a redetermination of the deficiency, in which petition it was stated that “as a basis of its proceeding” the petitioner alleged, among other facts, that “the taxes in controversy are income taxes, for the year 1927 and are in the following amount, $22,3X2.-40.” The petition set forth three alleged errors upon which the notice of deficiency was based, among which is the following: “(a) The Commissioner erred in including in the taxable income of the petitioner for the six months period ending June 30, 1927, the sum of $162,650.49 alleged by the Commissioner to be profit sustained by the petitioner upon the sale of its assets to the Forest Glen National Milk Company.”
The foregoing statement standing alone would indicate that the petitioner was basing the alleged error on the fact that the alleged profit was included in the “six months period ending June 30, 1927”; but a reading of the entire petition discloses that the error relied upon was the charging of any profit to the taxpayer which was baséd upon the sale of its assets, the contention of the taxpayer being that the alleged sale of assets was a sale of the stock of the petitioner corporation by its stockholders and not a sale of assets by the corporation. And under the heading “the facts upon which the taxpayer relies as a basis of its appeal” is found no statement of fact that the sum of $162,650.49 “alleged by the commissioner to be profit sustained by the petitioner upon the sale of its assets” was not received during the period January 1 to June 30, 1927, nor is there a statement of fact that such alleged profit was received subsequently to June 30, 1927.
At the hearing before the Board of Tax Appeals, filed February 23, 1935, the Commissioner was granted leave to amend his answer and by this amendment the Commissioner admitted “that the taxes in controversy are income taxes for the year 1927 in the amount of $22,312.40” and alleged “that said year is the calendar year 1927.” Petitioner replied with a denial that the taxes were for the calendar year 1927, and alleged that any deficiency “for any other part or period of the year 1927 than that specified in the said notice of deficiency aforesaid is wholly barred by the. Statute of Limitations.”
When the Commissioner of Internal Revenue has determined a deficiency against a taxpayer for a taxable year the Board of Tax Appeals has no jurisdiction 4‘to determine whether or not the tax for any other taxable year has been overpaid or underpaid.” Consequently, our first question is to determine whether the Commissioner in fact did determine the deficiency in question for the taxpayer’s taxable year of 1927.
The return made by the taxpayer as of March 15, 1928, was a return for the calendar year 1927. It was not questioned that the taxpayer kept its books of account on the calendar year basis, and had made its returns for prior years on the basis of the calendar year. As a matter of law the taxable period for the taxpayer was the calendar year 1927 and not the period from January 1 to June 30, 1927. The revenue agent who made the examination could not change the taxpayer’s taxable period even if he had confined his examination and adjustments to the period January 1 to June 30, 1927. Only the taxpayer, with the approval of the Commissioner, could have changed its taxable period from the calendar year. The fact that any particular transaction produces income in a particular month does not make such income any the less- income for the taxable year. And while the fact that an agent confines his examination of a return to an auditing of the accounts of a portion of the taxable year may affect the merits of the deficiency determination, still the determination is none the less a determination of a deficiency for the taxable year. There is no contention in the present case that any part of the deficiency was for any taxable period prior to January 1, 1927, nor for any period after December 31, 1927. The examination covered the return for the calendar year 1926 but that was necessary since the return for 1926 showed a net loss for that period.
The taxpayer engaged in no business operations after June 30, 1927, although the corporation was in existence until after the end of the year. The various transactions covering the transfer of the assets of the taxpayer to its successor occurred both prior to June 30, 1927 and subsequently thereto. Consequently, as respects the business operations of the taxpayer, the examination and report of the agent in reality covered a period of time which included the calendar year of 1926 and the first six months of the year 1927. Adjustments were made upon the basis of the taxpayer’s returns for 1926 and 1927. The items which entered into the computation of the amount of the deficiency assessment included the net loss item of 1926 as well as items based upon the operations of the taxpayer during the first six months of 1927, and the item of the alleged profit from the sale of assets in 1927; but the deficiency determination, in fact and in law, was for the calendar year 1927, which was the taxpayer’s taxable period.
Assuming that the profit from the transfer of the assets of the taxpayer did constitute income of the taxpayer, it constituted income for the taxable year of 1927 whether it was received by the taxpayer prior to June 30, 1927, or at some later date during the year. And it is not material that the examiner confined his examination and report to transactions which occurred prior to June 30, 1927, although, as stated above, that might be material to the question of the merits of the determination.
We conclude that the determination of the deficiency tax Was in fact and in law for the taxpayer’s taxable year January 1, 1927, to December 31, 1927.
The Board of Tax Appeals not only held that there was no determination of a deficiency for the calendar year 1927 but also held that the notice which was sent to the taxpayer did not constitute a notice of deficiency for that year.
The Commissioner is required to send to the taxpayer, by registered mail, a notice of his determination. The statute does not prescribe either the form or substance of the notice, but we assume that to be a notice, within the intention of the Revenue Act, the communication must inform the taxpayer that a deficiency tax has been determined and either must state the taxable period in respect to which it has been assessed or at least give enough information that the taxpayer reasonably could not be deceived as to the taxable period. The purpose of the notice is to give the taxpayer an opportunity to appeal to the Board of Tax Appeals, but there is no indication in the statute of an intention to require the notice to be the basis of jurisdiction of the Board in a technical sense.
The letter of November 10, 1930, contained the statement that “there has been assessed against you an income tax amounting to $22,312.40, for the taxable year 1926 and the period ending June 30, 1927, the details of which are set forth in the statement attached.” The details which were set forth “in the statement attached” indicated to the taxpayer that the alleged deficiency was determined for the taxable year 1927, despite the recital in the letter that the tax was assessed “for the taxable year 1926 and the period ended June 30, 1927.” That the taxpayer understood’ the Commissioner’s determination of deficiency to be for- the taxable year 1927 is indicated by paragraph 3 of its petition for a re-determination in which the petitioner alleges that “the taxes in controversy are income taxes for the year 1927 and are for the following amount, $22,312.40.” And when we consider the foregoing allegation of the petitioner and its allegation of error in paragraph 4 (a) of its petition, it is clear that the taxpayer was distinguishing between the determination of the alleged deficiency tax for 1927 and the allocation by the Commissioner of additional taxable income to the “six months period ending June 30, 1927,” which income was “alleged by the Commissioner to be profit sustained by the petitioner upon the sale of its assets to the Forest Glen National Milk Company.” And as already pointed out, supra (98 F.2d 970) the petitioner’s objection to the inclusion of the sum of $162,650.49 as taxable income for the six months period ending June 30, 1927, was not based upon the fact that it was allocated to the wrong taxable period, but upon the fact that no profit was realized by petitioner.
In our opinion the letter of November 10, 1930, was sufficient to apprise the taxpayer that the .Commissioner had determined a tax deficiency for the taxable year of 1927. And it is evident from the taxpayer’s petition that the determination was understood by the taxpayer to be for that year.
The decision of the Board of .Tax Appeals is reversed and the cause remanded to the Board for a hearing oh the merits.
Revenue Act of 1926, See. 274(g), 44 Stat. 55.
“The act intends to give him an opportunity to appeal to the Board of Tax Appeals, and a proceeding before the Board is invoked by, the taxpayer. He does not merely submit to the jurisdiction of the Board.” Commissioner of Internal Revenue v. New York Trust Co., 2 Cir., 54 F.2d 463, 465.
Supra, 98 F.2d 970. | 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 | What is the nature of the counsel for the appellant? | [
"none (pro se)",
"court appointed",
"legal aid or public defender",
"private",
"government - US",
"government - state or local",
"interest group, union, professional group",
"other or not ascertained"
] | [
4
] | songer |
FOUR CERTAIN UNNAMED INMATES OF MASSACHUSETTS CORRECTIONAL INSTITUTION AT WALPOLE, MASSACHUSETTS, Plaintiffs-Appel-lees, v. Frank A. HALL et al., Defendants-Appellants.
No. 76-1554.
United States Court of Appeals, First Circuit.
Argued Jan. 3, 1977.
Decided March 18, 1977.
Lee Carl Bromberg, Special Asst. Atty. Gen., Boston, Mass., for appellants.
Richard J. Vita, Dorchester, Mass., and Alan P. Caplan, Boston, Mass., with whom Thomas C. Troy, Troy & Vita, Dorchester, Mass., Caplan, Christiansen & Reichlin, Martin K. Leppo, Anthony Traini, Boston, Mass., Jerry C. Effren, and Angelo P. Ca-tanzaro, Dorchester, Mass., were on brief, for appellees.
Before COFFIN, Chief Judge, and ALD-RICH and CAMPBELL, Circuit Judges.
PER CURIAM.
After a rash of murders in the state prison at Walpole, Massachusetts, prison officials began an investigation. When an imminent newspaper story threatened the investigation’s secrecy, the officials decided to act swiftly. They seized several inmates suspected of participating in the murders and placed them in a segregation unit, where they could not be harmed or cause harm to others. See Mass. Gen’l Laws Ann. ch. 127 § 39; cf. id. § 40. Believing this to be a violation of due process, the district court ordered the officials to give the segregated inmates notice of the charges against them within two days and to begin disciplinary hearings within nine days. We stayed the district court’s order.
We now must decide whether the inmates have a “liberty interest” sufficient to invoke federal guarantees of procedural due process. The inmates and the court below relied only on state law as the source of the necessary interest. The standard to be applied to such a claim is whether the inmates have “some right or justifiable expectation rooted in state law that [they] will not be transferred except for misbehavior or upon the occurrence of other specified events.” Montanye v. Haymes, 427 U.S. 236, 242, 96 S.Ct. 2543, 2547, 49 L.Ed.2d 466 (1976). We have it on commanding authority that no Massachusetts statute creates such a right or expectation. Meachum v. Fano, 427 U.S. 215, 96 S.Ct. 2532, 49 L.Ed.2d 451 (1976). Transfers to segregation units are within the Commissioner’s broad statutory discretion. Mass. Gen’l Laws Ann. ch. 127 § 39. The district court, however, relied on recent prison regulations, which, it believed, severely restrict the discretion of prison officials to order transfers in the absence of misconduct. But this circuit has recently held that the present prison regulations dealing with reclassification do not impose substantive standards on the decision to transfer an inmate. Lombardo v. Meac-hum, 548 F.2d 13 (1977). Freedom from transfer is not a “liberty interest” since an inmate may be transferred at the whim of the Commissioner. Because no “liberty interest” has been infringed by the transfer, due process does not attach, and the district court’s order cannot stand.
Reversed. | 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 position of the prisoner; for those who claim their voting rights have been violated; for desegregation or for the most extensive desegregation if alternative plans are at issue; for the rights of the racial minority or women (i.e., opposing the claim of reverse discrimination); for upholding the position of the person asserting the denial of their rights. Consider the directionality to be "mixed" if the directionality of the decision was intermediate to the extremes defined above or if the decision was mixed (e.g., the conviction of defendant in a criminal trial was affirmed on one count but reversed on a second count or if the conviction was afirmed but the sentence was reduced). Consider "not ascertained" if the directionality could not be determined or if the outcome could not be classified according to any conventional outcome standards. | What is the ideological directionality of the court of appeals decision? | [
"conservative",
"liberal",
"mixed",
"not ascertained"
] | [
0
] | songer |
BETTER GOVERNMENT ASSOCIATION, Appellant, v. DEPARTMENT OF STATE, et al. NATIONAL WILDLIFE FEDERATION, et al., Appellants, v. UNITED STATES DEPARTMENT OF INTERIOR, et al.
Nos. 84-5723, 84-5928.
United States Court of Appeals, District of Columbia Circuit.
Argued Nov. 19, 1985.
Decided Jan. 3, 1986.
Eric R. Glitzenstein, with whom Alan B. Morrison and Cornish F. Hitchcock, Washington, D.C., were on brief, for appellant in No. 84-5723.
John Bonine, Eugene, Or., for appellant in No. 84-5928. Michael Axline, Eugene, Or., was on brief, for appellant in No. 84-5928.
Deborah Ruth Kant, Atty., Dept. of Justice, with whom Richard K. Willard, Acting Asst. Atty. Gen., Joseph E. diGenova, U.S. Atty., and Leonard Schaitman, Atty., Dept. of Justice, Washington, D.C., were on brief, for appellees in Nos. 84-5723 and 84-5928.
Before WRIGHT and EDWARDS, Circuit Judges, and DAVIS, Circuit Judge, United States Court of Appeals for the Federal Circuit.
Opinion for the Court filed by Circuit Judge HARRY T. EDWARDS.
Concurring opinion filed by Circuit Judge J. SKELLY WRIGHT.
Sitting by designation pursuant to Title 28 U.S.C. § 291(a).
HARRY T. EDWARDS, Circuit Judge.
In these consolidated cases, the appellants, the Better Government Association (“BGA”) and the National Wildlife Federation (“NWF”), challenge the validity of a set of guidelines promulgated by the Department of Justice (“DOJ”). These guidelines are utilized by the appellees, the Department of State (“State”) and the Department of the Interior (“Interior”), to determine whether an individual or organization requesting information under the Freedom of Information Act (“FOIA”) is entitled to a waiver of search and copying fees. NWF also takes exception to Interior’s utilization of an allegedly illegal regulation governing its treatment of FOIA fee waiver requests, and its failure to adopt regulations, allegedly mandated by FOIA, setting forth specific criteria to be applied in fee waiver decisions.
Both BGA and NWF incurred administrative denials of FOIA fee waiver requests pursuant to the guidelines and regulation at issue, and then challenged their respective denials in District Court. In each case, the Government reversed its position after the complaints were filed, waived the fees in question, and filed a motion for summary judgment on the grounds that the claims involving the individual denials of the fee waiver requests were moot and that the challenges to the facial validity of the DOJ guidelines and the Interior regulation were not ripe. The District Court agreed with the Government and held that the claims in question were not justiciable.
We disagree. Although the challenges to the guidelines and the regulation as applied to the particular fee waiver requests are indisputably moot, it is equally clear that the appellants’ claims that the DOJ guidelines and the Interior regulation are facially invalid survive. The critical question is whether the facial challenges are ripe at this time. We hold that the crucial prerequisites to ripeness — final agency action, purely legal questions, and hardship if review is withheld — are present in the instant case. Therefore, we remand these cases to the District Court for consideration on the merits.
I. Background
A. The Statutory and Regulatory Framework
FOIA permits agencies to impose “reasonable standard charges for document search and duplication” to recover the direct costs of such services. The statute also provides that:
Documents shall be furnished without charge or at a reduced charge where the agency determines that waiver or reduction of the fee is in the public interest because furnishing the information can be considered as primarily benefiting the general public.
The legislative history of the fee waiver provision reveals that it was added to FOIA “in an attempt to prevent government agencies from using high fees to discourage certain types of requesters, and requests,” in particular those from journalists, scholars and nonprofit public interest groups. In 1980, however, after some experience with the fee waiver provision, a congressional subcommittee concluded that “[m]ost agencies have ... been too restrictive with regard to granting fee waivers for the indigent, news media, scholars” and, therefore, recommended that the DOJ develop guidelines to deal with these problems.
On December 18, 1980, the DOJ’s Office of Information Law and Policy promulgated a set of such guidelines under the rubric “Interim Fee Waiver Policy.” In January, 1983, however, the DOJ’s Office of Legal Policy issued a new memorandum that superseded the interim guidelines. The 1983 memorandum sets forth the DOJ’s twofold commitment “to encouraging agencies to waive FOIA search and duplication fees where the disclosure of requested information will primarily benefit the general public,” and to “the preservation of public funds where there will be insufficient public benefit derived from disclosure.” It then lists five general factors that agencies should consider in determining whether to grant a fee waiver.
At all times relevant to this case, State had in effect regulations governing the granting of FOIA fee waivers that were adopted pursuant to a notice and comment rulemaking. State has admitted, however, that it "utilizes [the DOJ] guidelines in resolving requests for fee waivers.” Interior, too, has in effect a regulation pertaining to the granting of fee waivers. However, Interior also employs the DOJ guidelines in its fee waiver determinations. Most importantly, the record reveals that both departments explicitly relied on the DOJ guidelines in their denials of the BGA and NWF waiver requests involved in this appeal and will continue to employ them in processing FOIA fee waiver requests in the future.
B. Procedural History
BGA is a nonprofit organization that conducts investigations designed to expose waste, fraud and abuse in the functioning of government programs. In the course of its work, BGA made a FOIA request to State. BGA sought any audits, inspections or reports issued by that department’s Inspector General regarding the five American embassies receiving the most official visitors, and petitioned for a fee waiver. In an initial decision dated July 26, 1983, State denied the fee waiver request, stating that it did “not believe that the processing of [the] request [would] primarily benefit the general public.” BGA sought a reconsideration of this decision; but State denied its appeal on September 27, 1983, relying on the DOJ guidelines here at issue. BGA then appealed that decision in the District Court.
On December 8, 1983, counsel for State informed BGA that the agency had reversed its position and would grant the fee waiver. Subsequently, State filed a motion for summary judgment, arguing that its ultimate waiver of fees rendered the case moot as to the specific request and unripe as to the challenge to the facial validity of the guidelines. The District Court dismissed the case on these grounds, and this appeal followed.
NWF is a nonprofit organization “dedicated to the promotion of conservation principles on behalf of a large national ... constituency.” In March, 1983, NWF filed a FOIA request with the Montana State Director of the Bureau of Land Management (“BLM”) seeking documents related to the impact of proposed coal exchanges and lease sales on fish and wildlife, as well as a waiver of search and copying fees. The BLM denied the fee waiver request. NWF paid the required sum in order to expedite the processing of its request, while simultaneously seeking a reconsideration of the fee waiver denial. Citing the DOJ guidelines, the BLM, and subsequently Interior, refused to reconsider this decision.
