opinion
stringlengths 349
204k
| instruction
stringclasses 163
values | question
stringclasses 160
values | choices
sequencelengths 0
311
| answer
sequencelengths 1
1
| task
stringclasses 157
values |
|---|---|---|---|---|---|
CITIZENS COORDINATING COMMITTEE ON FRIENDSHIP HEIGHTS, INC., et al. v. WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY, Appellant.
No. 84-5174.
United States Court of Appeals, District of Columbia Circuit.
Argued Jan. 10, 1985.
Decided July 5, 1985.
As Amended July 5, 1985.
See also, D.C., 568 F.Supp. 825.
Frank R. Filiatreau, Jr., Washington, D.C., with whom Robert L. Polk, Washington, D.C., was on brief, for appellant. William B. Bircher, Washington, D.C., entered an appearance for appellant.
Waldemar J. Pflepsen, Jr., Washington, D.C., was on brief, for appellees.
Before TAMM and BORK, Circuit Judges, and McGOWAN, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge BORK.
BORK, Circuit Judge:
This case involves the question whether a corporation alleging aesthetic injury and damages under common law tort theories, under which it would not be entitled to recover litigation costs, can, by joining a suit under section 505 of the Clean Water Act, 33 U.S.C. § 1365 (1982), claim reimbursement of costs, including attorneys’ fees and expert witness expenses.
I.
The Washington Metropolitan Area Transit Authority (“WMATA”) bus yard facilities located in the Friendship Heights neighborhood of the District of Columbia include an underground fuel storage tank system. Prior to 1978 this system had leaked large quantities of diesel fuel, creating an underground plume of the fuel. By January, 1978, the plume had reached the WMATA subway tunnel and station at Friendship Heights. The fuel entered the ground water collection sump in the tunnel near Drummond Avenue in Maryland, a short distance from the subway station. This collection sump, in turn, emptied into the Little Falls Branch, a stream running through Friendship Heights and the Town of Somerset, Maryland.
WMATA had also allowed oil, diesel fuel, and other pollutants to run into the Jeniver Run storm sewer. This storm sewer, once a free flowing surface stream, transports its contents to the Little Falls Branch. WMATA has never obtained a permit to discharge pollutants into Little Falls Branch.
By July 1981, the diesel fuel plume reached the ground water collection system beneath the Mazza Gallerie shopping mall and entered the system’s sump tank. The sump was designed to discharge into the Jenifer Run storm sewer. To prevent pollution of the storm sewer, Mazza Gallerie had to pump out the diesel fuel and haul it away in tank trucks. Diesel fuel also continued to collect in one of the mall’s elevator pits, causing an offensive odor. Mazza Gallerie had to install an auxiliary sump pump system and also replace certain elevator equipment.
In October, 1981, Mazza Gallerie made demand upon WMATA for reimbursement of expenses incurred in remedying the pollution of its property. Record Excerpts (“R.E.”) at 97. These demands were reiterated in December, 1981, along with a demand that WMATA cease polluting Maz-za Gallerie’s property. R.E. at 95-96. It is noteworthy that Mazza Gallerie did not complain of pollution to Little Falls Branch or any pollution that would constitute a Clean Water Act violation. Nor did Mazza Gallerie ever serve the notice required by the Act before a suit may be filed for a violation.
On January 8, 1982, however, the Town of Somerset, Maryland, Citizens Coordinating Committee on Friendship Heights, Inc., Mr. and Mrs. Matthew Fink, and Mr. and Mrs. Amos T. Wilder served notice pursuant to section 505(b) of the Clean Water Act, 33 U.S.C. § 1365(b) (1982), of the pollution of Little Falls Branch without permits required by law. R.E. at 8-17. At the end of the mandatory 60-day notice period, these parties filed suit in district court alleging violation of section 301(a) of the Clean Water Act, 33 U.S.C. § 1311(a) (1982), common law negligence, trespass, and nuisance. Mazza Gallerie joined as a party plaintiff, thus, for the first time, purporting to assert a right under section 505 as well as asserting common law tort claims. The complaining parties, including Mazza Gallerie, sought damages, injunctive relief, civil penalties and costs, including attorneys’ fees. But Mazza Gallerie’s only specific request for relief — reimbursement for costs associated with the pollution of Mazza Gallerie property — related to the tort claims and not to Clean Water Act violations. R.E. at 18-30.
After suit was filed, the parties began negotiations aimed at settlement. To assist in the negotiations, both sides engaged expert assistance. The expert hired by the plaintiffs was paid by Mazza Gallerie, allegedly because it was the only plaintiff capable of assuming this expense.
Eventually, on October 4, 1982, the parties entered into a court approved consent decree, which required WMATA to prevent discharges into Little Falls Branch and restore that stream to its pre-discharge condition. R.E. at 36-54. The decree also required WMATA to pay damages caused by the migration of oil into Mazza Gallerie’s property. The decree further provided that WMATA would “pay to the Plaintiffs their costs of litigation (including reasonable attorney and expert witness fees) in accordance with Section 505(d) of the Clean Water Act.” R.E. at 50. It was clear, therefore, that the decree left the law of costs where it was: costs were recoverable for litigation about Clean Water Act violations but not for the litigation of tort claims. The plaintiffs filed motions for those costs.
With respect to the citizen plaintiffs, WMATA contested only the reasonableness of the number of hours and hourly rates charged. The district judge awarded $60,-936.79 of the $71,926.40 requested. R.E. at 137-38. However, WMATA challenged the entire request of Mazza Gallerie for $21,-115.07. This amount included $8,988.07 for expert witness costs, and the remainder for other costs and attorneys’ fees. WMATA argued that the district court lacked jurisdiction over Mazza Gallerie’s claims under the Clean Water Act, since Mazza Gallerie was not a “citizen” under the Act, and therefore did not have standing to sue. Mazza Gallerie contended that it had standing because it had suffered “injury in fact” by virtue of the diesel fuel leaking onto its property and that it had also suffered aesthetic injury. It claimed, in any event, that the Clean Water Act provided for awards of cost to “any party.” Even if it was only a pendent party, therefore, it should receive its costs. R.E. at 104-19.
The district court agreed that Mazza Gal-lerie had suffered actual injury because “there has been damage to the aesthetic atmosphere of the surrounding Friendship Heights community, making their property less desirable. In addition, because of the consent decree, the Mazza plaintiffs will enjoy the benefits of added attractiveness to the area surrounding the gallerie.” R.E. at 148. After some adjustments, the district judge awarded $19,994.57 of the $21,-115.07 requested. Id. at 154-57. It is from this award that WMATA appeals.
II.
Section 505(a) of the Clean Water Act provides that,
any citizen may commence a civil action on his own behalf—
(1) against any person ... who is alleged to be in violation of (A) an effluent standard or limitation under this chapter or (B) an order issued by the Administrator or a State with respect to such a standard or limitation, ____
33 U.S.C. § 1365(a) (1982) (emphasis added). A “citizen” is defined by the Act as “a person or persons having an interest which is or may be adversely affected.” 33 U.S.C. § 1365(g).
The legislative history of the Act indicates that Congress intended to use the “injury in fact” rule for standing as defined in Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972). S.Conf.Rep. No. 1236, 92d Cong., 2d Sess. 146, reprinted in 1972 U.S.Code Cong. & Ad.News 3668, 3776, 3823; see Montgomery Environmental Coalition v. Costle, 646 F.2d 568, 576-77 (D.C.Cir.1980). To have standing under the Clean Water Act, therefore, a party must allege a specific injury to his interest that can be redressed by the statute. In the complaint, Mazza Gallerie alleged the following injuries:
Because the Mazza Gallerie is a shopping center whose reputation and attractiveness to customers stems from the attractive condition of its surrounding, including the Little Falls Branch, [Mazza Gal-lerie has] been damaged by defendant’s unlawful pollutant discharges. [Mazza Gallerie has] also been damaged as a result of the seepage of ground water contaminated with diesel fuel into the basement of the Mazza Gallerie as a result of defendant’s operation of the bus yard____
[Mazza Gallerie has] been damaged because the area in which the Mazza Gal-lerie is situated has become less pleasant and attractive.
R.E. at 21, 25. Mazza Gallerie thus claimed injury from the pollutant discharges into a stream approximately half a mile from its premises and from seepage of pollutants into its basement. We think it had standing under the Clean Water Act to complain of neither.
It might be contended that Mazza Galler-ie had standing to complain of discharges into the stream as an economic injury. Perhaps that would have been so but Maz-za Gallerie has consistently treated this allegation as noneconomic, as claiming aesthetic damage. Nowhere in the paragraph cited or elsewhere in the complaint does Mazza Gallerie state actual damages, that it has lost business, that any customer chose not to shop at the mall, or that the value of its property had declined. No money damages were claimed for the discharge into Little Falls Branch. Moreover, the district court did not treat this allegation as one of economic injury but rather as one of aesthetic injury. That is also the way Mazza Gallerie argues the case to us.
WMATA now argues, for the first time, that the injury to the interest of the Joint Venture fails to meet this “zone of interest” test, allegedly because “neither the complaint nor Mazza Gallerie’s Motion alleged or referred to any loss of business or profits as a result of the discharge into Little Falls Branch.” Brief at p. 9.
This argument, however, disregards the very teachings of the Sierra Club case in which the Court clearly recognized that injury to interests of a noneco-nomic nature that are widely shared could fornrthe basis of a claim under the environmental laws. See United States v. SCRAP, [412 U.S. 669, 686 (1973)]. Thus, it was not necessary for the Joint Venture to allege, nor for the district court to find, any loss of business or profits. On the other hand, the Joint Venture did clearly allege, and the district court so found, that injury to nonec-onomic interests cognizable under the Clean Water Act was occurring.
Brief for Appellees at 18-19 (footnote omitted).
Though Mazza Gallerie is correct in pointing out that the Supreme Court in United States v. Students Challenging Regulatory Agency Procedures (SCRAP), 412 U.S. 669, 93 S.Ct. 2405, 37 L.Ed.2d 254 (1973), held that individuals have standing under Sierra Club v. Morton when they allege aesthetic injury, we are unwilling to extend that ruling, incongruously, to conclude aesthetic harm to corporate entities. Aesthetic injury presupposes the ability to sense one’s surroundings. See, e.g., Gonzalez v. Gorsuch, 688 F.2d 1263, 1266 (9th Cir.1982) (“Plaintiff’s interest as one who uses and enjoys the bay is sufficient to meet the [standing requirements]” (emphasis added).). Though a corporation is a person for some purposes, we would be most reluctant to hold that it has senses and so can be affronted by deteriorations in its environment. That is beyond the reach of legal fiction and belongs in the realm of poetic license. We need not decide whether, had Mazza Gallerie alleged economic injury to itself due to aesthetic injury to others, it would have had standing. That is not how Mazza Gallerie or the district court construed the complaint’s allegations, and we have no obligation to construe those allegations differently in a gratuitous attempt to cure their deficiencies. The theory of noneconomic injury to Mazza Galler-ie does not confer standing.
Mazza Gallerie’s other alleged injury is also insufficient to establish standing under the statute. The test is “whether the interest sought to be protected by the complainant is arguably within the zone of interests to be protected or regulated by the statute ... in question.” Data Processing Service v. Camp, 397 U.S. 150,153, 90 S.Ct. 830, 25 L.Ed.2d 184 (1970); see also Barlow v. Collins, 397 U.S. 159, 90 S.Ct. 832, 25 L.Ed.2d 192 (1970). There is little doubt that Mazza Gallerie has suffered injury in fact from the seepage of diesel fuel into its ground water collection system and elevator pit. The Clean Water Act, however, was enacted not to create a federal tort of subterranean trespass but to protect navigable rivers and streams from pollution, and to require those who desire to discharge pollutants into the waterways to obtain a permit for doing so. The allegation of fuel seepage into Mazza Gallerie’s basement was a trespass, actionable at common law, and not pollution of a stream without a permit, actionable under the Clean Water Act. Pollution covered by the Act is of the type for which a permit may be sought. No one suggests WMATA could have sought a permit that would allow it to continue the pollution of the mail’s basement. That pollution was not a violation of “an effluent standard or limitation.” S.Rep. No. 414, 92d Cong., 1st Sess. 79, reprinted in 1972 U.S.Code Cong. & Ad.News 3668,3745 (“[T]he [citizen suits’] provision in this bill is carefully restricted to actions where violations of standards and regulations or a failure on the part of officials to act are alleged” (emphasis added).). It gave rise only to common law tort claims, and it is clear that attorneys’ fees and other costs of litigation are not recoverable in such actions. See Alyes-ka Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975).
Mazza Gallerie argues that even if it does not have standing under the Act, the Act provides for award of the costs of litigation to “any party, whenever the court determines such award is appropriate.” 33 U.S.C. § 1365(d) (1982). It interprets this as meaning that the court in its discretion can award costs and attorneys’ fees to parties who have joined pendent claims. This is too broad a reading of the statutory language. The only time an award would be appropriate is to the extent the costs were incurred in furtherance of the section 505 claim. To award costs in any claim joined to the section 505 action, regardless of its nature, would allow plaintiffs to join regular tort actions to Clean Water Act claims or simply allege such claims in order to receive costs not normally allowed. We do not believe this to have been Congress’ intent. Cf. Save Our Sound Fisheries Association v. Callaway, 429 F.Supp. 1136, 1140-41 (D.R.I.1977).
Mazza Gallerie offers an additional theory for recovering at least expert witness costs. The district court found that the expert, paid by Mazza Gallerie, was essential to the section 505 claim and that the citizen plaintiffs, who did have standing under that section could have recovered these costs and reimbursed Mazza Gallerie. Perhaps that could have been done, but it was not. The expert was valuable to Mazza Gallerie in establishing its tort claim against WMATA. The expert was also valuable in establishing the Clean Water Act claim, but Mazza Gallerie had no standing under the Act and those plaintiffs who did have standing did not employ the expert. We cannot award the cost of the expert to Mazza Gallerie simply because his testimony also assisted the proper party’s Clean Water Act claim. If the expert was valuable to both claims, Mazza Gallerie should not be able to recover the entire cost. It could recover only that portion of the expert’s cost that assisted the other claimants’ section 505 claim, and then, solely by reimbursement from those parties who had standing. That would have been equivalent to a loan from Mazza Gallerie to the other plaintiffs of their portion of the costs and would have required that they apply for recovery of their portion in order to repay Mazza Gallerie. Instead, we have the wrong party applying for all of the costs, some of which are attributable to the tort claims. We think courts ought not remake the parties’ arrangements.
We reverse the district court’s award of attorneys’ fees and other costs of litigation.
It is so ordered.
. Mazza Gallerie is located across the street from the WMATA bus yard. The mall is owned by appellees 5300 Wisconsin Avenue Joint Venture, a joint venture of the Prudential Insurance Company of America and Finsbury Properties, Inc. Appellees will be referred to herein as “Mazza Gallerie.”
. As in the poem, CORPORATE ENTITY
****** The Oklahoma Ligno and Lithograph Co Weeps at a nude by Michael Angelo. A. MacLeish, Collected Poems 1917-1952, at 22 (Boston, Houghton Miffin Co. 1952).
. Mazza Gallerie argues that because its basement was part of the trail to the Jenifer Run storm sewer which feeds into the Little Falls Branch, its damage relates to the pollution of a navigable waterway under § 505. This argument fails to recognize that § 505 only requires one to obtain a permit before polluting a waterway. The Act does not require a permit for all leaks. The seepage into Mazza Gallerie’s basement came before and was not caused by pollu-6on into a waterway.
. We also have some doubt that Mazza Gallerie paid the expert fee for the § 505 claim because the other claimants could not afford it. The citizen plaintiffs were able to pay slightly less than $72,000 in attorneys’ fees as shown by their request. Brief for Appellees at 8. The expert fee was just under $9,000. Clearly claimants were prepared to expend a significant sum to try their case and it would be peculiar to assume they would be willing to expend that much but go without an expert seen as essential to their cause. | 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 "sub-state government (e.g., county, local, special district)". Your task is to determine which category of substate government best describes this litigant. | This question concerns the first listed appellant. The nature of this litigant falls into the category "sub-state government (e.g., county, local, special district)". Which category of substate government best describes this litigant? | [
"legislative",
"executive/administrative",
"bureaucracy providing services",
"bureaucracy in charge of regulation",
"bureaucracy in charge of general administration",
"judicial",
"other"
] | [
2
] | songer_appel1_4_2 |
Pete Fossett TYLER, Appellant, v. UNITED STATES of America, Appellee.
No. 7380.
United States Court of Appeals Tenth Circuit.
Oct. 23, 1963.
Malcolm E. MacDougall, Littleton, Colo., for appellant.
Robert K. Ball, Asst. U. S. Atty. (B. Andrew Potter, U. S. Atty., on brief), for appellee.
Before MURRAH, Chief Judge, and PICKETT and BREITENSTEIN, Circuit Judges.
MURRAH, Chief Judge.
Appellant Tyler was tried and convicted in the United States District Court for the Western District of Oklahoma, on an indictment charging violation of 18 U.S.C., § 2312, i. e., transportation in interstate commerce of a stolen motor vehicle, described in the indictment as “a 1956 Lincoln, Vehicle Identification Number 56WA7009L”. Tyler contends on appeal that the trial Court erred in denying his motion for directed verdict of acquittal, because the prosecution failed to prove, as an essential element of the offense charged, that the 1956 Lincoln automobile found in Oklahoma City was the same vehicle which he allegedly transported from Dallas, Texas into Oklahoma.
The government’s case is based upon a connecting chain of circumstances and events, and may be briefly stated as follows : A used car dealer in Dallas, Texas testified that he negotiated with Tyler for the sale of a 1956 Lincoln; that when Tyler left his lot to “try the car out,” the vehicle bore Dealer’s License Plate No. 9P7589; and, that Tyler never returned the' vehicle nor was he thereafter seen by the witness. A police officer described an Oklahoma City two-car-accident, in which Tyler was involved and, referring to the accident report, testified that Tyler was then the driver of a “yellow 1956 Lincoln,” bearing 1961 Texas Tag No. SC2208. This tag was not the Dealer’s License Plate the 1956 Lincoln bore when it was taken from the dealer’s lot in Dallas. The proprietor of an Oklahoma City body shop testified that Tyler had left a “wrecked 1956 Lincoln” with him for repair. The F.B.I. Agent, who arrested Tyler in Ohio, testified that the defendant told him of having been involved in an Oklahoma City accident, which resulted in his vehicle being in an Oklahoma City body shop; and, that Tyler asserted his ownership of “this” automobile, stating that he had purchased it in Dallas, Texas.
There was no evidence that the automobile stolen in Texas bore the same serial number as the one found in Oklahoma City, or that they were even the same color. The only incriminating evidence of unlawful transportation was simply that Tyler took a 1956 Lincoln from the used car lot in Dallas, and he was in possession of a 1956 Lincoln automobile in Oklahoma City, to which he asserted ownership. “Proof that an automobile of' well-known and widely distributed type and model is stolen in one state * * * and that a similar car is * * * delivered in an adjoining state * * * is not sufficient evidence * * * that the automobile stolen * * * moved in interstate commerce * * Cox v. United States, 8 Cir., 96 F.2d 41, 42. And see: Hall v. United States, 8 Cir., 182 F.2d 833; and Kelly v. United States (10 C.A.), 246 F.2d 864. Cf. Gay v. United States (10 C.A.), 322 F.2d 208. While the chain of circumstances may be consistent with guilt, it is not inconsistent with innocence, and it is insufficient to support a conviction. See: McClintock v. United States (10 C.A.), 60 F.2d 839. See also: Brumbelow v. United States, (10 C.A.) 323 F.2d 703. (Sept. Term)
We hold that the government failed to identify the stolen vehicle in Oklahoma with sufficient certainty, and the case is reversed and remanded, with directions to dismiss. | 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_appel1_7_5 |
BALTIMORE & ANNAPOLIS R. CO. v. CONTINO et al.
No. 6107.
United States Court of Appeals Fourth Circuit.
Argued Nov. 8, 1950.
Decided Dee. 18, 1950.
Frank L. Fuller, III, Baltimore, Md. (R. E. Fee Marshall and Marshall, Carey, Doub & Mundy, all of Baltimore, Md., on the brief), for appellant.
J. Richard Wilkins, Baltimore, Md., for appellees.
Before PARKER, Chief Judge, and SOPER and DOBIE, Circuit Judges.
PER CURIAM.
Upon the former appeal in this case, Contino v. The Baltimore & Annapolis R. Co., 4 Cir., 178 F.2d 521, we held that the Railroad Company was liable for negligence in respect to its participation in the construction and maintenance of an underpass on its line of less than normal clearance, without proper warning to the users of th-e highway. The responsibility for the erection of the crossing resided primarily with the State Roads Commission of Maryland, hut the Railroad participated in the project by approving the plans and sharing the cost; and since the Railroad and the Commission engaged in the enterprise jointly, it was held that the Railroad Company was liable for damage to a truck 12 feet in height which, due to the failure to illuminate, collided with the bridge in the nighttime. The Maryland statutes gave exclusive jurisdiction to the Commission to set up warning signs along the highways but the Railroad was nevertheless held liable since it joined in a construction which necessarily created an unreasonable risk unless suitable precautions to avoid accident were taken.
Upon the new trial, after the case was remanded to the District Court, the Railroad -endeavored to escape liability on a ground not broached or considered at the first trial. It offered to show that it was not in existence when the underpass was built; that at that time the road was being operated ¡by a predecessor corporation and that the property was sold at a receiver’s sale upon the condition that the purchaser should not be liable for any obligation or liability in respect to the property purchased, and that the appellant bought the property from the purchaser. This offer of proof was made as the basis for the contention that since the appellant had no share in the original ¡construction and no right to erect warning signs on the ■highways, it had no responsibility for the dangerous condition of the bridge which it uses in the operation of its line. The District Judge rejected this offer and rendered a verdict for the plaintiff in the sum of $5180. This ruling was correct. We know of no authority for the proposition that a railroad corporation may -escape liability for a dangerous condition existing on its line by showing that the condition was initiated by the preceding owner. Liability springs from the acceptance of the situation and continued operation by the new owner in spite of th-e obvious danger. No duty rested upon it to purchase and operate the property if safe operation was impossible. Moreover, in the present instance ther-e is no showing that the overpass could not have been conspicuously marked and lighted so as to be visible to the traveling public without offending th-e Maryland statute. Indeed it was conceded in argument in this court that it lay within the power of the Railroad to place a light on its right of way at the crossing and its failure to do so is sufficient basis for an affirmance of the judgment. We do not mean by this holding to imply that the Maryland statute which directs the State Roads 'Commission and forbids others to erect and maintain warning signs along the public 'highways was intended to prevent a railroad from marking its roadbed where it makes a crossing above a public highway, or that the Railroad had no obligation to secure the erection of suitable warning signs by or with the consent of the State authority, for it may not be assumed that public officials would be unwilling to perform a simple duty to safeguard the public.
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"
] | [
1
] | songer_casetyp1_7-2 |
In re Judith BERKAN, Appellant.
No. 81-1017.
United States Court of Appeals, First Circuit.
Argued April 10, 1981.
Decided May 19, 1981.
Morton Stavis, Hoboken, N. J., with whom Pedro Varela, Hato Rey, P. R., Harvey B. Nachman, Santurce, P. R., and Neil Mullin, Hoboken, N. J., were on brief, for appellant.
Marc Johnston, Atty., Civil Division, U. S. Dept, of Justice, Washington, D. C., with whom Raymond L. Acosta, U. S. Atty., San Juan, P. R., Thomas S. Martin, Acting Asst. Atty. Gen., and Barbara L. Herwig, Atty. Civil Division, U. S. Dept, of Justice, Washington, D. C., were on brief, for appellee.
Before ALDRICH and CAMPBELL, Circuit Judges, and WYZANSKI, Senior District Judge.
Of the District of Massachusetts, sitting by designation.
LEVIN H. CAMPBELL, Circuit Judge.
Judith Berkan, a member of the bar of the Commonwealth of Puerto Rico and those of other jurisdictions as well, petitioned for admission to the bar of the District Court for the District of Puerto Rico. Pursuant to the local rules of the district court, she submitted with her petition certificates of good standing from the bars to which she was already admitted and a certificate of good conduct from the Puerto Rico police. Her application was then referred for review to the district court’s Committee on Admissions, which recommended to the judges of the district court that she be admitted to practice. One month later, she received a letter from the clerk of the district court that comprised a single sentence: “I am sorry to inform you that your application for admission to the bar has been denied.” The local rules providing for no further procedures, Berkan appealed to this court and requests review, alternatively, under our mandamus powers.
Under the local rules of the district court: any attorney at law certified by the Supreme Court of the Commonwealth of Puerto Rico ... as having qualified to practice as an attorney and counselor at law before the courts of the Commonwealth, is eligible for admission to practice in the United States District Court for the District of Puerto Rico, provided that his/her application is approved by the Judges of [the District] Court.. ..
Berkan, a member in good standing of the bar of the Commonwealth, apparently met all formal requirements; however, both Berkan and the United States Attorney have suggested that she was denied admission because of her conviction in the district court arising from participation in a political demonstration on a U.S. military reservation in Vieques, Puerto Rico, and because of her failure to obey a civil injunction entered by the district court. Be that as it may, the district court gave no such reasons, nor any reasons, for denying her admission, nor did it offer her any opportunity to provide extenuating reasons or to explain why whatever factors prompted the court’s action might be insufficient to justify denying her the right to practice in that court.
We agree with Berkan that the procedure afforded her by the district court with respect to her bar application was patently insufficient. Having satisfied the threshold requirements for admission to the bar of the district court, she fell within “the class of those entitled to be admitted to practice under the [district court’s] rules,” and so “should not have been rejected upon charges of [her] unfitness without giving [her] an opportunity by notice for hearing and answer.” Goldsmith v. United States Board of Tax Appeals, 270 U.S. 117, 123, 46 S.Ct. 215, 217, 70 L.Ed. 494 (1926). This principle was reaffirmed in Willner v. Committee on Character and Fitness, 373 U.S. 96, 83 S.Ct. 1175, 10 L.Ed.2d 224 (1963), where the Supreme Court held that an applicant could not be denied admission to the bar without a hearing either before the committee that refused to certify his fitness to practice law or before the court that ultimately declined to admit him to practice. As amplified by Justice Goldberg in his concurring opinion,
The constitutional requirements in this context may be simply stated: in all cases in which admission to the bar is to be denied on the basis of character, the applicant, at some stage of the proceedings prior to such denial, must be adequately informed of the nature of the evidence against him and be accorded an adequate opportunity to rebut this evidence. As I understand the opinion of the Court, this does not mean that in every case confrontation and cross-examination are automatically required. It must be remembered that we are dealing, at least at the initial stage of proceedings, not with a court trial, but with a necessarily much more informal inquiry into an applicant’s qualifications for admission to the bar. The circumstances will determine the necessary limits and incidents implicit in the concept of a “fair” hearing. Thus for example, when the derogatory matter appears from information supplied or confirmed by the applicant himself, or is of an undisputed documentary character disclosed to the applicant, and it is plain and uncontradicted that the committee’s recommendation against admission is predicated thereon and reasonably supported thereby, then neither the committee’s informal procedures, its ultimate recommendations, nor a court ruling sustaining the committee’s conclusion may be properly challenged on due process grounds, provided the applicant has been informed of the factual basis of the conclusion and has been afforded an adequate opportunity to reply or explain. Of course, if the denial depends upon information supplied by a particular person whose reliability or veracity is brought into question by the applicant, confrontation and the right of cross-examination should be afforded. Since admission to the bar is ultimately a matter for the courts, there is ample power to compel attendance of witnesses as required.
373 U.S. at 107-08, 83 S.Ct. at 1182.
The United States Attorney argues that the clerk’s letter rejecting Berkan’s application is neither a final decision appealable under 28 U.S.C. § 1291 nor an appropriate stage for invocation of our power of supervisory mandamus. Before an appeal will lie under section 1291, the government argues, Berkan must complete some sort of further judicial proceeding in the district court challenging the court’s purely “administrative” denial of her application. The government also contends, citing to Goldsmith v. United States Board of Tax Appeals, supra, that Berkan’s failure to request a hearing before the district court makes mandamus an inappropriate remedy. We believe the government is mistaken as to the latter contention and therefore we need not reach the former.
Supervisory mandamus may properly be used “to compel [an inferior court] to exercise its authority when it is its duty to do so.” Roche v. Evaporated Milk Association, 319 U.S. 21, 26, 63 S.Ct. 938, 941, 87 L.Ed. 1185 (1943). See Will v. United States, 389 U.S. 90, 95, 88 S.Ct. 269, 273, 19 L.Ed.2d 305 (1967); In re Ellsberg, 446 F.2d 954, 956 (1st Cir. 1971); 9 Moore’s Federal Practice 1110.28 (1980). Goldsmith and Willner make plain that Berkan, whose formal qualifications appeared in order, had a right to a hearing on the denial of her application before either the district court’s Committee on Admissions or before the district court itself. Since it was only the court, not the Committee, that acted unfavorably in Berkan’s case, it was the court’s duty to provide Berkan with notice of the grounds for its action and an opportunity for a suitable hearing. Willner, 373 U.S. at 107-08, 83 S.Ct. at 1182. This could have been done by notifying Berkan that the court was contemplating denying her admission, stating the reasons, and inviting her to be heard in response. Or the court could have notified her that her application had been provisionally denied for specified reasons, and that she could respond and request a hearing within a stated time. Variant approaches can be imagined. But the approach followed was plainly inadequate. Whether denominated “administrative” or “judicial,” the court’s procedure erroneously conveyed a message that the matter was closed — that nothing more in the way of process was available.
Berkan, to be sure, might on her own have pressed the district court for a statement of reasons and hearing — and the court might, or might not, have complied, upon having its attention called to Goldsmith and Willner. But we believe the district court had a responsibility in these circumstances to advise Berkan, on its own initiative, how she might obtain the basic components of due process. Here neither the court’s rules nor the letter from the clerk denying Berkan’s application made any mention that Berkan was entitled to reasons and a hearing; and there is nothing in the record or the arguments of the parties to suggest that the district court by unstated but generally understood custom was ready to provide such procedures. For all that appeared, the matter was at an end. In suggesting that Berkan ought to have sought a hearing after receipt of the clerk’s letter, the government fails to point out any explicit procedure for so doing, short of her instituting some sort of further legal proceeding separate from the petition for admission. We are unwilling to refuse Berkan relief simply because she failed to pursue some undefined, extraordinary, and uncertain remedy in the court below.
We recognize that in Goldsmith, decided in 1926, an unsuccessful applicant for admission to practice before the United States Board of Tax Appeals sought a writ of mandamus to compel his admission and the Court stated that “[ujntil he had sought a hearing from the board, and been denied it, he could not appeal to the courts for any remedy and certainly not for mandamus to compel enrollment.” 270 U.S. at 123, 46 S.Ct. at 217. But not only was Goldsmith decided long before Willner, the writ sought in Goldsmith would have had to run against an independent agency in the executive branch of the government, 270 U.S. at 121, 46 S.Ct. at 217. Unlike such an agency, the District Court for the District of Puerto Rico is subject, in proper circumstances, to the direct supervisory control of this court. See Will, 389 U.S. at 107, 88 S.Ct. at 280; Ellsberg, 446 F.2d at 956; 9 Moore’s Federal Practice, supra, f 110.28, at 312-13. In our supervisory capacity, we are entitled— in fact we think we are obliged — to insist that a district court in this Circuit do more than play at cat and mouse with a rejected but seemingly qualified bar applicant, with respect to providing a statement of reasons for her rejection and offering such hearing procedures as may be appropriate in her situation. A federal court, by its silence, may not foist upon one in Berkan’s position the burden of somehow compelling it to grant the process to which she is entitled as a matter of fundamental right. Supervisory mandamus is an appropriate means to instruct the district court in this regard. See Will, 389 .U.S. at 107, 88 S.Ct. at 280.
We therefore direct the judges of the district court to furnish Berkan forthwith with a statement of reasons for their denial of her application for admission to the bar and to provide promptly response and hearing procedures that conform with the due process requirements in Willner. Since we are confident the district court will comply with our directions, no actual writ need issue.
So ordered.
. Where a committee charged with reviewing bar applications refuses to certify to the court that an applicant is fit to practice law, and the applicant then petitions the court itself for admission, arguing that the committee’s action violated his constitutional rights, the court’s subsequent denial of the petition is appealable. See Willner v. Committee on Character and Fitness, 373 U.S. 96, 83 S.Ct. 1175, 10 L.Ed.2d 224 (1963); In re Summers, 325 U.S. 561, 65 S.Ct. 1307, 89 L.Ed. 1795 (1945). In this case, however, the committee recommended that Berkan be admitted and the district court itself denied her petition. Berkan then sought relief in this court. The issue of appealability would seem to turn on the significance of this procedural distinction. (The lack of a docket number for, and formal entry of judgment as to Berkan’s petition are not dispositive. Compare Summers, 325 U.S. 561, 65 S.Ct. 1307, 89 L.Ed. 1795.)
Put most favorably, we understand the government to argue that in Willner and Summers, the court’s denial of the applicant’s petition was appealable because the petition expressly presented the court with the claim that the applicant’s rights had' been violated. Therefore, in denying the petition the court necessarily passed on the merits of the alleged violation; its action thereby became a final decision upon the applicant’s claims and so was appealable. Here, the argument runs, the alleged violation of Berkan’s rights did not occur until the court — rather than the committee — denied her application. Because she thereafter sought relief in this court, her claim that the denial of her application violated her rights was never raised before the district court and so is not properly a subject for appeal.
In response, it can be argued that no apparent path lay open to Berkan by which she could have brought her claims before the court. See infra. Thus, it would exalt form over substance, and thwart the intent of the Supreme Court, to distinguish Willner and Summers on this narrow ground.
What little case law is on point is divided. Compare In re Wasserman, 240 F.2d 213 (9th Cir. 1956) (denial of petition by court, in absence of assertion of a violation of a right, held not appealable) and In re Jacobi, 217 F.2d 668 (D.C. Cir. 1954) and Brooks v. Laws, 208 F.2d 18 (D.C. Cir. 1953) with In re Dreier, 258 F.2d 68 (3d Cir. 1958) (denial of a petition by court, despite absence of assertion of a violation of a right, held appealable) and Atchison, Topeka & Santa Fe Ry. v. Jackson, 235 F.2d 390 (10th Cir. 1956).
It is worth noting that the jurisdictional issue is of little practical significance in this case. As we explained supra, Berkan has a right to a hearing on the denial of her application. The absence of appellate jurisdiction would not affect that right, for Berkan would still be free to demand that the court provide her a hearing and the court would be bound to oblige.
. Berkan asks that we reverse the district court outright, and order her admitted to the bar forthwith. We think this an unacceptable remedy where Berkan’s constitutional rights can be preserved by the granting of acceptable procedures on remand, and where, for all we know, there may be legitimate reasons for the district court’s action. | 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. | [] | [
1
] | songer_r_fed |
UNITED STATES of America, Plaintiff-Appellee, v. Thomas Dee STOKER, Defendant-Appellant.
No. 74-1770.
United States Court of Appeals, Tenth Circuit.
Argued July 9, 1975.
Decided Aug. 5, 1975.
Rehearing Denied Sept. 16, 1975.