NWF, like BGA, then sought relief in District Court. Here, too, Government counsel announced a reversal of the agency position, refunded the fee and filed a motion for summary judgment. The District Court held that the case was moot, and that, as a consequence, NWF lacked standing; the trial court also held that the challenges to the DOJ guidelines and the Interior regulation were not ripe. NWF appeals from that decision.
The BGA and NWF cases have been consolidated for purposes of this appeal.
II. Analysis
A. Mootness
The Government claims that its belated decisions to waive the appellants’ FOIA fees mooted the disputes before the District Court. However, appellants challenged not only the application of the DOJ guidelines and the Interior regulation to their respective requests, but also the facial validity of these provisions. Thus, BGA and NWF contend that the controversy between the parties remains alive.
The doctrine of mootness is a logical corollary of the “case or controversy” requirement of Article III of the Constitution. A federal court is constitutionally forbidden to render advisory opinions or “to decide questions that cannot affect the rights of litigants in the case before them.” Any judgment issued must resolve “ ‘a real and substantia] controversy admitting of specific relief through a decree of conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts.’ ”
A consideration of the circumstances of this case in light of the constitutional standard reveals that the appellants’ challenge to the standards as applied to their specific fee waiver requests is, in fact, moot. Even assuming appellants’ claims that they were improperly denied fee waivers were well-founded, we cannot order the appellee departments to do something they have already done, i.e. waive the FOIA fees in the instant cases. As to this issue, BGA and NWF “ ‘ha[ve] obtained everything that [they] could recover ... by a judgment of this court in [their] favor.’ ” The appellants apparently seek a declaration from this court that the initial refusals to waive FOIA fees were unlawful; however, such a declaration would be an advisory opinion which federal courts may not provide.
There is, however, no question that the appellants’ other arguments concerning the facial validity of the DOJ guidelines and the Interior regulation are not moot. The challenge to the fee waiver denials was but one claim in the appellants’ complaints; the additional counts were directed at the legality of the standards utilized by the appel-lees. The Government incorrectly assumed that the mootness of the former led inexorably to the mootness of the latter. The satisfaction of the claims for reversals of the individual fee waiver denials did not render moot the facial challenges to the guidelines and regulation.
The appellants are frequent FOIA re-questers; and neither State nor Interior have disavowed reliance on the guidelines or the Interior regulation. In fact, the Government clearly intends to apply these purportedly objectionable standards to FOIA fee waiver requests in the future. It is therefore evident that the allegedly impermissible practice, the utilization of the guidelines and the regulation in evaluating FOIA requests, has continued, that the appellants have alleged a continuing injury due to this practice, and that no relief has been forthcoming. In short, appellants’ facial challenges are not moot. Moreover, both the Government and each District Court judge correctly perceived that the crucial question in this case was not one of mootness, but rather one of ripeness; and we now proceed to address that issue.
B. Ripeness
The critical question of justiciability in this case is whether the facial challenges to the DOJ guidelines and the Interior regulation are ripe for review. Although it is true that “[rjipeness law overlaps at its borders with Article III requirements of case or controversy,” its application in the present case implicates the doctrine in only its prudential aspects. In that form, the ripeness inquiry takes into account pragmatic concerns regarding “the institutional capacities of, and the relationship between, courts and agencies.” These concerns include “the agency’s interest in crystallizing its policy before that policy is subjected to judicial review,” “the court’s interests in avoiding unnecessary adjudication and in deciding issues in a concrete setting,” and “the petitioner’s interest in prompt consideration of allegedly unlawful agency action.” In Abbott Laboratories, the Supreme Court announced the two-pronged test for ripeness that balances these interests. The test requires a court to evaluate “both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration.”
Pursuant to the “fitness of the issues” prong, we first must decide whether the disputed claims raise purely legal questions and would, therefore, be presumptively suitable for judicial review. Second, we determine whether the court or the agency would benefit from the postponement of review until the agency action or policy in question has assumed either a final or more concrete form. Finally, we examine the appellants’ interest in immediate review. In order to outweigh any institutional interests in the deferral of review, appellants must demonstrate “hardship,” i.e., that “the impact of the administrative action could be said to be felt immediately by those subject to it in conducting their day-to-day affairs.”
Initially, we find that the questions presented by the instant case are fit for judicial resolution. Both appellants contend that, on their face, the DOJ guidelines violate FOIA. This question will be resolved by an analysis of FOIA, its legislative history, and its construction by relevant case law. Likewise, BGA’s procedural challenge to the guidelines raises the purely legal question of whether State violated section 553(c) of the Administrative Procedure Act (“APA”) by its failure to give public notice of, and an opportunity to comment on the guidelines. Finally, NWF alleges that the failure of Interior to promulgate regulations establishing specific criteria to govern FOIA fee waiver requests violates a purported FOIA requirement that all agencies do so. Each claim presents purely legal questions, the understanding of which neither requires nor is facilitated by further factual development. Our appraisal of the legitimacy of the DOJ guidelines in light of the statutory requirements of FOIA and the APA would not be enhanced by the existence of a particular FOIA fee waiver request.
Second, we find that the agency action in question has taken its final form. The DOJ guidelines at issue have been in effect well over two years. Both appellee departments assert that they will continue to rely upon the DOJ guidelines in their evaluation of FOIA fee waiver requests. Neither ap-pellee has indicated that it intends to subject the guidelines to public notice and comment; nor has Interior suggested that it intends to take steps to adopt revised or different regulations. In other words, on the present record, it seems clear that Interior and State have utilized and will continue to utilize the standards at issue in their present form. From what appellees have said, no further procedural or substantive evolution is expected.
The appellees’ description of the guidelines as “informal” is not definitive in our ripeness determination. Courts have taken a “flexible” and “pragmatic” view of the finality of agency action. Where, as here, the agency has stated that the action in question governs and will continue to govern its decisions, such action must be viewed as final in our analysis of ripeness. “[W]hat is decisive is the substance of what [the agency] has done;” here State and Interior have made final, not tentative, decisions to utilize the challenged fee waiver standards.
Finally, we hold that the continued use of the DOJ guidelines and the Interior regulation has a “direct and immediate” impact on the appellants that rises to the level of hardship. These guidelines “purport to give an authoritative interpretation of a statutory provision that has a direct effect on the day-to-day business of [the appellants.]” As noted above, both BGA and NWF rely heavily and frequently on FOIA and its fee waiver provision to conduct the investigations that are essential to the performance of certain of their primary institutional activities — publicizing governmental choices and highlighting possible abuses that otherwise might go undisputed and thus unchallenged. These investigations are the necessary prerequisites to the fundamental publicizing and mobilizing functions of these organizations. Access to information through FOIA is vital to their organizational missions.
Thus, the “primary conduct” of the appellants is affected by the standards at issue. Moreover, this impact is “felt immediately.” The appellants are nonprofit public interest groups that routinely make FOIA requests that potentially would not be made absent a fee waiver provision. While under normal circumstances an appellant’s budgetary constraints would not weigh decisively in our hardship evaluation, here we have the additional authority of a Congressional determination that such constraints should not impede the access to information for appellants such as these.
Congress explicitly recognized the importance and the difficulty of access to governmental documents for such typically under-funded organizations and individuals when it enacted the “public benefit” test for FOIA fee waivers. This waiver provision was added to FOIA “in an attempt to prevent government agencies from using high fees to discourage certain types of requesters and requests” in a clear reference to requests from journalists, scholars and, most importantly for our purposes, nonprofit public interest groups. Congress made clear its intent that fees should not be utilized to discourage requests or to place obstacles in the way of such disclosure, forbidding the use of fees as “ ‘toll gate[s]’ on the public access road to information.” Payment in advance, followed by litigation to recover costs, may often be impossible if costs are prohibitive. Thus, insofar as these appellants are correct that the DOJ guidelines and standards in question act to discourage FOIA requests and to impede access to information for precisely those groups Congress intended to aid by the fee waiver provision, they inflict a continuing hardship on the nonprofit public interest groups who depend on FOIA to supply their lifeblood — information. The appellants allege that the DOJ guidelines act to “chill” the ability and willingness of their organizations to engage in activity that is not only voluntary, but that Congress explicitly wished to encourage.
We recognize that this hardship analysis relies in part upon an acceptance of the appellants’ view of the merits. However, when, as here, “[t]he issue of harm and the issue on the merits are intertwined,” we properly adopt such a perspective from which to address the threshold consideration of ripeness. See note 36 supra.
This case is on all fours with the recent decision of this circuit in American Federation of Government Employees v. FLRA. In that case, the AFGE claimed that the statute in question provided a blanket authorization requiring agencies to grant official time off to employees representing their unions in the negotiation of collective bargaining agreements during “duty status,” or worktime. The Government contended that its policy, which placed some limitations on that statutory entitlement, was not ripe for review because no hardship would exist until a union negotiator was confronted with a concrete denial of official time off by an agency. We disagreed and held as follows:
If AFGE is correct in claiming that the statute provides a blanket authorization of official time for “duty status” time ... and we believe it is, then an authoritative rejection of the blanket nature of that entitlement is a concrete injury even if the impact on any particular union is not immediate. AFGE’s claim that it is statutorily entitled to official time for negotiation of local agreements during what would otherwise have been duty status time has been firmly and finally rejected by the FLRA and, as the agency itself observes, the FLRA has applied the Interpretation of its rationale to a number of cases. This constitutes an impairment of rights, not a mere threat of future impairment.
Likewise, in the present case, the appellants allege that, on their face, the guidelines deny them certain, purported statutory entitlements, such as, for example, a presumption that they, as nonprofit, public interest groups, must receive FOIA fee waivers. Here, too, the allegedly impermissible standards have been and are now employed by the appellee departments, creating a current “impairment of rights” under FOIA.
The Government relies heavily on the decision in Webb v. Dept. of Health and Human Services in its argument that the instant case is not ripe for review. However, the appellants in this case have suffered hardship of a sort that was absent in Webb. In that case, this court held that the appellant’s challenge to a Food and Drug Administration (“FDA”) regulation was not ripe. Specifically, we determined that the challenge to the FDA rule at issue was uniquely fact-based, stating that “the validity of applying [the regulation] to a FOIA request will vary depending on what information is actually contained in the N[ew] D[rug] Application] file.” Moreover, we found that the only hardship that would spring from delayed consideration in Webb was “the burden of having to file another lawsuit ... hardly the type of hardship which warrants immediate consideration of an issue presented in abstract form.” The court also disbelieved the plaintiff’s claim that he was a frequent FOIA requester.
Here we are confronted with an entirely different set of circumstances. As discussed above, the instant cases involve purely legal issues, the resolution of which would not be measurably enhanced by factual illustration. Appellants’ claims concerning the nature of the guidelines and regulation, their alleged facial inconsistency with the legal mandate of FOIA, and the alleged requirement of notice and comment rulemaking are matters that are presently ripe for review. Appellants are indisputably frequent FOIA requesters, whose daily conduct and decision-making are affected, by the standards at issue. Finally, and most importantly, appellants allege a continuous injury due to a deprivation of a statutory entitlement. Webb is simply not apropos of the circumstances here at issue, either with respect to the “fitness of the issues” or the “hardship" prong of the ripeness test. Rather, we believe that the controlling precedent here is American Federation of Government Employees, and we adhere to it in finding these cases ripe for judicial review.
In sum, the prudential considerations implicated by the ripeness doctrine all militate for judicial review in the instant case. The issues are purely legal, the agency actions final, and the hardship to the parties created by withholding review are concrete and present. These facial challenges to the guidelines and to Interior’s failure to promulgate specific criteria governing fee waiver determinations are now ripe for judicial resolution.
C. Remand
Our decision that this case is ripe for judicial review leaves for resolution several complex questions involving the applicability of FOIA and the APA. First, the District Court must determine whether the DOJ guidelines utilized by the appellee departments are inconsistent with the mandate of FOIA. In other words, the trial court must ascertain whether FOIA requires DOJ to provide more or different substantive standards to regulate fee waiver determinations under FOIA.
The Government characterizes the guidelines solely as helpful advice, and thus may argue that their substantive content is irrelevant, because it is not binding. We were unable to discern either from the record or from the response of counsel at oral argument whether the DOJ guidelines are, or are perceived as, mandatory, or whether they are purely advisory in nature. The appellee departments, however, appear to have believed that adherence to the guidelines was required. In any event, appellants contend that, whether or not mandatory, the guidelines are being followed by State and Interior, and that they are facially invalid.
Second, BGA contends that the Government was required to follow notice and comment rulemaking pursuant to section 553 of the APA in promulgating the guidelines. In other words, BGA asserts that the guidelines are “rules” within the meaning of section 551(4) of the APA and that they fall far outside the purview of the statutory exceptions to the rulemaking requirements. However, as noted above, the Government characterizes the guidelines as advisory only. The District Court must therefore decide whether the strictures of the APA require the appellees to submit the DOJ guidelines to the public for notice and comment.
Finally, appellants appear to contend that, even assuming that these particular “guidelines” are not properly subject to the rulemaking requirements of the APA, FOIA mandates the enactment of some specific criteria to govern waiver requests. Implicit in this suggestion is the argument that the appellees’ existing guidelines, regulations and practices fall short of what is required by FOIA, and that when lawful rules are finally adopted they must be promulgated pursuant to notice and comment rulemaking.
All of these questions must be resolved by the District Court on remand.
III. Conclusion
Although the appellants’ original claims involving the Government’s refusal to waive their FOIA fees are moot, the facial challenges to the DOJ guidelines and the Interior regulation are live, ripe controversies which we hereby remand to the District Court for resolution.
So Ordered.
. The Northern Plains Resources Council is an appellant, and the Bureau of Land Management, an appellee, in National Wildlife Federation, et al. v. United States Department of Interior, et al. For convenience, we will refer only to the NWF and Interior throughout this opinion.
. 5 U.S.C. § 552(a) (1982).
. 43 C.F.R. § 2.19(c) (1985).
. The appellee departments occasionally will be referred to as "the Government.”
. 5 U.S.C. § 552(a)(4)(A) (1982) (emphasis supplied).
. See Ettlinger v. FBI, 596 F.Supp. 867, 872 (D.Mass.1984); Sen. Comm, on the Judiciary, Amending the FOIA, S.Rep. No. 854, 93rd Cong., 2d Sess. 11-12 (1974), U.S.Code Cong. & Admin. News 1974, p. 6267 (hereinafter S.Rep.).
. Subcommittee on Administrative Practice and Procedure of the Senate Judiciary Committee, 95th Cong., 2d Sess., Agency Implementation of the 1974 Amendments to the Freedom of Information Act: Report on Oversight Hearings 90-96 (Comm.Print 1980) (hereinafter Subcomm. Report).
. BGA Joint Appendix ("J.A.”) 23.
. Under the 1983 DOJ memorandum, the agency must evaluate:
(1) "whether there is a genuine public interest in the subject matter of the documents ... There is no universal formula by which the existence and extent of legitimate public interest in the subject matter of FOIA requests can be evaluated, so each agency must draw on its unique expertise in making these judgments about the subject matter of its own records. The ‘public' to be benefited need not be so broad as to encompass all citizens, but it must be distinct from the requester alone;”
(2) "the value to the public of the records themselves ... [T]he public is benefited only if the information released meaningfully contributes to the public development or understanding of the subject;”
(3) “whether the requested information is already available in the public domain;”
(4) “a requester’s identity and qualifications;” and
(5) “any personal interest of the requester reasonably expected to be benefited by disclosure ... It is necessary to assess the magnitude of any such personal interest, and then to compare it with that of any discernable public benefit____”
BGA J.A. 23.
. See 22 C.F.R. § 171.13(e) (1985).
. See 45 Fed.Reg. 58,108 (1980).
. Defendant’s Answer, ¶ 8, reprinted in BGA J.A. 19.
. See 43 C.F.R. § 2.19(c) (1985).
. NWF J.A. 21.
. BGA J.A. 45.
. NWF, et al. v. Department of Interior, et al., 616 F.Supp. 889, 891 (D.D.C.1984), reprinted in NWF J.A. 142.
. The BLM is a division of the Department of Interior.
. North Carolina v. Rice, 404 U.S. 244, 246, 92 S.Ct. 402, 404, 30 L.Ed.2d 413 (1971).
. Preiser v. Newkirk, 422 U.S. 395, 401 (1975) (quoting Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 241, 57 S.Ct. 461, 464, 81 L.Ed. 617 (1937)).
. Counsel for the appellants suggested at oral argument that the "voluntary cessation of illegal activity” exception to the mootness doctrine salvaged the individual waiver denials from mootness. This suggestion is manifestly incorrect. The Government’s waiver of fees left only the legal challenge to the facial legitimacy of its standards in controversy.
In Dow Chemical Co. v. EPA, 605 F.2d 673 (3d Cir.1979), the EPA revoked a rule that Dow charged had been invalidly promulgated under the APA, solely in order to remedy the alleged procedural irregularities, and made clear its intention to repromulgate a substantively identical rule. Relying on the “voluntary cessation” doctrine, the Third Circuit held that the substantive challenge to the rule was not moot. This court has subsequently clarified that holding:
[T]he EPA’s revocation of the rule under those circumstances did not moot the entire case, specifically the petitioner's challenge to the validity of the substance of the rule, which the court then went on to address____ Notably, the court in Dow did not even address the merits of petitioner’s earlier procedural challenge to the rule, which suggests that it implicitly regarded this issue as moot or that petitioner did not press the argument after the rule was revoked.
National Resources Defense Council, Inc. ("NRDC”) v. NRC, 680 F.2d 810, 814-15 n. 9 (D.C.Cir.1982). In the instant case, appellants’ challenges to the rules as applied, like the procedural challenge in Dow, were mooted by the agency’s curative actions. When courts apply the "voluntary cessation” doctrine, they typically conclude that the case is not moot; in fact, it often should be more precisely stated that the entire case is not moot.
. NRDC v. NRC, 680 F.2d at 814 (quoting California v. San Pablo & Tulare Railroad, 149 U.S. 308, 314, 13 S.Ct. 876, 878, 37 L.Ed. 747 (1893)).
. Id. at 815.
. See Super Tire Engineering Co. v. McCorkle, 416 U.S. 115, 121-22, 94 S.Ct. 1694, 1697-98, 40 L.Ed.2d 1 (1974) (proper to award declaratory relief when need for injunction has been removed but challenged governmental practice continues).
. Eagle-Picher Indus., Inc. v. EPA, 759 F.2d 905, 915 (D.C.Cir.1985).
. No party to this case contends that the constitutional criteria of the doctrine have not been met.
. Eagle-Picher Indus., Inc., 759 F.2d at 915.
. Id.
. Abbott Laboratories v. Gardner, 387 U.S. 136, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967).
. Id. at 149, 87 S.Ct. at 1515.
. Id.; see also Eagle-Picher Indus., Inc., 759 F.2d at 915; Continental Airlines, Inc. v. CAB, 522 F.2d 107, 126 (D.C.Cir.1974) (en banc).
. See Arkansas Power & Light Co. v. ICC, 725 F.2d 716, 725 (D.C.Cir.1984); Continental Airlines, Inc., 522 F.2d at 124-25.
. Toilet Goods Assoc., Inc. v. Gardner, 387 U.S. 158, 164, 87 S.Ct. 1520, 1524, 18 L.Ed.2d 697 (1967).
. Although the meaning of the guidelines and regulation might be illustrated by their application to particular fee waiver requests, such illustrations are not necessary to appellants’ challenges. They contend that, even without application, the standards are facially inconsistent with FOIA and violate the APA, and are therefore illegal. It is these claims that we hereby hold ripe for review.
. See Continental Airlines, Inc. v. CAB, 522 F.2d 107, 124 (D.C.Cir.1974) ("The label an agency attaches to its action is not determinative.”). Although it is not clear whether State and Interior were required to adopt the DOJ guidelines, they apparently have constructively done so.
. See Abbott Laboratories, 387 U.S. at 149-50, 87 S.Ct. at 1515-16.
. Although certain of the questions that are pertinent to ripeness may also go to the merits, we do not mean to prejudge the merits of these cases. The ripeness issue — concerning whether these cases are now fit for review — is separate from the questions concerning the nature of the guidelines and regulation, their alleged inconsistency with the legal mandate of FOIA, and the alleged applicability of notice and comment rulemaking under the APA. It is these latter questions that will be resolved by the District Court on remand.
. Sea-Land Service, Inc. v. Federal Maritime Comm'n, 402 F.2d 631, 633 (D.C.Cir.1968).
. Abbott Laboratories, 387 U.S. at 152, 87 S.Ct. at 1517.
. Id.
. Toilet Goods Assoc., Inc. v. Gardner, 387 U.S. at 164, 87 S.Ct. at 1524.
. Ettlinger v. FBI, 596 F.Supp. at 872; see also S.Rep., supra note 6, at 11-12.
. S.Rep., supra note 6, at 11-12.
. Subcomm. Report, supra note 7, at 78.
. Id. at 90-96.
. National Wildlife Federation v. Snow, 561 F.2d 227, 237 (D.C.Cir.1976).
. 750 F.2d 143 (1984).
. Id. at 145.
. For example, the appellants contend that the purposes and the legislative history of FOIA indicate that persons or organizations making requests for nonprofit purposes should generally receive fee waivers. Granting such waivers "encourages participation in the government process by those without a direct economic motivation to do so.” Bonine, Public-Interest Fee Waivers Under the FOIA, 1981 Duke LJ. 213. The sources relied upon by Congress in enacting the fee waiver provision each concluded that nonprofit requests merit fee waivers. See S.Rep., supra note 6, at 3, 10, 11, 12; Bonine, supra at 239-42. See also Subcomm. Report, supra note 7, at 96:
The guidelines should recommend that each agency authorize as part of its FOIA regulations fee waivers for the indigent, the news media, researchers, scholars, and non-profit public interest groups. The guidelines should note that the presumption should be that re-questers in these categories are entitled to fee waivers, especially if the requesters will publish the information or otherwise make it available to the general public. No such presumption appears in the 1983 DOJ guidelines; indeed there is no mention of nonprofit groups in the section of the guidelines entitled "the requester’s identity and qualifications.”
. Our conclusion that appellants will suffer hardship if review is withheld also holds true for BGA’s claim that State’s failure to expose the guidelines to notice and comment violates the APA. BGA is an interested party and arguably suffers continuing injury to its procedural rights if State has altered its practice without following APA requirements. See National Conservative Political Action Committee v. Federal Election Committee, 626 F.2d 953, 957 (D.C.Cir.1980).
. 696 F.2d 101, 107 (D.C.Cir.1982).
. Id. at 106.
. Id. at 107.
. Due to our resolution of the mootness and ripeness questions, the problem of standing in the present case dissolves. See Warth v. Seldin, 422 U.S. 490, 499 n. 10, 95 S.Ct. 2197, 2205 n. 10, 45 L.Ed.2d 343 (1975). Moreover, the appellants have clearly demonstrated that they have "suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant," and that the injury would be redressed by a favorable decision. Valley Forge Christian College v. Americans United for Separation of Church and State, 454 U.S. 464, 472, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982) (quoting Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 99, 99 S.Ct. 1601, 1607, 60 L.Ed.2d 66 (1979)).
. See, e.g., Letter from State to BGA (Sept. 27, 1983) ("Recent guidelines issued by the Justice Department require that requests meet certain criteria before agencies may waive fees.”) (emphasis supplied), reprinted in BGA J.A. 49-50; Letter from BLM to NWF (Apr. 13, 1983) (“Your request for a fee waiver for the materials you requested in your letter of March 11, 1983, was denied because it did not fully meet the applicable criteria."), reprinted in NWF J.A. 21; Memorandum re FOIA Appeal of Thomas France of the NWF (June 22, 1983) (“In determining whether furnishing information will primarily benefit the general public ... five factors are relevant____”), reprinted in NWF J.A. 35-36.
. See Environmental Defense Fund, Inc. v. Gorsuch, 713 F.2d 802, 814-16 (D.C.Cir.1983); Batterton v. Marshall, 648 F.2d 694, 708 (D.C.Cir.1980). | 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. | What is the circuit of the court that decided the case? | [
"First Circuit",
"Second Circuit",
"Third Circuit",
"Fourth Circuit",
"Fifth Circuit",
"Sixth Circuit",
"Seventh Circuit",
"Eighth Circuit",
"Ninth Circuit",
"Tenth Circuit",
"Eleventh Circuit",
"District of Columbia Circuit"
] | [
11
] | songer |
COOPER v. GILBERT et al.
No. 193.
Circuit Court of Appeals, Tenth Circuit.
April 21, 1930.
Eugene Jordan, of Tulsa, OH., for appellant.
Conrad E. Cooper, of Tulsa, OH., for appellees.
Before LEWIS, COTTERAL, and PHILLIPS, Circuit Judges.
COTTERAL, Circuit Judge.
This is an appeal by the defendant, Cooper, from an adverse judgment in favor of the receivers of the Turman Oil Company upon a promissory note for $2,900, with interest and costs.
The petition of the receivers sets out their appointment and authority, and alleges the note was executed by Miller & Stuart, to Cooper and indorsed by him, and the oil company became the owner of it before maturity.
In his amended answer and cross-petition, Cooper admits the execution and delivery of the note, but alleges he never held or owned it and it was at all times the property of the company. The particulars of the defense are set forth. Miller & Stuart needed funds to continue drilling oil wells, for the Cotton Belt Oil Company. Harvey, the general manager of, and acting for, the company, informed defendant of its desire to loan them $2,500 for the purpose, requested the use of his name as appearing to make the loan, and proposed the making of a note for $2,900, payable to the order of Cooper, for the use and benefit of the company, the drawing of a sight draft upon it for $2,500, to he paid on surrender of the note by Cooper to the company, and handling the transaction in that way to protect the company against a charge of usury; and Harvey agreed with Cooper that, in allowing the use of his name as payee and indorser of the draft, he should not be liable in the transaction. Relying on the agreement, the defendant drew the draft upon himself, in care of the company, payable to Miller & Stuart, they received the proceeds, and he indorsed the note and delivered it to the company without any consideration to him. The transaction occurred in Oklahoma and is governed by its laws. The note was usurious, reserving interest in excess of 10 per cent., as the company knew, and defendant’s liability in any event was limited to $2,100, on account of a set-off he claimed therefor of $800, being twice the interest charge. If Harvey acted beyond his authority, the company had actual knowledge of the transaction, knew defendant had no interest in the note and indorsed the note over to the company for its use and benefit, upon the agreement he should not be liable in the transaction.
By his cross-petition, Cooper prayed in event judgment should be rendered against him, he be subrogated to the rights of the plaintiffs against Miller & Stuart, and have judgment against - Harvey, if his agreement
By their unverified reply, the receivers denied the averments of the answer, and alleged that, if there was such agreement between Harvey and Cooper, it was a’pretext and device to defraud the oil company, pursuant to their scheme for their benefit, and to enable Harvey to realize a profit of $400, and he had no authority to enter into the agreement, and it was denied; that the company paid the full value of $2,900 for the note, without knowledge of such agreement, and, because of the fraud of Cooper and Harvey, the former is estopped to allege it as a defense, or assert the set-off to his liability by way of usury.
Cooper moved to strike from the reply the averments regarding the agreement and estoppel, and the motion was overruled. He asked leave to make Harvey a party defendant, and this was denied.
The cause was tried to a jury in October, 1929. Cooper testified for the defense, and was the only witness called. The substance of his direet testimony was as follows: On or about February 13, 1924, Harvey approached him, at Ardmore, Okl., regarding the loan to Miller & Stuart, telling him he (Harvey) had a chance to make $400, and asked if he could take the note in Cooper’s name, informing him there would be no liability on his part, the company would take the note, and Miller & Stuart would pay it. A draft was then prepared, attached to the note for $2,900, and delivered to Harvey. Cooper received nothing out of the transaction, acting merely at the request of Harvey. He knew the loan was only $2,500, the note was for $2,900, and $400 was commission on the loan. A draft exhibited was drawn by Cooper for $2,500, payable to Miller & Stuart, upon the Exchange National Bank at Tulsa, and credited later to Miller & Stuart.
Cooper testified on cross-examination: The draft was handed to Mr. Harrell, manager of the Cotton Belt Company, which was under Harvey’s supervision. The $2,500 was to go to Miller & Stuart. Harvey received $400 out of the transaction. He (Cooper) knew Harvey was working for the oil company and in charge of its Oklahoma business, but subject to orders from the New York office. In April, 1928, in a suit of the oil company against Harvey and others, he testified he understood the $2,900 note exhibited to him was the same as that sued upon in this suit, he identified a draft for $2,900 drawn by the Cotton Belt Petroleum Company to the American National Bank of Ardmore, and he further stated he loaned to Miller & Stuart $2;500 on the $2,-900 note. Those answers he said “were true then and now.” The $2,900 note was indorsed by him a few days after it was drawn. When' he indorsed the note, it was in the possession of Harvey, and was then handed to him. He understood Harvey was thereby enabled to make $400 commission from the oil company. The proceeds of the $2,500 draft were used to make the loan. A sight draft for $2,900, payable to the order of the Exchange Trust Company, signed “Cotton Belt Petroleum Company, L. E. Cooper,” was handed to Cooper. He denied preparing it or indorsing his name on it, or ever seeing it before. He and Harvey were cordial friends, engaged in business, and together went to Ardmore from Tulsa and back to Tulsa. It was admitted by the parties that the oil company paid $2,900 on the note in suit.
There was a demurrer by the plaintiffs to the evidence offered in defendant’s behalf, and it was sustained. Thereupon both parties joining in a request for a directed verdict, the court directed a verdict for the plaintiffs, and it was returned by the jury for $2,900 and the interest, as provided by the note in suit.
Cooper assigns seven errors for reversal of the judgment. Of these the first two relate to the refusal of his motion to strike portions of the reply. The contention is the authority of Harvey to enter into the agreement with Cooper is alleged and not denied under oath, wherefore it was admitted, by section 287, Comp. Okl. Stat. 1921, as ruled in First National Bank v. Elam, 126 Okl. 93, 258 P. 892, and Gaar, Scott & Co. v. Rogers, 46 Okl. 67,148 P. 161. The statute provides that allegations of any appointment or authority shall be taken as true unless denied under oath. But the motion disclosed no such ground, and it was not brought to the attention of the court. It is therefore not subject to review on appeal. Bankers’ Surety Co. v. Town of Holly (C. C. A.) 219 F. 96. The note was prima facie evidence of Cooper’s debt; and, as it appears the evidence was introduced without objection, or suggestion Harvey’s authority was admitted by the pleadings, the verification of the denial was waived. Burford v. Hughes, 75 Okl. 150,182 P. 689; Hutchinson Gin Co. v. Latimer County Nat. Bank, 106 Okl. 159, 233 P. 438.
The third assignment is that there was error in the refusal to make Harvey a party defendant. But the joinder of parties severally liable on the same instrument is optional with the plaintiff. Section 222, C. O. S. 1921; Johnson v. Cullinan, 94 Okl. 246, 221 P. 732; Goodrich v. Williamson, 10 Okl. 588, 63 P. 974; Modern Woodmen v. Terry, 69 Okl. 191, 171 P. 720. Additional parties are justified only where it clearly appears they have or claim to have some interest in the controversy or they are essential to a complete determination of the suit. Sections 219, 224, C. O. S. 1921; Enid O. & P. L. Co. v. Champlin, 113 Okl. 170, 240 P. 649. Harvey is not such a party, and there was no error in not ordering him to be made a party.
In the fourth, fifth, and sixth assignments, the complaint is the court erred in sustaining plaintiffs’ demurrer to the evidence and directing a verdict in their favor. Thus the merits of the case are presented, which counsel have elaborately discussed. The defense was that the oil company was not a holder of the note in due course, as it was bound by the knowledge of Harvey in the authorized loan transaction, and that, as Cooper loaned his name as a mere accommodation to Harvey, the defense of noneonsideration is open to Cooper. It does not appear Harvey was authorized to do more than effectuate the loan. In so doing, undoubtedly, by the general rule, notice to Harvey of a transaction done within the scope of his agency would bind his principal. But the rule has an exception where the agent acts adversely to the interest of his principal. Morgan, Baldwin & Co. v. Kanola O. & Ref. Co., 102 Okl. 26, 226 P. 335. The transaction was of that character, as its object was to obtain a commission for Harvey, whereas it was his duty to account for all profits to his principal. Roxana Pet. Co. v. Goldrick, 113 Okl. 298, 242 P. 228; 2 C. J. 692, 697, 700. The defense of nonconsideration was open to Cooper. But it appears the note transaction was adopted to enable Harvey to realize a profit, and, if so, a consideration secured for him by Cooper was sufficient to bind the latter, even if the note was an accommodation and he received no personal benefit from it. Fleming v. Gamble (C. C. A.) 37 F.(2d) 72.
By the seventh assignment, the defense of usury is asserted, as allowed by the Oklahoma statute. It is available to an indorser on a note. Ladd v. Ardmore State Bank, 43 Okl. 502,143 P. 170. However, in this ease, the oil company had no actual or legal notice of the excessive charge, effected as it was by means of the collusive arrangement between Harvey and Cooper, and paid full value for the note. Cooper cannot he heard to plead usury when by a scheme in which he knowingly participated the profit claimed to constitute the usury was realized by Harvey and withheld from the oil company.
The judgment of the District Court was for the right party and it is accordingly affirmed. | 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. | What is the general category of issues discussed in the opinion of the court? | [
"criminal and prisoner petitions",
"civil - government",
"diversity of citizenship",
"civil - private",
"other, not applicable",
"not ascertained"
] | [
3
] | songer |
AMERICAN SMELTING & REFINING CO. v. UNITED STATES.
No. 7865.
Circuit Court of Appeals, Third Circuit.
Argued April 6, 1942.
Decided Sept. 28, 1942.
Floyd F. Toomey, of Washington, D. C. (Ellsworth C. Alvord, of Washington, D. C., on the brief), for appellant.
Michael H. Cardozo, IV., Sp. Asst, to Atty. Gen. (Samuel O. Clark, Jr., Asst. Atty. Gen., J. Louis Monarch, Sp. Asst, to Atty. Gen., and Charles M. Phillips, U. S. Atty., of Trenton, N. J., on the brief), for appellee.
Before BIGGS, JONES, and GOODRICH, Circuit Judges.
GOODRICH, Circuit Judge.