Keith Biesinger, Salt Lake City, Utah, for defendant-appellant.
Tosh Suyematsu, Asst. U. S. Atty. (Clarence A. Brimmer, U. S. Atty., Richard A. Stacy, Asst. U. S. Atty., on the brief), Cheyenne, Wyo., for plaintiff-appellee.
Before HILL, SETH and BARRETT, Circuit Judges.
HILL, Circuit Judge.
Appellant was convicted of ten counts of mail fraud and one count of conspiracy. Because of the issues raised, we need not detail the evidence concerning the offense itself.
During the trial, appellant applied in forma pauperis for the issuance of sixteen subpoenas pursuant to F.R.Crim.P 17(b). Appellant contends the trial court abused its discretion by limiting appellant to four subpoenas. Appellant further argues this limitation denied him his Sixth Amendment right to compulsory process and Fifth Amendment right to due process.
The trial commenced on August 7, 1972; appellant filed his application for subpoenas on August 11, 1972, at 10:50 a. m. A list containing the sixteen names was attached to the application. Thirteen of the persons listed were from Utah, and the remaining three were from Nevada, California and Pennsylvania. Street addresses were provided for all but the two from California and Pennsylvania. Later on August 11, after the government rested its case and the jury was excused, the trial court held a hearing concerning the necessity of the listed witnesses to appellant’s defense. At that hearing, appellant testified concerning each requested witness; his statements generally contained a description of the job each person performed in one or more of the corporations involved in appellant’s business ventures and often some indication of the general information possessed by each person. At the hearing’s conclusion, the trial judge ruled:
Select four that you want from Salt Lake City and we will cause subpoenas to be issued for them. You are liberty [sic] to bring all of them here at your own expense. No reference is to be drawn that the Court is satisfied as to the truthfulness of this affidavit.
Rule 17(b), F.R.Crim.P., provides in pertinent part:
The court shall order at any time that a subpoena be issued for service on a named witness upon an ex parte application of a defendant upon a satisfactory showing that the defendant is financially unable to pay the fees of the witness and that the presence of the witness is necessary to an adequate defense.
A motion under Rule 17(b) is addressed to the sound discretion of the trial court. United States v. Lepiscopo, 458 F.2d 977 (10th Cir. 1972); United States v. Plemons, 455 F.2d 243 (10th Cir. 1972); Speers v. United States, 387 F.2d 698 (10th Cir. 1967), cert. den’d, 391 U.S. 956, 88 S.Ct. 1864, 20 L.Ed.2d 871 (1968). In United States v. Julian, 469 F.2d 371 (10th Cir. 1972), Judge Doyle analyzed Rule 17(b) in the following manner:
. defendant, in order to secure witnesses at government expense, must show, first, that he is financially unable to pay the fees of the witness and, secondly, that the presence of the witnesses is necessary to an adequate defense. If he satisfies the court as to these two factors, the rule provides that the court shall order that a subpoena be issued for service on the named witness.
Clearly, a defendant has the burden of making a “satisfactory showing” to the court concerning his financial ability and the necessity of the witnesses to his defense. Appellant points to two Fifth Circuit cases which quote the District of Columbia Circuit as follows:
if the accused avers facts which, if true, would be relevant to any issue in the case, the requests for subpoenas must be granted, unless the averments are inherently incredible on their face, or unless the Government shows, either by introducing evidence or from matters already of record, that the averments were untrue or that the request is otherwise frivolous.
Greenwell v. United States, 115 U.S.App.D.C. 44, 317 F.2d 108 (1963). Appellant argues the subpoenas should have been granted because the government did not show any untruthfulness or frivolity and the court did not find appellant had the means to pay witness fees, the number of witnesses was unreasonable, the witnesses would be cumulative, or trial delay would result if subpoenas were issued. The trial court did not specifically state the basis for its restricted grant of the subpoenas motion.
It is evident from the record, however, that appellant did not make a satisfactory showing as to the necessity of all sixteen of these witnesses. Appellant claims they would have bolstered his “good faith” defense. No specific averments concerning the witnesses’ testimony were contained in the motion. The statements at the hearing were general in the extreme. Appellant did not state what these persons would testify about but merely indicated they possessed knowledge of selected portions of the corporations’ affairs.
Furthermore, this request for subpoenas has to be considered within the circumstances existing when it was made. The timeliness of the request and the possible delay of the trial are factors to be considered by a trial court in considering a Rule 17(b) motion. United States v. Jones, 487 F.2d 676 (9th Cir. 1973). See United States v. Moudy, 462 F.2d 694 (5th Cir. 1972). Counsel for appellant indicated his awareness of appellant’s lack of resources on the first day of trial but did not seek Rule 17(b) subpoenas at that time. In the motion, appellant said, “ . . . the necessity for such witnesses has become more apparent during the course of the presentation of the case by the United States.” Although this is undoubtedly a true statement, we believe the need for witnesses as to the main defense, “good faith”, should have been apparent long before the last day of the government’s case. In his order directing the four subpoenas’ issuance the trial court found: “That the hearing was held at 4:30 o’clock p. m., Friday afternoon . just prior to the closing of the offices of the U. S. Marshal’s service for the weekend and that serving said witnesses would be an extremely difficult task. . . . ” Also the trial judge indicated he was not satisfied with the showing of lack of financial resources. Testimony had disclosed appellant’s purchase of high-cost personal items in the past.
Under these circumstances, the trial court did not abuse its discretion in limiting appellant to four of his requested sixteen subpoenas and in restricting the subpoenas to the Salt Lake City area. These limitations did not deny appellant his right to compulsory process or due process of law.
To understand appellant’s remaining contentions, we briefly outline the relevant facts. On November 6, 1970, in the District of Utah, appellant and seven other individual and corporate defendants were indicted for violations of 18 U.S.C. § 1341 and § 371. An order of dismissal was formally entered on November 12, 1971, by Judge Ritter. In that order the court said:
. the Court has orally in open court granted motions by defendants Thomas Dee Stoker and Edward David Powell to dismiss the Indictment heretofore filed in this matter as to them upon the ground and for the reason that there has been a failure to diligently prosecute the action. [Emphasis added.]
That order does not contain a statement saying if the dismissal is with or without prejudice.
The indictment in our present case was filed in the District of Wyoming on May 17, 1972. Three persons were named as defendants and violations of §§ 1341 and 371 were alleged. The indictments allege different § 1341 violations except Count IV (Wyoming) and Count VIII (Utah) allege the same facts. The Wyoming count charges three persons and the Utah count charges five defendants. The conspiracy counts are similar; the Wyoming indictment alleges 15 overt acts and the Utah indictment alleges 25 overt acts. Eight overt acts are common to both conspiracy counts. On August 15, 1972, the United States Attorney for the District of Wyoming apparently was served with a temporary restraining order from the United States District Court for the District of Utah; the order sought to restrain prosecution of this case.
Based on this factual record, appellant argues (1) the dismissal of the Utah indictment barred prosecution under the subsequent Wyoming indictment, at least with respect to the conspiracy count and (2) he was denied his Sixth Amendment speedy trial right due to the delay from the time of the indictment in Utah and conviction in Wyoming (21 months).
The Utah dismissal was pursuant to F.R.Crim.P. 48(b) which provides:
By Court. If there is unnecessary delay in presenting the charge to a grand jury or in filing an information against a defendant who has been held to answer to the district court, or if there is unnecessary delay in bringing a defendant to trial, the court may dismiss the indictment, information or complaint.
A dismissal pursuant to this rule can be with or without prejudice; if without prejudice, the dismissal does not bar further prosecutions. 3 Wright, Federal Practice and Procedure § 814 (1969). Judge Ritter stated the ground of dismissal as “failure to diligently prosecute the action.” This is not tantamount to a determination that appellant’s right to a speedy trial was violated; Rule 48(b) implements that right but also restates the inherent power of a court to dismiss a case for “want of prosecution”. United States v. Davis, 487 F.2d 112 (5th Cir. 1973), cert. den’d, 415 U.S. 981, 94 S.Ct. 1573, 39 L.Ed.2d 878 (1974); Mann v. United States, 113 U.S.App.D.C. 27, 304 F.2d 394 (1962), cert. den’d, 371 U.S. 896, 83 S.Ct. 194, 9 L.Ed.2d 127 (1962). A dismissal resting on a non-constitutional ground such as “want of prosecution” or “calendar control” is normally without prejudice to a subsequent prosecution. Appellant, however, points to the temporary restraining order as indicative of an intention on Judge Ritter’s part that the dismissal be “with prejudice”. We choose not to give that order, not part of our record, controlling weight as to the interpretation of the dismissal. Rather, we believe the phrase “failure to diligently prosecute the action” and the absence of a specific indication that the dismissal is “with prejudice” indicate that the dismissal is “without prejudice”. Thus, the Utah dismissal of the indictment did not bar the subsequent re-indictment in Wyoming on any or all of the counts.
Appellant’s speedy trial argument deserves little comment. The period of time involved herein does not begin with the original indictment in Utah. The Utah indictment was dismissed, apparently upon appellant’s own motion. Trial commenced in Wyoming on August 7, 1972, 82 days after indictment in Wyoming. Appellant was arraigned on June 14, 1972, and trial was set for July 18, 1972. Appellant’s counsel moved for a continuance; the trial was reset for August 7, 1972. In discussing a speedy trial argument, this Court recently said:
The first factor — the amount of delay — is a “triggering mechanism” under the Barker [Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972)] test. . . . Until there is some delay which is potentially prejudicial, there is no need for inquiry into the other factors.
United States v. Latimer, 511 F.2d 498 (10th Cir. 1975). We do not believe the minimal delay here of less than three months, some in response to appellant’s own request, triggers an inquiry into the other Barker factors. This offense did involve a complex charge; a serious, complex charge justifies some toleration for delay. United States v. Latimer, supra; United States v. Davis, supra. The delay here was not sufficient to be a denial of appellant’s speedy trial right.
Affirmed.
. United States v. Moudy, 462 F.2d 694 (5th Cir. 1972); United States v. Hathcock, 441 F.2d 197 (5th Cir. 1971).
. The restraining order itself is not in the record on appeal. The transcript does contain a discussion concerning it.
. We note that appellant was sentenced to four years on count I of the indictment and four years on each of counts II through XI, to be served concurrently with the sentence imposed on count I. Although it is possibly applicable, we have not relied on the concurrent sentence doctrine. | 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_r_fed |
William M. WILSON, Appellant, v. K. B. BAILEY, Warden, Central Prison, Raleigh, N. C., Appellee.
No. 10733.
United States Court of Appeals Fourth Circuit.
Argued Jan. 9, 1967.
Decided March 22, 1967.
C. Willis Ritter, Baltimore, Md. (Court-assigned counsel), for appellant.
Theodore C. Brown, Jr., Staff Atty., Raleigh, N. C. (T. W. Bruton, Atty. Gen. of North Carolina, on brief), for ap-pellee.
Before HAYNSWORTH, Chief Judge, and BRYAN and CRAVEN, Circuit Judges.
CRAVEN, Circuit Judge:
This is a state prisoner’s appeal from the dismissal without a hearing of his application for writ of habeas corpus in the district court. The petitioner, Wilson, was accorded a post-conviction hearing in state court to review the constitutionality of his conviction and life sentence for murder in the first degree. Neither the state court nor the district court consulted the transcript of the orginal trial. It has since been made available. Perusal of it is essential to determine the validity or invalidity of the assigned constitutional defects in the trial. Ordinarily, we would remand to the district court for a hearing, or if appropriate, remand with instructions to examine the transcript of the trial. But since we have ourselves studied it and also the transcript of the state post-conviction hearing, we are perhaps in as good a position as the district judge would be to determine whether the petitioner’s constitutional rights were violated.
The record discloses that the State offered evidence tending to show, indeed overwhelming in its persuasiveness, that on Saturday, November 25, 1961, petitioner Wilson shot his estranged wife five or six times causing numerous wounds sufficient to cause death. At the time of the homicide, only Wilson and his wife and small daughter were in the apartment. Neighbors heard the shots and observed the arrival and departure of Wilson. On the evening of the same day police were called to a Raleigh motion picture theater and found Wilson in the men’s room. He was obviously sick, and the police took him to a local hospital where his stomach was pumped out, disclosing that he had ingested a considerable quantity of poison.
1. THE INCRIMINATING STATEMENTS
While in the emergency room of the hospital, police officers questioned Wilson about the death of his wife. The most damaging testimony is set out in the margin. This testimony was elicited at the trial without objection having been interposed to the question. Counsel’s objection related only to the expression of opinion by the officer, i. e., attempting to say what the Wilson statement “indicated.” At the time Wilson made the statement, he had not been charged with the murder of his wife and no warrant had been served upon him. Some several hours later he was served with a warrant charging him with murder and was again questioned and his responses offered in evidence at the trial, again without objection. On this second occasion, Wilson denied his guilt and said in effect that he knew nothing about the slaying.
We are not here concerned with the recent doctrines enunciated in Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964), and Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Those decisions apply only to cases in which trial began after the decisions were announced. Johnson v. State of New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966).
The statements made in the second interrogation were exculpatory — a valid distinction prior to Miranda, and that fact adequately explains the failure of counsel to interpose objection. See Miranda v. State of Arizona, supra, 384 U.S. at 476, 86 S.Ct. at 1629, 16 L.Ed.2d at 725.
The prior statement, made before Wilson was charged with murder and before the warrant was served, came in without objection by admittedly competent counsel. We cannot say even with hindsight that the decision was bad trial strategy. Counsel might well have preferred to have all of the statement rather than to have none of it. We may judicially notice that every competent trial lawyer in North Carolina knows that the contemporaneous objection rule obtains in this State, i. e., that failure to object to evidence is ordinarily a waiver. See Stansbury, North Carolina Evidence § 27, at 49-52 (2 ed. 1963).
Unlike the situation in Henry v. State of Mississippi, 379 U.S. 443, 85 S.Ct. 564, 13 L.Ed.2d 408 (1965), there was here no motion for directed verdict on the ground of an illegally obtained incriminating statement which can be said to have notified the trial judge of the possibility of an unconstitutional trial. At no time during the entire trial was the judge’s attention directed or invited to the question of whether unlawfully obtained evidence had been received.
We think this a case of “deliberate by-passing by counsel of the contemporaneous objection rule as a part of trial strategy” which bars subsequent assertion of the federal ground. See Henry v. State of Mississippi, supra, 379 U.S. at 451-452, 85 S.Ct. 564, 569.
Entirely aside from waiver, we think the first statement (which was the only incriminating one), tested by pre-Escobedo and Miranda standards, was voluntary. The record does not indicate that at that time suspicion had focused on Wilson. The questions propounded were put to Wilson in the presence of the attending physician. He was not in custody. There were no threats and no physical or psychological coercion. Nor does it appear that Wilson was so physically ill as to rob him of conscious control of his responses. Nor is the evidence suggesting the possibility that Wilson was insane at the time he made the incriminating statement at all “compelling” as it was in Blackburn v. State of Alabama, 361 U.S. 199, 207, 80 S.Ct. 274, 4 L.Ed.2d 242 (1960).
In Blackburn the involuntariness of the confession was “conclusively demonstrated” during the trial, whereas the voluntariness of Wilson’s statement was not even questioned until post-conviction hearing. Blackburn v. State of Alabama, supra, 361 U.S. at 210, 80 S.Ct. 274. Blackburn was arrested and questioned for some eight or nine hours “in a tiny room * * * literally filled with police officers.” Blackburn v. State of Alabama, supra, 361 U.S. at 207, 80 S.Ct. at 280. Moreover, in Blackburn the incriminating statement was admitted over repeated objections of counsel.
II. THE UNLAWFUL SEARCH AND ITS FRUITS
After Wilson was taken to the Wake Memorial Hospital, police officers of the City of Raleigh returned to the vicinity of the motion picture theater, located Wilson’s automobile, and searched it, finding an empty 38 Colt cartridge box and a partially empty pint bottle of whiskey. Both items were received in evidence without objection. No question was raised at the trial as to whether or not the search was lawful. Neither the transcript of the trial nor the post-conviction hearing discloses whether or not a search warrant issued to authorize it — although the post-conviction hearing was a plenary one and Wilson was afforded the aid of counsel.
Since June 19, 1961, the date of the decision of Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), evidence obtained by a search and seizure in violation of the Fourth Amendment is inadmissible, as a matter of due process, in a state court as it had been previously in a federal court. But despite the increasing tendency to put upon trial judges duties sua sponte, there remains a role for defense counsel thought to be indispensible in an adversary system. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). Competent counsel may have preferred to have the whiskey bottle accompanied by the empty cartridge box than to have no whiskey bottle at all. We think receiving these items in evidence, without objection, if error at all, is not error of constitutional dimension. The same elements of waiver (discussed hereinabove in Part I) are present. We think Wilson “deliberately bypassed the opportunity to make timely objection in the state court, and thus that the petitioner should be deemed to have forfeited his state court remedies.” Henry v. State of Mississippi, supra, 379 U.S. at 450, 85 S.Ct. at 569.
Even if it should be said that the burden of proof is on the state to show the search lawful, surely the state need not shoulder such a burden unnecessarily— until it is suggested that the search was unlawful by objection to the evidence or otherwise. Professor Stansbury, in discussing the impact of Mapp v. Ohio on the law of North Carolina evidence, says: “There is no reason to believe that the rules established to serve procedural convenience, such as the presumption of the legality of the search, will be disturbed by the decision * * Stansbury, North Carolina Evidence § 121(a), at 275 (2d ed. 1963).
III. MENTAL COMPETENCE
On December 1, 1961, about a week after the homicide, pursuant to an affidavit of an attorney retained by his family, Wilson was committed to the Dorothea Dix Hospital, the state hospital for the insane, at Raleigh for observation, examination and a report as to his mental condition. On January 30, 1962, Dr. Walter A. Sykes, Superintendent of the Dorothea Dix Hospital, reported that Wilson was not competent to stand trial and recommended that he be committed to the state hospital for treatment, which was done. Nearly a year later, on December 6, 1962, Dr. Sykes again reported that Wilson was still not competent to stand trial. Finally, on February 26, 1963, fifteen months after the initial commitment, Dr. Sykes wrote to the Sheriff of Wake County enclosing a diagnostic conference report stating that Wilson was without psychosis, was able to plead to the bill of indictment, was able to understand the charges against him, and that he knew the difference between right and wrong. Wilson was thereafter returned to the custody of the Wake County Sheriff and tried on October 29-31, 1963.
More than a fourth of the trial time was consumed in the examination of the same Dr. Walter Sykes, who testified that in his opinion the defendant did not know the difference between right and wrong on the day of the homicide, November 25, 1961. Other competent lay testimony was to the contrary.
Wilson’s history, related by Dr. Sykes, included a few days in a psychiatric hospital in 1954, at which time he suffered from memory loss and loss of contact with reality. Although there were other hospitalizations, Sykes thought the next significant one was in October of 1961, when Wilson, highly nervous and anxious, was admitted to the Veterans Administration Hospital in Durham.
Although Dr. Sykes was examined extensively by state and defense counsel on the issue of sanity at time of the homicide, he was asked only one question bearing upon Wilson’s competency to stand trial. In response, he expressed the opinion that the defendant still is in need of further treatment “but that he has regained or has reached the point where he now knows right from wrong * * *_»
No motion was made to the trial judge that there ought to be a hearing to determine Wilson’s mental capacity to plead to the indictment and stand trial. Nothing occurred at the trial to indicate to the trial judge the possibility of lack of competence of Wilson to stand trial. At the post-conviction hearing, one of his privately-retained trial counsel testified that he behaved as a normal person, conferred frequently with counsel, and understood what was going on as well as any other defendant who is not used to a trial of a lawsuit. Counsel said that he asked Wilson questions during the trial and always got what he considered to be satisfactory answers. At the trial, neither Wilson nor anyone else suggested to counsel that Wilson might not be competent to stand trial. Wilson’s other lawyer testified at the post-conviction hearing that he considered Wilson incompetent to stand trial but that he never mentioned his feeling to anyone, and particularly did not mention it to the judge. On further examination, this lawyer testified that repeatedly during the course of the trial Wilson suggested questions and advised with counsel concerning various aspects of the case and that he was completely rational in all of the answers given counsel and in making suggestions. Finally, counsel explained what he meant by his previous testimony in these words:
“Mr. Wilson would answer any question that I asked him in an intelligent manner until we got down to his wife and his brothers-in-law and then he became absolutely irrational.
“Q. When you talked about his killing his wife in other words the thing he was on trial for?
“A. That’s right.”
We cannot say with any degree of confidence that such a reaction is atypical of a competent person in such a situation.
It has been recently held, March 7, 1966, that where the evidence at trial raises a “bona fide doubt” as to a defendant’s competence to stand trial the trial judge, on his own motion, must invoke an adequate state procedure to protect the right not to be put to trial unless legally competent. Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966).
We think it probable that Pate will be given retrospective effect for the practical reason that claims of insanity are likely to be relatively infrequent compared to the high incidence of alleged improper confessions under Escobedo and Miranda and alleged illegal evidence under Mapp. See Johnson v. State of New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966); Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965). But the question of retrospective operation of Pate need not be decided, because assuming it, we think Wilson’s case is distinguishable.
At Robinson’s trial, the issue of his incompetence to stand trial was raised. Indeed, in summation, defense counsel emphasized: “Our defense is clear * * it is as to the sanity of the defendant at the time of the crime and also as to the present time.” The record showed that counsel throughout the proceedings insisted “that Robinson’s present sanity was very much in issue.” Counsel elicited Mrs. Robinson’s opinion of Robinson’s “present sanity,” and in his summation he asserted that Robinson “should be found not guilty and presently insane on the basis of testimony that we have heard.”
Also important to the Pate decision was the omission of the state psychiatrist to include a finding of sanity. The stipulation (offered in lieu of testimony) was only that the psychiatrist, if present, would testify that in his opinion Robinson knew the nature of the charges against him and was able to cooperate with counsel when he examined him two or three months before trial.
Robinson “was convicted in an unduly hurried trial without a fair opportunity to obtain expert psychiatric testimony, and without sufficient development of the facts on the issues of Robinson’s insanity when he committed the homicide and his present incompetence.” Pate v. Robinson, supra, 383 U.S. at 377, 86 S.Ct. at 838.
Wilson, on the contrary, was not an indigent, employed his own competent counsel, was not rushed to trial, was not denied the opportunity to obtain psychiatric testimony, was afforded the opportunity to fully examine Dr. Sykes, the psychiatrist, and took advantage of the opportunity. It was never contended at Wilson’s trial that he was incompetent to stand trial, and the only question asked of the psychiatrist in that regard elicited a response tending to show competence.
A comparison of the medical history of Robinson as compared with Wilson is’ also significant. Robinson had a long, continuous history of disturbed behavior including another homicide prior to the one then being prosecuted and attempted suicide. Wilson’s history, previously summarized, was not dramatic prior to the day of the homicide and was not of the sort to suggest to the trial judge the possibility of his incompetence to stand trial — especially considering the presence and testimony of the very doctor who had certified both his sanity and his competence.
We think the evidence in Wilson’s case did not raise a “bona fide doubt” as to Wilson’s competence to stand trial so as to require that the judge on his own motion should have stopped the trial and inquired into Wilson’s present sanity.
IY. THE CHOICE NOT TO APPEAL AND THE ALLEGED DENIAL OF THE RIGHT TO APPEAL
Immediately after his conviction, Wilson filed a notice of appeal to the Supreme Court of North Carolina. Subsequently, it was withdrawn on the advice of both counsel, who pointed out to Wilson that if he got a new trial he might possibly be thereafter sentenced to death, and that if he were acquitted on the ground of insanity at the time of the crime, which in the opinion of counsel was the only defense he had, he would be committed to the state hospital for the insane. The state judge who conducted a plenary hearing over a two-day period found as a fact that both counsel advised him against perfecting his appeal but left the decision to him, and that he voluntarily, intelligently, and understandingly decided to withdraw and did withdraw his appeal. Our examination of the transcript of the post-conviction hearing shows that this finding is supported by substantial evidence. The state judge further found as a fact that Wilson’s action in withdrawing his appeal was not caused or motivated by inability to have counsel and to obtain a transcript of his trial. This finding also rests on adequate support in the record. A federal court may accept the findings of fact of a state judge at a post-conviction hearing if supported by substantial evidence and if arrived at in a full and procedurally fair hearing. Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745 (1963).
Since Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963), it has been settled that state procedural defaults, such as a failure to appeal, do not constitute an adequate and independent state law ground barring review by inferior federal courts under the federal habeas corpus statute. It is now clear that “the interest in achieving finality in criminal proceedings is henceforth to be valued less highly than the interest in assuring that no individual is deprived of life or liberty in violation of the Constitution.” The Supreme Court, 1962 Term, 77 Harv.L.Rev. 140 (1963). Only one who has deliberately by-passed the orderly procedure of the state courts may be held to have forfeited his state court remedies, Fay v. Noia, supra, 372 U.S. at 438, 83 S.Ct. 822, and even if a deliberate by-pass is found, the district court still has the power to grant habeas corpus.
Unquestionably, Wilson exercised his intelligent, rational choice not to appeal. Even now we cannot say that the decision was an unwise one.’ But we do say, because we cannot significantly distinguish Wilson’s situation from that of Noia, that such an intelligent choice is not a “deliberate by-passing of the state court system” which ought to be treated as a waiver of the alleged constitutional defects in his trial.
Even so, we think Wilson’s failure to appeal supports our separate conclusions (supra) that he effectively waived the right to object to the incriminating statement and the seized evidence by failing to make timely objection during the trial.
Having considered all of the petitioner’s contentions of constitutional invalidity of his trial, we affirm the dismissal of the petition for writ of habeas corpus.
Affirmed.
. We are influenced against remanding for a hearing by a practical consideration: the dockets of the Eastern District of North Carolina are seriously congested. Even so, we must and ordinarily will insist in the future on careful canvassing of the facts by the district court. Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963).
. “Q. At the time you talked with the defendant about 10 p. m. on the 25th day of November, 1961, what if anything did he tell you occurred?
“A. The only thing that he said that indicated any indication in this particular •offense—
“OBJECTION: SUSTAINED
“THE COURT: You can tell what he said.
“A. He made one statement which, said she committed murder, too; I asked him what did he mean and he said she performed an abortion on herself and he reported it to the damn police and they wouldn’t do anything about it. He also made another statement. What caused her damn brothers, that they had been following her around and wouldn’t let him see the kid. I asked him what did he do and he said nothing. Then he talked in general about his family and the children.”
. One of his retained counsel testified at the post-conviction hearing that Wilson’s only available defense was insanity.
. Some pills and medicine were also found. It is not at all clear that the purpose of the search was to produce incriminating evidence. It may have been done to aid the doctor’s identification of the poison taken by Wilson. If so, the search would appear to have been reasonable. See Cooper v. California, 386 U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730 (U.S. Feb. 20, 1967).
. In North Carolina “ ‘[a]nyone who has observed another, or conversed with him, or had dealings with him, and a reasonable opportunity, based thereon, of forming an opinion, satisfactory to himself, as to mental condition of such person, is permitted to give his opinion in evidence upon the issue of mental capacity, although the witness, be not a psychiatrist or expert in mental disorders.’ This has been settled doctrine in North Carolina since the pioneer case of Clary v. Clary [24 N.C. 78 (1841)], and under it lay opinion may be received as to the mental capacity of * * * a defendant in a criminal case * * Stansbury, North Carolina Evidence § 127, at 296-98 (2d ed. 1963) (footnotes with numerous citations omitted) ; see, e. g., State v. Matthews, 226 N.C. 639, 39 S.E.2d 819 (1946) ; see generally 20 Am.Jur. Evidence § 852 (1939) ; 2 Wigmore, Evidence § 568, at 663-65 (3d ed. 1940) ; 7 id. §§ 1933-38.
. Wilson insists that his situation was a fortiori: Dr. Sykes so certified some eight months before the trial. But there is this difference: the doctor was present at Wilson’s trial and was extensively examined, whereas Robinson’s doctor was not.
. He is eligible for parole after serving ten years.
. Noia also faced the possibility of a death sentence if he appealed and got a new trial. Fay v. Noia, 372 U.S. 293, at 870, 83 S.Ct. 822 (1963). | 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"
] | [
1
] | songer_treat |
PORT OF BOSTON MARINE TERMINAL ASSOCIATION et al., Plaintiffs, Appellees, v. BOSTON SHIPPING ASSOCIATION, INC., et al., Defendants, Rederiaktiebolaget Transatlantic, Defendant-Intervenor, Appellant.
No. 7368.
United States Court of Appeals First Circuit.
Heard Oct. 8, 1969.
Decided Jan. 8, 1970.
Certiorari Granted April 20, 1970.
See 90 S.Ct. 1360.
George F. Galland, Washington, D. C., with whom Stephen Moulton, Boston, Mass., Amy Scupi, Washington, D. C., David T. Stitt, Washington, D. C., Moul-ton, Looney, Mazzone, Falk & Markham, Boston, Mass., and Galland, Kharasch, Calkins & Lippman, Washington, D. C., were on brief, for appellant.
John M. Reed, Boston, Mass., with whom Neil L. Lynch, George W. Stuart, and Withington, Cross, Park & Groden, Boston, Mass., were on brief, for appel-lees.
Before ALDRICH, Chief Judge, WOODBURY, Senior Circuit Judge, and McENTEE, Circuit Judge.
By designation.
. Swedish asserted a conflict with Volkswagenwerk Aktiengesellschaft v. FMC, 1968, 390 U.S. 261, 88 S.Ct. 929, 19 L.Ed.2d 1090, hereinafter VW, a case which postdated the Boston Shipping decision.
ALDRICH, Chief Judge.
The members of the Port of Boston Marine Terminal Association (Terminals), operate pursuant to Federal Maritime Commission Agreement No. 8785, a conference arrangement approved by the Commission under section 15 of the Shipping Act. 46 U.S.C. § 814. Approval permits uniform rates for all “services, facilities, rates, and charges incidental thereto: — wharfage, dockage, free time, wharf demurrage, usage charges, passenger charges, water, electricity.” The tariffs so established were first filed with the Commission in 1962. Wharf demurrage was therein defined as a storage charge “levied against cargo remaining on a pier or wharf after the expiration of free time.” On imported cargo “free time” was the first five days after unloading, an arbitrary period to permit consignees sufficient access to the cargo to satisfy the carrier’s obligation to make delivery. If delivery was not taken within the free time, the charge, by accruing against the cargo, became the consignee’s obligation.
If access to cargo was prevented by a strike, the demurrage rate was substantially reduced, but it remained as a charge against unloaded cargo. This led to complaints by consignees. By December 1964, through a series of amendments, Terminals changed the tariff to provide that if the consignee’s access was prevented by a strike of longshoremen or other agents of the ship, as distinguished from employees of Terminals, the reduced demurrage would be called “strike storage” and charged to the vessel instead of to the cargo. This charge was expressed in broad terms, and resulted in shifting the obligation to the vessel even if the strike did not commence until after the expiration of the free time. The new tariff purported to be immediately effective, and hence was imposed without approval by the Commission.
Appellant Rederiaktiebolaget Transatlantic (Swedish) is a common carrier serving the Port of Boston. On January 8, 9, and 10, 1965, its vessel MATTA-WUNGA unloaded cargo in Boston at Mystic Terminals. On January 11 there was a general longshoremen’s strike. Longshoremen are employees of the stevedoring concerns which serve all vessels. Tally clerks, who are also agents of the vessel, correspondingly struck. Accordingly there could be no completed delivery of cargo to consignees who had not called before January 11. Non-delivery was additionally assured because transportation employees serving consignees observe picket lines. Under the 1964 amendments Terminals charged the resultant demurrage to the various vessels. Mattawunga’s bill was $8,154. Swedish denied the obligation. Other carriers similarly situated took the same position.
Thereafter Terminals brought an action in the Massachusetts Superior Court for declaratory relief and for payment against Boston Shipping Association (Shipping), representing various vessel owners and agents. Shipping removed the case to the district court. At the suggestion of Terminals the district court ruled that the Commission had primary jurisdiction and entered a stay permitting Shipping to proceed there. Shipping did so, and lost. Boston Shipping Ass’n, Inc. v. Port of Boston Marine Terminal Ass’n, 1967, 10 F.M.C. 409, hereinafter Boston Shipping. It then appealed to the D.C. Court of Appeals, but the appeal was dismissed for late filing. Subsequently Swedish, which was not a member of Shipping, sought to appear before the Commission and to petition for reconsideration. The petition was refused docketing because of lateness. Swedish then sought to intervene as a defendant in the district court proceedings, and that motion was allowed. Upon intervening, Swedish filed an answer raising defenses on the merits. On stipulations of fact the court, without jury, found against all defendants, including Swedish. Swedish, only, appeals.
The first question must concern the jurisdiction of the district court. There is no diversity jurisdiction as to Swedish, for lack of the jurisdictional amount. 28 U.S.C. § 1332. We see no basis for aggregation of the claims against the several defendants. Cf. Snyder v. Harris, 1969, 394 U.S. 332, 89 S.Ct. 1053, 22 L.Ed.2d 319; Pinel v. Pinel, 1916, 240 U.S. 594, 596, 36 S.Ct. 416, 60 L.Ed. 817; Troy Bank of Troy Ind. v. G. A. Whitehead & Co., 1911, 222 U.S. 39, 40-41, 32 S.Ct. 9, 56 L.Ed. 81. If this wére a suit under a tariff, jurisdiction would automatically attach under 28 U.S.C. § 1337, where the amount involved is of no consequence. Peyton v. Railway Express Agency, Inc., 1942, 316 U.S. 350, 62 S.Ct. 1171, 86 L.Ed. 1525; Turner, Dennis & Lowry Lumber Co. v. Chicago, Milwaukee & St. Paul Ry., 1926, 271 U.S. 259, 261, 46 S.Ct. 530, 70 L.Ed. 934. Terminals’ tariff was not, however, a tariff in the sense of being within 46 U.S.C. § 817, and was filed with the Commission only as a condition imposed by the prior approval of the conference agreement. We nevertheless find a sufficient federal issue. While it is commonly held that the question must appear on the face of the complaint, Skelly Oil Co. v. Phillips Petroleum Co., 1950, 339 U.S. 667, 70 S.Ct. 876, 94 L.Ed. 1194; Louisville & Nashville R. R. v. Mottley, 1908, 211 U.S. 149, 29 S.Ct. 42, 53 L.Ed. 126, the necessity for construing a federal statute may appear by inference. Peyton v. Railway Express Agency, Inc., supra. It is true that the complaint did not allege that the change in the agreement had not been approved by the Commission, but neither did it allege approval. Hence we conclude, albeit with some hesitation, that the necessity of approval was raised, and that it sufficiently appeared that a question of construction of the Shipping Act was presented. This is enough to satisfy section 1337.
We turn to this question forthwith, as it constitutes Swedish’s most significant defense. Section 15 requires that “modifications,” as well as the original agreement, receive the prior approval of the Commission. In Boston Shipping the Commission, without any discussion of the broad language of the act held that where, under the already approved agreement, there was power to fix charges, a change in incidence, as to who was obligated to pay, was not a modification requiring section 15 filing and approval. In the light of the strictures expressed in VW, supra, n. 1, this holding seems unsupportable. While, with some consistency, it represented the Commission’s past reading of the statute, the Court in VW pointed to the “expansive language” of section 15, and the Commission’s “extremely narrow view,” and specifically rejected the binding effect of the Commission’s administrative construction. 390 U.S. 261, 272-273, 88 S.Ct. 929. Then, referring to the statute’s “literal provisions,” the Court spoke of possible exceptions only in terms of a “de minimis or routine character,” and stated that even these must be defined by “appropriate administrative proceedings.” 390 U.S. 261, 276, 88 S.Ct. 929.