The plaintiff taxpayer seeks in this action to recover back taxes paid and to recover what it claims is an overcharge in its income tax for the year 1925. The taxpayer owned all of the common stock of a subsidiary company. That company had outstanding two issues of preferred stock, both cumulative, both with a par value of $100, one of which called for 6% per annum dividend, and the other 5%. To retire this stock the taxpayer offered its own 30 year, $100, 5% bonds in 1917. During that year and 1918 one share of the 6% stock was acquired by giving the shareholder a $100 5% bond plus a cash payment of $7.50; during 1921 and 1922, the exchange was on a par for par basis. The other shares were secured by the exchange of one share for one bond of the series described. The average sales price on the New York Stock Exchange of the 6% stock during the period of retirement fluctuated from a high of lOOj/i to a low of 82%; that of the 5% stock from 101% to 91%. The taxpayer, claiming that the bonds were issued at discount, seeks to amortize the claimed discount by annual deductions over the life of the bonds. The learned trial court decided the case adversely to the taxpayer and it is here on appeal from that ruling.
Up to the threshold of the immediate question, the path is clear. While no language of the Revenue Acts has specifically covered the point, the Treasury Regulations provide that if bonds are issued by a corporation at a discount the net amount of such discount is deductible and is to be amortized over the life of the bonds. The ■Supreme Court has said that both discount and commissions may thus be amortized. Helvering v. Union Pacific R. Co., 1934, 293 U.S. 282, 55 S.Ct. 165, 79 L.Ed. 363; Natural Gas Pipe Line Co. of America v. Commissioner of Internal Revenue, 1941, 45 B.T.A. 939. If the taxpayer had raised the money to buy in the outstanding preferred stock by selling its $100 30 year bonds at $90 it concededly would have been allowed to amortize the $10 discount at the rate of $.33Vs per year.
The taxpayer contends that the same rule should be applied in this case where the exchange of the bonds for the preferred stock was made directly with the owner thereof instead of following the longer process of selling the bonds and buying the stock for cash. This contention the government denies. The question has not been squarely decided previously by court decision, although it seems to us that what authority there is seems to point in favor of the taxpayer’s contention. The Fourth Circuit, evidently unimpressed by the defendant’s argument here, refused to lay down any universal proposition “that where bonds are issued for property, a reasonably estimated discount may never be taken as an amortized deduction”. But the facts in that case did not show to the court’s satisfaction that the bonds had been issued under circumstances which were equivalent to a discount. Dodge Brothers, Inc., v. United States, 4 Cir., 1941, 118 F.2d 95, 103. The court having found that the securities offered could have easily been disposed on the market, without the inducement of the discount and that the plan was merely one for the realization of abnormally large profits by the underwriters, it concluded that the discount was not genuine in the sense of an inducement to the public to purchase that which it otherwise would not. No such showing was made here. Furthermore it was shown in the present litigation and not disputed by the government, that when the stock sold low on the market, the $7.50 additional bonus was withdrawn, thus indicating that the offer was not made more attractive than was necessary. These factors, in addition to the significant proof of the current market prices of the stocks and bonds, are we think, sufficient to distinguish this case from the one in the Fourth Circuit.
The point has been raised in cases before the Board of Tax Appeals but the issue, as pointed out by the learned trial Judge here, was avoided on the ground of lack of proof with respect to the value of the property received by the taxpayer. Carding Gill, Ltd., v. Commissioner of Internal Revenue, 1938, 38 B.T.A. 669; Southern R. Co. v. Commissioner of Internal Revenue, 1933, 27 B.T.A. 673; New York, C. & St. L. R. Co. v. Commissioner of Internal Revenue, 1931, 23 B.T.A. 177; Kansas City S. R. Co. v. Commissioner of Internal Revenue, 1931, 22 B.T.A. 949.
In addition there is an Office Decision applying an earlier Regulation upon this point which was substantially the same as the one involved here. In that case the taxpayer, owner' of an unincorporated business, had issued mortgage bonds, some of which were traded for liberty bonds, which had a market value of less than par but which were taken at their par value. It was held that when the exchange was made the taxpayer had in effect disposed of the bonds at a discount, the amount of which was represented by the difference of the par value of his bonds and the fair market value of the liberty bonds when taken in exchange. 1921, O.D. 959, 4 C.B. 129. The plaintiff here cites this ruling as authority for his position. Defendant answers that the ruling does not bind this court and in any event the liberty bonds had a far more stable value than the preferred stock in question. For whatever authority it has, however, the ruling does point in the direction the taxpayer asks us to go.
The government’s argument is to the effect that it is only when the bonds are issued for cash that it is possible to tell whether the loss which the amortization anticipates will ever occur. If the taxpayer had the good fortune after buying this stock, it is suggested, to sell it at a price higher than that for which it took it in trade for bonds there would be no loss to be anticipated from the transaction. Where bonds are issued for cash, the argument runs, there is an immediate certainty that gain or loss will be realized in the future and this gain or loss a taxpayer, on the accrual basis, may take into account.
It seems to us that the government’s argument overlooks what we believe is the rationale of the theory underlying the amortized deduction of discount. Ordinarily, bonds are issued at a discount because the promised rate of interest is, due to the condition of the prevailing market, too low to sell them at par. It would, therefore, seem that the discount allowed is in the nature of additional interest which accrues over the life of the bond and is payable at the maturity of the principal obligation. Accounting authorities so treat it.
This is confirmed by the Treasury Regulations. Although, originally, they treated discount under the heading of “Losses”, Treasury Regulation 33, Revised Article 150, subsequently, they treated it “in the same way as interest paid”, Treasury Regulation 65, Article 563 and Treasury Regulation 62, Article 563. *This follows the language of the Revenue Acts which allow deductions of “losses” on “sales or exchanges” and of “interest” on “loans”. It is admitted that the issuance of bonds in return for stock or cash constitutes a loan.
We believe that the discount is still to be treated as additional interest when the subject matter of the loan is stock instead of cash. It is clear in both cases that the discount, or additional interest, is determined at the time the bonds are issued. Thus, when the investor is paid the face amount of the bond at maturity, he is taxable for the difference between that sum and the cost of the bond. Here the cost of the bond is the fair market value of the stock at the time the corporate obligations were exchanged. To sustain the government’s contention, in view of these considerations, would be to say, in effect, that, on the same loan, the taxable “interest” earned by the investor varies in amount and is computed as of a different time than the deductible “interest” paid by the obligor. We think that this not only distorts, unnecessarily, the ordinary incidents of a commercial transaction but also upsets the balance of the tax situation.
We do not think, therefore, that the question whether amortization is permitted is settled by making the dividing line between transactions in which bonds are issued for cash and transactions where bonds are issued for something else. We do see the possibilities of great difficulty in determining, with sufficient exactness, the difference between the par value of the bonds and the thing other than cash received for the bonds by the obligor. We think in this case the taxpayer has met that difficulty, except as to part of the 5% shares, discussed below. He has shown the selling price of part of the 5% and all the 6% preferred stock of the company whose shares the taxpayer took in for the bonds, and this by reference to the open market of the New York Stock Exchange. This is further checked by showing the selling price of the taxpayer’s bonds in transactions shortly after, or during the time under consideration. It is proof, it seems to us, sufficient to establish the value of what was received in exchange for the bonds issued. It shows the stock, when received, was worth less than the par value of the bonds given for it and how much less. That seems to us to bring the taxpayer within the rule which permits the amortization of this discount under the rules stated by the Regulations and approved by the Supreme Court.
With regard to the portion of the 5% shares excepted above this proof is lacking, however. There is no showing of selling prices of these shares from September, 1917, through October, 1922, inclusive. In the absence of such proof, we do not know that the exchange of bonds for the 5% stock was required to be made at the discount claimed by the taxpayer, or any other discount. Despite the taxpayer’s argument to the contrary, we think the burden was upon him to make this showing. With regard to the portion of the bonds covered by this exchange, therefore, we sustain the action of the trial court.
The judgment of the District Court is reversed and the case remanded for proceedings in accordance with this opinion.
The then Collector no longer held office at the time suit was brought so the action is against the United States. 28 U.S.C.A. § 41(20).
D.C.N.J.1941, 39 F.Supp. 334.
Treas. Reg. 65, Art. 545(3) (a), Revenue Act of 1924. The same Regulations applied under former Acts: Treas. Reg. 62, Art. 545(3) (a), Revenue Act of 1921; Treas. Reg. 45, Art. 544(3) ,(a), Revenue Act of 1918; Treas. Reg. 33, Rev. Art. 150, Revenue Act of 1916, as amended by the Act of 1917. The current Regulation on this point is Treas. Reg. 103 § 19.22(a)-18(3) (a).
It should be noted in this connection that $20,000 face amount of the taxpayer’s bonds were issued in Hay, 1922 at a discount of 6.86% and that $7,500,000 face amount of these bonds were issued in November, 1922 at a discount of 8.-50%. It will be observed from a study of the month by month sales of the Series A and Series B Preferred Stocks of the Securities Company and the prices at which the bonds of the taxpayer were sold during the same period, that the selling prices of the bonds bear a close relationship to the selling prices of the stocks and that the prices at which the bonds were sold in 1922 may be closely correlated to the discounts at which the bonds were actually issued. We think that this affords a very high degree of proof that the premium at which bonds were offered in exchange for the stock represented values expressed in terms of dollars and cents and not values arrived at because the taxpayer desired to dissolve the Securities Company.
Accountants’ Handbook (2d Ed., 1932) 890-892; 2 Hester, Accounting Theory and Practice (1925) 199; Newlove, Smith and White, Intermediate Accounting (1939) 296; Patón, Advanced Accounting (1941) Ch. 27; Schmidt, Theory and Mechanics of Accounting (2d Ed. 1937) 314.
Although Treas. Reg. 45, Art. 544(3) (a) provided that discount was deductible “as interest”, the 1920 edition of the same Regulation omitted this reference to interest. Treas. Reg. 45, Art. 544(3) (a), (1920 Ed.). However it is again found in Regulations 62 and 65 cited above.
See discussion of theory underlying deduction of discount in Mertens, Law of Federal Income Taxation (Supp. 1939) pp. 227, 228.
1920, O.D. 475, 2 O.B. 211.
Under the taxpayer’s view, the same sum represents the discount and is taxable to the bondholder and deductible by the obligor. If the stocks or bonds are sold, the basis is determined as of the same time and the gain, if any, is taxable. The only discordant note is that the investor may not amortize the discount. New York Life Insurance Co. v. Edwards, 1926, 271 U.S. 109, 46 S.Ct. 436, 70 L.Ed. 859; Corn Exchange Bank v. Commissioner of Internal Revenue, 1927, 6 B.T.A. 158. This has been severely criticized by accountants who prefer to amortize discount on the investor’s books. Accountants’ Handbook (2d Ed. 1932) pp. 339, 340. 2 Kester, Accounting Theory and Practice (2d Ed.1925) pp. 199-201; Newlove, Smith and White, Intermediate Accounting (1939) 205; Pat-on, Advanced Accounting (1941) 196. | 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. | What is the total number of respondents in the case? Answer with a number. | [] | [
1
] | songer |
WILLIS v. HUNTER.
No. 3600.
Circuit Court of Appeals, Tenth Circuit.
March 10, 1948.
Rehearing Denied April 5, 1948.
John' J.. Gibbons, of Denver Colo., for appellant.
Eugene Davis, of Topeka, Kan. (Randolph Carpenter, of Topeka, Kan., U. S. Atty., on the brief), for appellee.
Before BRATTON, HUXMAN and MURRAH, Circuit Judges.
MURRAH, Circuit Judge.
By this habeas corpus proceedings petitioner seeks release from a three year sentence imposed in the United States District Court of Colorado for attempted escape, in violation of 46 Stat. 327, as amended 49 Stat. 513, 18 U.S.C.A. § 753h. See also Willis v. Hunter, 10 Cir., 164 F. 2d 694. The sole question presented by the petition for the writ is whether petitioner was deprived of his constitutional right to the effective assistance of counsel at every stage of the proceedings, resulting in his sentence on a plea of guilty?
In denying the writ, the trial court found from the record evidence that on October 16, 1946, petitioner appeared in open court with Charles J. Moynihan, counsel of his “own choosing and employment”, and en-dered a plea of guilty to the charge against him; that upon request of counsel, im■position of sentence was deferred until October 23 to permit counsel to submit data in mitigation of punishment; that when asked by the court if he would be ■present on the sentencing date, counsel replied that he would not, but would “sub•mit written notes”; that he was advised -to send the “notes” to the Probation Offi•cer for submission to the court; that on the 23rd of October petitioner appeared before the court for sentence pursuant to -the previous order; that counsel, though -not present, had submitted to the Probation Officer for delivery to the court, a lengthy memorandum epitomizing the past life and background of the petitioner, -which had been briefed from his own "handwritten statement; that “the statement of counsel was submitted to the court for the purpose of aiding it while passing sentence upon the defendant,” and petitioner was therefore accorded the effective .assistance of counsel when sentence was imposed. The court was moreover of the opinion that petitioner being represented by employed counsel, and the cause being continued at his request to enable him to furnish written data and argument to -the court on the matter of sentence, and it being understood that counsel would not .be present when sentence was imposed, petitioner waived any right to have counsel physically present at that time.
On hearing, petitioner was permitted to .testify, in contravention of the record evidence, that he entered his plea of guilty before the sentencing court on September 12, 1946, at which time the court was informed by the Probation Officer that peti-tioner was represented by counsel who was -not present; that on October 16, he again .appeared before the court represented by •counsel, and stood silent while his attorney asked that sentence be deferred until lie could prepare a statement of the petitioner’s background for the court’s consideration; that when he appeared for -sentence on October 23 his attorney was not present; that he did not know of his -right to have counsel present and the court •did not so advise him.
The trial court’s findings on the record evidence is, of course, conclusively controlling here, and the narrow question then is, whether petitioner was entitled as of right to have counsel present when sentence was imposed on October 23, and if so, did he competently and intelligently waive that right?
In considering the question whether a petitioner has been accorded his constitutional right to the effective assistance of counsel at every stage in the proceedings against him, we have never found it necessary to decide precisely whether absence of counsel when sentence is imposed in and of itself amounted to a denial of that constitutional guaranty. We have stated, however, that “an accused should have an opportunity to be heard by counsel on the sentence to be imposed and that a court should not impose sentence in the absence of counsel without expressly ascertaining that a defendant does not desire his presence. * * * ” This for the reason that “many considerations influence the length of a sentence which is to be imposed, and a defendant should have the opportunity to have his attorney present any mitigating circumstances to the court for its consideration in deter-, mining the weight of the sentence.” Batson v. United States, 10 Cir., 137 F.2d 288, 289. See also Thomas v. Hunter, 10 Cir., 153 F.2d 834. Cf. Kent v. Sanford, 5 Cir., 121 F.2d 216.
The constitutional mandate is not satisfied by legalistic formality, von Moltke v. Gillies, 68 S.Ct. 316. An accused may be denied effective assistance of counsel, although counsel be present at every stage in the proceedings. Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680. Conversely, he may actually have the benefit of counsel, although he is absent at some stage of the proceedings. Canizio v. New York, 327 U.S. 82, 66 S.Ct. 452, 90 L.Ed. 545. See also Carter v. Illinois, 329 U.S. 173, 67 S.Ct. 216; Amrine v. Tines, 10 Cir., 131 F.2d 827. Since the right to counsel is a matter of substance not form, it is the solemn duty of the trial judge to make sure that representation is not an empty gesture, but is the fulfullment of the spirit and purpose of the constitutional mandate. See von Moltke v. Gillies, supra; Glasser v. United States, supra; Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461, 146 A.L.R. 357.
We think that the right to the effective assistance of counsel contemplates the guiding hand of an able and responsible lawyer, devoted solely to the interest of his client; who has ample opportunity to acquaint himself with the law and facts of the case, and is afforded an opportunity to present them to a court or jury in their most favorable light If the accused does not have the assistance of counsel when entering a plea or when sentence is imposed, it must be manifestly clear to the court that he has competent and intelligently waived such right. Indeed, there are situations when justice cannot be administered unless one charged with a crime is represented by capable and responsible counsel. See Carter v. Illinois, supra.
Here the petitioner was represented by counsel of his own choice, who when the guilty plea was entered asked leave to reduce the argument in behalf of his client to writing and submit it to the court in order that he might have it when he came to consider punishment. When the court inquired whether he expected to be present when sentence was imposed, he stated in the presence of his client that he would not, but would submit his written notes for the court’s consideration. When the court came to pass judgment, he had before him the lawyer’s brief in his client’s behalf, and referred to it in the determination of punishment. Certainly, it cannot be said that the logic of a written argument to the court is not as effective as court room oratory. Furthermore, after imposition of sentence petitioner wrote to the sentencing court expressing the view that “In such a case as was my own, I am sure his honor was as merciful as could be expected and I am grateful for the undue kindness shown me under the then trying circumstances.”
While we should scrutinize very closely any sentence imposed upon an accused without the physical presence of counsel, we think the facts in this case deny any imputation that in' the constitutional sense petitioner was denied the effective assistance of counsel at every stage in the proceedings.
The judgment is affirmed. | What follows is an opinion from a United States Court of Appeals.
Your task is to identify the most frequently cited provision of the U.S. Constitution in the headnotes to this case. Answer "0" if no constitutional provisions are cited. If one or more are cited, code the article or amendment to the constitution which is mentioned in the greatest number of headnotes. In case of a tie, code the first mentioned provision of those that are tied. If it is one of the original articles of the constitution, code the number of the article preceeded by two zeros. If it is an amendment to the constitution, code the number of the amendment (zero filled to two places) preceeded by a "1". Examples: 001 = Article 1 of the original constitution, 101 = 1st Amendment, 114 = 14th Amendment. | What is the most frequently cited provision of the U.S. Constitution in the headnotes to this case? If it is one of the original articles of the constitution, code the number of the article preceeded by two zeros. If it is an amendment to the constitution, code the number of the amendment (zero filled to two places) preceeded by a "1". Examples: 001 = Article 1 of the original constitution, 101 = 1st Amendment, 114 = 14th Amendment. | [] | [
0
] | songer |
In the Matter of TENNESSEE CENTRAL RAILWAY CO., Debtor. LOUISVILLE & NASHVILLE RAILROAD COMPANY, and Eleven Other Interline Freight Balance Claimants, Petitioners-Appellants, v. UNITED STATES of America and A. Battle Rodes, Trustee, Respondents-Appellees.
No. 73-2040.
United States Court of Appeals, Sixth Circuit.
Argued Feb. 4, 1974.
Decided June 14, 1974.
David M. Keeble and Gareth S. Aden, Nashville, Tenn., for petitioners-appellants; Hooker, Keeble, Dodson & Harris, Nashville, Tenn., William F. Bunn, Chicago, 111., Duncan B. Phillips, Washington, D. C., Philip M. Lanier, Louisville, Ky., on brief.
James F. Dausch, Dept, of Justice, for respondents-appellees; Irving Jaffe, Acting Asst. Atty. Gen., Charles H. Anderson, U. S. Atty., Morton Hollander, David J. Anderson, Attys., Dept, of Justice, Washington, D. C., on brief.
Before WEICK, EDWARDS and PECK, Circuit Judges.
EDWARDS, Circuit Judge.
This case really represents a belated motion for reconsideration of this court’s decision entitled In re Tennessee Central Railway Co., 463 F.2d 73 (6th Cir.), cert. denied sub nom. Louisville & Nashville R. R. Co. v. Rodes, 409 U.S. 893, 93 S.Ct. 119, 34 L.Ed.2d 150, rehearing denied, 409 U.S. 1029, 93 S.Ct. 459, 34 L.Ed.2d 323 (1972). There, on the theory of an equitable priority as to operating costs involved in the six months prior to bankruptcy, the railroads, who are appellants in this instance, sought priority over the claims of the United States Government which originated with a long unpaid RFC loan and mortgage. This court upheld the government priority under 31 U.S.C. § 191 (1970), and certiorari was denied by the United States Supreme Court, as shown in the citation above.
Subsequent thereto the railroads petitioned the United States District Court, to whom the matter had been remanded for distribution of the proceeds, seeking delay in the distribution of the assets and propounding a theory upon which they had not previously relied, namely, that the interline freight balances (totaling approximately $900,-000) were “trust funds.” The District Judge, on grounds of res judicata, and the principles of judicial economy, rejected the petition in a well-reasoned memorandum.
On appeal appellants point out to us that between the time of the District Court decision and the argument of this case on appeal, the Third Circuit, sitting in banc, has reversed a preceding ruling in a case called In re Penn Central Transportation Co., 486 F.2d 519 (3d Cir. 1974), and has held that railroad interline balances are trust funds. Since the District Court decision in this case, the Supreme Court has denied certiorari in the Penn Central case, sub nom. Baker v. Indiana Harbor Belt R.R. Co., 415 U.S. 990, 94 S.Ct. 1588, 39 L.Ed.2d 886 (1974). Appellants also argue that the doctrine of res judicata does not apply to bankruptcy proceedings when the proceeds have not been distributed.
We note that the trust fund theory was presented to the United States Supreme Court in the railroad’s petition for certiorari in the instant case. The Supreme Court denied that petition without opinion, as shown in the citation above.
The Third Circuit’s in banc opinion in the Penn Central case is, of course, entitled to our respect. It would not be binding upon us, however, even if this case were still properly before this court on the merits. In our instant case there has been no decision by the Supreme Court which conflicts in any way with this court’s original decision.
Clearly the trust fund theory on which appellants now seek to rely could have been, but was not, presented in the original appeal. See IB J. Moore, Federal Practice fí 0.405, at 628 (2d ed. 1974).
When a disputed claim in a bankruptcy proceeding has been litigated to final judgment, it is subject to the principle of res judicata. Heiser v. Woodruff, 327 U.S. 726, 66 S.Ct. 853, 90 L.Ed. 970 (1946); IB J. Moore, Federal Practice fí 0.419 [3.-1], at 2964. We have read In re Inland Gas Corp., 187 F.2d 813 (6th Cir. 1951), and consider it completely inapposite.
We agree with the District Judge that litigation must end somewhere. The principles of res judicata would govern disposition of this case, even if there had been (as there is not here) a change in controlling case law. Chicot County Drainage Dist. v. Baxter State Bank, 308 U.S. 371, 60 S.Ct. 317, 84 L.Ed. 329 (1940); Clouatre v. Houston Fire & Casualty Co., 229 F.2d 596 (5th Cir. 1956); 1B J. Moore, Federal Practice f[ 0.415, at 2051-58.
The judgment of the District Court is affirmed.
. The instant action -was filed in the United States District Court for the Middle District of Tennessee, Nashville Division, and styled “Petition of Louisville and Nashville Railroad Company, Illinois Central Railroad Company, Southern Railroad Company, et al., to Delay the Distribution of Assets to Claimants in Above Proceedings.” | 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. | What party initiated the appeal? | [
"Original plaintiff",
"Original defendant",
"Federal agency representing plaintiff",
"Federal agency representing defendant",
"Intervenor",
"Not applicable",
"Not ascertained"
] | [
0
] | songer |
John Stanley WOJTOWICZ, Appellant, v. UNITED STATES of America, Appellee.
No. 598, Docket 76-2106.
United States Court of Appeals, Second Circuit.
Argued Jan. 18, 1977.
Decided Feb. 22, 1977.
Edward M. Chikofsky, New York City, for appellant.
Gary A. Woodfield, Asst. U. S. Atty, Brooklyn, N. Y. (David G. Trager, U. S. Atty., E. D. N. Y., Bernard J. Fried and Cheryl M. Schwartz, Asst. U. S. Attys., Brooklyn, N. Y., on the brief), for appellee.
Before LUMBARD, FEINBERG and MULLIGAN, Circuit Judges.
LUMBARD, Circuit Judge:
John Stanley Wojtowicz appeals from orders of the Eastern District, dated January 15, 1976 and February 26, 1976, in which Judge Platt denied without an evidentiary hearing appellant’s pro se petitions pursuant to 28 U.S.C. § 2255 to vacate or modify the sentence of 20 years imprisonment imposed by Judge Travia on April 23, 1973, after he pleaded guilty to one count of armed bank robbery. On appeal appellant contends that an evidentiary hearing was required to determine: whether he was competent at the time he entered the plea of guilty and at the time of his subsequent sentencing, whether his plea was rendered involuntary because of coercion by his family or was improperly influenced by a sentence promise made by his attorney, and whether he was denied the effective assistance of counsel. The court finds that, with the exception of his argument regarding his competency at sentencing, appellant’s claims are without merit; accordingly, we remand to the district court for a hearing limited to the issue of appellant’s competency at the time he was sentenced.
On August 31, 1972 appellant and two confederates attempted to rob a Brooklyn branch of the Chase Manhattan Bank, located at Avenue P and East Third Street, of approximately $37,000. in cash and travelers’ checks.
A short time after the bandits arrived at the bank one of Wojtowicz’s confederates fled the scene. Undaunted, appellant and his remaining comrade continued the robbery; however, before they could make their escape with the loot, the police arrived at the scene. Thereafter, a bizarre set of events unfolded. The police laid siege to the bank while the bandits held the bank employees hostage inside. Negotiations led to a plan by which the robbers were to be taken to Kennedy Airport, where an airplane was to be waiting to transport them to some unknown destination. This plan failed as well, however. Upon their arrival at Kennedy the FBI closed in; appellant was captured and his confederate was shot and killed. These events have been preserved for posterity in dramatic form by the film “Dog Day Afternoon.”
Wojtowicz was subsequently indicted on three counts of bank robbery in violation of 18 U.S.C. §§ 2113(a), (d), and (e) and upon one count of conspiracy. Because hostages were taken, he faced the possibility of the death penalty on the third count. 18 U.S.C. § 2113(e). After arraignment Mark Landsman was appointed as appellant’s counsel. Landsman also represented appellant in negotiations involving the sale of the movie rights to “Dog Day Afternoon.”
At Landsman’s request, on September 12, 1972 the court ordered that appellant undergo a psychiatric examination to determine his competency to stand trial, pursuant to 18 U.S.C. § 4244. Thereafter, appellant was confined to Kings County Hospital for three weeks, during which time he underwent psychiatric observation. The psychiatrist’s report, dated October 6, 1972, noted that appellant’s medical history indicated he had visited St. Vincent’s Hospital on three occasions, where he received treatment for chronic schizophrenia; however, the report stated that “[t]here is no psychosis or schizophrenia present in this defendant.” The report also recounted appellant’s homosexual entanglements and his claim that he committed the bank robbery in a desperate attempt to obtain money for his male paramour’s transsexual operation. The report concluded by stating that appellant appeared to be “a well educated, fairly intelligent male who is functioning above the average level. It is my opinion that the defendant is competent and fit to proceed.”
On February 16, 1973 Wojtowicz offered to plead guilty before Judge Travia to count two of the indictment, which carried a maximum penalty of 25 years imprisonment and a $10,000. fine, pursuant to an agreement with the government under which the remaining counts of the indictment were1 to be dismissed. Before accepting the plea, Judge Travia conducted an extensive Rule 11 inquiry. It was brought out that appellant had attempted suicide some time early in 1972 and had been treated as an out-patient at St. Vincent’s Hospital and had visited a psychiatrist in March of 1972. In response to the court’s questioning, appellant indicated that he was aware of what he was doing at the time of the crime. The court queried appellant concerning his desire to plead guilty, his satisfaction with his attorney and whether he had been induced to plead guilty by threats or promises. Appellant also explained his understanding of the agreement with the government, which the court confirmed as correct. The court established that appellant understood the nature of the charges to which he would plead, the maximum penalty the court could impose, and the nature of the rights he would waive. The terms of the agreement with the government were laid out on the record and appellant described his participation in the crime and admitted his guilt. During the court’s inquiry it was brought out that up until that morning Landsman had been under the misimpression that the maximum penalty possible under count three was life imprisonment and was not aware of the possibility of the death penalty.
Prior to imposing sentence on April 23, 1973, Judge Travia asked Wojtowicz about a letter he had written the court expressing dissatisfaction with his attorney. Appellant then explained that he felt counsel had failed to bring certain matters to the court’s attention, had failed to make certain motions, and had not released funds entrusted to him by appellant. In the course of this discussion appellant also stated that in making his decision to plead guilty his family had placed pressure upon him; particularly, appellant stated that Ernie, his male paramour, thought he should plead guilty in order to obtain a shorter sentence and that he thought Ernie might leave him if he did not plead guilty. After further discussion with counsel and appellant, Judge Travia indicated that while he was not disposed to relieve Mr. Landsman, he might consider granting an application to withdraw the plea. The court recessed until 2:00 that afternoon» to give appellant an opportunity to discuss matters with his attorney and his family.
After the adjournment, appellant indicated that he was ready to be sentenced. Before accepting the plea the court again queried appellant concerning his understanding of the charges and the consequences of his plea. After counsel spoke on his behalf, appellant engaged in a rather eloquent, but bizarre allocution; he explained that he knew his acts to be wrong but that he desperately needed the money to obtain a transsexual operation for Ernie, in order to prevent Ernie from committing suicide. Judge Travia then sentenced appellant to imprisonment for twenty years.
On August 15, 1973 Landsman filed a Fed.R.Crim.Pro. 35 motion for reduction of sentence, in which he averred, inter alia, that “just prior to sentence” appellant had inflicted injuries upon himself and was in poor physical condition and a “highly nervous state during which he made certain statements which may have inadvertently antagonized the Court.”
On October 21, 1975 appellant, acting pro se, filed a petition (the basis of the present appeal) to have his sentence vacated pursuant to 28 U.S.C. § 2255 or, in the alternative, to have his sentence reduced pursuant to Rule 35. The petition alleged that counsel had induced appellant to plead guilty upon the understanding that he would be sentenced to no more than 10 to 15 years. In support of the petition, appellant’s wife, male paramour, and mother submitted affidavits averring, inter alia, that appellant had received psychiatric treatment at St. Vincent’s Hospital for an attempted suicide and that they had urged him to plead guilty after being told by his attorney that appellant would not receive a term greater than 10 or 15 years. In addition, appellant’s “jail-house lawyer” filed an affidavit stating that appellant had told him of Landsman’s sentence estimate and appellant’s reliance thereon. Landsman also submitted an affidavit in which he stated that he had not promised anyone connected with the case that Wojtowicz would receive a term of only 10 or 15 years.
Judge Travia having resigned, the petition was referred to Judge Platt, who found in an opinion dated January 15, 1976, that examination of the sentencing minutes left no doubt that appellant had been made fully aware of the maximum penalties possible under count two of the indictment and that Judge Travia alone would determine the sentence within the maximum prescribed by statute. Noting that appellant had not claimed his plea was involuntary, the court pointed out that assuming there had been an incorrect sentence estimate, such estimate could not serve as the basis for a § 2255 attack unless measured by objective standards appellant would have been justified in relying on the estimate or unless the erroneous advice amounted to ineffective assistance of counsel. The court then found that appellant had been warned on no fewer than four occasions of the maximum penalty possible and that the record “conclusively demonstrated” that appellant could not reasonably have relied on Landsman’s alleged estimate; further, the court found that there was not even an allegation that Landsman’s estimate amounted to ineffective assistance of counsel.
On January 30,1976 appellant, again acting pro se, filed papers with the court which were entitled “Motion for Reconsideration.” In this motion appellant disputed the court’s prior findings and challenged the loyalty of his attorney. Appended to this motion was a handwritten affidavit in which appellant alleged that at about 3:00 a. m. on the morning of sentencing, in despair because he thought that Ernie had left him, he attempted suicide. According to appellant, he first took 100 pills (consisting of Benedrals and Darvons) and when this did not appear to be effective, he slashed his wrists with a razor blade; apparently, appellant then passed out. When he regained consciousness appellant claims to have been taken to St. Vincent’s Hospital where he was sutured. After some discussion by the marshals it was decided that despite his physical and mental deterioration, he would be taken to court that morning for sentencing. Appellant claims that he has a poor memory of the events that transpired at sentencing and his condition was such that he faded in and out of consciousness during the proceedings. The minutes of sentencing are devoid of any comments by the court or Mr. Landsman that corroborate these claims. On February 26, 1976 Judge Platt denied appellant’s motion without opinion.
In a letter to the court dated March 8, 1976, appellant acknowledged receipt of the February 26 order and requested that his letter be treated as a notice of appeal; this request was complied with.
Appellant’s most substantial claim is that he was entitled to an evidentiary hearing to determine his competency at the time of sentencing. In United States v. Miranda, 437 F.2d 1255, 1258 (2d Cir. 1971), this court pointed out that where a claim of mental incompetency is raised in a § 2255 petition, if “the movant has raised detailed and controverted issues of fact, a hearing will be required.” See O’Neil v. United States, 486 F.2d 1034 (2d Cir. 1973). In the affidavit appended to appellant’s January 30 “Motion for Reconsideration” Wojtowicz claims that on the morning of sentencing he attempted to take a drug overdose and slashed his wrists; as a result, he claims that he appeared in court later that morning with his wrists wrapped in bloody bandages, unable meaningfully to comprehend the sentencing proceedings. Appellant’s claims find support in Landsman’s affidavit submitted in support of the August 15,1973 Rule 35 motion, which alleged that appellant had inflicted injuries upon himself pri- or to sentencing and was in a deteriorated state. Similarly, the affidavits submitted by appellant’s family in support of his § 2255 petition, appellant’s statements at sentencing, and the psychiatrist’s report indicate that appellant had attempted suicide on a previous occasion in early 1972 and, thus, lend some credence to his present claim.
If appellant’s allegations are true they raise a serious question as to whether he was able meaningfully to exercise his right of allocution or rationally comprehend the nature of the proceedings. See Saddler v. United States, 531 F.2d 83, 86 (2d Cir. 1976); United States v. Miranda, supra, 437 F.2d at 1237; cf. Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960). The government contends that the sentencing minutes do not substantiate claims of unusual behavior on appellant’s part and that neither Judge Travia nor Mr. Landsman made any comments that would corroborate appellant’s claim. However, the apparent regularity of the proceedings cannot “conclusively show” that appellant’s claim, which is based on facts outside the record, is without merit. United States v. Miranda, supra, 437 F.2d at 1257-58; United States v. Malcolm, 432 F.2d 809, 813 (2d Cir. 1970). In sum, despite the fact that appellant raised his claim of incompetency for the first time in his “Motion for Reconsideration,” the court finds that appellant set out sufficiently detailed and controverted factual allegations to require that the case be remanded to the district court for a hearing on this issue. See Fontaine v. United States, 411 U.S. 213, 215, 93 S.Ct. 1461, 36 L.Ed.2d 169 (1973); United States v. Taylor, 487 F.2d 307, 308 (2d Cir. 1973).
Appellant’s claim that he was incompetent at the time he pleaded guilty stands on much weaker footing. Reading appellant’s pro se papers liberally, neither his original § 2255 petition nor his motion for reconsideration contain any specific factual allegations in support of the claim he now raises on appeal. See O’Neil v. United States, supra, 486 F.2d at 1036. In United States ex rel. Curtis v. Zelker, 466 F.2d 1092 (2d Cir. 1972), cert. denied, 410 U.S. 945, 93 5. Ct. 1405, 35 L.Ed.2d 612 (1973), this court held that where, as here, a defendant has been found competent in an examination conducted pursuant to 18 U.S.C. § 4244, the district court is not required to hold a competency hearing before accepting a plea and “ ‘absent some unusual circumstances, ... a Section 2255 (28 U.S.C. § 2255) collateral attack on the sentence based on the same ground will not ordinarily be permitted.’ ” 466 F.2d at 1100, quoting Hanson v. United States, 406 F.2d 199, 202 (9th Cir. 1969).