Even this exception could not apply in the case at bar. No administrative proceedings had been held to establish guidelines under which modifications might be found “de minimis or routine.” Administrative standards cannot be established ex post facto. Cf. NLRB v. Wyman-Gordon Co., 1969, 394 U.S. 759, 89 S.Ct. 1426, 22 L.Ed.2d 709, 5 U.S.C. § 553.
We may add, for good measure, that a change in incidence, as distinguished from a change in rate, seems to us anything but routine. Even less routine is an unjustifiable change. The Commission expressly found this one “unjust and unreasonable” to the extent that de-murrage was to be charged to the vessel even if the strike did not commence until after the expiration of free time, when the vessel’s obligation to make the goods available had been fully performed. 10 F.M.C. at 417-18. It would peculiarly violate section 15’s “expansive language” to hold that an unreasonable modification could be rewritten nunc pro tunc and saved in part.
We need consider only one other matter, the question of the binding effect of the Boston Shipping decision even though erroneous. We are not concerned with the parties to the proceeding, as they did not join in the present appeal. Nor is the question whether the decision was an appropriate approval— to the extent that it was an approval— of demurrage charges incurred after its date. We must hold that the decision did not bind non-parties to charges sought to be imposed for services rendered prior thereto. See Columbia Broadcasting System, Inc. v. United States, 1942, 316 U.S. 407, 418, 62 S.Ct. 1194, 86 L.Ed. 1563; Davis, 2 Administrative Law Treatise § 18.05. Any other conclusion would destroy the statutory requirement.
Reversed; judgment for the intervening defendant.
. General filing requirements for marine terminal tariffs were added by the Commission’s General Order 15, 46 C.F.R. §§ 533.1 et seq., which became effective on October 5, 1965, and hence does not apply here.
. The statute requires the filing of “every agreement * * * or modification * * * thereof * * * fixing or regulating transportation rates or fares * * It then provides that the Commission shall approve or disapprove, upon terms stated, and that “before approval or after disapproval it shall be unlawful to carry out in whole or in part, directly or indirectly, any such agreement, modification, or cancellation * * See also n. 4, infra.
. The Commission’s prior view, that all rate changes under such an agreement are without section 15, Empire State Highway Transp. Ass’n, Inc. v. American Export Lines, Inc., 1959, 5 F.M.B. 565, affirmed, Empire State Highway Transp. Ass’n, Inc. v. Federal Maritime Board, 110 U.S.App.D.C. 108, 1961, 291 F.2d 336, cert. denied, Empire State Highway Transportation Association Inc. v. United States, 368 U.S. 931, 82 S.Ct. 360, 7 L.Ed.2d 194, fell with the overruling of the Commission in VW, supra. Some changes in rates and charges are now expressly allowable without approval under the 1961 amendment of section 15. This portion is quoted in VW, supra, 390 U.S. at 269-270, n. 16, 88 S.Ct. 929. The Commission did not rely upon that provision, nor do appellees herein
. See n. 3, supra. | 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 - commercial disputes". | What is the specific issue in the case within the general category of "economic activity and regulation - commercial disputes"? | [
"contract disputes-general (private parties) (includes breach of contract, disputes over meaning of contracts, suits for specific performance, disputes over whether contract fulfilled, claims that money owed on contract) (Note: this category is not used when the dispute fits one of the more specific categories below)",
"disputes over government contracts",
"insurance disputes",
"debt collection, disputes over loans",
"consumer disputes with retail business or providers of services",
"breach of fiduciary duty; disputes over franchise agreements",
"contract disputes - was there a contract, was it a valid contract ?",
"commerce clause challenges to state or local government action",
"other contract disputes- (includes misrepresentation or deception in contract, disputes among contractors or contractors and subcontractors, indemnification claims)",
"private economic disputes (other than contract disputes)"
] | [
1
] | songer_casetyp1_7-3-3 |
UNITED STATES of America, Appellee, v. Eugene YOUNG, Defendant-Appellant.
No. 960, Docket 90-1570.
United States Court of Appeals, Second Circuit.
Argued March 15, 1991.
Decided May 3, 1991.
Michael F. Bachner, New York City, for defendant-appellant.
Alan Brudner, Asst. U.S. Atty., New York City (Otto G. Obermaier, U.S. Atty., David E. Brodsky, Asst. U.S. Atty., on the brief), for appellee.
Before NEWMAN, PIERCE and WALKER, Circuit Judges.
JON 0. NEWMAN, Circuit Judge:
This sentencing appeal concerns the sentencing guideline for abuse of a trusted position and the extent of a sentencing judge’s discretion in revising a sentence that includes what the Government concedes is an excessive amount of restitution. Eugene Young appeals from the September 20, 1990, judgment of the District Court for the Southern District of New York (Kenneth Conboy, Judge) convicting him, on his guilty plea, of impersonating a federal officer, in violation of 18 U.S.C. § 912 (1988). We vacate the restitution portion of the sentence and remand.
Facts
Young was an informant for the Drug Enforcement Administration and the Customs Service. While working undercover as an informant, he met a Customs Service employee, who offered to sell him Customs Service identification cards. Working in cooperation with the Customs Service, Young purchased various stolen items from the employee, including blank Customs Service identification cards. He turned over most of these cards to the Government in connection with the prosecution of the employee, but retained some of the cards to facilitate his own criminal activity. Young then approached Luvena John, used the stolen Customs identification card to identify himself as a federal agent, and offered to sell John a car allegedly confiscated by the Government. Ultimately, Young obtained $5,500 from John and her employer (to whom he also displayed his false i.d.) but produced no car. Young used a similar scheme with three other victims and obtained $14,900 from them.
Young pled guilty to one count of impersonating a federal officer, in violation of 18 U.S.C. § 912, in connection with obtaining $5,500 from John and her employer. The Government acknowledges that at his plea allocution Young was not advised that his sentence might include an order of restitution. Young was sentenced to 18 months’ imprisonment and ordered to pay restitution in the amount of $20,400, the total obtained from all of his victims.
Discussion
I. Abuse of Trust
In calculating Young’s applicable guideline range, Judge Conboy added two levels pursuant to U.S.S.G. § 3B1.3, which applies to a defendant who “abused a position of public or private trust ... in a manner that significantly facilitated the commission or concealment of the offense.” The enhancement was entirely proper, and certainly an application of the guideline warranting “due deference.” See 18 U.S.C. § 3742(e) (1988); United States v. Shoulberg, 895 F.2d 882, 884 (2d Cir.1990). Young obtained the Customs i.d. because the Customs Service reposed sufficient trust in him to work as an informant, and his display of the i.d., in connection with his claim to be selling confiscated Government property, significantly facilitated the offense. See United States v. Drabeck, 905 F.2d 1304, 1305-06 (9th Cir.), reh’g granted and mandate recalled, 915 F.2d 1404 (9th Cir.1990).
II. Restitution
The restitution order, as the Government concedes, is invalid in two respects. First, the plea allocution did not inform Young that restitution could be ordered, as required by Fed.R.Crim.P. 11(c)(1). See United States v. Khan, 857 F.2d 85 (2d Cir.1988), modified on reh’g, 869 F.2d 661 (2d Cir.1989), cert. denied, — U.S. -, 111 S.Ct. 682, 112 L.Ed.2d 674 (1991). Second, the amount of restitution exceeded the $5,500 obtained in the offense of conviction, a result that is impermissible under Hughey v. United States, — U.S. -, 110 S.Ct. 1979, 109 L.Ed.2d 408 (1990).
What remains for determination is the appropriate remedy for the infirmities in the restitution order. Apparently recognizing that the lack of advice concerning the prospect of restitution could be readily cured on remand and not wishing to withdraw his plea, Young informed us at oral argument that the sole remedy he seeks is to have the amount of restitution reduced from $20,400 to $5,500, thereby, in effect, waiving the Rule 11 defect and remedying the Hughey defect. The Government concedes that the restitution amount should be reduced to $5,500, but contends that on remand the District Judge should be given discretion to impose a fine, in lieu of the amount of restitution precluded by Hughey. As the Government points out, Judge Conboy felt that Young’s financial condition was insufficient to warrant both a fine and restitution to all the victims, and he expressly declined to impose a fine in order to “give priority to” the victims. In the Government’s view, the District Judge should be able to repackage his sentence to include both restitution of $5,500 and a fine, up to an aggregate monetary sanction of $20,400, the amount of the original restitution. It will be convenient to consider the Government’s contention that a fine is permissible on remand before considering whether the Rule 11 violation may be waived.
Citing our decisions in United States v. Diaz, 834 F.2d 287, 290 (2d Cir.1987), cert. denied, 488 U.S. 818, 109 S.Ct. 57, 102 L.Ed.2d 35 (1988), and McClain v. United States, 676 F.2d 915, 916-18 (2d Cir.), cert. denied, 459 U.S. 879, 103 S.Ct. 174, 74 L.Ed.2d 143 (1982), the Government broadly asserts, “It is settled law that when one component of a sentencing package is set aside on appeal, the District Court may adjust the other components in order to restore the sentencing package’s original size and shape.” Brief for Appellee at 9. That is not the law in this Circuit, as the Government found out when we rejected this same contention in United States v. Pisani, 787 F.2d 71 (2d Cir.1986). As we there explained, an upward revision of a previously imposed sentence was permitted in Diaz and McClain because of the invalidation of a mandatory consecutive sentence. In that situation, it was reasonable to assume that the aggregate sentence reflected the fact that the sentencing judge had diminished the length of the sentence underneath the consecutive sentence that he incorrectly had thought he was obliged to impose. But in Pisani, which did not involve a mandatory consecutive sentence, we refused to permit an increase in a mail fraud sentence after vacating sentences for other offenses. Recently, we permitted upward revision of a sentence on one count after invalidation of sentences on other counts where the counts, which charged tax evasions in consecutive years, could be regarded, for sentencing purposes, as “fungible,” United States v. Gelb, No. 90-1396, slip op. 2381, 2398 (2d Cir. Mar. 5, 1991). We noted, however, that “[w]e would face a different and closer question if a judge who had determined that a particular offense merited slight punishment revised that punishment to compensate for the dis-allowance of a penalty imposed for wrongdoing of a different sort.” Id. We have also permitted an upward revision to conform to the terms of an explicit sentence bargain. See United States v. Rico, 902 F.2d 1065 (2d Cir.), cert. denied, — U.S. -, 111 S.Ct. 352, 112 L.Ed.2d 316 (1990).
This case is unlike either Diaz, McClain, or Pisani in that the Government seeks an upward revision of only one component of a sentence on a single count in light of the invalidation of another component, rather than, as in those cases, an upward revision of a sentence on one count in light of the invalidation of sentences on other counts. Though the restitution component of Young’s sentence was not mandatory, Judge Conboy explicitly stated that he was withholding a fine in order to give priority to restitution; he was not making an assessment that the conduct in question did not merit financial sanctions. Under these circumstances, he should have an opportunity to determine whether to impose a fine, now that the restitution component has been invalidated.
The next issue is whether the restitution order should be eliminated or whether only a reduction of the amount to $5,500 is required. In Khan, 869 F.2d at 662, at the Government’s request we permitted the District Court to eliminate a restitution order because of a Rule 11 violation. Here, appellant has indicated willingness to waive the Rule 11 violation and accept a reduction of the restitution amount to $5,500. However, that willingness was expressed before we had ruled that the sentence may be revised to include a fine. We cannot enforce that waiver under this changed circumstance. On remand, if the Government wishes to forgo restitution, it may so indicate, and the guilty plea will stand, as in Khan. If it wishes to obtain restitution (limited, under Hughey, to $5,500), then Young must be afforded an opportunity to withdraw his plea. If restitution is not sought, or if Young does not withdraw his plea and accepts a reduction of the restitution amount to $5,500, Judge Conboy may then impose a fine up to an amount that, when added to the amount of restitution, does not exceed the original monetary sanction of $20,400.
Sentence vacated in part, and case remanded for further proceedings consistent with this opinion.
. Though we appreciate the Government’s candor in acknowledging on appeal the two deficiencies in the restitution order, the Government would have been more helpful if it had alerted the District Court to both matters.
. Had there been no Rule 11 violation, the logic of Khan would permit the Government to acknowledge the Hughey violation and insist on the $5,500 of restitution, without affording Young an opportunity to withdraw his plea. However, the existence of the Rule 11 violation requires either an abandonment of restitution, as in Khan, or a waiver of the Rule 11 violation by a defendant fully informed of the range of sentencing options.
. It appears that the District Judge applied the version of section 2J1.4 that was in effect at the time of Young’s offense, whereas the appropriate guideline was the version in effect at the time of the sentence. See 18 U.S.C. § 3553(a)(4) (1988); United States v. Adeniyi, 912 F.2d 615, 618 (2d Cir.1990). Under the new guideline, if impersonation was done to facilitate another offense, the sentencing judge is to use the guideline for an attempt to commit that offense. U.S.S.G. § 2J1.4(c)(l) (Nov. 1, 1989); see id. App. C (amendment 176). The attempt guideline, § 2X1.1, in conjunction with the fraud offense guideline, § 2F1.1, will not necessarily alter Young’s offense level, though it might. Although any increased sentence would be barred by the Ex Post Facto Clause, Young is entitled to any decrease that might result under the revised guideline. On remand, we authorize the District Judge to accord Young the benefit of a reduction in sentence, if any, that results from application of the revised guideline. | What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to some threshold issue at the trial court level. These issues are only considered to be present if the court of appeals is reviewing whether or not the litigants should properly have been allowed to get a trial court decision on the merits. That is, the issue is whether or not the issue crossed properly the threshhold to get on the district court agenda. The issue is: "Did the court determine that the parties had standing?" 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 determine that the parties had standing? | [
"No",
"Yes",
"Mixed answer",
"Issue not discussed"
] | [
3
] | songer_standing |
Hilda HEGGER, Executrix of the Estate of Fred P. Hegger, Plaintiff-Appellee-Appellant, v. George E. GREEN, Defendant-Appellee, and St. Luke’s Hospital Center, Defendant-Appellant-Appellee.
Nos. 12, 49, Dockets 80-7146, 80-7170.
United States Court of Appeals, Second Circuit.
Argued Oct. 16, 1980.
Decided March 12, 1981.
Rehearing and Rehearing In Banc Denied May 13,1981.
Paul D. Rheingold, New York City, for plaintiff-appellant.
Roger P. McTiernan, New York City (Michael F. Close, Barry McTiernan & Moore, New York City, of counsel), for defendant-appellant-appellee St. Luke’s Hospital Center.
Sidney A. Florea, New York City (Ferziger, Wohl, Finkelstein & Rothman, New York City, of counsel), for defendant-appellee George E. Green.
Before FRIENDLY, MANSFIELD and MESKILL, Circuit Judges.
MESKILL, Circuit Judge:
The plaintiff Hilda Hegger, executrix for the estate of her deceased husband, Fred Hegger, brought this diversity-based medical malpractice action against the defendants Dr. Green and St. Luke’s Hospital Center (St. Luke’s), claiming that their negligence caused the wrongful death of her husband. The jury found that both defendants had been negligent and that the decedent had been contributorily negligent. In response to special interrogatories, the jury computed the total damages due the plaintiff, deducted a percentage for the decedent’s contributory negligence, and apportioned the net damages between the two defendants. St. Luke’s appeals, claiming that certain damages were improperly awarded and that, in any event, there was insufficient evidence to support a finding of negligence against it. The plaintiff appeals that portion of the judgment imposing a deduction for the contributory negligence of the decedent. Dr. Green did not appeal. For the reasons stated below, we reverse the judgment against St. Luke’s, reverse the deduction for contributory negligence, and modify the remaining judgment to align it with New York precedents governing the recoverability of loss of consortium in wrongful death actions.
BACKGROUND
Fred Hegger, a 52-year-old plant manager of a cloth finishing company, collapsed on the job on October 6, 1976, and was rushed to Hackensack Hospital in New Jersey. There, various test results showed that two major coronary arteries were seriously occluded. On the basis of these tests, Dr. Goodman, Hegger’s attending cardiologist at Hackensack, concluded that Hegger should undergo coronary bypass surgery. Therefore, after a consultation with the patient, one of the Hackensack doctors contacted Dr. George Green, a well-known cardiac surgeon, to inquire whether he would accept Hegger as a candidate for cardiac surgery. After taking Hegger’s history over the telephone, Dr. Green agreed, and arrangements were made for the transfer of the patient to St. Luke’s Hospital Center, where Dr. Green performed nearly all of his surgery.
During his hospitalization at Hackensack, Hegger’s activities were quite restricted and his condition closely watched. For the first five days, he stayed in the coronary care unit (CCU), where he was confined to bed and attached to monitoring equipment. When his condition seemed to stablize, he was transferred to the regular floor, but had to return to the CCU the following day when he developed severe chest pain and an extremely low heartrate. About a week later, on the 21st, he was again transferred to the regular floor, but electronic monitoring continued and his activities remained restricted. Throughout his stay at Hackensack he was explicitly forbidden to smoke.
On Friday, October 29th, Hegger was transferred by ambulance to St. Luke’s. The evidence was conflicting as to when surgery was first scheduled. The plaintiff claims that surgery was planned for November 1st, but was inexplicably and unjustifiably postponed. Dr. Green claimed that the first surgery date was November 10th. In any event, the surgery was not performed and Hegger died of heart failure in the early morning hours of November 4th.
During his stay at St. Luke’s, Hegger was allowed more freedom and was subjected to less scrutiny than he received at Hackensack Hospital. He was neither placed in a CCU nor attached to any monitoring equipment. He was allowed to walk around, and would meet with his family in the solarium on his floor. On one occasion, he walked up, and later down, a flight of stairs leading to the solarium on the floor above his. Finally, there were no written orders in Hegger’s chart prohibiting smoking, although Dr. Green testified that he had “standing orders” to this effect for all his surgery patients. Nevertheless, the evidence showed that Hegger smoked at least three cigarettes while he was at St. Luke’s.
The plaintiff’s case against Dr. Green proceeded on two theories. First, she claimed that her husband needed surgery at once and that Dr. Green’s failure promptly to operate was malpractice. Second, she asserted that Dr. Green negligently failed to take proper steps regarding the observation and supervision of her husband, arguing that the doctor should have ordered electronic monitoring for her husband and should have entered specific orders restricting his activities and forbidding his smoking.
The case against St. Luke’s was based on the hospital’s failure to prevent the patient from roaming about, failure to carry out Dr. Green’s “standing orders” prohibiting smoking, and failure to maintain adequate nursing observation. The plaintiff presented evidence that Hegger had smoked regularly at St. Luke’s, and that on one occasion a hospital attendant had handed him an ashtray. Further, although no specific orders had been written, the plaintiff elicited testimony from Dr. Green that it was not customary for cardiac patients to leave the floor. Finally, the plaintiff produced evidence that Hegger was not attended between 1:00 a. m. and 6:30 a. m. on November 4th, when he was found dead in bed. At the close of all the evidence, the plaintiff moved for a directed verdict removing the issue of contributory negligence from the jury, and both defendants moved for directed verdicts on the issue of liability, claiming no causation had been shown. The court denied these motions.
In response to special interrogatories, the jury found both defendants liable and awarded the plaintiff a total of $526,984. That award comprised $501,984 on the wrongful death claim (including $25,000 for loss of consortium and $25,000 for loss of parental services) and $25,000 on plaintiff’s survival claim for the decedent’s pain and suffering. From the total award, the jury deducted 27 percent for the contributory negligence of the decedent. The jury apportioned the remaining damages ($384,698) according to relative fault, finding Dr. Green 25 percent responsible and St. Luke’s 75 percent responsible. Judge Motley, while confessing some surprise over the apportionment, refused to grant either the plaintiff or the defendants a judgment notwithstanding the verdict, ruling that the jury’s finding was not unreasonable as a matter of law. Judgment was entered and both the plaintiff and St. Luke’s appeal.
DISCUSSION
A. The Hospital’s Appeal
1. Damages
The hospital argues that the award of $25,000 for loss of consortium must be reversed in light of the intervening decision of the New York Court of Appeals in Liff v. Schildkrout, 49 N.Y.2d 622, 427 N.Y.S.2d 746, 404 N.E.2d 1288 (1980). We agree. At the time this case was tried, New York law was unsettled as to whether damages for loss of consortium could be recovered in a wrongful death action. Compare Ventura v. Consolidated Edison Co., 65 A.D.2d 352, 411 N.Y.S.2d 277 (1st Dep’t 1978), rev’d, 49 N.Y.2d 622, 427 N.Y.S.2d 746, 404 N.E.2d 1288 (1980) (allowing recovery) with Grant v. Guidotti, 66 A.D.2d 545, 555 n.10, 414 N.Y.S.2d 171 (2d Dep’t 1979), aff’d, 49 N.Y.2d 622, 427 N.Y.S.2d 746, 404 N.E.2d 1288 (1980) and Osborn v. Kelley, 61 A.D.2d 367, 402 N.Y.S.2d 463 (3d Dep’t 1978) (forbidding recovery). The Court of Appeals has since settled the matter in Liff, supra, in an emphatic opinion which underscored the prerogative of the legislature to control the content of the statutorily created wrongful death action. The court held that the statute does not contemplate recovery for loss of consortium and that the “very existence of the statutory right” precludes the possibility of a separate common law cause of action for that loss. Liff v. Schildkrout, supra, 49 N.Y.2d at 632, 427 N.Y.S.2d 746, 404 N.E.2d 1288.
It is well settled that on direct review an appellate court must apply the law in effect at the time it renders its decision, United States v. Schooner Peggy, 5 U.S. (1 Cranch) 103, 109-11, 2 L.Ed. 49 (1801); Thorpe v. Housing Authority of Durham, 393 U.S. 268, 281-82, 89 S.Ct. 518, 525-526, 21 L.Ed.2d 474 (1969), unless doing so would cause manifest injustice, Bradley v. School Board of Richmond, 416 U.S. 696, 716, 94 S.Ct. 2006, 2018, 40 L.Ed.2d 476 (1974). The basis for the rule was first explained by Chief Judge Marshall, and remains the same today:
It is, in the general, true, that the province of an appellate court is only to inquire whether a judgment, when rendered, was erroneous or not. But if, subsequent to the judgment, and before the decision of the appellate court, a law intervenes and positively changes the rule which governs, the law must be obeyed, or its obligation denied. If the law be constitutional, and of that no doubt, in the present case, has been expressed, I know of no court which can contest its obligation.
United States v. Schooner Peggy, supra, 5 U.S. at 110, 2 L.Ed. 49. Since a federal court sitting in diversity must apply the governing state law, see Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), we must abide by intervening decisions handed down by New York’s highest court. See Vandenbark v. Owens-Illinois Glass Co., 311 U.S. 538, 61 S.Ct. 347, 85 L.Ed. 327 (1941); Huddleston v. Dwyer, 322 U.S. 232, 64 S.Ct. 1015, 88 L.Ed. 1246 (1944) (per curiam); 1A J. Moore, Federal Practice ¶ 0.307[3] (2d ed. 1980).
The plaintiff argues, however, that “[e]ven though the Court of Appeals had not resolved the consortium issue, there was sufficient basis to object at that time,” and that the hospital’s failure to object to the charge bars appellate review. See Fed. R.Civ.P. 51. We find this contention to be meritless for several reasons. First, the very purpose of Rule 51 is to alert the trial judge to errors in the charge so they can be corrected before the jury retires. See 5A J. Moore, Federal Practice 151.04 at 51-30 through 51-35 (2d ed. 1980). At the time the loss of consortium charge was given, New York authority was divided on whether such damages were recoverable. We feel that the policies supporting the rule are far less compelling under these circumstances. See General Beverage Sales Co. v. East-Side Winery, 568 F.2d 1147, 1152 (7th Cir. 1978) (failure to object does not bar appellate review where applicable law had changed in the interim). Moreover, the purposes of Vandenbark v. Owens-Illinois Glass Co., supra, would be largely frustrated by a literal application of Rule 51 in these circumstances, since the intervening state decision would be applied “only in those rare cases where counsel had the foresight to predict the change.” General Beverage Sales Co. v. East-Side Winery, supra, 568 F.2d at 1152. Finally, even accepting the plaintiff’s argument that the hospital should have objected to the charge, we would reverse the award on our own initiative under the “plain error” exception to Rule 51, see Cohen v. Franchard Corporation, 478 F.2d 115 (2d Cir.), cert. denied, 414 U.S. 857, 94 S.Ct. 161, 38 L.Ed.2d 106 (1973), in light of the “demonstrable deviation of the court’s instruction here from the appropriate standard” and the “remediability of this error without a new trial below.” See Williams v. City of New York, 508 F.2d 356, 362 (2d Cir. 1974) (reversing punitive damage award based on erroneous statement of New York law). We therefore hold that the award for loss of consortium must be set aside.
The hospital also claims that the award for conscious pain and suffering must be set aside, inasmuch as there was absolutely no evidence that the decedent suffered any pain before he died. St. Luke’s argues that under New York law, a plaintiff must produce some evidence of actual pain, such as gesturing or moaning, to recover damages for pain and suffering; mere speculation is insufficient. See, e. g., Cook v. Erwin, 30 A.D.2d 579, 289 N.Y.S.2d 730 (3d Dep’t 1968); Kinner v. Kuroczka, 12 A.D.2d 383, 212 N.Y.S.2d 479 (3d Dep’t 1961). In this case, however, the hospital did not move pursuant to Fed.R.Civ.P. 50(a) for a directed verdict on this issue, nor did it object pursuant to Fed.R.Civ.P. 51 to the court’s charge advising the jury that they could award damages for actual pain and suffering. Under these circumstances, where the appellant failed to move for a specific directed verdict, failed to request a peremptory charge, and failed to object to the instruction submitting the issue to the jury, appellate review of the sufficiency of the evidence on that point is inappropriate. See Rochester Civic Theatre, Inc. v. Ramsay, 368 F.2d 748, 752 (8th Cir. 1966); Sanford Bros. Boats, Inc. v. Vidrine, 412 F.2d 958, 967-68 (5th Cir. 1969); Lee v. Pennsylvania R. Co., 192 F.2d 226, 229 (2d Cir. 1951) (“[T]o preserve such a contention for the consideration .of the appellate tribunal, the matter must be specifically called to the attention of the trial judge in order that he may have the opportunity to consider the asserted insufficiency as to one specification and correct it himself, if necessary, by removing it from the jury’s consideration.”).
After the jury returned a verdict awarding the plaintiff $25,000 for the decedent’s pain and suffering, the hospital moved pursuant to Fed.R.Civ.P. 59(e) “to amend the jury award against it of $25,000 for decedent’s conscious pain and suffering, or in the alternative, alter its percentage of fault, or, finally, amend the jury award as excessive.” Memorandum Opinion and Order at 5. The court ruled that Rule 59(e) was an improper device to set aside a jury verdict based upon evidentiary insufficiency, declined to treat the motion under Rule 50(b), and denied the motion as improper. We agree that Rule 59(e) is an improper basis for a motion such as the hospital’s. Moreover, even assuming that St. Luke’s could have made a motion for judgment n. o. v., compare House of Koscot Development Corporation v. American Line Cosmetics, Inc., 468 F.2d 64, 67-68 (5th Cir. 1972) (general directed verdict motion insufficient predicate to j. n. o. v. challenging sufficiency of damage evidence) with Mosley v. Cia. Mar. Adra S.A., 362 F.2d 118, 121-22 (2d Cir.), cert. denied, 385 U.S. 933, 87 S.Ct. 292, 17 L.Ed.2d 213 (1966) (general ized directed verdict preserves specific issue for j. n. o. v.), we conclude that Judge Motley did not abuse her discretion in declining to treat the motion under Rule 50(b), particularly in light of the hospital’s failure to move for a directed verdict or object to the charge on this issue.
2. Liability
St. Luke’s argues that the plaintiff’s negligence case against it never should have been submitted to the jury, and that Judge Motley erred in refusing to grant a directed verdict or judgment n. o. v. More specifically, St. Luke’s contends that the plaintiff failed to establish negligence on the hospital’s part in its supervision and control of the decedent and that even if negligence could be shown, there was no evidence that any of the hospital’s acts or omissions caused Hegger’s demise. For the reasons stated below, we agree with the hospital’s contention and therefore reverse the judgment against it.
The plaintiff’s claim based on the hospital’s failure to prevent Hegger from smoking or climbing stairs suffers from a number of defects. In the first place, there was insufficient evidence that the hospital’s medical or nursing staff knew or should have known of Hegger’s alleged transgressions. Mrs. Hegger testified that, while she knew her husband was smoking at St. Luke’s, she did not relay this information to his attending physician or the nursing staff. (J.App. 229-30). She did testify that “[sjome of the attendants” brought her husband an ashtray, but there was no evidence that these “attendants” were medical personnel or that their knowledge should be imputed to the hospital. With respect to Hegger’s stair climbing, Mrs. Hegger testified that he did this “[o]nly once” (J.App. 209), and there was no evidence that St. Luke’s had either constructive or actual notice of this lapse.
Further, even assuming that St. Luke’s was negligent in failing to control its patient, there was no evidence that Hegger’s misdeeds proximately caused his death. Under New York law, except where “the common experience and knowledge of a jury of laymen” can “bridge this scientific gap,” DeFalco v. Long Island College Hospital, 90 Misc.2d 164, 170, 393 N.Y.S.2d 859 (1977), a plaintiff has the burden of producing expert medical testimony showing proximate cause in medical malpractice actions. Myers v. County of Nassau, 36 A.D.2d 633, 319 N.Y.S.2d 268 (2d Dep’t 1971); DeFalco, supra. We think that determining whether a single trip up a flight of stairs or a small amount of cigarette smoking can be the proximate cause of heart failure in a patient suffering from occluded coronary arteries is beyond the ken of the average juror. And although plaintiff’s expert produced a great deal of standard-of-care evidence tending to show that Dr. Green should have restricted Hegger’s activities and that such activities are counterproductive among cardiac patients, there was no evidence that Hegger’s smoking and/or his ambulations caused his death. On the one occasion plaintiff’s counsel came close to asking his expert about causation, the answer was distinctly evasive. The sum total of causation evidence concerning Hegger’s smoking and stair climbing is contained in the following testimony elicited from plaintiff’s expert on direct examination:
Q. In terms of the condition that Mr. Hegger came in for treatment for at St. Luke’s Hospital, what type of risk, if any, was presented for the eventual development of myocardial infarction by his being out of bed, walking stairs, smoking?
A. Well, the risk of sudden death is always present in somebody with unstable angina. That’s what we’re always concerned about.
The plaintiff’s case based upon the hospital’s assertedly negligent nursing care likewise must fail. Under New York law, a plaintiff in a medical malpractice action must produce medical testimony to establish the proper standard of care. Tobias v. Manhattan Eye and Ear Hospital, 28 A.D.2d 972, 283 N.Y.S.2d 398 (1st Dep’t 1967), aff’d, 23 N.Y.2d 724, 296 N.Y.S.2d 368, 244 N.E.2d 59 (1968). In this case, no standard of care was established concerning the frequency of nursing visits. Thus, that Hegger was not seen by a nurse from 1:00 a. m. until 6:30 a. m. was not shown to be a deviation from acceptable medical practice and, absent medical testimony, the jury could not permissibly infer negligence from this fact. Moreover, there was no evidence that more frequent attendance would have saved Hegger. Indeed, most of the expert testimony in this regard revealed that a heart attack victim needs instantaneous care and that the only effective way to ensure prompt detection of a heart attack is to electronically monitor the patient — a procedure which only Dr. Green could order.
B. The Plaintiff’s Appeal
The plaintiff appeals from the refusal of the court to grant a directed verdict or a judgment n.o.v. in her favor on the issue of the decedent’s comparative fault, claiming that there was no evidence of negligence or causation. The jury’s deduction of 27 percent from the plaintiff’s recovery was based on the supposedly crucial role that the decedent’s smoking and stair climbing played in his eventual death. Inasmuch as we have held that those activities were not shown to have proximately caused Hegger’s death, the deduction for comparative fault must be set aside.
C. Disposition of the Case
We are left with the difficult question of how our determination affects the outstanding judgment against Dr. Green. It could be argued that in light of our disposition of the claim against St. Luke’s, we cannot be sure that the jury’s determination of Dr. Green’s liability was based on a proper ground, namely, his failure promptly to operate or to order electronic monitoring, or instead was based upon the doctor’s failure to prevent the patient from smoking or climbing stairs. Dr. Green might argue that, to the extent that liability is premised on the latter basis, a new trial is required for him because of our determination that those activities were not shown to have proximately caused Hegger’s death. But it is not for us to raise those doubts when Dr. Green has not done so. Ordinarily, a nonappealing party will not benefit from a reversal or modification of a judgment in favor of an appealing party unless the reversal “wipes out all basis for recovery against a non-appealing, as well as against an appealing, defendant ...,” In re Barnett, 124 F.2d 1005, 1009 (2d Cir. 1942); Kicklighter v. Nails by Jannee, Inc., 616 F.2d 734, 742-45 (5th Cir. 1980); Statella v. Robert Chuckrow Construction Co., 28 A.D.2d 669, 670, 281 N.Y.S.2d 215 (1st Dep’t 1967); or unless failure to reverse with respect to the nonappealing party will frustrate the execution of the judgment in favor of the successful appellant, In re Barnett, supra, 124 F.2d at 1008-12. See 9 J. Moore, Federal Practice ¶ 204.11[4]-[5] (2d ed. 1980).
It is clear that our holding with respect to the liability of St. Luke’s leaves adequate bases upon which the jury could have reasonably found that Dr. Green was negligent. Further, the judgment in favor of St. Luke’s does not “wipe out” the basis for the amount of compensatory damages awarded for wrongful death. The compensatory wrongful death damages involved in this case were awarded to provide “fair and just compensation for the pecuniary injuries resulting from the decedent’s death to the persons for whose benefit the action is brought.” N.Y.E.P.T.L. 5-4.3 (McKinney 1980). See Franchell v. Sims, 73 A.D.2d 1, 424 N.Y.S.2d 959 (4th Dep’t 1980). Unlike Statella v. Robert Chuckrow Construction Co., supra, there is neither a challenge nor a finding that the jury verdicts in this case were “grossly excessive.” Finally, the unique situation presented in Barnett, supra, bears no similarity to the facts here.
Whether Dr. Green may reap the benefit of our ruling concerning loss of consortium stands in a different light. In this case, the entire basis for an award of loss of consortium has been removed by our holding that the decision of the New York Court of Appeals in Lift, supra, applies in this appeal, a holding which effectively “wipes out” the plaintiff’s basis of recovery on this point.
CONCLUSION
The judgment holding St. Luke’s liable for negligence is reversed. That portion of the judgment holding the decedent liable for contributory negligence is reversed and the judgment modified to eliminate the reduction therefor. Judgment against Dr. Green is modified to eliminate the recovery based on loss of consortium, leaving Dr. Green liable to the plaintiff for $501,984. St. Luke’s may recover its costs against plaintiff. No costs between plaintiff and Dr. Green.