Neither the record nor appellant’s petitions indicate that there were any “unusual circumstances” that would warrant re-examination of Wojtowicz’s competency at the time of pleading. In between the time appellant was described in the October 6, 1972 psychiatrist’s report as “a well educated, fairly intelligent male who is functioning above the average level” and the time the plea was entered on February 16, 1973, the record does not indicate and appellant’s pro se papers do not allege any facts that would call into question his competency. Further, assuming that Wojtowicz’s suicide attempt occurred as alleged, the act took place and the motivation (appellant’s belief that his male paramour had deserted him) arose subsequent to the entry of the plea. Although appellant correctly cites Saddler
v. United States, supra, for the proposition that under some circumstances a defendant’s apparent incompetency at sentencing may call into question his competency at the time of pleading, the court in Saddler was faced with a record which, unlike the present case, indicated that a “flurry of warning flags” should have alerted the sentencing court to the possibility that the defendant had been incompetent when he entered his plea, 531 F.2d at 87. In Saddler the defendant had an extensive history of narcotics addiction and mental illness, the record at sentencing made it apparent that the defendant was lacking in mental capacity, and the court had specifically refused to order a competency examination despite requests from both prosecution and defense that this be done. In sum, beyond the mere allegation of incompetency raised on appeal, appellant has not alleged any facts or pointed to any evidence in the record that would warrant reopening the issue of his competency to plead. See Dalii v. United States, 491 F.2d 758, 760 (2d Cir. 1974); O’Neil v. United States, supra, 486 F.2d at 1036.
Appellant’s arguments that his plea was the product of family coercion and an erroneous sentence promise by counsel merit little discussion. At the outset, it is questionable whether the claim of family coercion was raised before the district court and has been properly preserved for appeal. See, e.g., United States v. Hermann, 524 F.2d 1103, 1104 (2d Cir.1975); Fields v. United States, 438 F.2d 205.(2d Cir.), cert. denied, 403 U.S. 907, 91 S.Ct. 2214, 29 L.Ed.2d 684 (1971). However, reading appellant’s petitions most charitably, his claim of family coercion is based on two factors: first, that portion of the sentencing minutes in which Wojtowicz stated that his family had placed pressure upon him and that he had been afraid that his male paramour would not be willing to wait for him if he went to trial and was found guilty on all counts; and, second, the affidavits of appellant’s wife, male paramour, and mother stating that they urged him to plead guilty after being told of counsel’s sentence estimate. Taking all of these statements as true, they do not support appellant’s claim that his will was overborne by family pressure. Indeed, the affidavits and the portions of the record relied upon indicate that appellant’s family was concerned with the dim prospects of a trial and felt that he would fare better by entering a plea. In similar circumstances we have held that “[ajdvice — even strong urging — by those who have an accused’s welfare at heart, based on the strength of the State’s case and the weakness of the defense, does not constitute undue coercion.” Lunz v. Henderson, 533 F.2d 1322, 1327 (2d Cir.) cert. denied, 429 U.S. 849, 97 S.Ct. 136, 50 L.Ed.2d 122 (1976). See United States ex rel. Brown v. LaValle, 424 F.2d 457, 460-61 (2d Cir. 1970), cert. denied, 401 U.S. 942, 91 S.Ct. 946, 28 L.Ed.2d 223 (1971).
Similarly, as the district court found, taking appellant’s allegations regarding counsel’s “sentence promise” as true, the record conclusively establishes that appellant could not have been reasonably justified in relying on any such promise; accordingly, the district court correctly rejected this claim. See Mosher v. LaValle, 491 F.2d 1346, 1347 (2d Cir.), cert. denied, 416 U.S. 906, 94 S.Ct. 1611, 40 L.Ed.2d 111 (1974); United States ex rel. Curtis v. Zelker, supra, 466 F.2d at 1098. Judge Travia exhaustively questioned appellant before accepting his plea and at sentencing, he fully advised him of his rights and warned him on no less than four occasions of the maximum penalties possible.
Appellant’s final claim is that he was denied the effective assistance of counsel. Here too it is questionable whether this claim was raised in any recognizable form before the district court; however, the record in this case leaves no doubt that counsel’s advice was not “[outside] the ‘range of competence demanded of attorneys in criminal cases.’ ” Tollett v. Henderson, 411 U.S. 258, 264, 93 S.Ct. 1602 (1973), quoting McMann v. Richardson, 397 U.S. 759, 771, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970). See Rickenbacker v. The Warden, Auburn Correctional Facility, 550 F.2d 62, at 66 (2d Cir. 1976). In evaluating claims of ineffective assistance of counsel it has long been the rule that “time consumed in oral discussion and legal research is not the crucial test The proof of the efficiency of such assistance lies in the character of the resultant proceedings, ...” United States v. Wight, 176 F.2d 376, 379 (2d Cir. 1949), cert. denied, 338 U.S. 950, 70 S.Ct. 478, 94 L.Ed. 586 (1950). See United States ex rel. Marcelin v. Mancusi, 462 F.2d 36, 42 (2d Cir. 1972), cert. denied, 410 U.S. 917, 93 S.Ct. 977, 35 L.Ed.2d 279 (1973). In the present case appellant’s only possible defense was that of insanity. The record indicates that counsel made conscientious efforts to provide the psychiatrist conducting the 18 U.S.C. § 4244 examination (which counsel had requested) with information indicating that appellant was not mentally capable. Although the examination was only to determine competency to stand trial, the extensive psychiatrist’s report was dated barely six weeks after the robbery and cast in significant doubt the viability of an insanity defense. The record indicates that after examining the report counsel discussed the possibility of negotiating a plea with appellant and turned his efforts in that direction; under the circumstances, we cannot say this decision was unreasonable. See Lunz v. Henderson, supra, 533 F.2d at 1327, n.7; United States ex rel. Marcelin v. Mancusi, supra, 462 F.2d at 44. Likewise, counsel’s error as to the maximum penalty possible under count three of the indictment (which was dismissed) did not render his representation constitutionally defective, see e.g., United States ex rel. Scott v. Mancusi, 429 F.2d 104,109 (2d Cir. 1971), cert. denied, 402 U.S. 909, 91 S.Ct. 1385, 28 L.Ed.2d 651 (1971). Appellant asserts there was a conflict of interest from the fact that counsel’s fee and the expenses of the defense were to be paid from a fund created by the sale of the movie rights to “Dog Day Afternoon,” which counsel helped to negotiate. While we do not regard the practice as worthy of emulation, we cannot say that it rendered counsel’s representation constitutionally defective. As regards the alleged “sentence promise,” there is not even an allegation in the present case that counsel falsely promised that a bargain regarding the length of appellant’s sentence had been struck with the court or the prosecutor. See Mosher v. LaValle, supra. There is no indication in appellant’s petitions or elsewhere that counsel did anything more than express an honest opinion. See United States v. Horton, 334 F.2d 153, 155 (2d Cir. 1964). Finally, appellant contends that counsel’s failure to bring appellant’s suicide attempt to the court’s attention was inexcusable. Assuming there was such an attempt and that appellant’s condition was such that counsel should have sought an adjournment, we conclude that any prejudice suffered by appellant can adequately be cured on remand if the district court concludes that appellant was not competent to proceed on the morning of sentencing.
The case is remanded to the district court for a hearing limited to the issue of appellant’s competency at sentencing, which at most can result in a re-sentencing of Wo-jtowicz at a time when he is competent.
. The record indicates that some time in December, 1971 appellant engaged in a homosexual wedding ceremony. Wojtowicz also had a wife and two children.
. The record does not indicate the disposition of the Rule 35 motion; evidently, it was denied.
. Appellant also challenged federal jurisdiction over the offense, a challenge which has not been pursued on appeal.
. As is often the case with pro se applications, it is somewhat difficult to comprehend the thrust of appellant’s arguments. However, it appears that appellant’s allegations regarding Landsman were aimed at showing that appellant had been apprehensive of bringing the alleged sentence promise to the court’s attention at sentencing, perhaps out of fear of jeopardizing the agreement with the government to drop the remaining charges or because he was unsure of counsel’s loyalty.
. To a large extent the issue of appellant’s competency will turn upon whether the alleged suicide attempt actually took place. If the evidence shows that there was no such attempt, the court’s inquiry will be at an end. If the suicide attempt is found to have occurred, then it will become necessary for the court to order an examination to determine whether appellant was competent to be sentenced. While such retrospective examinations are frowned upon, they are necessary when no other reasonable alternatives remain. Saddler v. United States, supra, 531 F.2d at 87.
. Many of appellant’s claims regarding events at both sentencing and the time of entering the plea are based on “contemporaneous press accounts” of Wojtowicz’s behavior. However, the article referred to was not presented to the district court until appellant filed his “Petition for Sentence Modification and Injunctive Relief’ on May 12, 1976 — approximately three months after the court’s rejection of his February 26 “Motion for Reconsideration.” The May 12 papers sought sentence reduction and a transfer pending appeal. Appended to the motion was the article upon which appellant now relies. Thus, for the first time on appeal appellant attempts to present this court with evidence which could not have been considered by the district court in conjunction with appellant’s present claims. In any event, this media report was hearsay, which, in making the threshold determination whether a hearing is required under 28 U.S.C. § 2255, ordinarily will not entitle the petitioner to a hearing. See Dalli v. United States, 491 F.2d 758, 760 (2d Cir. 1974). | 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". | 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. | [
"No",
"Yes",
"Mixed answer",
"Issue not discussed"
] | [
3
] | songer |
Franklin Bruce STREETT, Appellant, v. UNITED STATES of America, Appellee.
No. 17491.
United States Court of Appeals Eighth Circuit.
April 28, 1964.
Curtis D. Forslund, Minneapolis, Minn., for appellant.
Leigh J. Gard, Asst. U. S. Atty., Minneapolis, Minn., for appellee; Miles W. Lord, U. S. Atty., Minneapolis, Minn., was with Leigh J. Gard, Minneapolis, Minn., on the brief.
Before VAN OOSTERHOUT, RIDGE and MEHAFFY, Circuit Judges.
VAN OOSTERHOUT, Circuit Judge.
Defendant Streett appeals from his conviction and sentence on all of the eleven counts contained in two indictments against him which were consolidated and tried to a jury. Concurrent sentences of ten years imprisonment were imposed.
Each count of each indictment charged a violation of 18 U.S.C.A. § 2314. Count I of case No. 4-63 Cr. 21, which is typical of all counts, reads:
“That on or about the 27th day of September, 1962, at the City of Minneapolis, County of Hennepin, State and District of Minnesota,
FRANKLIN BRUCE STREETT, aka FOREST WADE, aka WES STEVENS,
did, with unlawful and fraudulent intent, cause to be transported in interstate commerce from Minneapolis, Minnesota, to New York, New York, a falsely made and forged security, to wit: ‘N.C.B. Traveler’s Check’ No. 025-776-005, dated September 27, 1962, in the amount of $100.00, payable to Dr. M. A. Van Etta, signed Forest Wade and countersigned Forest Wade, and drawn on The First National City Bank of New York, knowing the same to have been falsely made and forged; in violation of Section 2314, Title 18 United States Code.”
The other counts each involve a separate traveler’s check varying in amount from $20 to $100. It is undisputed that each traveler’s cheek was a genuine traveler’s cheek drawn on The First National City Bank of New York; that such checks were purchased at a North Carolina bank by Forest Wade; that the traveler’s checks were issued and delivered to Wade and that his genuine signature was placed upon each check at the appropriate place at the top of such check prior to delivery.
Based upon well-established principles that the .evidence must be viewed in the light most favorable to the Government since the Government prevailed in the trial court, the evidence clearly establishes that Streett stole the traveler’s cheeks from Wade at Rome, Georgia; that Streett took the cheeks with him to Minneapolis; that he forged the countersignature “Forest Wade” upon each of such traveler’s checks; that he received the full value of each check from the various persons who cashed said checks; that Streett knew such cheeks were stolen; that he knew the countersignature on each check was forged; that he knew the instrumentalities of interstate commerce would be used in transporting the checks from Minneapolis to New York for payment; and that all such acts were done with an unlawful and fraudulent intent.
Title 18 U.S.C.A. § 2314 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; or
“Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, transports or causes to be transported, or induces any person to travel in, or to be transported in interstate commerce in the execution or concealment of a scheme or artifice to defraud that person of money or property having a value of $5,000 or more; or
“Whoever, with unlawful or fraudulent intent, transports in interstate or foreign commerce any falsely made, forged, altered, or counterfeited securities or tax stamps, knowing the same to have been falsely made, forged, altered, or counterfeited ; or
“Whoever, with unlawful or fraudulent intent, transports in interstate or foreign commerce, any tool, implement, or thing used or fitted to be used in falsely making, forging, altering, or counterfeiting any security, or tax stamps, or any part thereof — •
“Shall be fined not more than $10,000 or imprisoned not more than ten years, or both.
“ * * *»
This appeal is based upon defendant’s contention that the facts of this case show a forged endorsement of a genuine traveler’s check rather than a forged security and that such forged endorsement was not included in the prohibition of paragraph 3 of § 2314. Such contention was raised in the trial court by motion to dismiss indictment and by motion for acquittal, which motions were overruled. Except for the monetary requirement of $5,000 there appears to be no question concerning the applicability of the first paragraph of § 2314. However, such paragraph does not apply as the securities did not reach $5,000 in value. Hence, the Government must bring this case under paragraph 3 within the statutory language, “falsely made, forged, altered, or counterfeited securities.”
The indictment narrows the field down to falsely made and forged securities. These terms have been defined and distinguished by the court in Pines v. United States, 8 Cir., 123 F.2d 825, 828, as follows:
“Manifestly, the words ‘altering’ and ‘counterfeiting’ could refer only to a crime based upon a preexisting genuine instrument. Forgery, however, does not necessarily carry such presumption but indicates that there is a genuine or real obligor in existence whdse obligation has been simulated. To ‘falsely make’ is a crime not of changing or forming an instrument to resemble an existing genuine instrument or to represent that it is the act of a genuine and existing obligor, but rather to make an instrument which has no original as such and no genuine maker whose work is copied, although in form it may resemble a type of recognized security.”
Thus it is apparent that the real issue is whether the traveler’s checks here involved are forged securities within the meaning of such term as it is used in § 2314.
The Government contends that the acts of forgery committed by the defendant in placing the countersignature upon the traveler’s checks were the very acts necessary to make them negotiable, and since the countersignature was not that of the purchaser, the checks were therefore forged securities. On the other hand, defendant argues that only the endorsement was forged, not the security itself which was complete prior to the countersignature, and that forged endorsements are not included within the coverage of the statute.
The distinction between a forged security and a forged endorsement was recognized by this court in Gesell v. United States, 8 Cir., 1 F.2d 283, and Lewis v. United States, 8 Cir., 8 F.2d 849, and later by the Supreme Court in Prussian v. United States, 282 U.S. 675, 51 S.Ct. 223, 75 L.Ed. 610. In the Prussian case the defendant had been indicted under §§29 and 148 of the Criminal Code for forging the endorsement on a United States Treasury Draft. As evidenced by the following quotation, § 148, which is now 18 U.S.C.A. § 471, contained language very similar to the relevant phrase in § 2314, to wit, “falsely made, forged, altered, or counterfeited securities.” In interpreting such language, the court in Prussian states:
“Under section 14§, ‘whoever, with intent to defraud, shall falsely make, forge, counterfeit, or alter any obligation or other security of the United States,’ is guilty of a criminal offense. Section 147 provides: ‘The words “obligation or other security of the United States” shall be held to mean all * * * checks, or drafts for money, drawn by or upon authorized officers of the United States.’ It is apparent that the draft drawn on the Treasurer by an authorized officer is an ‘obligation * * * of the United States’ both in common parlance and by the express definition of section 147. But to extend the meaning of that phrase so as to embrace the indorsement on the government draft is to enlarge the statutory definition, and would be possible only by a strained construction of the language of sections 147 and 148, inadmissible in the interpretation of criminal statutes, which must be strictly construed. See Fasulo v. United States, 272 U.S. 620, 47 S.Ct. 200, 71 L.Ed. 443; United States v. Salen, 235 U.S. 237, 35 S.Ct. 51, 59 L.Ed. 210.
“The writing described in the indictment, when issued by the drawer, was a check or a draft. The added indorsement was in itself neither a check nor a draft. We need not stop to consider the argument advanced that the obligation upon the draft does not become complete until it is indorsed, see Hamil v. United States, supra, p. 371 for it overlooks the circumstance that the meaning of ‘obligation’ in section 148 is narrowed by the definition in section 147 to specifically enumerated written instruments, including checks or drafts for money, which are complete, as such, within the statutory definition and in common understanding, at least when issued to the payee by an authorized officer of the government. The indorsement was at most the purported obligation of the indorser, not of the United States, and a purported transfer of the title of the draft to the indorsee. In neither aspect was ■the indorsement itself an obligation of the United States as defined by section 147, or such a part of the draft as to constitute the forging of the indorsement a forgery of the draft.” 282 U.S. 675, 677-678, 51 S.Ct. 223, 224, 225, 75 L.Ed. 610.
After holding that the endorsement was not part of the security and therefore not within § 148, the Court upheld the conviction by construing the forged endorsement as falling within § 29’s (now § 495’s) catch-all phrase “other writing, for the purpose of obtaining or receiving * * * from the United States * * * any sum of money.” A comparable catch-all phrase does not exist for non-governmental transactions.
The Government attempts to explain away the applicability of the Prussian case by asserting that the sole reason why the forgery was not covered under § 148 was because the endorsement was not an obligation of the United States which was intended to be protected, but rather was merely the obligation of the person whose signature was forged — an individual — who was not intended to be protected. However, this appears to be too restrictive an interpretation of the Court’s reasoning. The Court clearly held that the endorsement was not “such a part of the draft as to constitute the forging of the indorsement a forgery of' the draft.” 282 U.S. 675, 678, 51 S.Ct. 223, 224, 75 L.Ed. 610.
The reasoning of the Prussian case has. been recognized in many subsequent cases. See Danielson v. United States, 9 Cir., 321 F.2d 441; Rogers v. United States, 5 Cir., 304 F.2d 520 (dissenting opinion) ; United States v. Henderson, 7 Cir., 298 F.2d 522; Carr v. United States, 6 Cir., 278 F.2d 702; Webster v. United States, 8 Cir., 59 F.2d 583. The government objects to the relevance of these cases in that they all are concerned with the protection of the United States’' securities. Nevertheless, the objective being sought here is to discover the scope-of § 2314, and authoritative court interpretations of a statute bearing strikingly similar language would appear to be pertinent here.
The legislative history supports the interpretation of the statute urged by defendant. Section 2314 has its origin in the National Stolen Property Act of May 22, 1934, ch. 333, 48 Stat. 794. As originally enacted, the statute did not extend to interstate transportation of forged securities, but only to interstate transportation of, inter alia, stolen securities of the value of $5,000 or more, if 1 of § 2314. Paragraph 3 extending coverage to “falsely made, forged, altered, or counterfeited” securities, regardless of value, was added in the amendment of August 3, 1939, ch. 413, § 1, 53 Stat. 1178, eight years after the Supreme Court had held in Prussian that such language does not cover forged endorsements.
The report on the amendment by the Senate Committee on the Judiciary, S. Rept.No.674, 76th Cong., 1st Sess. (1939), was a two page document incorporating and consisting mostly of two letters from the Attorney General. The second letter, dated May 5, 1939, stated:
“The principal purposes of the pending bill are to extend the existing law to property that has been embezzled, and also to forged or counterfeited securities.
“Studies of the desirability of extending this legislation to the transportation of forged or counterfeited securities in interstate or foreign commerce have led the Department to the conclusion that in respect to such eases the minimum amount of $5,000 serves no purpose, and that accordingly, it would be best to provide that such transportation be a criminal offense irrespective of the value of the forged, or counterfeited certificates. The reasons leading to this conclusion are that criminals who engage in forging or counterfeiting certificates do not ordinarily subject themselves to the hazards involved in such a nefarious undertaking, except for the purpose of multiplying the forged certificates on a large scale. For example, while a single act of transportation may perhaps involve a forged traveler’s check of a small denomination or a forged stock certificate for a few shares, the probability is that the person who manufactured the plate from which the traveler’s check or certificate was printed produced a large number of duplicates of the same fraudulent document. Otherwise, it would not have been worth while for him to go to the trouble and expense of purchasing the necessary tools and engraving the plate employed in accomplishing his criminal purpose. It would appear therefore, that the transportation of this type of contraband articles is entirely different from the transportation of stolen property.” (Emphasis added.)
Such legislative history indicates an intention to extend the coverage of § 2314 in order to prohibit the actual false making or reproducing of the securities.
The Government’s reliance upon United States v. Sheridan, 329 U.S. 379, 67 S.Ct. 332, 91 L.Ed. 359, is misplaced. While it is true Sheridan holds that paragraph 3 of § 2314 reaches small as well as large makers of forged instruments as is evidenced by the absence of the $5000 limitation, the securities there involved were checks and the Court found that the checks themselves (not just the endorsements) were forged and hence the forged checks clearly fell within the statutory description.
Congress could unquestionably have broadened the statute to cover forged endorsements. Congress has not expressly covered forged endorsements of genuine securities in the statute. The language of paragraph 3 is practically identical with that interpreted in Prussian. The interpretation problem confronting us here so clearly resembles that present in Prussian and the numerous Courts of Appeal cases including our own reaching the same result, that we feel the reasoning of such eases controls the result here. If Congress had desired to cover forged endorsements, it could easily have said so. As stated in Prussian, “But to extend the meaning of that phrase so as to embrace the indorsement on the government draft is to enlarge the statutory definition, and would be possible only by a strained construction of the language * * *, inadmissible in the interpretation of criminal statutes, which must be strictly construed.” 282 U.S. 675, 677, 51 S.Ct. 223, 224, 75 L.Ed. 610.
It cannot be seriously questioned that the traveler’s checks were complete as securities prior to the forged countersigning, as was the government draft in Prussian. It was established by this court in Pines v. United States, 8 Cir., 123 F.2d 825, that traveler’s checks are complete as securities prior to the countersigning. The defendant in that case was convicted under Title 18 U.S.C.A. § 415, the forerunner of § 2314, for transporting in interstate commerce traveler’s checks issued from a fictitious bank. This court stated at p. 828 of 123 F.2d:
“As to the Travelers Cheques it is contended that they were not complete ; hence, could not be unlawfully transported. A Travelers Cheque has the characteristics of a cashier’s check of the issuing bank. As said by us in Mellon Nat. Bank v. Citizens Bank & Trust Co., 8 Cir., 88 F.2d 128, 132.
“ ‘It is a bill of exchange drawn by the issuing bank upon itself and is accepted by the act of issuance, and the right of countei'mand as applied to ordinary cheques does not exist as to it.’
“The purported Travelers Cheques alleged to be fictitious were payable to order when countersigned by Joseph L. Lewis, whose signature purported to appear on them. As the obligation created by the issuance of a Travelers Cheque is complete as against the bank when issued, even though requiring the signature of the one to whom issued, it constituted a security within the purview of the statute because falsely made.”
The Government argues that since Pines held that the traveler’s checks in that case were covered by § 415, that case cannot be used as authority for holding that the checks in the instant case are not securities within the statutory meaning. However, the clear holding of the Pines case is that the checks came within the purview of the statute not because of the lack of genuineness of the obligation or because of forgery, but because the obligation itself, although a completed security, was falsely made. This distinction between a “falsely made” security and a “forged” security was recently recognized in Stinson v. United States, 5 Cir., 316 F.2d 554.
United States v. Petti, 2 Cir., 168 F.2d 221, supports defendant’s position that the traveler’s check is a complete security. The traveler’s checks there involved had been stolen from an American Express Company office and had not been signed by the purchaser. The court held such checks to be securities. The case for traveler’s checks in our present case to constitute securities is much stronger as we here have the additional factors that the checks were purchased and paid for and the first signature of the purchaser was properly affixed to the checks at time of delivery.
Both defendant and the Government rely upon dictum in Rowley v. United States, 8 Cir., 191 F.2d 949, where the traveler’s cheeks which had been stolen from a bank to which they had been issued came into defendant’s possession without a signature or countersignature of a payee. The Government cites the case for stating that a federal offense under the pertinent paragraph of § 2314 was charged and for defining forgery as “The fraudulent making or alteration of a writing to the prejudice of another man’s rights.” 191 F.2d 949, 950. Defendant relies upon the following language to show there was here involved a completed instrument:
“The obligation created by the issuance of the cheques as against the bank issuing them was complete when the checks were issued even though they required the signature of the one to whom issued and they constituted a security within the purview of the statute.” 191 F.2d 949, 950.
The argument that it could not be a forged security if completed prior to the forgery was not presented before the court. But whatever import this case might have is negated by the fact that the defendant pleaded guilty and failed to appeal. This court affirmed the lower court’s denial of a motion to vacate sentence on the procedural ground that after conviction a sentence is not open to collateral attack based upon a defective information or indictment except for exceptional circumstances not here present.
The Government also relies upon Berry v. United States, 5 Cir., 271 F.2d 775. The facts of this case are somewhat incomplete since neither the statute nor the amount of the traveler’s check is mentioned, although the indictment referred to “falsely made and forged security,” and evidently, the defendant had forged the countersignature. The court states on p. 777 of 271 F.2d;
“[W]hat is in question here is not an ordinary check but a travelers check which, though it requires for negotiation the signature of the person- to whom it is issued, is, when issued and signed by the payee, complete against, and cannot be countermanded by, the issuer. Pines v. United States, 8 Cir., 123 F.2d 825. Such cheeks are cash, not upon the credit of the persons negotiating them but upon the credit of the issuer and the correspondence of the endorsement of the negotiator with the signature on the face of the instrument. In the case, therefore, of such instruments, the first negotiator, if not the person to whom the check was issued, is necessarily a forger.”
Again the argument relied upon by the defendant in the instant case was not presented before the court. There is no dispute over the conclusion that the defendant is a forger within the meaning of common law — only that this was not a forged security under the paragraph in question of § 2314.
To summarize, it is our view that the traveler’s checks involved were complete genuine securities at the time that they came into the hands of the defendant. While it is absolutely clear that defendant wrongfully forged the signature of Forest Wade upon each traveler’s check, § 2314 does not reach forged endorsements but only reaches forged securities.
There is abundant evidence to support defendant’s guilt of many unlawful acts including larceny and forgery of endorsements. However, we conclude with considerable reluctance that the defendant’s guilt of transporting a forged security in violation of § 2314 is not established by the evidence.
We express our appreciation to Mr. Forslund who served as court-appointed counsel for his competent representation of the defendant on this appeal and for his excellent written brief and oral argument made upon behalf of the defendant.
Reversed and remanded. | 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. | What is the nature of the first listed appellant? | [
"private business (including criminal enterprises)",
"private organization or association",
"federal government (including DC)",
"sub-state government (e.g., county, local, special district)",
"state government (includes territories & commonwealths)",
"government - level not ascertained",
"natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)",
"miscellaneous",
"not ascertained"
] | [
6
] | songer |
SOUTHERN UNDERWRITERS v. DUNN et al.
No. 8272.
Circuit Court of Appeals, Fifth Circuit.
April 19, 1938.
J. H. Burr, of Houston, Tex., for appellant.
Gaius G. Gannon and William M. Ryan, both of Houston, Tex., for appellees.
Before FOSTER, HUTCHESON, and HOLMES, Circuit Judges.
HUTCHESON, Circuit Judge.
The suit was for a declaratory judgment t-hat appellant was obligated, under an automobile insurance contract it had issued to B. D. Kimmel, to defend, on behalf of the appellees, Dunn and Stanolind Pipe Line Company, three suits brought against them and Kimmel for personal injuries received in a collision with Kimmel’s truck, and to pay, within the policy limits, any judgment rendered against Dunn and Stanolind Pipe Line Company in these suits.
The claim was not, that either of appellees was in fact a “named assured,” or “other assured” (“other assured,” according to the policy, was “any other person or organization using the automobile or legally responsible for the use thereof.”) Indeed, it was expressly stipulated that neither was in fact any such person or organization. The claim was that, because the policy obligated appellant “to defend in assured’s-name and on his behalf any suit against him seeking damages on account of injury or damage by reason of the ownership, maintenance or use of the insured automobile, even if such suit is groundless, false or fraudulent,” and there were allegations in the suits, that Dunn and Stanolind Pipe Line Company were either using the automobile or legally responsible for the use thereof, though these allegations were in this suit admitted to be wholly groundless in fact, it was the duty of appellant, under the policy, to defend those suits as to Dunn and Stanolind.
The defense was that, obligated by the policy as defendant below, appellant here, admittedly was to defend the “named” and any “other assured” from groundless suits against them, it was not obligated by the policy to defend any one but the “named assured,” and “any other person” who not merely by allegations in a plaintiff’s pleading, but in fact, was “another assured” under its terms. That the claim made in this suit, if sustained, would rewrite the policy, to require the insurer to defend any person whom any one might elect to sue in connection with an accident involving the truck described in the policy, though the person sued was not the “named assured,” and was not, in fact, using or legally responsible for the use of the truck, if only the plaintiff in that suit should allege that the defendant in the suit was either using or legally responsible for the use of the truck.
There was another defense that Dunn and Stanolind had insurance with the Travelers Insurance Company, and that the provision in appellant’s policy, that “if another assured had valid and collectible insurance against a loss also covered by this contract, such other assured shall not be covered,” prevented Dunn and Stanolind from recovering here.
The case was submitted on a stipulation admitting these to be the facts:
At the time of the collision Kimmel’s truck and trailer was covered by a policy issued to him by appellant. Dunn and Stanolind were covered and protected as to their operations, and particularly as to the operations of Dunn for Stanolind, by a policy in the Travelers Insurance Company. This policy contained, as to “other assured,” a similar provision to that contained in appellant’s policy; as to “named assured,” its provision was for proportional liability. Appellant’s policy covered liability “imposed upon the assured by law for damages by reason of the ownership, maintenance or use of the truck and trailer described in the schedule while they were being used for commercial purposes.” At the time of the collision the truck and trailer were being used for such purposes. In the contract is contained the provision set out above, oil which appellees sued, requiring appellant to defend suits brought against the assured. At the time of the injury the truck was hauling oil well pipe or casing; Kimmel was driving and, in some manner unknown to the stipulators in this cause, a collision occurred, in which three persons were injured. Three separate suits were instituted and are now pending seeking a recovery against Kimmel, Dunn, and Stanolind Pipe Line Company. As to these suits, it is stipulated that it is alleged in each that Kimmel was driving the truck, that it was owned by the defendant Dunn, and that the oil well pipe and casing with which it was loaded was owned by Stanolind Pipe Line Company. It was further alleged in them that at the time of the collision Kimmel was acting as the servant or agent of the defendant Dunn and Stanolind in driving the automobile truck, and was transporting on said truck a load of oil well pipe or casing, from a place in Oklahoma to a place in Texas, and that the automobile, in which the deceased and the other plaintiffs were riding was struck by the truck loaded with oil well pipe and casing belonging to and owned by Dunn and Stanolind, and driven by Kimmel, the servant of the defendants Dunn and Stanolind. Each of the plaintiffs alleged that the collision was caused by the negligence and want of care of the defendant, in this, that Kimmel, at the time of the collision, acting as the servant and employee of the defendants Dunn and Stanolind, violated the rules of the road and was otherwise negligent and careless. There was the further allegation that at the time of the collision Kimmel, Dunn, and Stanolind were all using and employing the truck.
It was stipulated, however, in this case, that, contrary to the allegations in said petitions, the truck involved in the accident was solely owned by Kimmel; Dunn and Stanolind had no ownership or interest in. it, and Stanolind had no interest or ownership in the oil well pipe and casing being hauled; that in truth and in fact Kimmel was hauling the casing under an independent contract with Dunn, by the terms of which Kimmel agreed to and did furnish his own truck, and did haul the pipe for an agreed price per foot for such casing, and Dunn did not reserve or have any control or supervision over Kimmel or the truck he was using, or of the route, time, or method of the hauling. It was further stipulated that these facts are all admitted by Kimmel, and are known to the appellant; that by reason of the contract of defendant with Kimmel, and the other stipulated facts above, the Travelers Insurance Company has requested appellant to defend the suits on behalf of Dunn and Stanolind, but appellant has refused to do so.
Appellant admitted that appellees Dunn and Stanolind are, through their insurance carrier, Travelers Insurance Company, defending all of said suits, but it denied that they are doing so because appellant has refused to defend them. In their brief before the trial court, plaintiffs below, appellees here, admitted “As a matter of fact, which is undisputed in this proceeding, it was agreed to in the stipulation that B. D. Kimmel was acting as an independent contractor at the time of the accident. He was not the servant of Dunn or of Stanolind, nor were Dunn and Stanolind using and employing the truck at the time of the accident; the truck was, in fact, owned by Kimmel.”
“It is true that the suits brought by the Oklahoma plaintiffs have, insofar as Dunn and the Stanolind Corripany are concerned, no proper basis in fact, in that as is agreed that undisputed among the parties, Kimmel was an independent contractor, for whose acts he, and he alone, was legally responsible.”
In the face of these admissions they nevertheless contended that, because of the allegations in the Oklahoma petitions, “appellant was under its contract obligated to defend Dunn and Stanolind as other assureds, and to pay any judgment rendered against them by reason of the matters and things alleged in the petition in each of said cases, if they are proven, and that they are entitled to a judgment so declaring.”
The District Judge, agreeing with this contention, concluded that defendant was obligated to defend the suits on behalf of plaintiffs Dunn and Stanolind, and was also obligated to pay off, to the extent of the limits of the policy, “any judgment or judgments rendered in said suits, not only against Kimmel but against the plaintiffs Dunn and Stanolind Pipe Line Co. based upon a finding or findings that the facts are true which are set forth in the pleadings in such suit.” He found, too, that the other insurance provision in the Kimmel policy did not prevent Dunn and Stanolind from recovering, because the Travelers Insurance policy did not cover the injury in this case for which, under the stipulated facts, Kimmel was wholly responsible. Thus notwithstanding the stipulation which established that neither Dunn nor Stanolind were additionally insured, and notwithstanding his finding that neither Dunn nor Stanolind were legally responsible for the use of the truck, and therefore were not covered as to the collision in question by the Travelers policy, the District Judge found that because, and only because, of the allegations in the Oklahoma suits, the provision of appellant’s policy requiring it to defend groundless suits brought against its “assured” made these two, “other assureds,” and required appellant to defend the suits on their behalf, and to pay any judgments in them, “if it was determined in said judgments that Dunn and Stanolind were either using or were legally responsible for the use of the truck.”