. The tests included electrocardiograms, blood serum tests, and a coronary arteriogram. The arteriogram revealed that a branch of the left coronary artery was 80% obstructed and that the right coronary artery was 40-50% blocked.
. During this incident, Hegger’s heart apparently stopped at one point, necessitating electrical cardioversion to restart the heartbeat.
. Electronic monitoring outside the CCU is possible by means of “telemetry” — an arrangement whereby the patient is attached to “a little box” which allows him freedom of movement while simultaneously providing the nursing station with constant surveillance of his heart rhythm.
. The evidence was undisputed that Dr. Green, as the physician in charge of the patient, was solely responsible for placing the patient in a CCU or ordering monitoring.
. In Bradley v. School Board of Richmond, supra, 416 U.S. at 711, 94 S.Ct. at 2016, the Supreme Court held that appellate courts have discretion not to apply an intervening change in federal law where to do so would cause “manifest injustice.” Even assuming that the “manifest injustice” exception applies with equal force when the federal court is sitting in diversity, see Baker v. Outboard Marine Corp., 595 F.2d 176, 182 n.19 (3d Cir. 1979), there is no indication in this case that retroactive application of Liff v. Schildkrout, supra, will result in manifest injustice.
. Although the primary purpose of Vandenbark was to avoid “the confusion and injustices arising from inconsistent federal and state interpretations of state law,” 311 U.S. at 543, 61 S.Ct. at 350, considerable disagreement has arisen concerning whether Vandenbark requires retroactive application of an intervening state court decision when the controlling state law itself provides for prospective application of such decisions. Compare Downs v. J. M. Huber Corp., 580 F.2d 794 (5th Cir. 1978), and Samuels v. Doctors Hospital Inc., 588 F.2d 485 (5th Cir. 1979) (suggesting in alternate holdings that the federal court should determine whether state court would retroactively apply intervening decision) with Nelson v. Brunswick Corp., 503 F.2d 376, 381 n.12 (9th Cir. 1974) (applying, somewhat reluctantly, the “hard-and-fast” Vandenbark rule) and Passwaters v. General Motors Corp., 454 F.2d 1270, 1276 (8th Cir. 1972) (literal application of Vandenbark). See generally 1A J. Moore, Federal Practice ¶ 0.307[3] at 3104-05 (2d ed. 1980). We need not decide this question, however, since under New York law the tiff decision would apply retroactively. See Carmel Associates, Inc. v. Turner Constr. Co., 35 A.D.2d 157, 159, 314 N.Y.S.2d 941 (1st Dep’t 1970) (applying intervening decision of Court of Appeals which imposed strict liability for blasting). Cf. Black River Regulating Dist. v. Adirondack League Club, 307 N.Y. 475, 486-87, 121 N.E.2d 428 (1954) (applying intervening legislative enactment); Strauss v. University of State of New York, 2 N.Y.2d 464, 467, 161 N.Y.S.2d 97, 141 N.E.2d 595 (1957) (applying intervening amendment to regulation).
. In attempting to prove her case against Dr. Green, the plaintiff elicited substantial testimony that electronic monitoring was essential for Hegger and that, had he been so monitored, he would not have died. On appeal, the plaintiff attempts to reap the benefit of this testimony by expanding the meaning of “monitoring” to include general observation. Based on our review of the transcript, we find this argument wholly untenable. With a few exceptions not pertinent to the issues of standard of care or causation, testimony concerning “monitoring” referred to electronic monitoring. See testimony of plaintiffs expert at J.App. 51, 88, 89, 90 & 97; testimony of plaintiffs counsel at J.App. 500; testimony of Dr. Green at J.App. 374; and testimony of defendant’s expert at J.App. 440 & 441.
. We have uncovered no cases indicating whether, in determining whether to grant Dr. Green a new trial, we should apply state or federal law. In analogous areas, the question has been a source of difficulty for federal courts. Compare Galard v. Johnson, 504 F.2d 1198, 1200 n.1 (7th Cir. 1974) and Nodak Oil Co. v. Mobil Oil Corp., 533 F.2d 401, 410 (8th Cir. 1976) (in diversity case, issue whether a new trial should be granted based on excessiveness of damages is matter of federal law) with Index Fund v. Insurance Co. of North America, 580 F.2d 1158, 1163 (2d Cir. 1978), cert. denied, 440 U.S. 912, 99 S.Ct. 1226, 59 L.Ed.2d 461 (1979) (same issue left undecided) and Mehra v. Bentz, 529 F.2d 1137, 1139 n.2a (2d Cir. 1975), cert. denied, 426 U.S. 922, 96 S.Ct. 2628, 49 L.Ed.2d 375 (1976) (assuming without deciding that state law governs appellate review of trial judge’s granting of j.n.o.v. on the basis of evidentiary insufficiency). We need not decide the issue, however, since the New York and federal standards are substantially identical. Compare In re Barnett, supra, with Statella v. Robert Chuckrow Constr. Co., 28 A.D.2d 669, 670, 281 N.Y.S.2d 215 (1st Dep’t 1967).
. The quotation from Professor Moore’s treatise in the dissent, p. 33, is from a section dealing with exceptional cases, of which this is not one. As to a case like this the treatise states, ¶ 204.11 [4] at 4-55, that “if codefendants are held liable below, and one appeals and one does not, the party appealing does not stand as surrogate for the one who does not, and though the judgment be reversed, the party not appealing remains liable, despite the fact that the liability of each depends upon the same legal principles.”
. The dissent would cast Dr. Green as the victim of an “unconscionably harsh” result unless we reverse the judgment despite his failure to appeal. We cannot agree. Clearly Dr. Green (or his insurer) was well satisfied with the verdict, which placed the larger share of the blame on the hospital and Hegger, and wanted it to remain intact. His decision not to appeal was a calculated gamble weighing the risk of reversal as to the hospital against the likely outcome of a retrial with Dr. Green as the sole defendant. We see nothing “substantially unjust” in leaving Dr. Green with the results of a choice which, in light of subsequent events, proved to be a poor one. Moreover, the dissent fails to consider the interest of the plaintiff who has obtained a verdict against Dr. Green on sustainable theories of negligence and should not be required to undergo a retrial in the absence of an appeal by Dr. Green urging that improper theories were also submitted. | 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"
] | [
8
] | songer_respond1_1_3 |
J. KAHN & CO., Inc. v. CLARK, Attorney General et al.
No. 12863.
United States Court of Appeals Fifth Circuit.
Dec. 2, 1949.
C. M. Smithdeal, Dallas, Texas, fo-r appellant.
Ralph S. Spritzer, Attorney, Dept of Justice, Washington, D. C., Frank B. Potter, U. S. Attorney, Fort Worth, Texas, William P. Fonville, Asst. U. S. Atty., Dallas, Texas, for appellee.
Before HUTCHESON and RUSSELL, Circuit Judges, and DOOLEY, District Judge.
HUTCHESON, Circuit Judge.
The suit, brought under Sec. 9(a) of the Trading with the Enemy Act, 40 Stat. 411, as amended, 50 U.S.C.A.Appendix, §§ 1 to 39, was to recover $16,000.00 seized and paid over under vesting order of May 27, 1947, as money owed by plaintiff, a cotton merchant organized under the laws of Texas, on that date to Asahi Menka -Shokai, a Japanese national.
The claim was that: though plaintiff had entered on its books on October 21, 1941, a credit of $16,000 in favor of Asahi, that entry was made without consideration and under a mistake of fact, and in ignorance of appellant’s legal rights; and that, in addition, if there was an original obligation, the coming on of the war had completely abrogated it.
The defense was that the credit on plaintiff’s books was an acknowledgment of liability entered freely, knowingly, and upon consideration.
The district judge, upon full consideration of the evidence, was of the opinion: that the settlement and the credit constituted an accord and satisfaction; that the plaintiff thereby became hound to Asahi for the $16,000 agreed; that this credit was the property of the Japanese alien; and that plaintiff, having, as it was obligated to do, paid it over to the alien property custodian, could not recover it back.
Plaintiff, appealing, is here insisting that, in so holding, the district judge has charged it with a liability which does not in fact and in law exist, and that the judgment may not stand.
In support of this claim, it makes many arguments and puts forward' many propositions, but they all at last come down to this; that the agreement with Asahi and the credit to its account were not executed but executory transactions; that if plaintiff had not paid the money to the custodian as it was required to do upon his demand, it would have been entitled as against Asahi to show that the credit was made without consideration and under a mistake or in ignorance of fact or of law, and if it could have shown this, Asahi could not have recovered, and therefore the custodian who stands in Asahi’s shoes must make restoration to plaintiff.
We agree with appellant’s contention that the custodian stands no better in law than Asahi, indeed that his only claim is in virtue of Asahi’s right, and that appellant may urge against the custodian any defenses which he could have urged against Asahi.
We cannot agree with appellant, though, that the grounds he puts forward would constitute a defense against Asahi. One of these grounds is that there was no consideration for the settlement and credit and, therefore, it could not constitute an accord and satisfaction because (1) Asahi, and not plaintiff, breached the contracts, and, if anyone owed anything on account of the contracts, Asahi owed plaintiff and not plaintiff Asahi, or (2) neither owed the other, because the freezing order prevented the carrying out of the contracts and thereby released both plaintiff and Asahi from them.
Another ground is that an accord without satisfaction is not binding or enforceable and that the entry of the credit was not a satisfaction.
A third ground is that the war rendered the contracts unperformable and if there was a consideration at the time of the settlement this was destroyed by the war.
The district judge thought that the demand of Asahi, whether or not it could have been enforced, was certainly a disputed claim; that the settlement of the demand for an amount considerably less than was demanded, with the result of releasing the cotton to plaintiff so that he could sell it and minimize his losses, furnished full consideration; that the accord and credit was accepted as a satisfaction; and that plaintiff cannot now be heard to dispute the debt as his books showed it to be.
We agree with the district judge. Whether, if, instead of agreeing that Asahi had a claim and settling 'with him by giving him a credit, plaintiff had resisted the claim, he would have had good grounds to defeat it, we need not decide, for no such question is presented here. Here, appellant’s own testimony shows: that there was a real dispute between it and Asahi; that in order to settle it and to release the cotton for sale and avoid the heavy loss, which might come with a decline in value while the matters in dispute were pending, he had agreed with Asahi to settle the claim which he recognized as having a substantial basis; and that as a part of the agreement, he had credited Asahi with the amount agreed upon in settlement.
“Compromises of disputed claims are favored by the courts.” Williams v. First National Bank, 216 U.S. 582, 30 S.Ct. 441, 445, 54 L.Ed. 625; Gilliam v. Alford, 69 Tex. 267, 6 S.W. 757. Where the parties, acting in good faith, settle a controversy, the courts will enforce the compromise without regard to what the result might, or would have been, had the parties chosen to litigate rather than settle. Hennessy v. Bacon, 137 U.S. 78, 11 S.Ct. 17, 34 L.Ed. 605; Crisp County v. S. J. Groves & Sons Co., 5 Cir., 73 F.2d 327, 96 A.L.R. 391; Camoron v. Thurmond, 56 Tex. 22; Little v. Allen, 56 Tex. 133.
This court, in Crisp County v. S. J. Groves & Sons Co., supra, held that an agreement of the parties settling a disputed liability is as conclusive of their rights as a judgment would be if it had been litigated instead of compromised. It is the law in Texas and elsewhere that “A mutual agreement for compromise is itself a valuable consideration * * Little v. Allen, supra.
As to appellant’s point that an accord without satisfaction is not binding, we think it clear that when an accord has been followed by a credit, as here, the creditor has alternative rights. “He can enforce either the original duty or the subsequent contract”, Restatement Contracts, Sec. 417(c). But over and above this, we think the district judge was right in holding that the credit was accepted as immediate satisfaction and discharge of the claimed liability. Restatement, Sec. 418; 1 C.J.S., Accord and Satisfaction, § 38, subsec. (b). The credit having been accepted, it becomes enforceable on ordinary principles of contract law. McCarney v. Scott, 2 Cir., 146 F.2d 624; Ferguson-McKinney Dry Goods Co. v. Garrett, Tex.Com.App., 252 S.W. 738; Wallace v. Larson, Tex.Civ.App., 199 S.W.2d 198. Cf. Restatement, supra, Sec. 419.
As to appellant’s final argument that the credit was merely an executory contract and that war frustrated and annulled it, it is quite clear that that principle, good enough where applicable, does not apply here. The principle controlling here is that a right which has become fixed prior to the war’s inception is suspended but not destroyed. Sands v. New York Life Ins. Co., 50 N.Y. 626, 10 Am.Rep. 535. There was no war at the time of the settlement, and the settlement was legal and valid when made. When the war came on, the matter had passed into the executed and finished state of an accord and a credit which had been accepted as satisfaction. There was no mistake, mutual or otherwise, about the settlement, nor was it arrived at ignorantly or under any kind of deception. The facts were fully known to plaintiff and to Asahi. They made a settlement. Asahi accepted the credit on the running account between the two as satisfaction. The settlement stands. The judgment was right. It is
Affirmed.
. This consisted of 15 successive purchase contracts for the sale of cotton to Asahi, aggregating 2800 bales, the first dated 2-28-41 for 200, the last, June 19, 1941, also for 200 bales, and the testimony of one witness for plaintiff, Robert Meyer.
Each of the 15 contracts calls for shipment of a fixed number of bales of a specified type of cotton, C. I. F., “payments to be made by cash against documents, in New York before shipment”, with an option to the buyer to call for shipment in either of two specified months, May or June, July or August.
Meyer testified in substance that the buyer never gave any specific instructions on the cotton, and that on July 26, 1941, when the freeze order of all Japanese assets in the United States was issued, plaintiff had on hand for delivery all the cotton ordered. After the freeze order was issued, Asahi and plaintiff had numerous exchanges about the shipments, ■but plaintiff could not obtain from the government the necessary license to unfreeze the contracts so that plaintiff could ship or Asahi pay.
Asahi then asserted that because of the freezing order and without fault on its part, performance on the contracts had been prevented, and, through Yamada & Co., plaintiff’s brokers in Japan, it demanded of plaintiff $25,000 for a cancellation of its contracts and release of plaintiff therefrom.
Yamada cabled plaintiff, “Asahi cancellation all open contracts require $25,-000 do your best agree balance advise you in a few days.” Asked what he understood by that cable, the witness testified. “We liad cabled them, and insisted that we bad this cotton on hand, we could not got paid for it and something had to be done because the cotton market fluctuates daily, and we were anxious to come to some kind of settlement so we could soli this cotton and protect ourselves from any decline in the market, and we understood this cable to mean that Asahi wanted $25,000 to cancel the contracts.”
Upon receipt of this cable, plaintiff cabled Yamada, “Asahi best possible $10,-000, fear further decline soon wipe out equity demand liquidation cotton on hand must resell subject immediate reply. Anxious liquidate other customers please assist us.”
In further explanation, Meyer testified that the $16,000 was arrived at by figuring the cost. Yamada in reply cabled plaintiff, “Asahi amicably settled $16,000”.
The following occurred with respect to this cable:
“Q. That is an acceptance of your offer? A. Yes.
“Q. You offered to pay $10,000 and it was accepted? A. That is right.
“Q. That was to do away with any liability you might have had? A. That is right.
“Q. Now what is the general rule of ths Cotton Exchange? If you have cotton on hand and you are unable to deliver it, what do you do? A. We would approach the buyer and come to a mutual agreement.
“Q. You would credit him or debit him depending on what the situation was? A. Yes, sir.”
The witness also testified that before freezing of the credits, other contracts with Asahi had been cancelled and plaintiff bad given credits to Asahi. Finally Meyer testified that pursuant to the Regulation of 4-10-41, plaintiff reported to the Secretary of the Treasury fourteen book accounts payable, including tbo account with Asahi.
. Camp v. Miller, 5 Cir., 280 F. 525. | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to classify the scope of this business into one of the following categories: "local" (individual or family owned business, scope limited to single community; generally proprietors, who are not incorporated); "neither local nor national" (e.g., an electrical power company whose operations cover one-third of the state); "national or multi-national" (assume that insurance companies and railroads are national in scope); and "not ascertained". | This question concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". What is the scope of this business? | [
"local",
"neither local nor national",
"national or multi-national",
"not ascertained"
] | [
3
] | songer_appel1_1_2 |
UNITED STATES of America, Plaintiff-Appellee, v. Robert R. CARRA, Defendant-Appellant.
No. 78-1363.
United States Court of Appeals, Tenth Circuit.
Argued and Submitted May 15, 1979.
Decided Aug. 3, 1979.
Rehearing Denied Sept. 10, 1979.
Tova Indritz, Asst. Federal Public Defender, Albuquerque, N. M., for defendant-appellant.
Richard J. Smith, Asst. U. S. Atty., Albuquerque, N. M. (with R. E. Thompson, U. S. Atty., Albuquerque, N. M., on the brief), for plaintiff-appellee.
Before HOLLOWAY, McKAY and LOGAN, Circuit Judges.
McKAY, Circuit Judge.
Defendant appeals his conviction on three counts of receipt of firearms by a felon and one count of making false statements in the acquisition of a firearm. He complains that the following prejudicial errors justify reversal:
1. The court failed to suppress certain evidence which was the fruit of an illegal warrantless search;
2. A second search was based on a warrant which was improperly executed and returned;
3. Certain inculpatory statements were admitted into evidence which were involuntarily made;
4. The United States Attorney was illegally vested with discretion to charge defendant with different penalties under different statutes for the same illegal conduct.
THE SEARCH
Defendant leased a fairly remote rural homesite in New Mexico. In the fenced garden area behind the house grew several vegetable crops, including marijuana. On August 29, 1977, a New Mexico narcotics agent approached this fenced area and seized a marijuana leaf. A warrant was then procured to support a mo.re extensive search. It was this subsequent search which uncovered the firearms related to the prosecution in question here. The initial search is relevant because evidence relating to firearms constituted a derivative fruit of that search.
The dispute turns entirely on whether there was sufficient evidence at the suppression hearing to show that neither the officer nor the marijuana leaf were within the curtilage of defendant’s home. While the defendant’s contrary evidence on this point was considerably more extensive than the government’s, the government’s evidence was nonetheless sufficient to support the trial court’s determination that there had been no illegal invasion of the curtilage of defendant’s premises. At the suppression hearing, the agent who seized the marijuana testified as follows:
Q Mr. Kiper, did there come a time when you received information concerning growing of a substantial marijuana crop on land that later devel- . oped, was occupied or leased or rented by a man named Robert R. Carra?
A This is correct.
Q How did you receive the information, sir? Let me put it this way: Did there come a time when you entered upon certain fields and actually took into physical custody a certain amount of plant material?
A That’s correct.
Q And can you describe exactly how you went about getting that plant material, Agent Kiper? If you feel better in drawing a chart, you certainly may be free to do so.
A After entering the property that was subleased by a doctor in Portales by the name of Buck Wilson,—
Q Did you have Dr. Wilson’s permission to do this, sir?
A Yes, and I was with him at the time.
Q Very well, sir. Go ahead.
A He took me onto the place that he had subleased. I walked to the back of the residence on his subleased property and obtained a leaflet of marijuana, which I recognized to be marijuana. I then departed that area. This leaflet was later turned over to, at that time, Sergeant Ron Walker of the Portales Police Department. He, in turn, obtained a search warrant for that area, while I maintained a surveillance by foot of that general area.
Q So the area in which you were when you picked up the marijuana leaf was in the area where 'this garden was, is that correct?
A That’s correct.
Q And there was a fence around the garden, isn’t there?
A Yes.
Q Did you reach your hand through the fence or over the fence?
A Not—
Q Marijuana was growing through the fence, is that what you’re saying?
A That’s correct.
Q But you were standing next to the fence, weren’t you?
A I was.
Q That’s the fence around this garden here.
A That’s the picture of this thing, ma’am, that’s correct.
Record, vol. 2, at 65-66, 81. This was sufficient evidence to support a trial court conclusion that Wilson, not the defendant, had subleased the premises where the officer stood when he picked the leaf. It also supports a conclusion that the leaf was protruding through the fence, beyond the cur-tilage, when it was seized. The trial court’s refusal to suppress the evidence which flowed from this incident was not error.
EXECUTION AND RETURN OF WARRANT
Appellant attacks the form but not the substance of the federal search warrant as not complying with Rule 41(c) of the Federal Rules of Criminal Procedure. The attack is two pronged: (1) that the application was made by a person not authorized by Rule 41 and, (2) that the warrant as issued directed return to the issuing judicial officer rather than a federal magistrate.
The record reveals that the warrant was issued by a state court judge based on the sworn statement of a state police officer. But the record also shows that the warrant was processed under the supervision and at the instance of a federal officer. This adequately satisfied the requirement that it be “issued upon . . . request of á federal law enforcement officer.” See United States v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965) (hypertechnical approach to search warrants inappropriate).
It is true that the issued warrant specified that it should be returned to “me” —the state court judge. The return instruction was printed on the standard warrant form employed by the judge. Had the judge stricken the word “me” and inserted “a federal magistrate,” the strictures of Rule 41(c)(1) would have been fully complied with. Nonetheless, in light of the fact that the warrant actually was returned to a federal magistrate, we are unwilling to reverse on this issue.
Other arguments relating to the execution of the warrant are asserted for the first time on appeal and do not raise issues which would rise to the level of fundamental error.
VOLUNTARINESS OF STATEMENTS
To the extent defendant claims that certain inculpatory statements were the fruit of an illegal search, that matter we have already resolved against him by upholding the search. However, defendant also claims that he was compelled to incriminate himself by coercive police conduct. Although defendant signed a statement acknowledging the “voluntary” nature of his statements, he now is understood to assert that the acknowledgment itself arose out of coercive conditions. Voluntary waiver of the right to remain silent is not mechanically to be determined but is to be determined from the totality of the circumstances as a matter of fact. See North Carolina v. Butler,—U.S.—, 99 S.Ct. 1755, 60 L.Ed.2d 286 (1979). While there was considerable force used in connection' with effecting defendant’s arrest, the government’s testimony — which was apparently believed by the trial court — indicates that it was provoked by the defendant and was reasonable under the circumstances. The evidence shows that defendant was properly informed of his rights and that his statements were sufficiently removed in time from the occasion of his forcible arrest and were given under such circumstances that the trial court had a reasonable basis for concluding that they were voluntarily made.
ILLEGAL VESTING OF DISCRETION
Defendant’s final argument is that the statutory scheme which permits the prosecutor to determine whether to prosecute the same conduct under either 18 U.S.C. § 922(h) or 18 U.S.C. App. § 1202(a), the latter of which has a lesser penalty, is unconstitutional. The matter has been expressly determined against defendant by the Supreme Court in United States v. Batchelder,—U.S.—, 99 S.Ct. 2198, 60 L.Ed.2d 755 (1979).
AFFIRMED.
. 18 U.S.C. §§ 922(h)(1), 924(a) (1976).
. 18 U.S.C. §§ 922(a)(6), 924(a) (1976).
. It was claimed that the government had stipulated that the defendant was the lessee of the land on which the officer stood; but the record does not bear out defendant’s argument on this point. The government had stipulated that if a particular witness were to testify he would testify to having rented the land in question to defendant. The stipulation did not concede that defendant leased the land. Record, vol. 2, at 25.
. In relevant part, Rule 41 provides:
. A search warrant authorized by this rule may be issued by a federal magistrate or a judge of a state court of record within the district wherein the property sought is located, upon request of a federal law enforcement officer or an attorney for the government. | What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal statute, and if so, whether the resolution of the issue by the court favored the appellant. | Did the interpretation of federal statute by the court favor the appellant? | [
"No",
"Yes",
"Mixed answer",
"Issue not discussed"
] | [
3
] | songer_fedlaw |
Harold Heath HILL; Harold C. Hill; Fred C. Hill, Appellees, v. BASF WYANDOTTE CORPORATION, Appellant.
No. 85-1162.
United States Court of Appeals, Fourth Circuit.
Argued Dec. 5, 1985.
Decided Feb. 13, 1986.
Charles E. Carpenter, Jr. (R. Davis Howser, Richardson, Plowden, Grier & Howser on brief), for appellant.
William P. Donelan, Jr. (Donelan & Donelan on brief), for appellees.
Before SPROUSE and ERVIN, Circuit Judges, and MOTZ, United States District Judge for the District of Maryland, sitting by designation.
MOTZ, District Judge:
This case has a long history. It involves damage to the 1977 soybean crop of Harold Heath Hill, Harold C. Hill and Fred C. Hill caused by the use of Basalin, a herbicide manufactured by BASF Wyandotte Corporation (“BWC”). The first trial resulted in the declaration of a mistrial when the jury was unable to reach a verdict. A second trial resulted in a judgment in favor of the Hills in the amount of $207,725. On appeal, this Court reversed that judgment, holding that the district court erred (a) in ruling that an oral representation made by a sales agent of BWC constituted an express warranty, and (b) in not giving effect to a disclaimer of consequential damages made by BWC. Hill v. BASF Wyandotte Corp., 696 F.2d 287 (4th Cir.1982). We left open the question of how damages were to be measured. Id. at 292, n. 6.
Upon remand the district court certified the question of the proper measure of damages to the South Carolina Supreme Court. The Supreme Court ruled that the measure of damages in a case such as this is “the value ... [plaintiff s] crop would have had if the product [manufactured by defendant] had conformed to the warranty less the value of the crop actually produced, less the expense of preparing for market the portion of the probable crop prevented from maturing.” Hill v. BASF Wyandotte Corp., 280 S.C. 174, 311 S.E.2d 734, 736 (1984). The case was then retried, and the jury returned a verdict in the amount of $148,625 in favor of the Hills. This appeal followed. On this occasion we affirm.
BWC first argues that the evidence was insufficient to sustain the jury’s finding that the Basalin used by the Hills was defective. The standards governing sufficiency of the evidence questions have recently been recited by this court. See Whalen v. Roanoke County Board of Supervisors, 769 F.2d 221 (4th Cir.1985). “[W]hen a jury is called upon to determine causation, the inferences it draws to reach its verdict must be reasonably probable; mere speculation is insufficient.” Id. at 224 (citing Lovelace v. Sherwin-Williams Co., 681 F.2d 230, 241-42 (4th Cir.1982)). However, the court may not pass on the credibility of witnesses or substitute its judgment of the facts for that of the jury. Ralston Purina Co. v. Edmunds, 241 F.2d 164, 167 (4th Cir.1957). The party whose evidence is challenged must be given the benefit of all reasonable inferences from the evidence. Id.; see also Abasiekong v. City of Shelby, 744 F.2d 1055, 1059 (4th Cir.1984); 9 Wright and Miller, Federal Practice and Procedure, Section 2524 at 543-45 (1971).
In this case the evidence that the Basalin was defective was circumstantial. It was, however, sufficiently probative. The Hills demonstrated, by way of testimony, documentary evidence and aerial photographs, that they had different yields from different soybean fields on their farm even though the fields were both planted, cultivated and harvested in the same manner. One portion of the fields was treated with Basalin, the other with Treflan, another herbicide. The varieties of the beans planted in the fields were the same and weather conditions were comparable. Further, the Basalin was shown to have been applied correctly and the farming methods used on the different fields were the same. The Hills’ evidence also demonstrated why they were unable to produce at trial a sample of the Basalin in order to prove that its chemical properties might not have been as warranted by BWC. The can containing the Basalin had been buried underground after it was applied in accordance with BWC’s own instructions on the label.
BWC next argues that the evidence was insufficient to support an award of damages. This argument is equally unavailing. Harold Heath Hill testified as to the number of bushels of soybeans which he estimated were lost because of the use of the Basalin. John W. Riser, the County Extension Agent for Richland County, confirmed that an experienced farmer such as H.H. Hill could reasonably estimate the probable yield of his crops by surveying them. H.H. Hill also testified to the price which the Hills would have received from the sale of the soybeans destroyed by the Basalin and to the difference in price which the Hills received from soybeans grown in the Basalin fields which were harvested but were of a lesser quality than the beans harvested from the Treflan fields. Finally, he testified as to the cost which the Hills would have had to incur to prepare for market the soybeans destroyed by the use of the Basalin. In sum, H.H. Hill’s testimony addressed each of the elements of the measure of damages enunciated by the South Carolina Supreme Court in response to the question certified to it by the district court. He was subjected to close cross-examination on all of the matters as to which he testified, and the verdict — which was in a precise dollar amount substantially less than the Hills requested — demonstrated that the jury independently and carefully evaluated the evidence.
BWC finally contends that the district court erred in permitting Harold C. Hill and Fred Hill to be joined as plaintiffs after the evidence was closed. The reason for their joinder was that they owned part of the acreage on the Hill farm. From the outset of this protracted litigation it has been known that the farming of the Hills’ land was a family operation, managed by Harold Heath Hill. He was the one responsible for actually running the farm, and he had all of the contacts with the representatives of BWC. When he instituted this suit, he obviously did so on behalf of his father and his brother as well as himself. There can be no question from the evidence that they were fully aware of his actions and that they ratified them.
No unfair prejudice resulted to BWC from the joinder. BWC was aware long before trial of the precise ownership interests of each of the Hills in the fields in question. The addition of H.C. Hill and Fred Hill as plaintiffs simply conformed the pleadings to the evidence in accord with the spirit and the letter of Rules 15 and 17 of the Federal Rules of Civil Procedure. See, e.g., Hess v. Eddy, 689 F.2d 977 (11th Cir.1982); 6 Wright and Miller, Federal Practice and Procedure, Section 1541 at 637 (1971);. cf. Leachman v. Beech Aircraft Corp., 694 F.2d 1301, 1309 (D.C.Cir. 1982); Campus Sweater & Sportswear v. M.B. Kahn Construction Co., 515 F.Supp. 64 (D.C.S.C.1979), aff'd 644 F.2d 877 (4th Cir.1981). The joinder was therefore proper:
AFFIRMED. | What follows is an opinion from a United States Court of Appeals. Your task is to determine the nature of the proceeding in the court of appeals for the case, that is, the legal history of the case, indicating whether there had been prior appellate court proceeding on the same case prior to the decision currently coded. Assume that the case had been decided by the panel for the first time if there was no indication to the contrary in the opinion. The opinion usually, but not always, explicitly indicates when a decision was made "en banc" (though the spelling of "en banc" varies). However, if more than 3 judges were listed as participating in the decision, code the decision as enbanc even if there was no explicit description of the proceeding as en banc. | What is the nature of the proceeding in the court of appeals for this case? | [
"decided by panel for first time (no indication of re-hearing or remand)",
"decided by panel after re-hearing (second time this case has been heard by this same panel)",
"decided by panel after remand from Supreme Court",
"decided by court en banc, after single panel decision",
"decided by court en banc, after multiple panel decisions",
"decided by court en banc, no prior panel decisions",
"decided by panel after remand to lower court",
"other",
"not ascertained"
] | [
6
] | songer_method |
Charles BAER, Appellant, v. Joseph W. SANFORD, Warden, U. S. Penitentiary, Atlanta, Ga., Appellee.
No. 11568.
Circuit Court of Appeals, Fifth Circuit.
May 16, 1946.
No appearance for appellant.
M. Neil Andrews, U. S. Atty., and Harvey H. Tisinger and John J. Flynt, Jr., Asst. U. S. Attys., all of Atlanta, Ga., for appellee.
Before HUTCHESON, HOLMES, and LEE, Circuit Judges.
PER CURIAM.
Zerbst v. Kidwell, 304 U.S. 359, 58 S.Ct. 872, 82 L.Ed. 1399, 116 A.L.R. 808, rules this case. On its authority the judgment appealed from is 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"
] | [
2
] | songer_habeas |
Doris L. GARDINER, Appellant, v. UNITED STATES of America, Appellee.
No. 17719.
United States Court of Appeals District of Columbia Circuit.
Argued July 26, 1963.
Decided Aug. 15, 1963.
Mr. Henry Lincoln Johnson, Jr., Washington, D. C., (appointed by the District Court) for appellant.
Mr. Barry Sidman, Asst. U. S. Atty., with whom Messrs. David C. Acheson, U. S. Atty., and Frank Q. Nebeker and Frederick G. Smithson, Asst. U. S. Attys., were on the brief, for appellee.
Before WiLbur K. Miller, Washington and Danaher, Circuit Judges.
PER CURIAM.
The appellant, Doris Gardiner, was convicted under fifteen counts of an indictment charging as many violations of the narcotics laws. Shortly theretofore she had served part of a sentence for similar offenses. Her plea that she was entrapped by federal narcotics agents into selling large quantities of heroin to one of them on several different occasions was submitted to and rejected by the jury.
On appeal, she argues inter alia, that there was entrapment as a matter of law. The point is without substance. There was hardly enough evidence to justify submitting the question of entrapment to the jury.
She also contends that a confession was obtained from her in violation of the Supreme Court’s Mallory ruling. Appellant was arrested at 4:45 p.m. March 8,1962. She was taken to the office of the Federal Bureau of Narcotics for booking and routine processing, arriving there at 5:00 p. m. Within minutes thereafter, while a line-up sheet was being prepared, she began a somewhat lengthy oral statement, admitting the offenses with which she was charged. She was advised that she did not have to make a statement, and was not threatened, coerced, intimidated or abused in any way. In these cirmumstances, appellant’s threshold confession was not obtained in violation of Criminal Rule 5(a) and was properly admitted into evidence. See Jackson v. United States, 114 U.S.App.D.C. 181, 313 F.2d 572, 575 (1962), where we said, “The critical period is that between arrest and confession. 'Detention after a confession plainly does not affect its admissibility. United States v. Mitchell, 1944, 322 U.S. 65, 64 S.Ct. 896, 88 L.Ed. 1140.’ Metoyer v. United States, 102 U.S.App.D.C. 62, 65 n. 4, 250 F.2d 30, 33 n. 4 (1957). * * ”
Other points pressed on appeal do not seem to us to require discussion.
Affirmed.
. Cf. Lopez v. United States, 373 U.S. 427, 434, 436, 83 S.Ct. 1381, 10 L.Ed.2d 462 (1963).
. Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479 (1957). | 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"
] | [
1
] | songer_appel1_7_5 |
Stanley Eugene CRAWFORD, Appellant, v. UNITED STATES of America, Appellee.
No. 74-1008.
United States Court of Appeals, Fourth Circuit.
Argued March 6, 1975.
Decided July 15, 1975.
Thomas B. Anderson, Jr. [court-appointed] Durham, N. C. (Loflin, Anderson & Loflin, Durham, N. C., on brief) for appellant.
N. Carlton Tilley, Jr., U. S. Atty. (V. Edward Jennings, Jr., Asst. U. S. Atty., on brief) for appellee.
Before WINTER, CRAVEN and RUSSELL, Circuit Judges.
WINTER, Circuit Judge:
Stanley Eugene Crawford appeals from the summary denial of his motion under 28 U.S.C. § 2255. He sought to strike out his convictions upon his pleas of guilty to two charges of violating subsections (d) and (e) of 18 U.S.C. § 2113 (armed bank robbery and kidnapping in perpetration of bank robbery) on the grounds that (a) his pleas of guilty were not knowingly and understandingly made, and (b) he had been improperly sentenced upon both counts of the indictment because § 2113 states a single offense, with various degrees of aggravation, permitting a sentence of increasing severity, but not multiple sentences.
We conclude that the district court was correct in its summary denial of Crawford’s motion to strike his sentence and that Crawford was not entitled to an evidentiary hearing. We also conclude that Crawford’s sentence for violating 18 U.S.C. § 2113(d) should not be stricken. In our view, he committed two separate crimes, each of which warranted separate punishment. His conviction for commission of the less aggravated crime did not merge into his conviction for commission of the more aggravated one. We therefore affirm.
I.
Crawford’s attacks on the voluntariness of his plea were set forth in his answer to the question posed in the district court’s prescribed form for a motion under 28 U.S.C. § 2255. The question required a concise statement of “every ground” on which it was claimed that the sentence should be vacated and set aside. Crawford responded (sic):
Court appointed attorney lied to me, He told me to plead guilty and I would receeve a total of 20 to 30 yrs with an 4208.A2 number.
My attorney was totaly incompetent, He did not talk to me over 30 minutes Total before trial
He said if I were guilty or not guilty, I would still be found guilty & he scared me into pleading guilty with lies & threats.
I was deprived my right to a fair trial because of the incompentent of my attorny plus his lies in the plea bargaining. Santabello vs. United States
I was under medication, after re-cieving a severe beating, from the police & was still suffering mentally the day we went to trial.
Under these condition, petitioner was denied his right to a fair trial.
Of course, if true, these allegations, or some of them, would entitle Crawford to relief, but, by the statute itself, the district court was authorized to deny the motion if “the files and records of the case conclusively show that the prisoner is entitled to no relief.” 28 U.S.C. § 2255. See Machibroda v. United States, 368 U.S. 487, 82 S.Ct. 510, 7 L.Ed.2d 473 (1962). There can be no question but that Crawford’s arraignment and the proceedings under Rule 11, F.R.Crim.P., are part of the “records” of the case. McCarthy v. United States, 394 U.S. 459, 467, 89 S.Ct. 1166, 1171, 22 L.Ed.2d 418 (1969), teaches that one of the reasons for requiring a district court to comply strictly with Rule 11 is to facilitate the “determination in any subsequent post-conviction proceeding based upon a claim that the plea was involuntary.” Accordingly, we adopt the rule that the accuracy and truth of an accused’s statements at a Rule 11 proceeding in which his guilty plea is accepted are “conclusively” established by that proceeding unless and until he makes some reasonable allegation why this should not be so. Stated otherwise, we hold that a defendant should not be heard to controvert his Rule 11 statements in a subsequent § 2255 motion unless he offers a valid reason why he should be permitted to depart from the apparent truth of his earlier statement.
Thus, the district court was not required to conduct an evidentiary exploration of the truth of an allegation in a § 2255 motion which amounted to no more than a bare contradiction of statements made by Crawford when he pleaded guilty. Of course the allegations in a given case may go beyond the subjects covered in the Rule 11 inquiry; and if the accused has waived counsel at the taking of his plea, his Rule 11 statements may be less conclusive than if he had been represented. See Fontaine v. United States, 411 U.S. 213, 93 S.Ct. 1461, 36 L.Ed.2d 169 (1973). In either event, an evidentiary hearing is required. But here, Crawford was represented by counsel and his allegations do not extend beyond the matters about which he was interrogated at his arraignment.
As we have noted, the files and records of the case belie Crawford’s claim of incompetence of his eourt-ap-pointed attorney, and his allegations about “medication” and a “severe beating” are too general to warrant hearing. Moreover, with respect to “medication,” Crawford was asked at his arraignment if he was under the influence of any “drug or beverage” and he replied in the negative.
The files and records of the case also refute Crawford’s present allegations that his attorney “lied” to him about the sentence he would receive, that the attorney “scared me into pleading guilty with lies and threats,” and that the attorney lied about “plea bargaining.” Taken collectively, these allegations may be read to say either that there was a plea bargain (the substance of which and whether fully performed being unal-leged) to induce a plea of guilty, or, if no plea bargain, that there were improper representations, or threats, or both, by court-appointed counsel to induce a guilty plea.
At the Rule 11 proceedings, the district judge explained to Crawford the maximum penalty which could be imposed on him if his guilty plea were accepted. Having received that advice and having acknowledged that he understood it, the following questioning was conducted:
THE COURT: Has any officer or agent of any branch of Government, either federal, state or local, or any other person, made any threat, promise or suggestion of any kind to you, or with your knowledge to anyone else, to induce you to enter a plea of “guilty”? (Emphasis added.)
DEFENDANT CRAWFORD: No.
THE COURT: It is possible that your attorney has talked with the United States Attorney or some member of his staff about a recommendation in connection with the case. It’s all right for them to talk in that respect and to agree, but it would be improper for me to enter into the agreement not having heard the case, and I have not. We call it plea bargaining. Do you understand that if they have made some commitment as between themselves that the Court is not bound by any commitment that they made one with the other?
DEFENDANT CRAWFORD: RightL
THE COURT: Are you entering your plea of guilty because you are in fact guilty of the crime or crimes charged?
DEFENDANT CRAWFORD: Yes.
******
THE COURT: Has anyone promised you that you would receive a lighter sentence, or probation, or any other form of leniency if you would plead “guilty”?
DEFENDANT CRAWFORD: No.
It is unnecessary to consider whether there could or could not have been a plea bargain (even though Crawford’s counsel denied it), or to speculate as to what advice Crawford’s counsel gave Crawford and whether it was proper. The fact is that Crawford said that he understood that a plea bargain was not binding on the court and twice he said that no one (which, of course, includes his lawyer) made any threats, promises or suggestion of any kind to him or to anyone else, or any promises of leniency to induce a plea of guilty. We hold Crawford to his answers given to the court in response to its questions.
Of course the accused may not always answer the court’s interrogation in a Rule 11 proceeding with complete candor. The accused may be fearful that full disclosure would jeopardize the bargain, Walters v. Harris, 460 F.2d 988, 993 (4 Cir. 1972). He may be overwhelmed by his desire to have his plea accepted. He may have been advised to give answers that the court would require in order to accept the plea, rather than those which reflected the truth. But there is no need for us to question the accuracy of the Rule 11 answers in any case, unless and until an accused alleges reasons why we should do so. There is no need to question the accuracy of Crawford’s Rule 11 answers in this case; if there is a valid reason to do so, Crawford may assert it in another motion under § 2255. Overall, we conclude that Crawford’s allegations, when considered in the light of, and compared with, the court’s records and files, were insufficient to warrant an evidentiary hearing.
II.
There is conflict among the circuits as to whether the offense of bank robbery as defined in 18 U.S.C. § 2113(d) merges into the offense of bank robbery as defined in 18 U.S.C. § 2113(e), when both are committed as part of a single transaction. Briefly stated, § 2113(d) outlaws bank robbery of any degree by one who “assaults any person, or puts in jeopardy the life of any person by the use of a dangerous weapon or device,” and prescribes a maximum penalty of $10,000 fine and imprisonment of twenty-five, years. Section 2113(e) outlaws bank robbery of any degree by one who “in committing . . . [the] offense . . or in avoiding or attempting to avoid apprehension for the commission of such offense, or in freeing himself or attempting to free himself from arrest or confinement for such offense, kills any person, or forces any person to accompany him without the consent of such person,” and prescribes a minimum penalty of ten years and a maximum penalty of life imprisonment. We have not heretofore decided the question of whether these offenses merge, although broad language in Walters v. Harris, supra, where we held that offenses under §§ 2213(a) and 2213(d) merged, is relied on to indicate that merger between §§ 2113(d) and 2113(e) also occurs.
Sullivan v. United States, 485 F.2d 1352 (5 Cir. 1973), is a good example of a case in which the merger doctrine was applied to offenses under §§ 2113(d) and 2113(e). We, however, find United States v. Parker, 283 F.2d 862 (7 Cir. 1960), cert. denied, 366 U.S. 937, 81 S.Ct. 1663, 6 L.Ed.2d 848 (1961), and Clark v. United States, 281 F.2d 230 (10 Cir. 1960), more persuasive. See also United States v. Faleafine, 492 F.2d 18, 24-25 (9 Cir. 1974). These cases establish that, when the kidnapping or murder occurs as part of the commission of the crime of bank robbery, the offenses of lesser forms of bank robbery, including bank robbery with a dangerous weapon, merge into the former. But when the kidnapping or murder occurs either in avoiding apprehension for the commission of bank robbery, or in escape from arrest or confinement for the commission of bank robbery, the murder or kidnapping are separate offenses from the crime of bank robbery and do not merge into it. This is the rule we adopt; and when we apply it to the facts of the instant case, we are led to the conclusion that Crawford was guilty of two crimes — bank robbery with a deadly weapon, and kidnapping to avoid apprehension for bank robbery — and upon his pleas of guilty was properly separately sentenced on each.
Crawford and a co-defendant robbed the Wachovia Bank and Trust Company in Greensboro, North Carolina, of over $76,000 on November 14, 1972. In committing the robbery, Crawford used a knife to threaten bank employees, while his co-defendant used a pistol. A silent alarm alerted authorities before the two could make their getaway. After unsuccessful negotiations with the police, the two took five bank employees and a bank customer as hostages — the same persons who had been intimidated and whose lives had been threatened by use of deadly weapons. Crawford and the co-defendant demanded that a plane be made available to them, and with their hostages they fled in a bank employee’s car to the High Point-Greensboro Airport. At the airport, the police said that a plane would not be supplied, so Crawford and the co-defendant turned and headed to the Winston-Salem Airport at speeds of 80 to 90 miles an hour. Determined to stop the bandits, the police set up a roadblock on Interstate 85. When ¡Crawford and his co-defendant attempted to turn the car to avoid the roadblock, they were run off the road by the police, who apprehended them both.
Thus, we think that Crawford had committed armed bank robbery before the hostages were taken. Thereafter he committed the separate crime of kidnapping to avoid apprehension for bank robbery. Upon his pleas of guilty, he was properly sentenced for each.
Affirmed.
. Crawford makes some other claims with reference to the validity of his pleas, but they are of little moment and without merit. He asserts, for instance, that his counsel was “incompetent” and talked with him for no more than thirty minutes. The official record shows, however, that Crawford’s counsel moved for and was given access to the government’s file, which he received. The evidence of Crawford’s guilt was conclusive. He and his confederate were caught “red-handed.” There was no dispute over guilt. Crawford freely conceded his guilt. He could ill have denied it when caught in the car in which he and his confederate had abducted the hostages taken at the bank robbery. The only course open to his counsel was a plea for mercy. In support of this, Crawford’s counsel secured and produced a large number of character witnesses and members of Crawford’s family. He could only have done this after consulting with Crawford and members of his family. He did all that could reasonably be expected of him under the circumstances where Crawford’s guilt was unassailable. The official record refutes conclusively any claim of ineffective assistance of counsel.
At his sentencing, Crawford denied he was under the influence of any drugs. In his petition, he states merely that he was “under medication.” He does not claim such medication interfered in any way with his mental faculties. And so far as personal injuries sustained at the time of the robbery are concerned, Crawford and his counsel both affirmed such injuries were physical and not mental, and Crawford advised the court he was “making no contention” of mental incapacity to present his “side of the case.” Any suggestion in Crawford’s brief that his plea was connected in any way with mental incapacity, whether induced by “medication” or produced by physical injuries, was too devoid of substance to justify an evidentiary hearing.
. See also Fontaine v. United States, 411 U.S. 213, 93 S.Ct. 1461, 36 L.Ed.2d 169 (1973); Raines v. United States, 423 F.2d 526 (4 Cir. 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 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_genapel1 |
BARNES v. UNITED STATES.
No. 14179.
United States Court of Appeals, Ninth Circuit.
Aug. 13, 1954.
James H. Garcia, Albert M. Garcia, Phoenix, Ariz., for appellant.
Jack D. H. Hays, U. S. Atty., William A. Holohan, Asst. U. S. Atty., Phoenix, Ariz., for appellee.
Before DENMAN, Chief Judge, and BONE and ORR, Circuit Judges.
BONE, Circuit Judge.
This is an appeal from a verdict of guilty on four counts charging appellant with bringing into the United States certain aliens who had not been duly admitted by an immigration inspector of the United States. The questions presented are (1) whether the evidence was sufficient to sustain a verdict of guilty and (2) whether the lower court erred in admitting testimony of conversations conducted in Spanish as against appellant who could not understand that language.
Although there was some conflict in the evidence, the jury resolved these conflicts against appellant and chose to follow appellee’s view of the evidence. The aliens who were illegally brought into this country testified that they were approached in the town of Mexicali by one Raul. (Appellant testified that Raul was with him on this trip to Mexico.) Raul brought the witnesses to appellant and another man, where they negotiated and planned entry for these aliens, into the United States, for a price to be paid to the Americans. Raul acted as translator in all of the communications between the Mexicans and the Americans. Later Barnes and the other American drove the Mexicans to San Luis, Mexico, and obtained some money from the Mexicans. The Mexicans were driven across the international boundary at a place other than the legal place of entry. Appellant drove one of the cars as far as San Luis, and was with the group again on the United States side of the boundary, in Yuma, Arizona.
Notwithstanding some conflicts in evidence, and appellant’s own testimony which is in direct conflict, there is ample evidence, aside from evidence of conversations, which supports the verdict of guilty.
The evidence of conversations carried on between Raul and the Mexicans, in Spanish, was not objected to at the trial on the ground here urged, i. e., that appellant cannot be bound by a conversation which he cannot understand. Since the trial court was not given an opportunity to correct any error which was present in this situation, we would not ordinarily consider the point here. Federal Rules of Criminal Procedure, Rules 51 and 52(a), 18 U.S.C.A. However, appellant urges that substantial injustice will result if he is not permitted to raise this point, for the first time, under Federal Rules of Criminal Procedure, Rule 52(b).
Appellant brought the interpreter into Mexico and was satisfied to have Raul, his own companion, act as interpreter. He made no effort at the trial to show why be should not be bound by that interpreter. Moreover, the entire record (even excluding the testimony as to what was said) contains sufficient proof that appellant participated and was paid for his part in the illegal bringing of aliens into the United States. However, we have considered the error here urged and we cannot agree that the admission of the testimony introduced any substantial prejudice against appellant. Federal Rules of Criminal Procedure, Rule 52 (b); United States v. Kirby, 2 Cir., 1949, 176 F.2d 101; Himmelfarb v. United States, 9 Cir., 1949,175 F.2d 924; Smith v. United States, 9 Cir., 1949, 173 F.2d 181; Samples v. United States, 5 Cir., 121 F.2d 263.
Judgment affirmed. | 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"
] | [
1
] | songer_two_issues |
JONES v. COMMONWEALTH OF KENTUCKY.
No. 7978.
Circuit Court of Appeals, Sixth Circuit.
June 8, 1938.
Perry B. Miller, of Louisville, Ky. (Perry B. Miller, of Louisville, Ky., and Arthur Rhorer, of Middlesboro, Ky., .on the brief), for appellant.
A. E. Funk, of Frankfort, Ky. (Hubert Meredith, of Greenville, Ky., and A. E. Fu'nk, of Frankfort, Ky., on the brief), for appellee.
Before HICKS, SIMONS, and ALLEN, Circuit Judges.
SIMONS, Circuit Judge.
The appellant was convicted of murder and sentenced to death by a Kentucky court. Having exhausted local remedies by way of petition for new trial, appeal, petitions for writ of habeas corpus and for writ of coram nobis, he challenged the manner of conviction as impairment of his right to due process under the Constitution of the United States (Amendment 14) by petition for writ of habeas corpus in the United States District Court.
The Attorney General of Kentucky, after “giving the matter more than ordinary consideration,” is “strongly inclined to the view that Tom Jones was convicted on perjured testimony.” The Court of Appeals of Kentucky, suppressing “sympathy for him, because of his unfortunate predicament,” relegated him to his last and final remedy of an appeal for clemency, although we are told, without contradiction, that it is public information that the Governor of the Commonwealth conceives himself bound by a pledge not to exercise the pardoning power. The United States District Judge, now a judge of this court, seemingly convinced that appellant’s constitutional rights were impaired and that his conviction was procured by perjured testimony, questioned the power and propriety of a single district judge to reverse the decision of the highest court of the state, and with commendable restraint, contented himself with the issuance of a certificate of probable cause to permit decision by a court clothed with greater authority. And so, unless there is power here to relieve the appellant from a result the injustice of which is so strongly suggested, and impairment of constitutional rights is so clear as to call for its exercise, the man must die.
The appellant was indicted November 4th on the charge of murder for the killing of his wife with a pistol on October 30th. On Friday, November 8th, he was arraigned, pleaded not guilty, counsel was appointed for him, and trial was set for Tuesday, November 12th. Though the case was not reached until Thursday, November 14th, counsel was obliged to remain in court subject to call.' Excluding Sunday, November 10th, three days were thus left for the preparation of the defense. Motion for a ten-day continuance, supported by affidavits, was denied. No one had seen the shooting. The principal witnesses for the commonwealth were a six year old girl, who testified as to a threat of killing by the appellant, and a woman of ill repute, who testified to the slain woman’s dying declaration. The defense was that the pistol was discharged in a scuffle for its possession when the wife threatened her own life. Newly discovered evidence offered to the state courts, in support of the several petitions thereto addressed, casts grave doubt upon the competency and freedom from duress of one and upon the veracity of both of the prosecution’s principal witnesses. The court below, and the Attorney General of Kentucky, who cross-examined the witnesses on the first habeas corpus petition, were obviously impressed by the new evidence. The statement of the latter to the Court of Appeals of Kentucky is printed at length in the margin. Thrice in this court does he repeat his doubt of the justice of the judgment. The Kentucky court did not directly pass upon the newly discovered evidence, basing its denial of the writs of habeas corpus and coram nobis on jurisdictional grounds. Jones v. Commonwealth, 267 Ky. 465, 102 S.W.2d 345; Id., 269 Ky. 772, 108 S.W.2d 812; Id., 269 Ky. 779, 108 S.W.2d 816. It is clear from the record below that none of the new evidence was known to the appellant or his counsel at the time of the trial, and it is likewise clear that much of it would have been discovered had a reasonable continuance been granted for the purpose of preparing a defense and had the trial been held in the division of the judicial district where the crime was alleged to have been committed and where the appellant lived.
The writ of habeas corpus in the present case was presented to the court below in pursuance of section 453, T. 28, U.S.C., 28 U.S.C.A. § 453, and the appeal from its denial is entertained under section 466 of the same title, 28 U.S.C.A. § 466. We are not insensible to the extraordinary nature of the writ and the caution that must be exercised in granting it where, as here, the petitioner has been denied relief by the courts of the state. Frank v. Mangum, 237 U.S. 309, 326, 35 S.Ct. 582, 59 L.Ed. 969; Ashe v. United States, 270 U.S. 424, 425, 46 S.Ct. 333, 334, 70 L.Ed. 662; Bard v. Chilton, 6 Cir, 20 F.2d 906. It is not a substitute for appeal, Knewel v. Eagan, 268 U.S. 442, 45 S.Ct. 522, 69 L.Ed. 1036, and errors of law upon the trial are not through it subject to review. Frank v. Mangum, supra. But the complaint here is not the commission of mere error, “but of a wrong so fundamental that it [must make] the whole proceeding a mere pretense of a trial and [render] the conviction and sentence wholly void.” Brown v. Mississippi, 297 U.S. 278, 286, 56 S.Ct. 461, 465, 80 L.Ed. 682; Moore v. Dempsey, 261 U.S. 86, 91, 43 S.Ct. 265, 67 L.Ed. 543. It is true that the trial court recognized its duty to assign counsel as a necessary requisite of due process of law. But “that duty is not discharged by an assignment at such a time or under such circumstances as to preclude the giving of effective aid in the preparation and trial of the case.” Powell v. Alabama, 287 U.S. 45, 71, 53 S.Ct. 55, 65, 77 L.Ed. 158, 84 A.L.R. 527 (the first Scotts-boro case). It is likewise true that three days were available to counsel within which to make an investigation and to prepare for defense. But when we take into consideration that this was a capital case, that the defendant was in jail and unable to himself give assistance, that the trial was to be held at a distance from the place where the crime was committed, and that counsel brought to the attention of the court by motion and supporting affidavits his inability to properly prepare for trial within the time, we think it must be concluded that the constitutional right of the defendant to be heard by counsel as a necessary requisite of due process of law had not been preserved to him.
It is, of course, perfectly true, as noted in Powell v. Alabama, supra, that great and inexcusable delay in the enforcement of the criminal law has been a serious evil of the times and has brought the administration of the criminal laws into disrepute. But we progress little if freeing the administration of justice from one evil we permit it to become enmeshed in a second, and in our effort to achieve promptness go forward with such haste as to close the door upon the “calm spirit of regulated justice.”
Nor are constitutional safe-guards maintained or respect for the judicial process promoted by convictions secured on perjured testimony. If the new evidence offered in the present case is to be given any credence, and credible it appeared to the chief law officer of Kentucky, who had opportunity to cross-examine the witnesses, and to the United States District -Judge, there' is reason to believe that the conviction here assailed was so secured. This is not in criticism of the Attorney General, for its infirmity was not disclosed to him until after the conviction, though it might well have been discovered had reasonable opportunty for investigation been accorded the defendant and his counsel.
The concept of due process as it has become crystallized in the public mind and by judicial pronouncement, is formulated in Mooney v. Holohan, 294 U.S. 103, 112, 55 S.Ct. 340, 341, 342, 79 L.Ed. 791, 98 A.L.R. 406. Its requirement in safe-guarding the liberty of the citizen against deprivation through the action of the state embodies those “fundamental conceptions of justice which lie at the base of our civil and political institutions,” referred to in Hebert v. Louisiana, 272 U.S. 312, 316, 317, 47 S.Ct. 103, 71 L.Ed. 270, 48 A.L.R. 1102. This requirement cannot be satisfied “By mere notice and hearing^ if a state has contrived a conviction through the pretense of a trial which in truth is but used as a means of depriving a defendant of liberty through a deliberate deception of court and jury by the presentation of testimony known to be perjured. Such a contrivance by a state to procure the conviction and imprisonment of a defendant is as inconsistent with the rudimentary demands of justice as is the obtaining of a like result by intimidation.” If it be urged that the concept thus formulated but condemns convictions obtained by the state through testimony known by the prosecuting officers to have been perjured, then the answer must be that the delineated requirement of due process in the Mooney 'Case embraces no more than the facts of that case require, and that “the fundamental conceptions of justice which lie at the base of our civil and political institutions” must with equal abhorrence condemn as a travesty a conviction upon perjured testimony if .later, but fortunately not too late, its falseness is discovered, and that the state in the one case as in the other is required to afford a corrective judicial process to remedy the alleged wrong, if constitutional rights are not to be impaired. „
The judicial processes of the state have here been vainly invoked. The court below stayed its hand until they had been given full opportunity to function. Even then it was thought wiser to have the clearly indicated relief sanctioned by a three judge reviewing court than to have responsibility for setting aside a state court judgment assumed by a single judge of an inferior Federal court. Considerations of delicacy and propriety need no longer deter amelioration. The appellant is not to be sacrificed upon the altar of a formal legalism too literally applied when those who from the beginning sought his life in effect confess error, when impairment of constitutional right may be perceived, and the door to clemency is closed.
The order dismissing the writ is set aside, and the cause is remanded to the District Court with instructions to discharge the appellant from custody, without prejudice to the right of the commonwealth to take such other proceedings according to law as are consistent herewith.
Reversed.
“Hyperteehnical reasons for overruling the petition for rehearing in the instant case might be found and urged with considerable plausibility were we disposed to restrict our inquiry to the narrow bounds of purely technical considerations. With all the difficulty we have experienced in this case, and realizing that a human life is involved, we do not feel disposed to ask for a strict application of narrow and technical rules, but request rather that the ease be considered from the broad standpoint of right and justice. We have been constrained to take this position primarily upon the doubt that we entertain concerning Tom Jones’ guilt which has arisen upon a careful consideration of newly discovered evidence. If this newly discovered evidence is to be believed, then Tom Jones was convicted by perjured testimony. There is no logic or rule of law known to us whereby the infliction of the death penalty, or in fact any other punishment, upon perjured testimony can be justified. It will be remembered that one of the two witnesses whom it is claimed gave manufactured, or perjured, testimony was an infant who contradicted herself in her version of the affair and whom the newly discovered evidence convicted to perjury.
“The other was a woman of ill repute and who was not present and did not know of any of the things she testified to, according to the newly discovered evidence. We have found nothing in the record that indicates that the persons who made the affidavits and gave the newly discovered evidence were biased or interested or telling an untruth. They at least stand as fair as the two witnesses whom they contradicted and convict of giving perjured testimony at the trial. Their testimony was' sufficient to convince Judge Hamilton that Tom Jones had been convicted on perjured testimony. Having the knowledge of the record, and the high regard for Judge Hamilton that we have, we are strongly inclined to the view that Tom Jones was convicted on perjured testimony. We may be in error, but this is our feeling after giving the matter more than ordinary consideration; and, feeling this way, we cannot ask the court to let the judgment of conviction stand or to allow the judgment to be carried into execution.” | What follows is an opinion from a United States Court of Appeals.
Your task is to identify the most frequently cited federal rule of criminal procedure in the headnotes to this case. Answer "0" if no federal rules of criminal procedure are cited. For ties, code the first rule cited. | What is the most frequently cited federal rule of criminal procedure in the headnotes to this case? Answer with a number. | [] | [
0
] | songer_crmproc1 |
WESTERN UNION TELEGRAPH CO. v. WILCOX et al.
No. 10555.
Circuit Court of Appeals, Eighth Circuit.
Aug. 7, 1936.
Ralph T. Finley and Lon O. Hocker, both of St. Louis, Mo. (James C. Jones and Frank H. Sullivan, both of St. Louis, Mo., Francis R. Stark and Robert C. Barnett, both of New York City, and Jones, Hocker, Gladney & Jones and Sullivan, Reeder & Finley, all of St. Louis, Mo., on the brief), for appellant.
James L. HornBostel, of Jefferson City,. Mo. (Roy McKittrick, of Jefferson City, Mo., on the brief), for appellees.
Before STONE, WOODROUGH, and THOMAS, Circuit Judges.
WOODROUGH, Circuit Judge.
The Western Union Telegraph Company brought this suit in equity against members and the secretary of the Missouri state tax commission and the state auditor to enjoin the certification to the various counties in the state for taxation purposes of an alleged excessive and discriminatory assessment of the company’s property as of June 1, 1932. Injunction was denied after trial of the issues in the District Court, and the company has appealed. Diversity of citizenship and jurisdictional amount in controversy were shown; also want of adequate remedy at law; and no question is presented here as to the form of the suit or the sufficiency of the petition.
It appears that under the laws of Missouri the state tax commission is charged with the duty of originally assessing for taxation the property of telegraph companies such as the plaintiff on the basis of its true value in money in the same proportion as other property is assessed; said assessment being subject to equalization by the state board of equalization. The telegraph company pleaded that, although the true value of its property within the state did not exceed the sum of $4,300,000, the tax commission, at first tentatively and then, after a hearing and the introduction of evidence, finally assessed its property in Missouri in the sum of $6,556,192, which assessment the state board of equalization, after hearing, refused to reduce. Plaintiff alleged further: “That in valuing the plaintiff’s property and equalizing said assessment, said Tax Commission and Board of Equalization, under the law and in accordance with the settled practice and custom of said Commission and Board, were required to determine the value of plaintiff’s property in the State of Missouri by taking such percentage of the total value of the plaintiff’s property within and without the State of Missouri as the total mileage of the plaintiff’s poles and wires in the State of Missouri bore to the total mileage of the plaintiff’s poles and wires within and without the State of Missouri”; that, “Within the time required by the laws of the State of Missouri, the plaintiff filed * * * a statement, duly subscribed and sworn to, * * * which statement set out the kind of property composing plaintiff’s telegraph system in the State of Missouri * * * and also the number of miles of poles and miles of iron and copper wire in said State * * * ”; “that from the statements filed by the plaintiff, aforesaid, and evidence offered before said Tax Commission, said Commission had before it the facts showing the total property owned by the plaintiff within and without the State of Missouri, including the total mileage of poles and wires within and without the State of Missouri, and the total cost thereof, the average cost per mile of various kinds of property, such cost less depreciation, together with earnings of the plaintiff’s property prior to such assessment, as well as the market value of its outstanding stock and bonds, over a reasonable period of years prior to such assessment”; “that in making and approving the said assessment of $6,556,192.00, the said (Tax) Commission and- Board of Equalization deliberately, intentionally and arbitrarily grossly overassessed the plaintiff’s said property to the extent that the said assessed value was fixed in excess of $4,300,000.00, by deliberately, intentionally and arbitrarily basing said assessed value upon a cost basis alone, in total disregard of the earning power of plaintiff’s said property and the true value in money of its said property; that the valuation of plaintiff’s said property fixed by said Commission and approved by said Board of Equalization is not supported in any manner by any representative method or basis of valuation; that to arrive at any value of said property in excess of $4,300,000.00, said State Tax Commission could only have gróssly overassessed the plaintiff’s property in Missouri or considered valuations of plaintiff’s property outside of the State of Missouri, not legally forming a part of plaintiff’s property within said State; that in so valuing the plaintiff’s property, and in basing its valuation upon cost alone, and disregarding the earning power and the market value or true value in money of plaintiff’s said property, the said Commission and Board of Equalization proceeded upon a fundamentally wrong theory of valuation, for all of which said reasons the amount of such valuation in excess of $4,300,000.00 constitutes a fraud against this plaintiff, and deprives and will deprive the plaintiff of its property without due process of law,” “and denies to the plaintiff the equal protection of the laws.”
The plaintiff further alleged “that while intentionally, deliberately and arbitrarily assessing the plaintiff’s property, as aforesaid, as of June 1, 1932, for the taxes for the year 1933, grossly in excess of its true value, as aforesaid, and upon such fundamentally erroneous basis of valuation, the said State Tax Commission and State Board of Equalization deliberately, intentionally and arbitrarily fixed, approved and equalized the assessment of all other property in the State of Missouri, for the same year, in the same class for the purpose of taxation, at not to exceed eighty per cent, of its true value in money; that such action by said taxing authorities was and is a discrimination against, and a fraud upon, the plaintiff * * * ” And more particularly it was alleged that real estate and personal property were underassessed at 65 per cent, of true value and that flat reductions were made in the assessment of real and personal property, especially upon flat rates of value for livestock on account of the financial depression since 1929, and that all such underassessment has been so open and notorious that the same has developed into a well-established practice and custom of underassessment.
These claims were put in issue by the answer of the defendants, and on the trial of the case-a member of the state tax commission, Mr. A. J. Murphy, who had participated in making the assessment complained of, testified as a witness for the defendants, and narrated in detail how the assessment was arrived at and made by the board. The contentions argued in this court can be more readily introduced by a consideration of Mr. Murphy’s account of the making of the assessment.
Mr. Murphy said that the sworn return of their properties to the tax commission was supposed to be filed by the public utilities before the end of the year (in this case 1932), and the board passes on it in the spring of the following year or sometime in the summer. In its return for the tax year in question the company omitted to report certain properties amounting to around $800,000 which it had always included in the reports in previous years,' and it also claimed greatly reduced values, so that upon the face of its return its assessment would be much less than it had been. Accordingly, a study was made by Mr. Murphy, not only of the returns made by the company to the tax authorities in Missouri, but of its reports to the Interstate Commerce Commission, the . Missouri Public Service Commission, and to stockholders. Mr. Murphy prepared tables showing what the assessments of the Western Union property had been in the state of Missouri over a number of years. The assessments from 1921 to 1931 were as follows:
1921 $5,470,540.00
1922 5.724.447.00
1923 5.499.156.00
1924 5.865.121.00
1925 5.851.999.00
1926 5.840.633.00
1927 5.853.930.00
1928 5.918.248.00
1929 5.893.139.00
1930 5.955.751.00
1931 5.955.653.00
It appeared that in a period between 1926 and 1931 the property of the company, as assessed in Missouri, had only been increased $115,000, whereas the reports of the company filed with the Public Service Commission of Missouri showed that in the five-year period from 3928 to 1932 the increase of the company’s book value of plant and equipment was $69,161,168. There was nothing in the reports made by the company to the taxing authorities of Missouri from year to year showing increased valuations except that some increase of mileage of wires and poles was indicated. Examination of the returns made by the telegraph company to the taxing authorities in Missouri disclosed that the company did not report the number of miles of wire owned or operated by it in the state of Missouri or in the United States, so that, although Mr. Murphy deemed the pole and wire mileage comparison proper for state allocation purposes, no such allocation could be made from the returns made to the Missouri taxing authorities. Mr. Murphy said: “We were trying to arrive at a correct value of the properties using * * * whatever information we could get. * * * We had copies of their annual reports to the stockholders and in reading these reports we discovered that in this ten years in which we had not been increasing their assessment in Missouri they say their property has increased' 83 per cent. They did not say what kind of property hut we had information enough to know it was' similar property to that in Missouri, poles and wires and telegraphic instruments.” The company’s reports showed that “the new construction for the six years (1928-1932) * * * added to plant and equipment were: Poles $26,802,109.00; wires, $13,-548,031.00; aerial cable, $2,751,825.00; underground cable, $4,486,269.00; conduit $3,948,976.00; pneumatic tubes $1,677,804.-00; telegraphic equipment, $21,340,090.00; total additions to assets $113,232,321.00.” “We were trying to make up our minds whether this property (the telegraph company’s) should be worth more, * * * we examined their annual report and find that the company’s annual report for the fiscal year 1931 says ‘the company’s property has been expanded and intensively developed to keep pace with the growing demand for better and faster telegraph service. Additions and betterments to the plant during the twenty years ending 1931 aggregated $193,335,000.00.’” It also appeared in the reports to stockholders for 1931 that the taxes of the company throughout the United States generally were double those of ten years ago, whereas the property account had increased only 83 per cent.
With this and other information in hand, Mr. Murphy prepared tables of computations of the company’s property values and pole and wire mileages to arrive at a valuation for the assessment. He testified that in reaching the valuation upon which the assessment was made the commission did not'adopt the reproduction cost new less depreciation basis nor any other one theory. In response to the question propounded by the court to Mr. Murphy: “How did you arrive at your assessment?” Mr. Murphy said: “We arrived at that originally by the first method that I talked to you about, the reproduction cost new, comparing that with the earning statement at that time as we knew it and the sale of their securities as we knew it at that time. That was a fair average of the three methods there. The average on plans 1, 4, and 5, that is the reproduction cost new, total net income and sale of securities, which we think are the fa-ir methods. The average of those three is $6,897,350.00.” (The assessment being $6,556,192.)
Although Mr. Murphy did not testify that he was an accountant, his testimony reflects that he was competent to and did make comprehensive studies of the company’s properties from the sources referred to by him.