We agree with appellant that this will not do. The case before us is not a suit brought on judgments obtained in the Oklahoma suits against Dunn and Stanolind determining that Dunn and Stanolind were using, or legally responsible for the use of, the truck, and were therefore covered by the policy. It is not a suit upon allegations and proof that Dunn and Stanolind are “other assureds” to obtain a declaratory judgment that they are, and that appellant must therefore defend and indemnify them. It is a suit for a declaratory judgment as to the rights of plaintiffs and the duty of defendant under the policy contract, to be determined not upon the allegations in the Oklahoma suits, but upon the facts stipulated in this one. Whether Dunn and Stanolind are “other assureds" under appellant’s policy, to be defended and indemnified as such in the Oklahoma suits, is not to be determined here by either the allegations in or the hypothetical results of those suits. They are without bearing upon the duties and liability of appellant under the invoked policy. These depend alone, they are to be determined alone, by the facts stipulated and admitted here. Upon these facts, and upon the solemn judicial admissions of the plaintiffs, Dunn and Stanolind are not “assureds” under the policy; they are not named in it as such; they are not “other assureds” as “using or employing the truck, or being legally responsible for its use.” The declaration that appellant must defend the suits on behalf of Dunn and Stanolind, and must, upon the hypothesis and in the contingency named in the declaration, pay any judgment rendered against them, cannot stand. There should, under the stipulations and admissions, have been a contrary declaration.
The judgment is reversed and the cause is remanded, with directions to enter judgment accordingly.
Reversed and remanded. | What follows is an opinion from a United States Court of Appeals.
Your task is to identify the most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if no U.S. Code titles are cited. If one or more provisions are cited, code the number of the most frequently cited title. | What is the most frequently cited title of the U.S. Code in the headnotes to this case? Answer with a number. | [] | [
0
] | songer |
Mrs. Estelle BYRD and J. N. Byrd, Jr., Appellants, v. Mrs. Willie Louis BATES et al., Appellees.
No. 16332.
United States Court of Appeals Fifth Circuit.
April 12, 1957.
Rehearing Denied May 3, 1957.
Wyman C. Lowe, Atlanta, Ga., for appellants.
Jackson C. Burroughs, Curtis White, John R. Carrell, Dallas, Tex., for appel-lees.
Before HUTCHESON, Chief Judge, and CAMERON and JONES, Circuit Judges.
JONES, Circuit Judge.
Estelle Byrd, joined on this appeal by her husband, John N. Byrd, Jr., sought to recover damages for the wrongful death of her former husband, James Winchester. He was stabbed to death in the Stevens Hotel in Atlanta, Georgia, on April 21, 1951. The action was brought in the District Court for the Northern District of Texas. Jurisdiction was based on diversity of citizenship. The original complaint was filed on April 20, 1953, one day short of two years from the date of Winchester’s death. Over twenty defendants were named in the original complaint, some in representative capacities as executor, guardian and trustee. The plaintiff sought to charge that the defendants, as partners or in some other capacity, operated the Stevens Hotel and that Winchester had been killed by their employees and agents and that they were negligent in employing improper persons. The original complaint contained a prayer that summons issue as required by law. Two or three copies of the complaint were sent with the original to the clerk of the court at the time of filing. The letter of the plaintiff’s counsel, a resident of Atlanta, transmitting the complaint and the filing fee to the clerk in Dallas contained the request, “Please have summons issue on the day you receive the complaint from me”. On that day, April 20, 1953, the clerk wrote plaintiff’s attorney:
“You request summons to issue upon receipt of the complaint, which summons have not been issued and cannot be issued until we have received a copy of your complaint (to be attached to each summons) upon each of the defendants you desire to serve. Also the marshal will request his fee for the service of each summons.
“Kindly forward the list of defendants you desire to be served, together with a copy of your Complaint”.
Plaintiff’s counsel replied:
“I sent you only the original and one copy of the original of the complaint. Within the near future I shall mail enough additional copies for service of a copy, with summons attached, upon each of the defendants I desire to be served.
“It is probable that I shall later amend the complaint in such a manner as to drop out some of the defendants. * * * ”
The attorney wrote similar letters on three subsequent occasions. Summons issued on September 14, 1953. Two days later Mrs. Bates was served. John B. McCallum was served on October 2, 1953. He is a Catholic Priest who by his clerical vows is unable to participate in civil litigation. Nothing has been filed by him or on his behalf in the cause in the district court or in this court. The district court, of its own motion, dismissed the cause on the ground that no cause of action was stated. This court reversed. Byrd v. Bates, 5 Cir., 1955, 220 F.2d 480. After numerous pleadings were filed, the court ordered the plaintiff to replead and on November 18, 1955, an amended complaint was filed in which relief was sought against Mrs. Bates and Rev. McCallum in their various representative capacities but not against anyone else. Although not named as defendant in this last amended complaint, The United States Fidelity and Guaranty Company, which was surety on Mrs. Bates’ guardianship bond, filed an answer. It had never been served with summons. Mrs. Bates filed a motion for summary judgment on several grounds, most of which went to the merits of the plaintiff’s alleged cause of action. Among the grounds, not going to the merits, was one asserting, “That the plaintiffs’ cause of action, if any they ever had, is barred by the Two Year Statute of Limitations”. Affidavits were filed. Among these was one of the plaintiff’s attorney reciting that in a telephone call to the deputy clerk on April 25, 1953, he, the attorney, wished summons issued to Mrs. Bates and McCal-lum. Depositions and admissions were before the court. At the hearing the clerk’s correspondence was received in evidence. The court entered judgment for the defendants. It was there recited that the court was of the opinion that the plaintiff’s suit was barred by limitations.
The plaintiff appellant has appealed from the summary judgment and asserts that thirteen errors were committed.
The primary question is whether there is any disputed fact upon which the operation of the bar of the Texas two-year statute of limitation might depend. So much of that statute as is here pertinent is in these words:
“There shall be commenced and prosecuted within two years after the cause of action shall have accrued, and not afterward, all actions or suits in court of the following description:
*******
“7. Action for injury done to the person of another where death ensued from such injury; and the cause of action shall be considered as having accrued at the death of the party injured.” Vernon’s Ann. Tex.Civ.Stat. Art. 5526.
The plaintiff takes the position that Rule 3 of Fed.R.Civ.Proe., 28 U.S.C.A., providing that “A civil action is commenced by filing a complaint with the court”, fixes the date of filing the complaint as the time when the statute of limitation is tolled; and if, contends the appellant, there is any requirement that there be a bona fide intent that process be issued and served, that intent is shown by counsel’s letter to the clerk, and the rule relating to issuance of summons which provides:
“Upon the filing of the complaint the clerk shall forthwith issue a summons and deliver it to the marshal or to a person specifically appointed to serve it. Upon request of the plaintiff separate or additional summons shall issue against any defendants.” Rule 4(a), Fed.Rules Civ.Proc.
Prior to the adoption of the Federal Rules of Civil Procedure it had been held that in a suit brought in a state court and thereafter removed, the laws of the state would determine when the suit had been “commenced” or brought within the meaning of a statute of limitations. Goldenberg v. Murphy, 108 U.S. 162, 2 S.Ct. 388, 27 L.Ed. 686. In 1934 Congress gave the Supreme Court the power to prescribe rules of practice and procedure but forbade affecting substantive rights. 28 U.S.C.A. § 2072. The rules were adopted on December 20, 1937. 302 U.S. 783, 82 L.Ed. 1552. They became effective September 16, 1938. Between these two dates, on April 25, 1938, the Supreme Court in Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487, held that in eases involving rights having their origin under state law, the substantive law of the state would govern in Federal as well as state courts. In 1945 the Supreme Court held that state statutes of limitations should be applied. The court held that it was immaterial whether statutes of limitation were regarded as substantive or procedural. The court said:
“Erie R. Co. v. Tompkins was not an endeavor to formulate scientific legal terminology. It expressed a policy that touches vitally the proper distribution of judicial power between State and federal courts. In essence, the intent of that decision was to insure that, in all cases where a federal court is exercising jurisdiction solely because of the diversity of citizenship of the parties, the outcome of the litigation in the federal court should be substantially the same, so far as legal rules determine the outcome of a litigation, as it would be if tried in a State court. The nub of the policy that underlies Erie R. Co. v. Tompkins is that for the same transaction the accident of a suit by a non-resident litigant in a federal court instead of in a State court a block away should not lead to a substantially different result.” Guaranty Trust Co. of New York v. York, 326 U.S. 99, 65 S.Ct. 1464, 1470, 89 L.Ed. 2079, 160 A.L.R. 1231.
A like question, and one with more factual similarity to that now before us, came before the Supreme Court of the United States. The Kansas statute of limitations provided that “An action shall be deemed commenced within the meaning of this article, as to each defendant, at the date of the summons which is served on him, * * * ” G.S. 1949, 60-308. A suit was brought involving a highway collision occurring October 1, 1943. The complaint was filed September 4, 1945. The defendant was not served until December 28, 1945. The defendant moved for a summary judgment on the ground that under the Kansas statute the action was barred. The plaintiff asserted the suit was commenced when the complaint was filed and relied upon Rule 3, Fed.Rules Civ.Proc. The Supreme Court held the Kansas law applicable and that the action was barred. From its opinion we quote:
“Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, was premised on the theory that in diversity cases the rights enjoyed under local law should not vary because enforcement of those rights was sought in the federal court rather than in the state court. If recovery could not be had in the state court, it should be denied in the federal court. Otherwise, those authorized to invoke the diversity jurisdiction would gain advantages over those confined to state courts. Guaranty Trust Co. of New York v. York applied that principle to statutes of limitations on the theory that, where one is barred from recovery in the state court, he should likewise be barred in the federal court.
“It is conceded that if the present case were in a Kansas court it would be barred. The theory of Guaranty Trust Co. of New York v. York would therefore seem to bar it in the federal court, as the Court of Appeals held. The force of that reasoning is sought to be avoided by the argument that the Federal Rules of Civil Procedure determine the manner in which an action is commenced in the federal courts — a matter of procedure which the principle of Erie R. Co. v. Tompkins does not control. It is accordingly argued that since the suit was properly commenced in the federal court before the Kansas statute of limitations ran, it tolled the statute.” Ragan v. Merchants Transfer & Warehouse Co., 337 U.S. 530, 69 S.Ct. 1233, 1234, 93 L.Ed. 1520, rehearing denied 338 U.S. 839, 70 S.Ct. 33, 94 L.Ed. 513.
This court has commented on the effect of the Guaranty Trust and Ragan cases, and has held:
“All that Guaranty Trust Co. of New York v. York, 326 U.S. 99, 65 S.Ct. 1464, 89 L.Ed. 2079; Ragan v. Merchants Transfer & Warehouse Co., 337 U.S. 530, 69 S.Ct. 1233, 93 L.Ed. 1520; Angel v. Bullington, 330 U.S. 183, 67 S.Ct. 657, 91 L.Ed. 832, mean in this area is that if the claim — that is the real subject matter of the litigation — would not support recovery in a state court — ■ if in the state court there is no means by which effective relief can be accorded — then it may not in a federal court, and this results whatever label the state jurisprudence may put on the infirmity that is, ‘procedural’ or ‘substantive’.” Travelers Indemnity Co. v. Bengtson, 5 Cir., 1956, 231 F.2d 263, 265.
The doctrine of the Ragan case was well considered by Judge Hincks while Chief Judge of the District Court for the District of Connecticut. Speaking for the court he said:
“Previous decisions in the federal courts as to this point apparently have turned on a distinction as to the wording of the various state statutes of limitations. 1 Barron and Holtzoff Sec. 163; 2 Moore’s Federal Practice (2d Ed.) Sec. 3.07. Where, as an integral part of the applicable statute of limitations, the legislature has specified what must be done to bring an action within the period of limitations, the courts have held that the statute is not tolled until the action is brought as the statute directed. Ragan v. Merchants Transfer & Warehouse Co., 337 U.S. 530, 69 S.Ct. 1233, 93 L.Ed. 1520; Zuckerman v. McCulley, 8 Cir., 1948, 170 F.2d 1015; Nola Electric Co. v. Reilly, D.C.S.D.N.Y. 1948, 93 F.Supp. 164; cf. Krisor v. Watts, D.C.E.D.Wis.1945, 61 F.Supp. 845. But where the statute merely specifies that the action may not be brought but within a specified period, without specifying by what acts an action is ‘brought’, federal courts have said that, pursuant to F.R.C.P. 3, the filing of the complaint tolls the statute. Cf. Isaacks V. Jeffers, 10 Cir., 1944, 144 F.2d 26, certiorari denied 323 U.S. 781, 65 S.Ct. 270, 89 L.Ed. 624, and cases cited therein; Bomar v. Keyes, 2 Cir., 1947, 162 F.2d 136, certiorari denied 332 U.S. 825, 68 S.Ct. 166, 92 L.Ed. 400, rehearing denied 332 U.S. 845, 68 S.Ct. 266, 92 L.Ed. 416. The courts have proceeded thus on the theory that unless the statute of limitations specifically provides by what procedure an action must be so brought as to toll the statute, the manner of commencing the action and serving process is a matter of procedural law only. Merchants Transfer & Warehouse Co. v. Ragan, 10 Cir., 1948, 170 F.2d 987, 992.” Glebus v. Fillmore, D.C.Conn.1952, 104 F.Supp. 902, 903.
In this case, as in the Ragan case, the controlling limitation period is that prescribed by the state law. In this court’s recent opinion in International Derrick & Equipment Co. v. Croix, 5 Cir., 1957, 241 F.2d 216, 219, we quoted the following statement of the Texas law:
“ ‘Most of the articles of the Revised Statutes which prescribe periods of limitation for particular actions require that the action be ‘commenced and prosecuted’ within a designated time after the accrual of the cause of action. In cases to which such provisions are applicable, it is well settled that the running of the statute is not interrupted by the mere filing of a petition with the clerk. Not only must this initial step be taken, but there must be a bona fide intent that process shall be served at once upon the defendant. In the absence of a valid excuse for delay, the statute runs until citation is issued and service obtained, if the plaintiff by some affirmative act or declaration is responsible for delay in having citation issued and served, or if a bona fide attempt to obtain service is not made. A suit is not commenced by the issuance of process which cannot possibly bring the defendant before the court, or which may be served only in case the defendant may be found temporarily in the state. Needless to say, the running of the statute is interrupted where a suit is filed and the defendant is properly served with citation, showing the cause of action against him.’ 28 Tex.Jur. 192, Limitation of Actions, § 99.”
In an earlier opinion we applied the Texas rule and declared that the filing of an action stopped the running of the statute of limitations “if it was filed with a bona fide intention, coupled with reasonable diligence on the part of the plaintiffs, to obtain service upon the defendants and to prosecute the suit with force and effect.” Pacific Employers Ins. Co. v. Parry Navigation Co., 5 Cir., 1952, 195 F.2d 372, 373. Cf. Digby v. United States Fidelity & Guaranty Co., 5 Cir., 1957, 239 F.2d 569.
As to the factors to be considered in a determination of whether an action has been “commenced and prosecuted” we find references in the opinions of the Texas courts to the negligence of the plaintiff in procuring the issuance of citation and the fault of the plaintiff in delaying its issuance, Curtis v. Speck, Tex.Civ.App., 130 S.W.2d 348, Tribby v. Wokee, 74 Tex. 142, 11 S.W. 1089; to unreasonable delay in service of citation, Davis v. Adkins, Tex.Civ.App., 251 S.W. 285; to unintentional delay, Massie v. Ft. Worth, Tex.Civ.App., 262 S.W. 837; to reasonable diligence, Allen v. Master-son, Tex.Civ.App., 49 S.W.2d 855; to proper diligence, Wood v. Gulf, C. & S. F. R. Co., 15 Tex.Civ.App. 322, 40 S.W. 24; to bona fide intention that process be issued and served, Ricker v. Shoemaker, 81 Tex. 22, 16 S.W. 645; to reasonable excuse, Panhandle & S. F. Ry. Co. v. Hubbard, Tex.Civ.App., 190 S.W. 793; and to neglect of attorneys, Ferguson v. Estes & Alexander, Tex.Civ.App., 214 S.W. 465, 466. These elements, usually comprehended under the term “reasonable diligence”, present a fact question. San Saba Nat. Bank of San Saba v. Parker, 135 Tex. 136, 140 S.W.2d 1094. There were fact issues presented which should not have been decided by summary judgment under Rule 56, Fed.Rules Civ.Proc. Where an issue is as to reasonable diligence it must be determined by inferences drawn from facts admitted or proven. The question is similar to and includes intent and good faith. Where the evidence is such that conflicting inferences may be drawn with respect to such issues a summary judgment should not be granted. Paul E. Hawkin-son Co. v. Dennis, 5 Cir., 1948, 166 F.2d 61.
Concluding, as we do, that the summary judgment was improper, it will be reversed. The motion for taxing costs need not be considered. For further proceedings the judgment is
Reversed and remanded. | 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. | What is the nature of the second listed respondent whose detailed code is not identical to the code for the first listed respondent? | [
"private business (including criminal enterprises)",
"private organization or association",
"federal government (including DC)",
"sub-state government (e.g., county, local, special district)",
"state government (includes territories & commonwealths)",
"government - level not ascertained",
"natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)",
"miscellaneous",
"not ascertained"
] | [
0
] | songer |
Subsets and Splits