On the trial Mr. Murphy submitted tables which contained the figures in detail to reflect computations made according to each method employed to arrive at the value of the company’s property in Missouri. The tables so presented on the trial were not those originally compiled by the commission prior to the assessment. Mr. Murphy says: “We made tables in the light of more recent information which we” are submitting. “After this suit came up we had to make further investigation, that is the company did. The company revised their estimates. Every time they revised their figures we would have to revise ours; we would get some additional information.” The tables of computations, submitted by Mr. Murphy and received in evidence, show the valuation of the plaintiff’s property of June 1, 1932, by five different methods, summarized as follows:
(1) Reproduction Cost New Less 15% depreciation Plus 8% Going Value $7,-997,761 — $1,999,664 equals $6,792,007 plus $543,360 equals $7,335,367
(2) Prorated Book or Cast Value $9,930,871 —15% Dep. $1,489,620 equals $8,441,-241 plus 8% equals 9,116,540
(3) Plant Capitalizing Earnings over a 5-year term at 6% return equals 5,917,607
(4) Capitalizing Total Net Income at 7% 1928-1929-1930 and 6% 1931-1932 6,473,571
(5) Sale of Securities equals 6,883,113
Average of all 5 valuations $7,145,239
Assessment 6,555,690
Average of 1-4-5 6,897,350
Valuation on Cost of property*! less Depreciation plus going value * which is valuation used in the ^Equals 9,116,540 assessment of land, Town lota, and most property J
Assessment $6,555,690
72%
Voluminous testimony offered for the company was to the effect that the computations as made for the Board upon each of the several identified methods of estimating values were erroneous, that the conclusions arrived at were wrong, and that the true value of the company’s property in Missouri was only a fraction of the assessment.
On the issue of discrimination Mr. Murphy testified that the practice of the tax commission was to “make a map showing each county in the state and we put down in red ink on this map (over each county) the last previous assessment confirmed by the State Board of Equalization which, in this case is 1932, which was the assessment for 1931. Then we put a second figure in black ink, the average assessment per acre of farm land returned from each county. * * * After this map has been completed and other assessments arrived at rby the County Assessor and certified to by the Tax Commission, the Tax Commission reviews these assessments, compares the assessments with the previous year and gets these maps for probably two or three years back and sees what the general tendency in each county has been, whether it is up or down. We compare the assessment in each county (with the assessment) on lands of the surrounding counties and if we find a discrepancy or if our other information leads us to believe that any of the figures returned by the assessors are too high or too low, we increase it or decrease it and make this third set of figures which is the valuation arrived at by the Tax Commission. Then, wp certify these up to the State Board of Equalization who make an additional finding and their finding is the fourth figure on these maps which is the final assessment for the state.” In answer to the question: “Mr. Murphy, I will ask if the Tax Commission intentionally assessed the property of the plaintiff at more than its true value and other .property in the state at less than 100% of its true value in money?” Mr. Murphy answered: “No.”
The plaintiff called some fifty-odd witnesses who gave testimony tending to show that real and personal property in the state was assessed below its true value and that there had been flat reductions in the assessments upon certain classes of personal property, notably, livestock and bank stock. Many witnesses called for the defendants gave testimony tending to show that property values in Missouri had gone down much faster than taxing officers had reduced assessments, so that in the tax year in question assessed values tended to approximate closely to real values in money.
Neither of the parties made any request to the court to find specially upon any of the very numerous fact disputes developed in the large volume of testimony, and the court accordingly declared briefly and generally that it could not be found as a fact that the fair value of the plaintiff’s property as of June 1, 1932, was less than the amount at which it was assessed; nor that there was any intentional, deliberate, or arbitrary overassessment of plaintiff’s property; nor that the assessment of other property in Missouri “was not at the true value in money of that property”; and the court found “that there was no intentional deliberate nor arbitrary discrimination against the plaintiff by assessing its property at a different or higher percentage of its true value in money than the percentage of value at which other property in Missouri was assessed in 1932.” The court, accordingly, dismissed the bill.
On this appeal the contentions of the appellant relate, first, to its claim that its property was overassessed, and, second, to the claim of discrimination on account of the alleged failure to equalize the plaintiff’s assessment on the same basis of valuation as the great mass of other property in the state.
Overassessment.
As to the overassessment of the property, it has been argued for appellant that the assessment here assailed was not arrived at by the tax commission upon consideration of computations made in accordance with the several theories of valuation testified to by Mr. Murphy, but that it was, in fact, made arbitrarily by wrongfully including certain locally assessable properties and other property outside the state at grossly excessive prices and then resorting to computations merely to check or justify what had been wrongfully done. It is claimed that a so-called “work sheet” produced from the files of the commission (Exhibit, 17-A) and the testimony concerning the same would so indicate. The exhibit referred to includes an item “Other Equipment, $1,498,764,” and it is argued that the property referred to in this item was in part property that was outside of the state and that another part, amounting to at least $1,000,000, was inside of the state but locally assessable and not subject to assessment by the tax commission. On stridy of the testimony relative to this controversy, we have concluded that it was not established that the identified work sheet was intended to or did set forth the elements upon which the assessment was based by the tax commission. We have concluded that we should give credence to Mr. Murphy’s statement that the assessment was reached originally by the commission upon consideration of the several methods of computation and the combination thereof as described by him.
The appellant has also presented that the commission followed fundamentally erroneous methods to compute the value of plaintiff’s property as argued in the following contentions, which we will number, epitomize, and discuss:
1. That in its valuation upon the reproduction cost new basis the commission wrongfully included an arbitrary item of 8 per cent, for franchise or going value, amounting to $300,000.
2. That the commission included personal property to the extent of at least $1,-000,000, which was assessable by the assessors in the local subdivisions of the state and not by the state tax commission.
3. That the commission based its valuation upon book values without adequate allowance for depreciation and without due consideration of actual values, wrongfully taking (in part at least) an average value over a period of years.
4. That in its valuation by capitalization of earnings, (a) a five-year average was wrongfully taken; (b) expenses of rent on lease lines were not deducted; (c) the commission capitalized earnings on the basis of 6 per cent, instead of 7 or 8 per cent.
5. In its valuation on the sale of’ securities basis of computation the commission (a) wrongfully used a five-year average of sales values; (b) it wrongfully added stocks and bonds which plaintiff had purchased amounting to about $1,765,550; noninterest-bearing liabilities, about $13,-000,000; premiums on stocks, about $1,-163,350; and bonds owned by plaintiff and deposited as collateral for loans, $3,143,000.
1. Going Value. In estimating the value of the company’s property upon the basis of reproduction cost new less depreciation, the Board, after, deducting 15 per cent, depreciation from the' gross valuation, added to the depreciated figure an amount equal to 8 per cent, thereof as going value. Later, when the tables showing the five different methods of estimating values had been compiled, the' same addition of 8 per cent, upon the depreciated valuation was made by Mr. Murphy in reaching his valuation by his so-called prorated book or cost value. Mr. Murphy said: “In some of these computations there is an 8 per cent, going value as a part of the real value of the property. It was added, however, after taking off depreciation.” “The theory of going value is this: that in a property of this kind, spread out over the United States, that it would take at least five years to build, that you would incur three or four years taxes, interest, and everything on your securities before you get to earning a cent. You are attempting to establish the value of it at the present time. * * * So I think that is a proper element to be taxed. We assess similar values on every utility in the state. * * * Always have.”
The reasons upon which it has been found necessary in estimating the value of properties like the plaintiff’s to make an addition on account of going value have been explained and upheld by the courts in numerous cases (see Los Angeles Gas & Electric Corp. v. Railroad Comm., 289 U.S. 287, 313-319, 53 S.Ct. 637, 77 L.Ed. 1180); and we do not find fundamental error, illegality, or fraud in the addition made under the item “Going Value.” Great Northern Ry. Co. v. Weeks, 297 U.S. 135, 139, 56 S.Ct. 426, 80 L.Ed. 532; Rowley v. Chicago & N. W. Ry. Co., 293 U.S. 102, 109-111, 55 S.Ct. 55, 79 L.Ed. 222; Cumberland Coal Co. v. Board of Revision, 284 U.S. 23, 28, 52 S.Ct. 48, 76 L.Ed. 146; Iowa-Des Moines Nat. Bank v. Bennett, 284 U.S. 239, 245, 52 S.Ct. 133, 76 L.Ed. 265; Sioux City Bridge Co. v. Dakota County, 260 U.S. 441, 43 S.Ct. 190, 67 L.Ed. 340, 28 A.L. R. 979.
2. Property Claimed to be Locally Assessable. Two assignments of error and considerable portions of appellant’s brief and reply brief relate to its second contention above stated to the effect that certain property included by the Commission was locally assessable property. There is no competent evidence to establish that the property referred to in this contention ever was actually assessed by local assessors in the state or that there was a double assessment thereof by local and state assessing officers. Mr. Meigs, testifying for the telegraph company, says that “he had been told that the elements of value enumerated” had been locally assessed and that “he had been told that the reason for not including them in the returns of the company for the year in controversy was that he had been so told by Mr. Whitney, now deceased, who was tax attorney.” Whether any of the company’s property was in fact being doubly assessed, once by local assessors in the counties and again by the state tax commission, was a matter very easy of ascertainment and demonstration by the company. The Missouri statute (section 9764, R.S.Mo.1929 [Mo.St.Ann. § 9764, p. 7880]) requires the company to make a sworn return to local assessors of any of its property which is locally assessable, and no such local returns are shown. Mr. Murphy testified: “I want to say further that there is a blank sent to them (the telegraph company) to make a return of their property in each county in the state and each taxing subdivision. They reported nothing on those blanks, except the number of miles of wire and number of miles of poles. They did not give us a list of any other property in those counties or taxing subdivisions.”
Neither did the company plead that the tax commission had committed the wrong now complained of. Its pleading was, as stated, that the tax commission had arrived at its excessive assessment by other means specifically set out, not including double assessment by local officers and by state officers. The pleading referred to is the amended petition which the plaintiff was permitted to file after all of the testimony had been taken on the trial. Nor does the record disclose that this contention now seriously urged upon us was presented to the trial court. Undoubtedly the great bulk of locally assessable property belonging to the telegraph company in Missouri is in St. Louis, where it has valuable land and buildings and equipment. Mr. Murphy was very positive that those were not included in his calculations. He testified: “In making these computations I did not count in the buildings and land. * * * I eliminated those * * * they were deducted as noil-distributable property. What we recognize as and what the law recognizes as non-distributable property is lands, buildings. * * We did not include these in this calculation.” lie said that he had only included “distributable property” in his calculations and that such property was properly assessable by the state tax commission rather than by the local assessors.
Because it has been urged upon us with earnestness we have given this contention of the appellant careful consideration, but we conclude that it should not be sustained.
3. Book Values — Depreciation. The appellant pleaded and has contended upon elaborate analyses of all relevant computations and figures that the commission gave undue weight to book' values. Its argument establishes that in the depression tax year in question book values were not an accurate criterion of true value, and undoubtedly, if it could be proven that the assessment was merely the book value in that year, that would present “a fundamentally wrong theory” of valuation.
At the opening of the trial counsel for the telegraph company said: “There is no dispute about the reconstruction costs new in any value of the physical plant. There is no contest but that that is correct.” There were disputes as to what items should be properly included. The company submitted four different reports of its reproduction cost new as of June, 1932. Report No. 1 was submitted in 1932 and withdrawn because of errors. Report No. 2 was submitted in January, 1933. Report No. 3 was submitted in depositions taken by appellant in New York after institution of this suit. Report No. 4 was submitted when the case was being tried before the court. The totals of the reports are as follows:
(The assessment, $6,556,192, is exactly 75 per cent, of the above figure $8,741,589.)
In all of its reports the company took a 30% per cent, depreciation and omitted going value. Reports Nos. 2 and 3 omitted items of property aggregating $885,808 claimed to be nonassessable by the company but which were included in report No. 4, and which the defendants claim should be included. They all also omit additional items amounting to $317,935 of property which had been reported as operative property of the company to the state authorities in previous years and which ought to be included according to the defendants. The estimate of reproduction new less depreciation at 15 per cent., with 8 per cent, going value, arrived at and shown on defendants’ table of computation, was $7,335,367. Recalculation of the defendants’ three methods of computation, 1, 4, and 5, produces the following result when weighted by attributing 20 per cent, to the first method and 40 per cent, to each of the others, as follows:
Value by Reproduction Cost new less depreciation.
Method No. 1 $7,335,367
20% of this value $1,467,073
Value by Capitalization of Net Income
Method No. 4 6,473,571
4C% of this value 2,589,428
Value by Sale of Securities
Method No. 5 6,883,113
40% of this value ' 2,753,245
Value by Combination of Methods $6,809,746
Appellees’ Assessment 6,555,690
Upon consideration of these tables and the data from which they were derived, we think it cannot be held that the assessment in question was wrongfully rested on book values or on reproduction cost new less depreciation plus going value. The strength as well as the weaknesses of the reproduction cost new less depreciation method of valuation have been recognized and explained by the courts. Cleveland, C., C. & St. L. Ry. Co. v. Backus, 154 U.S. 439, 14 S.Ct. 1122, 38 L.Ed. 1041; Harris Trust & Sav. Bank v. Earl (C.C.A.8) 26 F.(2d) 617, 618; Chicago & N. W. Ry. Co. v. Eveland (C.C.A.8) 13 F.(2d) 442; Northern Pac. Ry. Co. v. Adams County (D.C.) 1 F.Supp. 163, 174, 175, 190, 191; See Standard Oil Co. v. So. Pac. Co., 268 U.S. 146, 45 S.Ct. 465, 69 L.Ed. 890. But it is an allowable method of estimating values, providing undue weight is not accorded to it. In the computations above set forth, a weight of only 20 per cent, has been accorded, and the resultant figures do not show a grossly excessive or arbitrary assessment was arrived at.
Neither do we sustain, the contention of the appellant that the only allowable depreciation was 30½ per cent. It would appear that, in view of the reports made by the company concerning the condition of the property, a less percentage could lawfully be taken for depreciation. Lindheimer v. Illinois Bell Telephone Co., 292 U.S. 151, 54 S.Ct. 658, 78 L.Ed. 1182. We have not overlooked the testimony of Mr. John B. Campbell, called as a witness on rebuttal for the telegraph company, who testified, among other things, that, as a stockholder in the company, he had received no dividends for several years and that the company’s properties in Missouri were depreciated on the average of about 50 per cent. Other testimony reflects that dividends have been earned on the stock of the company continuously since 1870, and that the lesser rate of depreciation was not improper.
4. Capitalization of Earnings. Mr. Murphy prepared several tables reflecting an estimate of the value of the company’s property in Missouri according to the capitalization of earnings method, always taking averages over a five-year period, and appellant complains that it was fundamentally erroneous to use a five-year period in computing under this method. The evidence is that the earnings of the company were at the lowest point in the tax year in question, and it is argued that, as the only value in the company is its power to earn, when its earnings fell its value for taxing purposes should be reduced to the same low level. We think it was necessary for the commission to consider the reduced earnings, but we do not agree that, because the net earnings fell to little more than a third of what they were in 1928, the assessment should be reduced to the same extent. The long-maintained stability of the company cannot be disregarded, and it was not fundamentally erroneous to consider the five-year average in the computation. Great Northern Ry. Co. v. Weeks, 297 U.S. 135, 149, 56 S.Ct. 426, 80 L.Ed. 532; Rowley v. Chicago & N. W. Ry. Co., 293 U.S. 102, 105, 55 S.Ct. 55, 79 L.Ed. 222.
In making the computation in one of the tables presented by him, Mr. Murphy capitalized net income of the system at the rate of 7 per cent, per annum for the three years 1928, 1929, and 1930, estimating the values at $319,190,540 for 1928, $330,542,-858 for 1929, and $282,528,985 for 1930, but for the two years 1931 and 1932 the valuation on this basis fell to $242,418,566 and $126,566,800 respectively upon a 6 per cent, capitalization used for those years. The appellant complains that there was fundamental error (among other things) because in making the computations the item of “expenses on rent of leased lines” was not deducted. The experts for the company claimed large deductions by reason of the rent items.
On this issue Mr. Murphy testified that the reports of the company reflected that the company leased about 15 per cent, of the total wire which it used in the system and that it paid large sums for rent on the leased lines — about three and a half million dollars in the year 1928, for instance. It appears that the company had very little leased plant or equipment in Missouri, and Mr. Murphy testified that this fact had to be taken into consideration in making the computation of value upon the capitalization of earnings method used to make up the table on that basis. He pointed out that, unless the item of rent from leased property was treated the way he treated it, an unfair reduction of the value to be allocated to Missouri would result. He testified: “They pay three and one-half million dollars rent on that 15 per cent, of their wire,” and he said: “We take it (the item of rent) off after we determine the earnings of the entire wire mileage. Then you pay it, but it is not a proper deduction before you determine the earnings of your entire system.”
The real inquiry of the commission was as to the result of capitalizing the earnings per mile in order to attribute just value to the miles in Missouri. In Mr. Murphy’s view, Missouri was not concerned that some of the company’s wires in other states were leased and rental paid therefor. As the ultimate allocation to Missouri from all of the computations according to this method was upon the comparison of wire mileages, we are not convinced that the method of computation described and illustrated by Mr. Murphy was fundamentally erroneous in the particular complained of.
Neither can it be said that the 6 per cent, basis used for capitalization of earnings was fundamentally erroneous. Great Northern Ry. Co. v. Weeks, supra.
5. Sale of Securities Method. In estimating the system value of the telegraph company on the sale of securities basis, Mr. Murphy testified that the figures were all obtained from the company’s reports to the Public Service Commission as to quantities of securities, and the sale prices were obtained from letters of the company and from information furnished by the company to the Oklahoma state tax commission. “The prices on the securities which they report agree with our records but there are a number of securities they did not report that we had to get prices on elsewhere.”
The appellants complain that the securities which Mr. Murphy here refers to and which the company did not report ought not to have been included in the computation of value according to the sale of securities method.
It appears that the company carries on its books certain large items as liabilities which are peculiar. One item is carried m its reports at about $13,000,000, another item is “premiums on stocks” about $1,-163,350; “bonds owned by plaintiff and deposited as collateral for loans,” .$3,143,000; and “stocks and bonds purchased by plaintiff” amounting to about $1,765,550. The nature of the items was explained by Mr. Dow, testifying for the company. The question whether the items should have been included in Mr. Murphy’s computations of value on the “Sale of Securities” basis is not free from doubt. Mr. Murphy’s testimony reflects that he understood the peculiar nature of the items and gave them careful consideration. He says that “item of $13,000,000 is the one that is explained here * * * ‘Deferred non-interest bearing liabilities in respect of proceeds of sales of securities and other properties held under leases for terms expiring in 1981 and 2010 from companies in which the Western Union Telegraph Company has, for the most part, a controlling interest, payable on the termination of the leases.’ I don’t know what would be the present value of that liability but I presume the proceeds of those have been turned into money and invested in the plant.” (Not denied by Mr. Dow.) He says, as to the item of $3,143,000, “That represents bonds presumably of their own company that is owned by the company and deposited as collateral security for loans.” He says that the company put the items on its balance sheet as liabilities. “You (the company) promise to pay those securities. They are on your liability side; they are a debt of the company. Anybody going to buy your stock would look and see that you owed $18,000,000.00 before they could get their money.” They (the items) “reduce the value of the stock just that much.”
Upon these considerations Mr. Murphy left the items in his computation and maintained on the trial that they should be left in. We think that their inclusion tended to somewhat exaggerate the total value reached on the “Sale of Securities” basis. On the other hand, there could be no justification to omit these items entirely from the computation of value on the sale of securities basis. They appear to have been an integral part of the financial setup reflected by the company’s report, and the theory of this particular method of computation contemplates that all obligations ahead of the capital stock liability must be included in the computation. Accountants’ ingenuity should suggest some adjustment in relation to the items, but such error as is involved in Mr. Murphy’s computation is not the fundamental error of method denounced by the courts, but merely a failure to reach perfection in the details of carrying out of a method of computation which method was in itself fundamentally sound; that is to say, the method was one of the methods permissible to be used where no undue weight is accorded to it, and no undue weight was accorded in this instance.
Allocation Percentages. It appears that different percentages were used by Mr. Murphy in different computations to allocate Missouri’s share of system values ranging between two and a fraction to three and a fraction per cent., and Mr. Murphy explained the method of arriving at each of the percentages. Mr. Murphy does not dispute the propriety of comparing the total mileage of “plaintiff’s poles and wires in the state” with “the total mileage of the plaintiff’s poles and wires within and without the state,” alleged in plaintiff’s petition to be customary and proper. But it appears that plaintiff had not reported the specific number of miles of wire owned and miles operated by the company in Missouri or in the system. Consequently, it was necessary for Mr. Murphy to make elaborate computations as to pole lines, conduits, cables aerial and underground cables, cables, pneumatic tubes, etc., and Mr. Murphy’s testimony is persuasive that the computations he made were in good faith to arrive at a proper percentage for allocation in each instance, and none of the percentages so used by him has been shown to be fundamentally erroneous or arbitrary.
Although in our discussion of the valuation of appellant’s property we have referred extensively to the testimony of Mr. Murphy, we have not overlooked the opposing testimony of the company’s witnesses. But our inquiry has been whether the valuation was arbitrarily arrived at, or by fundamentally erroneous methods, or by such reckless disregard of proper evidence as to amount to fraud and, as Mr. Murphy was a member of the assessing body and participated in and knew its processes, frequent reference to his testimony and explanations has been necessary.
Appellant has contended that the conclusion reached by the Supreme Court in Great Northern Ry. Co. v. Weeks, 297 U.S. 135, 56 S.Ct. 426, 433, 80 L.Ed. 532, is the conclusion required by the testimony here. In that case “the testimony and computations made by respondents’ [the taxing officers] witness show that the 1933 assessment could not have been arrived at by any calculation based on the principles and methods governing the tax commissioner in his computations submitted to the board through a period of years and constituting the controlling bases of the assessments made by it,” and the Board arbitrarily adopted an assessment clearly demonstrated to have been inapplicable at the time of the assessment. 297 U.S. 135, loc.cit. 148, 149, 56 S.Ct. 426, 80 L.Ed. 532.
We are satisfied that no such situation is here presented, and the case is relevant only as it reiterates the positive duty of the courts to afford protection in every proper case against unlawful confiscation attempted under the guise of taxation. St. Joseph Stock Yards Co. v. U. S., 56 S.Ct. 720, 80 L.Ed. 1033; Baltimore & O. R. Co. v. United States, 56 S.Ct. 797, 80 L.Ed. 1209. The elaborate and painstaking analysis of the whole testimony presented in the brief and reply brief of the appellant leaves no doubt that' some computations and estimates of value given by Mr. Murphy involved inaccuracies, but we find no mistakes which reflect any intention or purpose of the commission to depart from or disregard methods which are recognized to be sound and applicable. We deem the opinion in Roley v. Chicago & N. W. Ry. Co., 293 U.S. 102, 55 S.Ct. 55, 79 L.Ed. 222, more nearly controlling here and that the charges of fraud or arbitrary, willful, or fundamentally erroneous action in the valuation put on the plaintiff’s property were not sustained.
Discrimination.
The property of appellant is of the kind of property referred to as utility property, and it is not shown in the testimony that utility properties in Missouri were assessed for the tax year in question here below their full 100 per cent, value, nor that there was discrimination between the assessment of plaintiff’s property and that of utilities generally in the state. Cf. Iowa-Des Moines Nat. Bank v. Bennett, 284 U.S. 239, 52 S.Ct. 133, 76 L.Ed. 265; Cumberland Coal Co. v. Board of Revision, 284 U.S. 23, 52 S.Ct. 48, 76 L.Ed. 146; Sioux City Bridge Co. v. Dakota County, 260 U.S. 441, 43 S.Ct. 190, 67 L.Ed. 340, 28 A.L.R. 979.
Although very substantial reductions were made in the assessment of the stocks of banks in the state, the testimony discloses very pressing reasons for such reductions and why they were made. There was a general shrinkage of value of loans, bonds, and other investments which, on the whole and generally, affected the value of bank stocks and occasioned a reduction in their assessments. Mr. Sam E. Trimble, a member of the tax commission of the Missouri Bankers Association, testified:
“I am executive vice president of the Union National Bank * * *
“Considering the experience of so many of the banks closing, the liquidation of these banks, the fluctuation downward of securities which heretofore had always been regarded as good and marketable, even the fluctuation of Government securities, the downward trend of real estate, we made a calculation after going thoroughly into it that a deduction of approximately 4 per cent. on the resources of the average bank in Missouri would equal a reduction of 40 per cent, of the capital structure. To illústrate, the ratio in Missouri is about ten to one; the total resources is about ten times the capital structure. Four or five per cent, of that would equal 40 per cent. of the capital structure, lhe banks were trying to build up reserves m surplus and undivided profits for protection and that was also considered because that was a safeguard for the depositors and that was by experience and observation that we came to that conclusion. It was our conclusion that the 60 per cent, assessment was the real value of the shares of the bank.
Likewise as to livestock, there was a great falling off in value and assessments were somewhat lowered.
There is a large volume of testimony taken by the plaintiff including individual and compiled tables of appraisals in many parts of the state and comparisons with assessments and admissions made by assessors of intentional assessment below full value and studies of values and assessments such as have become familiar in cases of this character since Louisville & N. Ry. Co. v. Greene, 244 U.S. 522, 37 S.Ct. 683, 61 L.Ed. 1291, Ann.Cas.1917E, 97, all of which has been read and considered.
It appears that the grand totals of the taxable wealth of the state of Missouri for the years 1929, 1930, 1931, and 1932 were as follows •
June 1, 1929 $4.968,850,691.00
June 1, 1930 4,788,153,970.00
June 1, 1931 4,320,685,447.00
June 1, 1932 3,909,115,389.00
From which table it appears that there was a reduction in the assessment of all property of about 20 per cent, over the period. There is persuasive testimony that actual market values and true values in money of property of almost all kinds and descriptions in Missouri fell much more than the 20 per cent, shrinkage in the total assessments, and it is made especially clear that as to great masses of property actual buying and selling fell off to such an extent that there: appeared to be: no firm or constant market for sales. It is also evident throughout all the testimony that the absolute necessity of the state and localities to raise money enough to run the government prevented the lowering of assessments entirely without check. Mr. Forrest Smith, a defendant member of the state tax commission, testified:
“As a member of the State Tax Commission my chief duly was dealing with taxation, the matter of assessments and valuations of property, exercising some superintendence and control over the assessment valuations of property all over the state. We had a meeting with the assessors every year before they started assessing as of June 1st. I tried to familiarize myself with the values of real and personal property in Missouri in the year 1932. At that time there were practicaily no sales except foreclosures, very few bona fide sales in the state. Due to the economic condition, of course, no one wanted real estate. There is no income from it and banks wouldn’t loan money on it. The prices of live stock and grain at that time were very low, below the normal on live stock and wheat was about the lowest. At threshing time the Missouri wheat sold for 22 to 35 cents a bushel; corn was about 35 a bushel June 1, 1932. * * * I would say it was assessed at 100 per cent, of its actual value. * * *
“My information as to value was not gathered entirely from delegations who wanted their taxes lowered. We sent out questionnaires to the various assessing officers and we used every means we knew to obtain accurate information. We took the questionnaires wherein the assessors state tbe percentage m their county as evidence of what they were being assessed; the same with the county courts; and considered that along with the delegations who came on complaints. Under the law, of course, we were compelled to visit every county in the state every two years for the purpose of studying conditions and familiarizing ourselves with property values.”
The trial court, in a memorandum commentary on certain of his findings, said: “I am frank to say that upon a first consideration of the evidence I was inclined to the view that the plaintiff had proved an undervaluation for taxing purposes of all other property in the state. Further consideration of that matter, however, has convinced me that while prior to the year 1932 there had been such an undervaluation of other property in Missouri, the sharp decline in all property values in the state resulting from the depression, a decline that had become fully manifest in 1932 substantially had made, what doubtless was intended to be an undervaluation a fair approximation of real values. There was evidence supporting this conclusion. The conclusion is supported also by facts of which judicial notice must be taken.”
Our reading of the testimony on this issue has led us to a similar decision. The blunders of some witnesses are glaring, as when Assessor Wampler testified that he did not intentionally assess at other than true value in money, though it was shown that he sold a mule for $140 and then assessed the same mule in the hands of his own vendee at $40. But the testimony adduced falls far short of clear, convincing proof that property generally in Missouri was, at the time of the assessment in question here, of greater market value or of value in money to any substantial extent beyond the amount of the assessment thereof.
The appellant has forcefully pointed out that.the only ground upon which assessment of other property can be said to approximate true value is that the continued stress of the depression reduced values faster then assessments were reduced. It contends that, if such view be adopted, then it should follow that a similar depression valuation should be put on the company’s property. It argues that the depression did bear with full force upon its net income and its sales of securities values in 1932, and it submits at least one table re-fleeting a value of its property in Missouri only a little over one-third of what its assessments had been. But we think that the proven stability of the plaintiff’s organization and property, its history and its future prospects, justified the commission’s refusal to base the assessment upon temporary low figures of the bottom of the depression.
In conclusion: A company like the plaintiff has a great stake in the maintenance of government in each of the states where its properties are situated, and must be ready and willing to contribute, through taxation, its fair and just share towards the support of such government. Likewise, in view of the extent and intricacies of the taxable interests of the company, it should make complete, full, and simplified returns to minimize the chance of error on the part of officers charged with the duty of assessing its properties. The failure of the plaintiff to prove the substantial and important allegation of its petition, that it had reported its miles of wires in the state and in the system to the taxing authorities prior to the assessment, has detracted from the equity of the plaintiff's case, notwithstanding its explanation that “the error resulted from the failure of the Commission to require specifically a separate statement of wire in tubes and conduits.”
On consideration of all of the testimony we find some basis for the statement made by Mr. Murphy during the course of his examination: “Realizing in these times that everybody is urging a reduction in assessments and had Missouri raised the assessment on this (telegraph) property back in 1928 or 1929 when the net earnings before depreciation and interest amounted to twenty-eight or twenty-nine million dollars a year, to twenty-five or thirty per cent, above the assessment in previous years, then a reduction in assessments might have been in order but in view of the manifest fact that they were under assessed in those years it would be unfair to other companies to not raise or; readjust the assessment on this company.”
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)". Your task is to classify the scope of this business into one of the following categories: "local" (individual or family owned business, scope limited to single community; generally proprietors, who are not incorporated); "neither local nor national" (e.g., an electrical power company whose operations cover one-third of the state); "national or multi-national" (assume that insurance companies and railroads are national in scope); and "not ascertained". | This question concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". What is the scope of this business? | [
"local",
"neither local nor national",
"national or multi-national",
"not ascertained"
] | [
2
] | songer_appel1_1_2 |
In re W.T. GRANT COMPANY, Bankrupt. David COSOFF and Helen Finkelstein, and Jay Miller and Eileen McGinnis, Appellants, v. Charles G. RODMAN, as Trustee of W.T. Grant Company, Bankrupt, Appellee.
No. 381, Dockets 82-5019, 82-5023.
United States Court of Appeals, Second Circuit.
Argued Nov. 9, 1982.
Decided Jan. 26, 1983.
Bradley R. Brewer, New York City (Brewer & Soeiro, New York City), for appellants Cosoff and Finkelstein.
Stuart A. Jackson, New York City, for appellants Miller and McGinnis.
Harvey R. Miller, New York City (Weil, Gotshal & Manges, New York City), for appellee Rodman as trustee.
James C. Sargent, New York City (Whitman & Ransom, New York City), for intervenor United States Trust Co. of New York.
I. Walton Bader, White Plains, N.Y. (Bader & Bader, White Plains, N.Y.), for intervenors Masse, et al.
FRIENDLY, Circuit Judge:
These appeals arise from the mammoth bankruptcy proceedings of W.T. Grant Co. before Bankruptcy Judge Galgay in the Southern District of New York. Grant initially filed a petition for an arrangement under Chapter XI on October 2, 1975, and was adjudged bankrupt on April 13, 1976. Secured suppliers, holders of senior debentures, bank creditors, general unsecured creditors, and holders of two issues of subordinated debentures filed claims against the bankrupt estate. The present appeals concern the last of a series of compromises and settlements designed to avoid what would necessarily have been extremely protracted litigation with the various claimants. We shall assume familiarity with Judge Galgay’s opinions and will endeavor to state only what is necessary to an understanding of these appeals.
The History of Grant’s Financings
Prior to July, 1973, Grant, which operated a large chain of retail stores, generally satisfied its short-term cash needs by selling commercial paper through a wholly owned subsidiary, W.T. Grant Financial Corporation (Grant Financial); it had relatively small revocable lines of credit at several hundred banks. In the spring of 1973 Grant determined that a portion of the commercial paper outstanding should be converted into long-term debt and approached Morgan Guaranty Trust Co. of New York (Morgan Guaranty) to structure a $100,000,000 five year term loan. On July 5, 1973, Morgan Guaranty arranged such a loan to Grant Financial from eight banks replacing an equivalent amount in their lines of credit to Grant. Among these banks were, in addition to Morgan Guaranty, Chase Manhattan Bank, N.A. (Chase), which was the trustee under an indenture under which $92,507,000 of Grant’s 4/i% unsecured subordinated debentures issued April 15, 1971, were outstanding as of the date of filing under Chapter XI, and First National City Bank, now Citibank, N.A. (Citibank), which was trustee under an indenture under which $834,000 of Grant’s 4% unsecured subordinated debentures issued June 1, 1965, were outstanding as of the date of filing under Chapter XI.
Grant’s financial performance declined during 1973 and in December Moody’s and Standard and Poor’s lowered Grant Financial’s commercial paper ratings from prime 1 to prime 2 and also downgraded Grant’s long-term securities. Grant resorted to borrowing under its lines of credit. On March 5,1974, Moody’s withdrew Grant Financial’s commercial paper rating and further downgraded Grant’s long-term securities. Faced with the need to raise more than $132,000,-000 in order to meet commercial paper maturities in the next week, Grant asked the eight banks to reestablish their lines of credit. They did this in proportion to their prior exposure, with the result that their loans and advances to Grant Financial shortly reached $415,000,000. Even this borrowing was not enough; in August, 1974, Morgan Guaranty, Chase and Citibank each advanced an additional $5,000,000 to Grant (Secured Demand Loans) secured by an assignment of certain accounts receivable. Later in August, 1974, Grant Financial, Grant as guarantor, and eleven bank lenders entered into an Interim Loan and Guaranty Agreement wherein Grant Financial became indebted to the eleven banks in the aggregate amount of $44,000,000 by assuming Grant’s obligation to repay the $15,-000,000 of Secured Demand Loans just described and incurring New Loans of $29,-000,000, all such loans being guaranteed by Grant and secured under an Interim Security Agreement dated as of August 21, 1974, by accounts receivable arising out of the sale of goods at designated stores. This brought the total short-term and long-term loans from Grant’s 12 major bank lenders to approximately $517,000,000.
The Interim Loan and Guaranty Agreement was shortly succeeded by a Loan and Guaranty Agreement dated as of September 16, 1974, which became effective October 8, 1974, less than a year before Grant filed under Chapter XI. The parties were Grant Financial, Grant as guarantor, and 143 banks. The maturity of all outstanding short-term unsecured loans and the $44,-000,000 of secured loans under the Interim Agreement was extended through June 2, 1975, and the banks agreed to increase their loans to $600,000,000. The obligations of Grant Financial were to be guaranteed by Grant. An Initial Security agreement dated September 16, 1974, secured the $600,-000,000 total of outstanding short-term loans and future commitments under the Loan and Guaranty Agreement and the $100,000,000 long-term notes issued under the Term Loan Agreement of July, 1973. On the date when the Loan and Guaranty Agreement became effective, the banks advanced an additional $66,587,500, thereby reaching the $600,000,000 in loans due June 2, 1975, contemplated by the agreement, plus the $100,000,000 represented by the July, 1973, Term Loan Agreement. As of April 1, 1975, Grant, Grant Financial and Morgan Guaranty entered into a Loan Extension Agreement actually executed June 2, 1975, within four months of the filing of Grant’s Chapter XI petition. This provided for paying off a debt of $56,931,665.59 to 116 banks whose individual loans to Grant ranged from $50,000 to $5,000,000 and the extension to March 31,1976, of outstanding short-term loans in the principal amount of $540,916,978 made by the other banks.
Somewhat earlier Grant had been obliged, in order to induce its largest vendors and suppliers to continue providing it with credit, to enter into an Inventory Security Agreement dated as of May 15,1975, wherein Grant gave a lien on designated store inventories to specified vendors and suppliers. Under the Loan and Guaranty Agreement, the bank claimants were to receive a lien on inventory junior to that of the suppliers and the senior debenture-holders.
The final transaction was an Amended Loan Extension Agreement entered into as of August 6, 1975, which became effective on September 15, 1975. This further extended the maturity of the $540,916,978 of short-term bank loans to July 30,1976; subordinated $300,000,000 of that debt to certain trade obligations (the “Trade Subordination Agreement”); and subordinated Grant Financial’s loans of $819,887,663 to the banks’ total claim of $640,916,978 (the “Intercorporate Subordination Agreement”).
The Proceedings in the Bankruptcy Court and the District Court
After Grant had been ordered into liquidation, the banks and Charles G. Rodman, as Trustee, asserted a multitude of claims against each other in an adversary proceeding, the details of which are described in Judge Galgay’s opinion, 4 Bankr.Ct. Dec. at 601-02. The Trustee conducted an elaborate investigation into the affairs of Grant under Bankruptcy Rule 205(a). This encompassed production of the books, records and other documents of Grant, and examination of its remaining and former officers, directors and employees. Before any extensive discovery by the banks, settlement negotiations were instituted. These resulted in an agreement which, in addition to settling the claims of the banks, encompassed what Judge Galgay termed a “global settlement”, i.e., a “framework for the further administration of the bankrupt estate and the satisfaction of claims filed against such estate.” 4 Bankr.Ct.Dec. at 602. So far as here relevant, the settlement provided that the bank claimants were to receive an initial cash distribution of $165,700,000, or approximately 25% of their allowed claims. More was to be paid when and if funds became available. The Trustee agreed not to sue the 116 banks whose loans of $56,931,665.59 were paid in June, 1975. Finally, the agreement created a fund of $95,378,373, the full amount of the claims of subordinated debentureholders, pending resolution of their dispute with the bank claimants as to whether the subordination clauses of their indentures should be given effect so as to subordinate the debenture-holders’s claims to the bank claims. The Bankruptcy Judge approved the banks’ settlement on July 20,1978, finding that “[t]he Trustee will have achieved a result for the estate which approximates, and may exceed, the results which are likely to be achieved by the continued prosecution of his defenses in the Adversary Proceeding” which the bank claimants had initiated, 4 Bankr.Ct.Dec. at 609. There was no appeal of this “global settlement” to the district court.
Having thus provided the necessary framework, the Trustee, the bank claimants, United States Trust Company (U.S. Trust) as indenture trustee replacing Chase under the Indenture for the 4/4% Subordinated Debentures, and representatives of these debentureholders entered into negotiations for the settlement of the latter’s claims. The rights of the debentureholders depended on the interpretation and application of a clause in their indentures subordinating their claims to “Senior Indebtedness” of Grant. The Indenture under which the 4%% Debentures were issued defined this as stated in the margin; the Indenture securing the small amount of outstanding 4% Debentures was to the same effect. If the bank claims were and remained enforceable as Senior Indebtedness to which the debentureholders were subordinated, the latter would receive nothing. However, U.S. Trust alleged that for a number of reasons the conduct of the banks might require that the contractual subordination provisions be disregarded and even that the subordinated debentureholders be accorded a status prior to that of the banks. These reasons, stated in detail in Judge Galgay’s opinion approving the settlement, 4 B.R. at 60-61, were as follows:
(a) At the time of the Initial Security Agreement of September 16, 1974, the bank claimants knew or had reasonable cause to believe that Grant was insolvent and that the granting of security interests would discourage further extensions of trade credit to Grant and substantially reduce the flow of merchandise into Grant stores, thereby impairing the prospects for a successful reorganization of Grant.
(b) By forcing Grant into the Inventory Security Agreement and Trade Subordination Agreement the bank claimants increased the amount of Senior Indebtedness to which the junior debentureholders were subordinated.
(c) In the summer of 1974, the bank claimants directed Grant not to proceed with a proposed sale of $100,000,000 of customer accounts receivable to Beneficial Finance Corporation and the use of some undetermined portion of the proceeds to purchase 43/4% debentures at 25 cents on the dollar.
(d) The bank claimants used their position of control over Grant’s management to prevent Grant from promptly seeking relief under the Bankruptcy Act, feeding it just enough money to keep its head above water while strengthening their security position, allowing the passage of the four months period for avoiding preferences under § 60a and hoping to allow the passage of the one year provision of § 67d(2) for the avoidance of liens and fraudulent transfers.
The bank claimants made a variety of responses. They denied having had any fiduciary relationship to Grant, asserted that they had made loans in the belief fostered by Grant’s management that Grant remained viable, contended that Grant’s management itself had abandoned the proposed sale of accounts receivable, and denied that they had prevented Grant from seeking rehabilitation under the Bankruptcy Act. They asserted, moreover, that as to many of U.S. Trust’s claims, the remedy, even if the claim were made out, would be invalidation of the banks’ security interests rather than subordination to the debentureholders. U.S. Trust also raised claims of conflict of interest and derelictions of duty against Chase, its predecessor trustee, to which Chase answered.
The settlement originally provided for the payment of 14% of the claims of the accepting subordinated debentureholders. All rights of non-acceptors were preserved, and neither the offer nor the bank settlement agreement was to have any effect in any proceeding brought by them. The indenture trustees, U.S. Trust and Citibank, were, however, to be released from all further obligations to enforce the rights of debentureholders under their respective indentures.
At a hearing before Judge Galgay objections were made by eleven debentureholders, led by Victor Kurtz as chairman of an “Ad Hoc Protective Committee of Holders of 43/4% Debentures”, see note 5, supra, and represented by I. Walton Bader. A group of Institutional Investors also raised objections at the outset but have played no subsequent role in the case. The Kurtz objectors asserted principally that the Trustee had failed to make a presentation of the facts and law adequate to support approval of the settlement, that the bank claims should be equitably subordinated to the debentures because of the control and dominion over Grant allegedly exercised by the banks, and that the Trustee, U.S. Trust and their respective counsel are subject to conflicts of interest which require them to be disqualified. Acknowledging the task imposed by Protective Committee for Independent Stockholders of TMT Trailer Ferry, Inc. v. Anderson, 390 U.S. 414, 424-25, 88 S.Ct. 1157, 1163, 20 L.Ed.2d 1 (1968), Judge Galgay, after 27 pages of discussion, 4 B.R. at 57-84, concluded that the original settlement represented a fair compromise, taking into account the strengths and weaknesses of the claims of both sides and the delay and expense incident to litigation, and approved it on February 20,1980.
Timely appeals were taken to the District Court (Conner, J.) by Kurtz and nine other debentureholders represented by Bader and Morton Robson (No. 80 — Civ. 1857), and by debentureholder Levy and three others represented by Bader and Bradley R. Brewer. The latter did not take an appeal on behalf of his present clients, David Cosoff and Helen Finkelstein, who were not named objectants but had asked Mr. Brewer to represent them at the time of the hearings before the Bankruptcy Judge. Before the appeals could be heard, negotiations looking toward an improvement of the offer were begun. Judge Conner stayed consideration of the appeals and allowed negotiations to go forward under the Bankruptcy Judge’s supervision. See In re W.T. Grant Co., 13 B.R. 1001, 1002 (S.D.N.Y.1981). These resulted in an amended offer. The amount payable to the debentureholders was raised from a floor of 14 cents on the dollar to one of 19 cents on the dollar. Interest on the reserve fund calculated from the date of approval by the bankruptcy judge would run for the benefit of the debentureholders. Solicitation of acceptances could start immediately. As soon as the tendering debentureholders were paid, the banks could also draw down the remainder of the $95,378,373 reserve fund set aside under the bank settlement agreement.
A conference on certain details was held in Judge Galgay’s chambers on April 16, 1981. The appearance list shows Robson as appearing for “Kurtz et al.” and Bader for “Bondholders”. There was much discussion of the withdrawal of the appeals from Judge Galgay’s order of February 20, 1980. Robson and Bader agreed that, subject to certain contingencies later worked out, they would withdraw their appeals with prejudice. Bader announced that although he had brought Brewer into the case and Brewer had signed his name on the briefs, Brewer was not the attorney for the Levy appellants, who were Bader’s clients, and had not signed the notice of appeal. Robson’s and Bader’s stipulations withdrawing appeals from the February 20, 1980, order with prejudice and without costs were signed and so ordered.
In the further proceedings before Judge Galgay relating to the new settlement offer, objections had to be submitted in writing by June 12, with a hearing to be held on June 16. Brewer filed no written objections by June 12 because no one had authorized him to do so. A day later appellant Cosoff retained him to oppose the settlement. At the hearing on June 16 Judge Galgay gave him time to argue; Brewer there objected only to an alleged inadequacy of notice and to the provisions conceming attorneys’ fees. By order dated June 23, 1981, Judge Galgay approved the amended offer, which has now been accepted by some 80% of the debentureholders. On July 1, 1981, Cosoff and Finkelstein, represented by Brewer, and Miller and McGinnis, originally represented by Douglas F. Eaton and now by Stuart E. Jackson, filed notices of appeal, which on this occasion came before District Judge Duffy. The grounds of appeal were largely those that had been argued before Judge Galgay at the hearing on the first settlement offer. On March 15, 1982, Judge Duffy affirmed the order of the bankruptcy court, 20 B.R. 186 (S.D.N.Y.1982), primarily on the ground that the dismissal of the appeals from the order of February 20, 1980, rendered that order res judicata. The instant appeals are from Judge Duffy’s order.
Discussion
Although the trustee in bankruptcy has not raised the point and U.S. Trust Company has done so only feebly, we begin by noting some concern whether appellants have standing to appeal in light of the fact that the settlement leaves them free to pursue their remedies. We see nothing in the argument of their counsel that they are entitled to represent accepting debenture-holders since a rejection of the settlement would necessarily lead to a still further improvement in the offer. There can be no such assurance. Although the banks indeed moved rather quickly from 14 cents to 19 cents, there must be a point at which the banks would prefer to litigate rather than give up more in settlement, and no one knows but the banks and their counsel where that is. Beyond this there is no proof that accepting debentureholders have authorized appellants to appear for them. Appellants’ argument with respect to standing must be rather that in a case of this sort'the right of an individual debenture-holder or even of a considerable group of such holders to assert their claims against the embattled forces of ten of the country’s largest banks, once deprived of the resources afforded in the past by the bankruptcy trustee and the indenture trustee, is more fiction than fact. With claims of 80% of the debentures settled, the threat to the banks by a few holdouts is not substantial. Bringing the bankruptcy trustee, or the indenture trustee, or both, back to the negotiating table or to court is the only realistic recourse to preserve an opportunity for debentureholders who have not yet accepted to achieve more. The situation is comparable to that of court-approved settlements of class actions, in which “even where class members had the right to exclude themselves from the class, they may appeal from an order approving a settlement which they deem unsatisfactory,” 3B Moore, Federal Practice 123.80[5] (2d ed. 1982), lest small claimants “be faced with equally unpalatable alternatives — accept either nothing at all or a possibly unfair settlement,” Ace Heating & Plumbing Co. v. Crane Co., 453 F.2d 30, 33 (3 Cir.1971).
We have little doubt as to the correctness of Judge Duffy’s observations about res judicata in the usual case or even in most cases of the approval of settlements in bankruptcy. An appeal by one creditor will not save the situation for another if the first withdraws his appeal — if for no other reason than that the time for the other to take an appeal will generally have expired. See 9 Moore, Federal Practice 1204.11[4] (2d ed. 1982). Here the latter obstacle does not exist. The operative order was Judge Galgay’s order of June 23, 1981, approving the revised settlement and the Cosoff-Finkelstein and Miller-McGinnis appeals were timely. By the time the Kurtz and Levy appeals from the February 20, 1980, order were withdrawn the amended offer had been made public and, if the appeals had not been formally withdrawn, Judge Conner would surely have found some way of getting rid of them rather than devote his time to hearing appeals from an order that was about to be superseded. Apparently the reason why withdrawal of the appeals was sought was to permit speedy dissemination of the new offer without having to await the district court’s decision as to the superseded offer, see 20 B.R. at 188; that purpose was accomplished. We see no indication that anyone thought at the time that the withdrawal of the appeals from the February 20, 1980, order with prejudice would deprive objectors to the new offer of a right to appeal on the merits if Judge Galgay were to approve this. Beyond all this, policy considerations weigh against a rigid application of res judicata when such serious attacks have been made upon the bankruptcy trustee and his counsel, the present and former indenture trustees for the 4%% debentures, and the bankruptcy judge. We therefore proceed to Judge Duffy’s alternative ground of decision, on which he did not elaborate, that the appeals are lacking in merit. 20 B.R. at 190. While we could remand the case to him to perform the task of a detailed analysis of the settlement and ordinarily would do so, nearly three years have elapsed since the initial approval of the settlement, and a remand and subsequent appeal would doubtless add nearly another year.
In undertaking an examination of the settlement, we emphasize that this responsibility of the bankruptcy judge, and ours upon review, is not to decide the numerous questions of law and fact raised by appellants but rather to canvass the issues and see whether the settlement “fall[s] below the lowest point in the range of reasonableness”, Newman v. Stein, 464 F.2d 689, 693 (2 Cir.), cert. denied sub nom. Benson v. Newman, 409 U.S. 1039, 93 S.Ct. 521, 34 L.Ed.2d 488 (1972). We shall not attempt to deal with every argument advanced by appellants but will concentrate on what seem the most nearly persuasive.
We start with appellants’ argument that, quite apart from the banks’ conduct, part or all of the banks’ claims are not “Senior Indebtedness”, see note 6, supra, to which alone the claims of debentureholders are subordinated. We can pass over the frivolous argument that the language does not cover further borrowings, to which Judge Galgay gave the treatment it deserved, 4 B.R. at 70-72. Appellants next argue that until Grant’s guaranty of August 21, 1974, the banks’ claims did not qualify as Senior Indebtedness of Grant since their loans were not to Grant but to Grant Financial. Judge Galgay thought a sufficient answer to be that Grant’s indebtedness to Grant Financial was evidenced at the time of the filing of the Chapter XI petition by an Intercorporate Demand Note in the amount of $819,887,663, more than the amount of the banks’ loans to Grant Financial, and that this would qualify as Senior Indebtedness if the corporate entities are respected; if they are not, as well might be proper, the loans to Grant Financial, all evidenced by notes, would qualify even more directly. Beyond this, the $15,-000,000 Secured Demand Loans of August 1974 were originally made directly to Grant, and the $44,000,000 loaned under the Interim Loan and Guaranty Agreement of August 21, 1974, was guaranteed by Grant. Finally, under the Loan and Guaranty Agreement all loans by Grant Financial were guaranteed by Grant. While this did not become effective until October 8, 1974, which fell 6 days short of a year of the Chapter XI petition, there is no showing that the trustee could have established lack of fair consideration for the guaranty under § 67(d). The legal standard in a situation such as this, which is governed by § 67(d)(1)(e) of the Bankruptcy Act, is whether “the economic benefit ... that accrued to [the] bankrupt as a result of the third person’s indebtedness” was “ ‘disproportionately small’ when compared to the size of the security that that bankrupt gave and the obligations that it incurred,” Rubin v. Manufacturers Hanover Trust Co., 661 F.2d 979, 993 (2 Cir.1981). See also Klein v. Tabatchnick, 610 F.2d 1043, 1047 (2 Cir. 1979). Through its subsidiary, Grant received the full benefit of the extended maturity of some $490,000,000 in short-term loans and additional loans up to the total amount of $600,000,000 in return for its guaranty and for security interests, see note 4, supra, estimated by the Bankruptcy Judge to amount to $288,000,000, 4 Bankr. Ct.Dec. at 606. We thus conclude that while the subordinated debentureholders have some arguments that the larger part of the bank debt would not qualify as Senior Indebtedness because the loans initially were made to Grant Financial rather than to Grant, these did not have much chance of prevailing.
Appellants contend that, however things might otherwise stand, the banks are estopped from claiming that Grant’s indebtedness to Grant Financial constituted Senior Indebtedness because the prospectus under which the 4%% Debentures were issued showed Senior Indebtedness of only $28,-775,000 whereas Grant then owed Grant Financial $246,420,216. The Bankruptcy Judge accepted the Trustee’s answer that where there is a conflict between a prospectus and the language of an indenture, the latter controls, citing In re Discon Corp., 346 F.Supp. 839, 844 (S.D.Fla.1971). Appellants’ argument, however, is not really one of construction; they say that even if the words are sufficient, Grant, allegedly with the banks’ knowledge, acted in such a way as to make it inequitable for the banks to rely on the words. Yet even if this were upheld — and we find no proof of the banks’ complicity in Grant’s prospectus, the point remains that the prospectus goes on to define Senior Indebtedness as, inter alia, “indebtedness ... for money borrowed from or guaranteed to persons, firms or corporations evidenced by notes or similar obligations” (emphasis supplied). Grant’s fresh guaranty of the indebtedness of Grant Financial to the banks in 1975 would itself therefore qualify as Senior Indebtedness even if some principle of estoppel were to prevent the banks from claiming that the unguaranteed intercorporate loans from Grant Financial would not have done so in 1971.
Once it is concluded that there was a strong probability that all of the bank debt would be deemed Senior Indebtedness and a certainty that some of it would be, appellants’ other claims lose much of their force. It is true, as appellants urge, that the contractual subordination of the debentures to the bank debt would not prevent the bankruptcy court, as a court of equity, from placing the debentures on a plane of equality with or even, although this is harder to envision, see note 7, supra, of superiority to all or part of the Senior Indebtedness if the banks had engaged in inequitable conduct. However, what appellants disregard is that in judging the equity of the banks’ conduct their position as creditors prima facie senior to the debenture-holders must be taken into account. We see no reason to quarrel with the substance of Judge Galgay’s summary of the law of equitable subordination, 4 B.R. at 74-75, although every judge would probably state his own version differently. We entirely agree with his conclusion that “[a] creditor is under no fiduciary obligation to its debtor or to other creditors of the debtor in the collection of its claim”, 4 B.R. at 75, and cases there cited. See Weinberger v. Ken drick, 698 F.2d 61 at 78 (2 Cir.1982). The permissible parameters of a creditor’s efforts to seek collection from a debtor are generally those with respect to voidable preferences and fraudulent conveyances proscribed by the Bankruptcy Act; apart from these there is generally no objection to a creditor’s using his bargaining position, including his ability to refuse to make further loans needed by the debtor, to improve the status of his existing claims.
Returning to the four principal points raised by objectors, see p. 605, supra, we thus think the bankruptcy judge was warranted in giving relatively little weight to those labeled as (a) and (b). The premise of both arguments is that sometime between September of 1974 and May of 1975 the banks knew or had reasonable grounds to believe that Grant was insolvent. Although the Trustee had alleged this in his answer to the banks’ claims, we have been cited to no evidence that would support this. To the contrary there was much testimony that Grant continued showing a substantial net worth and that the banks considered it viable almost to the end.
Taking up next the objection lettered (d), the gravamen of this charge is that Grant management, apparently in the summer of 1974, contemplated taking action to place Grant in a Chapter XI proceeding, which might have enabled Grant to survive as a reduced operation with lower administrative expenses, but that the banks prevented this, making specious explanations but acting in reality to improve their preferred position. For this appellants cited passages from two depositions neither of which supports the contention they advance. In the first of appellants’ references, John P. Schroeder, Morgan Guaranty’s officer in charge of the Grant credit, merely agreed with questions suggesting that in the late summer of 1974 the banks wished “to recoup the most amount of money as possible on the Grant loans”, an understandable and permissible desire, and that for this reason they “did not opt for liquidation at that time”. In the second passage cited, Robert Dannenbaum of the Bank of New York stated that at some unspecified time the banks would have liked an “unofficial reorganization program”, by which he meant not a Chapter XI proceeding but rather nothing more than “general monitoring of the Company’s affairs by the banks”. No suggestion is found in any passage of these witnesses’ testimony reproduced by appellants that Grant itself actively contemplated undergoing voluntary liquidation or reorganization under the Bankruptcy Act in the summer of 1974. We also note that after July, 1974, the banks increased their loans by $44,000,000 in August, 1974, and by another $66,587,500 in October, 1974, and on September 15, 1975, subordinated $300,000,000 of their debt to trade obligations. While a sinister interpretation is possible, this is not demanded; considering that the fresh money provided by the banks after July, 1974, amounted to some $226,000,000 as against $95,378,373 principal amount of the debentures, the banks would have been paying a rather high price to obtain whatever legal advantages the various arrangements of July, 1974, through September, 1975, would yield in the event of Grant’s invoking the Bankruptcy Act.
With respect to objection (d), the Bankruptcy Judge was warranted in attaching little importance to general statements by Grant officials that the banks were “running” Grant. There is no doubt that, at least from March of 1974, the banks kept careful watch on what was going on at Grant; they would have been derelict in their duty to their own creditors and stockholders if they had not. It is not uncommon in such situations for officers whose companies have been brought to the verge of disaster to think that they still have better answers than do the outsiders. In order to establish their claims the appellants must show not simply that the banks proffered advice to Grant that was unpalatable to management, even advice gloved with an implicit threat that, unless it were taken, further loans would not be forthcoming. They must show at least that the banks acted solely for their own benefit, taking into account their reasonable belief that their claims constituted Senior Indebtedness vis-a-vis the debentureholders, and adversely to the interest of others.
The allegation most discussed by appellants is that lettered (c). With respect to this the record, along with materials submitted in support of and in response to the petition for rehearing in Weinberger v. Kendrick, supra, enable us to piece out the story. Harry Pierson, the acting president of Grant and Robert Luckett, the controller, made a report to a meeting of the Grant board of directors in June of 1974 proposing a transaction wherein $100,000,000 of customer accounts receivable would be sold to Beneficial Finance Company (Beneficial) at a discount of up to 27% and some undetermined portion of the proceeds would be used to purchase on the market 4%% subordinated debentures which were then selling at about 25 cents on the dollar. Pierson reported that two of the major banks, Morgan Guaranty and Chase, were opposed to the transaction until some time after the completion of the proposed bank loan commitment, presumably the Loan and Guaranty Agreement executed on October 8, 1974. Their reasons were that proceeds of one of Grant’s most valuable assets would be used to pay junior debt and that trade creditors would be upset. According to Luckett, Pierson had nevertheless determined to sign the contract with Beneficial and apparently persisted in that intention after a meeting at Morgan Guaranty where the banks’ opposition was strongly conveyed. However, when Grant’s attorneys received the documents from Beneficial, they found, as often happens in negotiations of this sort, that the provisions were distinctly more onerous than the Grant officers had supposed. For example, Beneficial reserved the right to cull the accounts tendered, would make no payment until 30 days elapsed, and could put back to Grant any accounts that it found difficult to collect. These and numerous other snags in the draft agreement led Charles A. Doyle, then an attorney in Grant’s Legal Department, to report to Robert Kelly, his superior, that “it would be legally unwise and unsound to execute any of these agreements in their present form.” This view was shared by Kelly, as well as by John Sundman, Grant’s new Financial Vice President and its closest link with the banking community.
It would seem a sufficient answer to the objectors that the Beneficial deal was abandoned for reasons relating to its terms that were entirely independent of the banks’ opposition. Beyond that we think it would have been surprising if the banks had not objected to the portion of the transaction which involved use of proceeds of quick assets to purchase long-term subordinated debt. The banks reasonably thought that their claims were senior to the debentures. True, the purchase of debentures at 25 cents on the dollar would have meant a saving of interest of some 19% on the purchase price. But Grant’s immediate problem was short term; what it needed was to conserve resources and obtain short-term loans in order to stay afloat until the tide turned. Even if we should assume the evidence went so far, we see nothing inequitable in the banks taking the position that if Grant wished use quick assets to redeem subordinated long-term debt, even on an advantageous basis, it could expect no further help from them.
The appellants raise a special point concerning Chase. As previously stated, Chase, one of the three lead banks, had been Indenture Trustee for the 4%% debentureholders until August, 1974, when it resigned and was succeeded by U.S. Trust. A debentureholder accepting the offer of settlement releases his claim against both. Despite the limited duties of a trustee for debentureholders, as distinguished from a trustee holding property as security, it is settled in this circuit that he owes a duty “not to profit at the expense of his beneficiary”, Dabney v. Chase Nat'l Bank, 196 F.2d 668, 670 (2 Cir.1952) (L. Hand, J.), as supplemented, 201 F.2d 635 (2 Cir.), cert. dismissed per stipulation, 346 U.S. 863, 74 S.Ct. 103, 98 L.Ed. 374 (1953). See also United States Trust Co. v. First National City Bank, 57 A.D.2d 285, 296, 394 N.Y.S.2d 653, 660-61 (1st Dep’t 1977), aff’d, 45 N.Y.2d 869, 410 N.Y.S.2d 580, 382 N.E.2d 1355 (1978); Broad v. Rockwell Int’l Corp., 642 F.2d 929, 959-60 (5 Cir.) (en banc) (construing New York law), cert. denied, 454 U.S. 965, 102 S.Ct. 506, 70 L.Ed.2d 380 (1981); Morris v. Cantor, 390 F.Supp. 817, 824 (S.D.N.Y.1975). When an indenture trustee assumes the role of a lender, it takes the risk that, in the event of insolvency of the issuer, its acts will be subject to special scrutiny. Here the Bankruptcy Trustee conducted an examination of Chase’s files covering its activities as indenture trustee, and objector Kurtz deposed a Chase vice president concerning its decision to resign as indenture trustee and other matters. Neither the deposition nor any of the exhibits marked thereat were offered in evidence at the hearing on objections. In their briefs in this court objectors rely on Chase’s having played a principal role in the opposition to the sale of accounts receivable to Beneficial Finance Co. and having participated in the negotiation and drafting of the agreements of the summer and fall of 1974.
At first blush the argument that Chase helped to thwart a plan whereby at least some of the debentureholders would have received partial payment might seem to have possible merit. However, it falls on the rock of so much of our previous discussion as shows that Grant would not have consummated the Beneficial deal apart from the banks’ opposition. The second argument falters on the fact that the $44,-000,000 of secured loans covered by the Interim Loan and Guaranty Agreement were new money, $12,480,000 of which was supplied by Chase. Even if the facts showed that Chase participated in negotiation of the October 8,1974, Loan and Guaranty Agreement while still indenture trustee, which is not at all clear, this also involved $66,587,500 of new money, $17,973,-000 of which was supplied by Chase. This is some distance from the acts of “[a] creditor who accepts payment of part of a loan before it is due, from a debtor known to be ‘fighting for its life’, and who insists upon security for the balance [of unsecured debt] when it is due”, of which Judge Hand wrote in Dabney, supra, 196 F.2d at 672. As the Fifth Circuit en banc recently concluded, New York authority runs contrary to the assertion “that an indenture trustee has a duty, fiduciary or otherwise, to seek for the holders of debentures any benefits that are greater than those contractually due them,” Broad v. Rockwell Int’l Corp., supra, 642 F.2d at 959 (emphasis in original). In short, while Chase might have been better advised to resign at an earlier date we see little prospect of a recovery against it as indenture trustee on the facts before us.
The only other contention of appellants we deem worthy of discussion is their position that Weil, Gotshal & Manges (WGM) should have been disqualified as attorneys for the Bankruptcy Trustee. Although their argument is cast in terms of disqualification, what appellants are really saying is that WGM’s allegiance to the banks led the firm to make an inadequate investigation of the claims of preferences, fraudulent conveyances, and so forth, raised in the Trustee’s answer in the adversary proceeding initiated by the banks and, in part because of this lack of investigation, to recommend a settlement too favorable to the banks. The claimed bases for “disqualification” are that:
(1) WGM acted as counsel for the bank claimants for five days after the initiation of the Chapter XI proceeding and before it was retained as co-counsel by a creditors’ committee representing both the bank and other claimants;
(2) WGM was one of two co-counsel representing the creditors committee throughout the Chapter XI proceeding and until its engagement as counsel for the Trustee in liquidation;
(3) From February, 1975, until April, 1977, WGM acted as counsel for Morgan Guaranty in connection with a $9,000,000 claim against Bowmar Instrument Corp. in a Chapter XI proceeding;
(4) Until 1975, WGM was counsel for Shapiro Brothers Factors Corp., a wholly owned subsidiary of Chase, and it now represents Chase Manhattan Mortgage and Realty Trust, a publicly owned real estate investment trust with ties to Chase.
Judge Galgay overruled this claim, 4 B.R. at 82, partly in reliance on § 44c of the Bankruptcy Act, which provides:
An attorney shall not be disqualified to act as attorney for the receiver or trustee merely by reason of his representation of a general creditor.
Appellants answer that their objection goes to WGM’s affiliations not with general creditors but with institutions claiming to be lien creditors.
However, we do not find that any of the relationships charged by appellants were disqualifying. The five days of representation of the bank claimants were de minimis; appellants point to no action taken during that period on WGM’s advice which figured in the later investigation or negotiations. We likewise have been pointed to no disqualifying action taken while WGM was co-counsel for the creditors’ committee in the Chapter XI proceeding. Although appellants allege it was understood that WGM was representing the banks and the co-counsel, Ballon, Stoll & Itzler, were representing other creditors, we have been shown nothing to substantiate this or to show that WGM was advancing the cause of the banks in this case. We see no reason to disagree with Judge Galgay’s reaffirmation, 4 B.R. at 83, of his conclusion in In re REA Holding Corp., 4 Bankr.Ct.Dec. 1249, 1253 (Bankr.S.D.N.Y.1979), vacated and remanded on other grounds, 2 B.R. 733 (S.D. N.Y.1980), that “[t]he role of counsel to an official creditors’ committee is not adverse to or in conflict with the role of counsel to a bankruptcy trustee if liquidation should subsequently ensue.” WGM’s previous representation of one or more of the banks or their subsidiaries in unrelated matters is scarcely a ground for disqualification. There is no contention that WGM regularly served any of the banks in bankruptcy cases, and their having done so in one or more unrelated cases would not prevent a vigorous assertion of the claims of the subordinated debentureholders against the banks. On an issue of this sort particular weight should be given to the conclusion of the Bankruptcy Judge, who had abundant opportunities to observe the activities of WGM over many months and concluded “that the Trustee’s attorneys have served him and the creditors of the bankrupt estate with vigor, objectivity and independence.”
We conclude by reemphasizing that the task of the bankruptcy judge was not to determine whether the settlement was the best that could have been obtained, something that neither he nor we can ever know, but whether it “fall[s] below the lowest point in the range of reasonableness”, Newman v. Stein, supra, 464 F.2d at 693. If we take the Trustee’s estimated realization of $600,000,000, and deduct the estimated $143,000,000 of administration and § 64a priority claims, the $76,000,000 owing to secured suppliers, and the $24,000,000 owing to senior debentureholders, there would be a balance of $357,000,000 available for distribution among $650,000,000 of bank claims, $95,000,000 of Subordinated Debentures and $82,000,000 of general unsecured claims, 4 Bankr.Ct.Dec. at 606. If the banks could sustain their claims of subordination, let alone their claims of lien protection for $288,000,000 of their debt, the subordinated debentureholders would take nothing. Even if the banks’ claims to secured creditor status and subordination of the debentures were rejected but the banks were not subordinated to them, all of which was highly problematical, the debenture-holders would receive only 43 cents on the dollar, after much further expense. After considering the strengths and weaknesses of the claims of the debentureholders a settlement assuring them of 19 cents can hardly be regarded as below the lowest point in the range of reasonableness.
We therefore affirm the judgment of the district court on the merits.
. All references are to the Bankruptcy Act of 1898 and the Rules thereunder.
. The earlier ones were a compromise and settlement with the secured suppliers, approved by the Bankruptcy Court on Feb. 3, 1977, aff'd, Docket No. 78-5010 (2 Cir., April 6, 1978); a compromise and settlement with senior debentureholders approved Jan. 18, 1978; a compromise and settlement with the bank claimants approved July 20, 1978, 4 Bankr.Ct.Dec. 597; a first order approving a compromise and settlement with the junior debentureholders dated Feb. 20, 1980, 4 B.R. 53; and a further order dated June 23, 1981, approving a revised form of this settlement, from which the appeals here at issue were taken.
. For example, as of Jan. 31, 1973, Grant had only $10,000,000 in bank debt, all of it short term, as against $380,033,500 in outstanding commercial paper.
. The security was to consist of all of Grant’s customer accounts receivable and the securities of Zeller’s Ltd., a Canadian subsidiary of Grant. The security was pledged ratably for the benefit of $23,995,000 of Grant’s 4A% senior sinking fund debentures. All financing statements required to perfect security interests under the Initial Security Agreement were timely filed by Morgan Guaranty as agent.
. An “Ad Hoc Protective Committee of 43A% Convertible Subordinated Debentures of W.T. Grant Company”, including Mr. Victor Kurtz and represented by I. Walton Bader, raised objections to the banks’ settlement at the hearing. The failure by Mr. Kurtz’s “Protective Committee” to pursue its objections by appealing from the Bankruptcy Judge’s allowance of the banks’ claims forecloses some of the issues raised in the present appeal. While Judge Gal-gay expressly reserved “the claims of Subordinated Debentureholders purportedly represented by the Ad Hoc Protective Committee” pending subsequent determination of “the validity and enforceability of the subordination provisions contained in the Subordinated Debentures and related Trust Indentures,” 4 Bankr. Ct.Dec. at 608, this reservation of claims against the bankrupt estate and, by extension, against the bank claimants, does not go still further to permit, e.g., re-opening of the question whether the Trustee properly agreed not to question the June, 1975, payments of $56,931,-665.59 to the 116 other bank creditors of Grant.
. The term “Senior Indebtedness” shall mean the principal of and premium, if any, and interest on (a) indebtedness (other than the Debentures and the Convertible Subordinated Debentures due June 1, 1990 of the Company) of the Company for money borrowed from or guaranteed to persons, firms or corporations evidenced by notes or similar obligations, (b) indebtedness of the Company evidenced by notes or debentures (other than the Debentures and the Convertible Subordinated Debentures due June 1, 1990 of the Company) issued under the provisions of an indenture or similar instrument between the Company and a bank or trust company or (c) purchase money indebtedness of the Company, in each case, whether outstanding at the date of execution of this Indenture or thereafter incurred; unless, in each case, by the terms of the instrument by which the Company incurred, assumed or guaranteed such indebtedness, it is expressly provided that such indebtedness is not superior in right of payment to the Debentures. As used in the preceding sentence the term “purchase money indebtedness” shall mean indebtedness evidenced by a note, debenture, bond or other instrument (whether or not secured by any lien or other security interest) issued or assumed as all or a part of the consideration for the acquisition of property, whether by purchase, merger, consolidation, or otherwise; provided, however, that such term shall not include any account payable or any other indebtedness created or assumed by the Company in the ordinary course of business in connection with the obtaining of materials or services.
. We reject the objectants’ assumption that the doctrine of equitable subordination must invariably work to reverse the positions of senior and junior creditors. The equitable powers of the bankruptcy court are broad, Pepper v. Litton, 308 U.S. 295, 304-05, 60 S.Ct. 238, 244, 84 L.Ed. 281 (1939), and it may “adjust ... equities among the creditors” in a flexible manner, Herzog & Zweibel, The Equitable Subordination of Claims in Bankruptcy, 15 Vand.L.Rev. 83, 87 (1961). Before considering a complete reversal of priorities, the bankruptcy court would have been obliged to weigh the less drastic remedy of placing a culpable senior creditor on a plane of equality with junior creditors.
. Initially we found it somewhat troubling that Judge Galgay applied the language of Anderson to the Trustee, 4 B.R. at 69, rather than to himself. While it is surely necessary that a trustee should perform these duties, his having done so does not relieve the bankruptcy judge from repeating the process, giving appropriate weight to the recommendations of the trustee and his counsel. However, Judge Galgay’s opinion shows that he thoroughly understood this.
. There has been much to-do about how far Judge Galgay’s opinion represented his independent analysis as distinguished from a rubber-stamping of the findings of fact and conclusions of law prepared by counsel for the Trustee. Judge Galgay expressed, 4 B.R. at 57, his awareness of the caution in United States v. El Paso Natural Gas Co., 376 U.S. 651, 656-67, 84 S.Ct. 1044, 1047, 12 L.Ed.2d 12 (1964), that trial courts should not slavishly follow one party’s proposed findings of fact and conclusions of law. He acknowledged having “adopted findings of fact and conclusions of law submitted by the Trustee for the reason that they accurately state and reflect the true state of the record” so that “[i]t would be a waste of judicial tíme on my part merely to rephrase proposed findings and conclusions so accurately stated.” Id. At our request the counsel for the Trustee has made available his proposed findings and conclusions, and we have compared them with Judge Galgay’s. We find that while Judge Galgay did adopt most of the Trustee’s proposed findings of fact, especially as to the terms of the settlement, almost verbatim, he prepared his own legal discussion, and appellants’ charge that the opinion was that of counsel rather than of the judge is a gross exaggeration.
. Additional amounts not in excess of 2 cents on the dollar might be paid if allowed fees and expenses amount to less than 2% of the face value of all debentures tendered.
. Judge Duffy noted, 20 B.R. at 189 n. 4, that appellants had “arguably failed to preserve their claims for appeal by not properly articulating or presenting them in the bankruptcy court”, but did not rely on this.
. An appeal was also taken by a number of debentureholders, all represented by Mr. Brewer, (No. 82-5021) which, because none of these debentureholders had earlier appealed from the bankruptcy court to the district court, was dismissed for lack of standing without prejudice to later motions by these debentureholders for leave to intervene. Seventeen of this group, led by Robert B. Yates, have been granted permission to intervene and have amplified appellants’ contention that the Bankruptcy Trustee’s counsel should have been disqualified, infra, pp. 612-613. Another nine, led by James Stephan, have been allowed to intervene and have alleged conflicts of interest on the part of United States Trust Co., successor indenture trustee for the 43A debentures, and its counsel. In addition, leave to intervene was granted to a faction of debentureholders, led by John Masse and represented by I. Walton Bad-er, who support the amended offer of settlement but oppose United States Trust Co.’s application for fees pursuant to that offer. United States Trust Co. has also been permitted to intervene in support of the amended offer and in defense of its own conduct and that of its counsel.
The Stephan intervenors point to alleged conflicts of interest arising out of United States Trust Co.’s desire to obtain fees for its services and its potential liability for breaches of fiduciary duty committed by its predecessor Chase. We see no basis for the charges of misconduct leveled by the intervenors against United States Trust Co. and its counsel.
. As the transaction was conceived, Grant would use for repurchase of subordinated debentures so much of the proceeds as was needed to have the resulting paper reduction in subordinated debt on the right hand side of Grant’s balance sheet offset the loss of assets on the left hand side engendered by the discounted sale of the accounts receivable.
. We see no basis whatever for any claims against U.S. Trust or its counsel, supra, note 12.
. It would appear that the bank claimants had already acted to set-off $94,523,110 of Grant’s funds on deposit with them and to advance back $90,300,000 of this amount to Grant as debtor-in-possession by October 2, 1975, prior to the start of WGM’s challenged five-day representation of the bank claimants. | 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"
] | [
5
] | songer_district |
GREAT ATLANTIC & PACIFIC TEA CO. v. JONES.
No. 5956.
United States Court of Appeals Fourth Circuit.
Argued Oct. 7, 1949.
Decided Oct. 10, 1949.
J. E. Belser, Jr., Columbia, S.C., for appellant.
Henry H. Edens, Columbia, S.C. (Henry Hammer, Columbia, S.C., on the brief), for appellee.
Before PARKER, Chief Judge, and SOPER, and DOBIE, Circuit Judges.
PER CURIAM.
This appeal is taken from a judgment of the District Court in a case tried without a jury wherein the District Judge found that injuries suffered by the plaintiff in the defendant’s store were caused by the carelessness of one of its employees. Under Rule 52(a) of the Federal Rules of Civil Procedure, 28 U.S.C.A., the findings of the District Judge in such a suit may not be set aside unless clearly erroneous.
In our opinion, the conclusion reached by the District Judge was clearly correct. He made in effect the following findings of fact which were fully supported by the evidence. On the occasion of the accident the plaintiff, an elderly woman, was a customer in the store when an employee in the course of his work pushed a truck, mounted on four small wheels and loaded with three cases of oil each weighing twenty-five pounds, to a point near the plaintiff and behind her and slightly to her right. The employee then without observing the plaintiff started to unload the truck and in doing so one of the cases was dislodged and fell upon the plaintiff’s ankle causing painful and serious injuries. From these findings the Judge reached the inevitable conclusion that the injuries were due to the failure of the employee to use due care.
The plaintiff had no warning before she was struck and the employee was unable to explain how the case fell upon her ankle. The defendant therefore contends that the plaintiff’s cause must fail because the courts of South Carolina do not recognize the doctrine of res ipsa loquitur. Gilland v. Peter’s Dry Cleaning Co., 195 S.C. 417, 11 S.E.2d 857. It is plain, however, that there is no need for the plaintiff to rely on this doctrine in this case because the evidence clearly shows that the accident was caused by the action of the employee in unloading the truck, and that the fall of the heavy case must have been due to his negligence.
At the conclusion of the testimony the judge permitted the plaintiff, over the objection of the defendant, to amend her complaint to show that she was injured not by being run into by the truck, as alleged in the original complaint, but by the fall of the case during the process of unloading the truck, as shown by the testimony of tne defendant’s employee. This ruling of the court was clearly in harmony with Rule 15(a) of the Federal Rules of Gvil Procedure which ' provide that leave to amend shall be freely given when justice so requires. The defendant was not taken by surprise by the amendment for the new matter was furnished by its own witness.
The judgment of the District Court is
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_habeas |
MARINE COOKS & STEWARDS, AFL, a voluntary association, James O. Wil-loughby, Virgil Rogers and Willard Richards, Appellants, v. PANAMA STEAMSHIP COMPANY, Ltd., a corporation, et al., Appellees.
No. 15637.
United States Court of Appeals Ninth Circuit.
April 6, 1959.
J. Duane Vance, Seattle, Wash., for appellants.
Summers, Bucey & Howard, Charles B. Howard, Seattle, Wash., John D. Mosser, Portland, Ore., for appellee.
Before POPE, HEALY and ORR, Circuit Judges.
ORR, Circuit Judge.
Upon the complaint of appellees the trial court issued an order enjoining appellants from conducting certain alleged picketing activities. On the appeal lodged in this court we have had two hearings.
At the first hearing appellants rested their contentions on lack of jurisdiction of the trial court to issue the temporary injunction because of the prohibition contained in the Norris-LaGuardia Act, 47 Stat. 70 (1932), 29 U.S.C.A. § 101 et seq. (1956).
On the second hearing their contention was broadened to include an assertion of a lack of statutory basis for the district court to consider this action at all on the civil side either as to the injunction or the claim for damages, which latter claim is still pending below.
The essential facts follow.
The S. S. Nikolos, a vessel registered under the Liberian flag and owned by ap-pellee Panama Steamship Company Ltd., a foreign corporation, arrived in Tacoma Harbor in the State of Washington during the early morning hours of June 10, 1957. Its master, oificers and crew were aliens. The time-charterer, appellee Sea-tankers, Inc., is not a citizen of the United States.
The ship was carrying a cargo of bulk salt loaded at a port on the West Coast of Mexico. The consignee was the Hooker Electro-Chemical Co. to whom the cargo was to be delivered at a berth in Tacoma Harbor. The ship was cleared and passed by the Immigration, Quarantine and Custom authorities and was therefore lawfully entitled to discharge its cargo.
While at anchorage awaiting the assignment of a berth, the ship was approached by a small vessel, the “Will-O-Bee”, displaying a “Picket Boat” sign and then and there operated by appellants Willoughby, Rogers, and Richards, members of appellant Marine Cooks & Stewards AFL, Willoughby being the duly authorized Port Agent. Willoughby boarded the Nikolos and notified the master that the ship was being picketed by his association.
The “Will-O-Bee” continued to circle around the Nikolos displaying its picket signs. In addition, Willoughby threatened the Hooker Electro-Chemical Co. with the establishment of a picket line at its dock if the Nikolos was allowed to berth.
In awarding a temporary injunction pending a final determination as to damages and the issuance of a permanent injunction, the trial court made findings to the effect that the picketing conduct of appellants was an unlawful interference with international commerce and particularly with the right of appellees to carry out an international voyage and maritime contract of affreightment, utilizing a vessel lawfully registered with a friendly foreign nation and manned by an alien crew under foreign shipping articles. Further findings are that appellees have also entered into and are seeking other like contracts; that by reason of the picketing the Nikolos has acquired the reputation of a “hot ship” and that ap-pellees’ reputation for carrying out their contractual obligations have become impaired.
The trial court further found that the United States as a nation has international obligations with respect to commerce and with respect to the relations of this country with friendly maritime nations and that the acts of the appellants might impair such obligations and cause irreparable damage to such relations. It found that the appellees had no adequate remedy at law and that the public officers charged with a duty to protect appellee’s property were unable to furnish adequate protection as shown by lack of evidence of any action by such authorities and the fact that no public official was charged with such responsibility.
The trial court also found that there had been no fraud; no physical violence to persons or injury to tangible property or threats of such by appellants.
It seems to be an accepted fact that there was no dispute between the members of the crew or any of them and the master or owners. The picketing was purely a matter of protest by the appellants of the alleged threat to American working standards created by the foreign crews who work under substantially less favorable circumstances than crews on American ships.
In now turning to a consideration of the questioned jurisdiction of the trial court to entertain the action, we keep in mind that the jurisdiction of a federal district court rests upon statutory grant, Sheldon v. Sill, 1850, 8 How. 441, 49 U.S. 441, 12 L.Ed. 1147, and he who invokes that jurisdiction has the burden of establishing it. McNutt v. General Motors Acceptance Corp., 1936, 298 U.S. 178, 56 S.Ct. 780, 80 L.Ed. 1135.
Appellees upon whom rests that burden specifically disclaim diversity of citizenship as creating the statutory basis. See 28 U.S.C.A. § 1332.
Appellee has also refrained from invoking jurisdiction on the admiralty side under 28 U.S.C.A. § 1333. This position may have been dictated by the unavailability of a jury trial on the damage issue in admiralty and because of appellee’s belief that admiralty cannot afford injunctive relief.
Appellee rests his claim of jurisdiction on 28 U.S.C.A. § 1331 creating general federal question jurisdiction in the district court. Section 1331 provides that “the district courts shall have original jurisdiction of all civil actions wherein the matter in controversy * * * arises under the Constitution, laws, or treaties of the United States.” (It is clear and conceded that the amount in controversy required by the statute in force at the time of the institution of suit was met.)
In sustaining jurisdiction under § 1331 the first hurdle is the requirement that the substantive law creating the cause of action be federal or that some element of federal law must be established as part of the cause of action. Smith v. Kansas City Title & Trust Co., 1921, 255 U.S. 180, 41 S.Ct. 243, 65 L.Ed. 577. That hurdle is cleared here because appellee’s cause of action is based on interference with maritime traffic on navigable waters and on interference with the performance of a maritime contract constituting maritime torts. The sub-stantive law of such torts is basically federal. See Pope & Talbot v. Hawn, 1953, 346 U.S. 406, 74 S.Ct. 202, 98 L.Ed. 143; Gilmore & Black, op. cit. supra note 2 and 2, 45 and cases cited therein. See also Romero v. International Terminal Operating Co., 79 S.Ct. 468, 483 (“the federal nature of the maritime law administered in the federal courts has long been an accepted part of admiralty jurisprudence”).
Having determined that the cause of action in the instant case depends upon federal law, the next problem is whether it arises under the “Constitution, laws, or treaties of the United States” within the meaning of § 1331.
Most forceably argued pro and con has been the line of controversy typified by Doucette v. Vincent, 1952, 194 F.2d 834 in the first circuit, Paduano v. Yamashita, 1955, Kisen Kabushiki Kaisha, 221 F.2d 615 in the 2nd circuit; Jordine v. Walling, 1950, 185 F.2d 662 in the 3rd Circuit and Jenkins v. Roderick, 1957, 156 F.Supp. 299 in the Massachusetts District Court. All of those cases involved the question of whether certain seamen or longshoremen suing for personal injuries could get a jury trial by proceeding on the law side of the federal court under § 1331. The theory in favor of such jurisdiction was that although the claims were cognizable in admiralty under 28 U.S.C.A. § 1333 the savings clause of that section, in bold face type in note 4, allowed them to proceed in any court competent to give an in personam remedy of damages and § 1331 created such competence in the law side of the federal district court.
The existing difference of opinion has been resolved by the U. S. Supreme Court in the recent Romero case, supra [79 S.Ct. 475], wherein it was held that “saving clause” actions are not within the grant of § 1331. In that opinion it is stated that “from 1875 to 1950 there is not to be found a hint or suggestion to cast doubt on the conviction that the language of that statute (§ 1331) was taken straight from Art. Ill, § 2, cl. 1 (of the Constitution), extending the judicial power of the United States ‘to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority.’ Indeed what little legislative history there is * * * indicates that this was the source. Thus the Act of 1875 (creating the predecessor of § 1331) drew on the scope of this provision of clause 1, just as the Judiciary Act of 1789 (creating the admiralty jurisdiction) reflected the constitutional authorization of clause 1 of section 2 (sic), which extended the judicial power to all Cases of admiralty and maritime Jurisdiction.” “ * * * The grant of jurisdiction over ‘suits of a civil nature at common law or in equity * * * ’ as derived from Article III, could not reasonably be thought of as comprehending an entirely separate and distinct class of cases — ‘Cases of admiralty and maritime Jurisdiction’.”
The Supreme Court thus held that Congress in utilizing the language of the Constitution in its statutory grants of jurisdiction intended to separate admiralty and maritime on the one hand from law and equity on the other. Therefore appellee’s argument that jurisdiction can be found under § 1331 because it is a savings clause action would be of no avail. But we are convinced that this is not a saving clause action. This is an action for an injunction, and admiralty at no time has had jurisdiction of such actions. We emphasize, this is not an action “saved” from the exclusive jurisdiction of admiralty; it is one never cognizable in admiralty. In terms of the Supreme Court distinction made in Romero, it is not a “case of admiralty and maritime jurisdiction” but a suit “of a civil nature * * * in equity” arising because of a breach of a federal duty. It can not be said of this action as it is of “having clause” actions, that Congress did not intend to give a double jurisdiction as there is no jurisdiction under § 1333.
In order to understand the absence of a sufficiently broad equitable jurisdiction in admiralty to grant an injunction it is helpful to briefly trace the history of that court and body of law. Its early development is not entirely clear, but it apparently developed much as the law merchant during the renaissance period of world commerce. Continental scholars then busy adapting the Roman (Civil) Law were attracted by this developing customary law and admiralty still bears their imprint.
The English port towns as well as the continental ones had “maritime courts” that adjudicated according to the customary sea law. The English development was affected by the creation of the office of the Lord High Admiral who originally was a naval officer concerned mostly with suppression of piracy. It is not clear just how and when he achieved jurisdiction over civil maritime matters, but by around 1400 that jurisdiction was so broad that Parliament moved to limit it by statute to “a thing done upon the sea”. 13 Rich. II, c. 5 (1389) and 15 Rich. II, c. 3 (1391). It still maintained a substantial jurisdiction as a court of record, however, until eventually it became involved in the great struggles for power among the various English courts. It then suffered severe narrowing of its jurisdiction because of the jealousy of the common law courts which issued writs of prohibition preventing it from entertaining actions of various kinds. For example, contract actions to be cognizable in admiralty not only had to concern the sea, but had to have been made at sea.
Apparently English lawyers at the time of the adoption of the American Constitution acted on the broad rule that “nothing was to be left to the Admiralty of which the common law could conveniently take cognizance * * * ” — a sort of reverse savings clause. Anything for which a writ could be gotten from a common law court would not be allowed in admiralty; only what was not available elsewhere could admiralty take.
Early in American judicial history the problem of the breadth of admiralty jurisdiction arose. As reference points there was the English jurisdiction already described; the English Colonial Admiralty courts which had much broader jurisdiction since it was convenient for Britain to have a non-jury court of broad power in the colonies; and the broad jurisdiction of the continental admiralty courts which was similar in extent to the English prior to curtailment.
Earlier American cases frequently assumed a narrow jurisdiction, but in Waring v. Clarke, 1847, 5 How. 441, 46 U.S. 441, 12 L.Ed. 226 the broad continental concept was accepted. As later stated in Insurance Company v. Dunham, 1870, 11 Wall. 1, 78 U.S. 1, 24, 20 L.Ed. 90, “the admiralty and maritime jurisdiction of the United States is not limited either by the restraining statutes or the judicial prohibitions of England, but is to be interpreted by a more enlarged view of its essential nature and objects, and with reference to analogous jurisdictions in other countries constituting the maritime commercial world * * *.”
But when it came to equitable jurisdiction there was no such parallel enlightenment. The relations between the admiralty and the Chancellor in England had escaped the attention which had been paid to the famed struggle between the former and the courts of common law. Apparently in the beginning there was a concurrent jurisdiction of sorts with a right asserted by the English Chancellor to take causes out of admiralty, the Chancellor being in a stronger position than even the common law courts with his injunctive powers. In in rem proceedings the Chancellor would not ordinarily invoke its concurrent jurisdiction unless the title came into dispute, but in “all proceedings in personam and in instances where any characteristically equitable relief was called for, the Chancellor always exercised the same full jurisdiction in maritime cases that he did in non-maritime cases. And the question of concurrent jurisdiction was eliminated by the exclusion of the court of admiralty from the field. The result was that such forms of relief as an accounting, specific performance, injunction, reformation or cancellation of contracts and relief against fraud generally, were available exclusively in Chancery.” Morrison, supra at 11.
Notwithstanding the departure made by American courts from the narrow English restrictions imposed by the common law writs of prohibition, when determination of equitable rights and remedies were under consideration the English practice was followed. Thus it was held that equitable interests in a vessel must be left to ordinary land courts of equitable jurisdiction. See e. g. The Eclipse, 1890, 135 U.S. 599, 10 S.Ct. 873, 34 L.Ed. 269. Affirmative equitable relief has been consistently denied in admiralty under the prevailing view that admiralty does not possess the distinctive equity powers. See e. g. Davis v. Child, D.C.Me.1840, Fed.Case No. 3,628; The Eclipse, supra; The Robert R. Kirkland, D.C.N.J.1899, 92 P. 407. It has been specifically held that admiralty can not give injunctive relief. Schoenamsgruber v. Hamburg American Line, 1935, 294 U.S. 454, 55 S.Ct. 475, 79 L.Ed. 989; Sound Marine & Machine Corporation v. Westchester County, 2 Cir., 1938, 100 F.2d 360, certiorari denied 1939, 306 U.S. 642, 59 S.Ct. 582, 83 L.Ed. 1042; Paterson v. Dakin, D.C.S.D.Ala.1887, 31 F. 682.
Thus this action or bill for an injunction to restrain a breach of a federal duty is an action that has arisen under the “law and equity” jurisdiction of § 1331; the remedy sought has at no time been within the “admiralty and maritime” jurisdiction of § 1333.
Having jurisdiction of the action for the injunction, the district court as a court of equity may within its discretion exercise the traditional power of equity to “clean-up” the controversy by awarding damages incident to its equitable jurisdiction. Of course there would be no right to a jury trial.
The remaining question raised by appellant is that the trial court was without jurisdiction to issue the temporary injunction because of the prohibition contained in the Norris-LaGuardia Act, 47 Stat. 70 (1932), 29 U.S.C.A. § 101 et seq. (1956). It is our conclusion that the Norris-LaGuardia Act does not apply. This view is based upon the holding of the Supreme Court in Benz v. Compania Naviera Hildalgo, S.A., 1957, 353 U.S. 138, 77 S.Ct. 699, 1 L.Ed.2d 709.
The question before the Supreme Court in Benz was whether the Labor Management Relations Act of 1947, 61 Stat. 136, 29 U.S.C.A. § 141, so preempted the field of labor relations so as to deprive a state court of jurisdiction in a damage suit for wrongful picketing by an American union of a foreign vessel. The court held that there was no preemption because the Labor Management Act does not apply to labor disputes arising solely out of conditions on a foreign vessel even though an American Union was the party defendant. There, as here, the argument was made by the union that the standard of work and pay on the foreign vessel was a threat to the welfare of the American union members, yet the Supreme Court held the Act inapplicable. We find no such greater interest residing with the American union concerned in the instant case which would justify a differentiation of one from the other on that ground.
No legislative history has been brought forth to indicate that the Norris-LaGuar-dia Act should apply here, and as the Supreme Court said of the Taft-Hartley Act in Benz, and we think equally applicable to the Act now under consideration, “the whole background of the Act is concerned with industrial strife between American employers and employees.” 353 U.S. at page 143, 77 S.Ct. at page 702.
Appellant urges that the Taft-Hartley Act is a regulatory and substantive act whereas the Norris-LaGuardia Act is solely jurisdictional and thus it would be reasonable to deny the application of the former and still apply the latter. The answer is found in Benz where not only the application of the regulatory aspects of the Taft-Hartley Act, but also the whole complaint procedure and jurisdiction which could have provided protection for the foreign vessel against an unfair labor practice was denied.
If the Norris-LaGuardia Act was applicable here, the combination of such a holding and the holding in Benz that the Taft-Hartley Act administrative remedies are not available would result in there being no federal agency or court in which foreign commerce could seek protection. Such a result in the field of international commerce and relations should not be arrived at without more explicit direction from Congress.
Affirmed.
. Apparently appellee rejects the diversity theory because some of the appellants are associations whose citizenships are determined by that of their members [see e. g. Chapman v. Barney, 1889, 129 U.S. 677, 9 S.Ct. 426, 32 L.Ed. 800 (joint stock co.); Levering & Garrigues Co. v. Morrin, 2 Cir., 1982, 61 F.2d 115 (labor union)] and some of the members are aliens as are all of appellees. Under prior forms of § 1332 it has been held there is no jurisdiction under such circumstances. Ex Parte Edelstein, 2 Cir., 1929, 30 F.2d 636.
In view of the result we reach, it is unnecessary to consider the difficult statutory and constitutional questions that would have been involved had appellee urged this as a ground for jurisdiction.
. It has been held that the admiralty court does not possess the distinctive remedial powers of equity. See The Eclipse, 1890, 135 U.S. 599, 10 S.Ct. 873, 34 L.Ed. 269; Gilmore & Black, The Law of Admiralty 37-39 (1957). In particular it has been held that admiralty has no power to issue an injunction. Sound Marine & Machine Corporation v. Westchester County, 2 Cir., 1938, 100 F.2d 360, certiorari denied 1939, 306 U.S. 642, 59 S.Ct. 582, 83 L.Ed. 1042.
. See e. g. The Plymouth, 1886, 3 Wall. 20, 70 U.S. 20, 36 wherein the Supreme Court stated that “every species of tort, however occurring * * * if upon the high seas or navigable waters, is of admiralty cognizance”; See also Sidney Blumenthal & Co. v. United States, 2 Cir., 1927, 30 F.2d 247, certiorari denied Admiral-Oriental Line v. United States, 279 U.S. 847, 49 S.Ct. 345, 73 L.Ed. 991.
. “The district courts shall have original jurisdiction, exclusive of the courts of the States of * * * any civil case of admiralty or maritime jurisdiction, saving to suitors in all cases all other remedies to which they are otherwise enti-tied.’’ (Emphasis added.)
. The history here set out is mostly derived from Gilmore & Black, The Law of Admiralty (1957) and from Morrison, The Remedial Powers of Admiralty, 43 Yale Law Rev. 1 (1933).
. The common law judges were also fearful of the power of admiralty that sat without a jury. It is noteworthy that at an earlier time admiralty apparently did have jury trials at least in some actions. See Mathiasen, Some Problems of Admiralty Jurisdiction in the 17th Century, 2 Amer.J. of Legal History 215 (1958).
. Roscoe, Admiralty Practice (5th ed. 1931) at 8-9.
. The English admiralty jurisdiction was vastly enlarged in the nineteenth century, 3 & 4 Vict., c. 65 (1840), 13 & 14 Vict, c. 26 (1850), 24 Vict. c. 10 (1865). It is now a part of the High Court of Justice in a single division with probate and divorce.
. There is a line of cases upholding the power of admiralty to assert equitable principles in actions otherwise within its province. “A court of admiralty is, as to all matters falling within its jurisdiction, a court of equity, * * * it administers justice upon the large and liberal principles of courts which exercise a general equity jurisdiction.” The David Pratt, D.C.Me.1839, Fed.Cas. 22, at page 24, No. 3,597. But when the question of remedies is reached the courts have resorted to the distinction between law and equity and have held that admiralty lacks the power to give equitable remedies. One commentator sees: “ground for hope that a doctrinal trend is in the making that would render the ordinary equitable remedies . . . available to the admiralty court . . . ” Gilmore & Black, op. cit. supra note 2 at 39, based on the case of Swift & Co. Packers v. Compania Colombiana Del Caribe, S.A., 1950, 339 U.S. 684, 70 S.Ct. 861, 865, 94 L.Ed. 1206 which held that admiralty could employ equitable powers when dealing with a case otherwise maritime in character. But that ease cited The Eclipse, supra, as still being good law, stating: “Unquestionably a court of admiralty will not enforce an independent equitable claim merely because it pertains to maritime property.”
It should be noted that admiralty by statute has been given injunctive power in certain limited areas not here applicable.
. It was not until 1875 that Congress passed the predecessor of § 1331 first creating, except for a brief interval (Act of Feb. 13, 1801, § 11, 2 Stat. 89, 92 repealed by Act of Mar. 8, 1902, 2 Stat. 132), the general federal question jurisdiction as we know it now. The legislative history of its passage leaves much to be desired in revealing any “intent” of the Congress. “In its original form the Act applied only to controversies involving diversity of citizenship and not to substantive federal rights.” Frankfurter & Landis, The Business of the Supreme Court 66 (1927). The first section was designed to change certain features of the removal jurisdiction in diversity eases originally begun in a state court, and it created much controversy and dissent. Eventually the first section was struck out and the bill left the House containing only amendments to the procedure governing removal proceedings. In the Senate a substitute bill containing the eventual form of the Act was introduced and it passed the Senate the day of its introduction with only details arousing any discussion, and it was passed in the House in its same form. It is questionable whether the Congress had any consciousness of the enormity of the change in the judicial structure thus brought about. “Although this legislation in a very real sense revolutionized the concept of the federal judiciary, it passed almost unnoticed inside or outside the halls of Congress.” Hart & Wechsler, The Federal Courts & The Federal System 729 (1953). See also Frankfurter & Landis, supra at 64-68.
“These courts (federal) ceased to be restricted tribunals of fair dealing between citizens of different states and became the primary and powerful reliances for vindicating every right given by the Constitution, the laws, and treaties of the United States.” Frankfurter & Landis, supra at 65.
Considering the times of the enactment and the language of the statute it would seem that the purpose of such an Act would be to provide a federal forum that would be sympathetic to and would become expert in the development of substantive federal law. To find that Congress had carved out an exception from so broad a statute would require some certain evidence. The Supreme Court found such evidence in Romero in the use of the Constitutional language by Congress in drawing the statutes creating separate jurisdictions for “law and equity” and for “maritime and admiralty”. This case as we have indicated falls outside the latter and within the former. Thus we find no evidence that this action based on substantive federal law toas meant to be excluded from the grant contained in § 1331. | What follows is an opinion from a United States Court of Appeals.
Your task is to identify the number of the section from the title of the second most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 29. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA". | What is the number of the section from the title of the second most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 29? Answer with a number. | [] | [
141
] | songer_usc2sect |
Michael KUKURUZA, Plaintiff-Appellee, v. GENERAL ELECTRIC COMPANY, Defendant-Appellant.
No. 74-1247.
United States Court of Appeals, First Circuit.
Argued Nov. 6, 1974.
Decided Feb. 14, 1975.
Walter G'. Murphy, Boston, Mass., with whom Murphy & Mitchell, Boston, Mass., was on brief, for defendant-appellant.
Albert P. Zabin, Boston, Mass., with whom Schneider, Reilly, Zabin & Connolly, P.C., Boston, Mass., was on brief, for plaintiff-appellee.
Before COFFIN, Chief Judge, McENTEE and CAMPBELL, Circuit Judges.
McENTEE, Circuit Judge.
Defendant General Electric Company appeals from a judgment for $175,301 entered against it following a verdict for plaintiff Kukuruza, who was severely injured when he fell from an overhead crane in a GE plant. Most of the facts were sharply disputed, but the relevant evidence is as follows: Kukuruza was an employee of W. T. Kenney Company, which entered into a contract with GE to paint the ceilings in the main floor, the walls, and the main bay crane at the GE plant in Medford, Massachusetts. It was stipulated that at the time of his fall Kukuruza was engaged as an employee of an independent contractor. Before the work began on November 29, 1968, George Caracostas, GE’s plant and safety engineer at the Medford plant, spoke with Edward Kenney, secretary-treasurer of W. T. Kenney Company, and James Kenney, a foreman, about safety procedures. He explained that when the crane was to be worked on the GE safety procedure was to shut off its power by throwing the switch, to remove the fuses, and to tie a red tag across the handle warning that the switch could only be closed by the person who had signed the red tag. Caracostas told the Kenneys that the Kenney employees were never to touch the switch. Though Edward Kenney confirmed that he and James Kenney received these instructions, and though he testified that he instructed his foreman to relay them to the Kenney workers, Kukuruza testified that he was not told anything about the red tag procedures.
The overhead crane from which plaintiff fell travels on two horizontal and parallel I beams. There were electric cables on the crane and along its I beams. Plaintiff testified that he knew these were bare copper wires and thus dangerous. On December 2, 1968, plaintiff had put a primer coat of paint on the crane. On December 10, his second day at the job site, he had climbed up a ladder to the crane and begun assemblying his staging. At that point someone told him to come down so the crane could be used. When hollers to put on the power were heard, George Roundbehler, the Kenney foreman, pointed out the switch and told Kukuruza to put the power on. Plaintiff did so and testified he observed no red tag. The crane was used for a while, according to testimony of some of Kukuruza’s coworkers, but the period of time was variously stated as at least 15-20 minutes and at least an hour. Edward Kenney testified that when he left the plant at 4:15 p. m. that day, before plaintiff’s fall, he saw that the red tag was on the switch and it was shut down. Caracostas also testified he looked at the switch after the accident and it was red-tagged and the fuses were on the bench.
The plaintiff testified that GE workers, after they had finished with the crane, told him it was all right to use the crane; but he could not identify these workers more specifically. A number of GE workers testified they did not hear anyone tell him it was safe to go back up. He then put his ladder against the catwalk and climbed up to the crane again. He stated that he took no steps to check whether the power was off. Before the interruption plaintiff, a licensed rigger, had placed three planks, six feet long, so that they extended from one I beam to the other and rested on the flanges. He had also brought up a toothpick, which is a staging device shaped like an aluminum ladder with plywood covering the rungs but with exposed aluminum sides. When plaintiff reached the staging area after the interruption, he put the toothpick on top of the three planks to use as a walking plank and tied the toothpick with a rope to a pipe or angle iron so that it was touching one end of the crane. Then he put his left foot on the flange of the I beam, leaving his right foot on the toothpick, and reached over the I beam for his paint. As he put his hands on the I beam, he stated that he got a jolt, stiffened out, and fell. This account by the plaintiff of how the accident happened was sharply disputed by a number of GE employees who testified that they had seen him pushing a board with one foot shortly before the fall. The plaintiff’s answers to interrogatories had also stated, in essence, that the accident had occurred because he slipped on improper planking. The rest of the facts are stated as needed in the opinion.
We begin our consideration of the errors alleged by defendant by examining whether the expert testimony of one Galagan, a consulting electrical engineer, who testified to having specialized knowledge on “high voltage hazards” and “electric shocks,” was properly admitted. Plaintiff had testified he felt a “jolt” and stiffened up just before he fell, and Galagan was allowed to testify, over objection, that from plaintiff’s version it “sounded like” and “appeared to me” that plaintiff received a high-impedance shock “of short duration but sufficient to cause surprise that he got the shock and caused the involuntary movement on his part.” Galagan further testified that the “most likely cause of the shock” was a “potential difference,” that is, a difference in voltage between the plaintiff himself and the part of the crane he touched. In his opinion the probable cause of this potential difference was current leakage through the insulation of the wiring or around the terminal blocks or around the terminals of the motor.
Defendant objected to use of the word “shock,” on the ground that the word “jolt” used by plaintiff did not permit a clear inference that the sensation plaintiff felt was electrically induced. But Galagan’s qualifications were adequate to allow him to express an opinion that plaintiff’s “jolt” under the circumstances described an electric shock. See Cain v. Southern Massachusetts Tel. Co., 219 Mass. 504, 107 N.E. 380 (1914).
Galagan based his testimony in part on the wiring diagrams of the crane and upon his examination of the crane some 5V2 years after the accident. Defendant objects that this evidence was admissible only if the trial judge first found that the condition of the crane was substantially identical at the time of the accident and the time of the inspection, and that plaintiff had the burden of proving this substantial identity. At most the trial judge needed only to conclude that a prima facie showing of substantial identity had been made, since the weight to be given to the evidence about the similarity of the conditions was plainly for the jury. Hines v. Stanley G. I. Electric Mfg. Co., 203 Mass. 288, 292, 89 N.E. 628, 630 (1909). The trial judge implicitly found substantial identity when after a bench conference he refused a motion to strike Galagan’s testimony. At the bench conference counsel for defendant conceded the accuracy of the wiring diagrams upon which Galagan relied in part, and he stated that no relevant differences in the crane were known to him. Cf. Guinan v. Famous Players-Lasky Corp., 267 Mass. 501, 522, 167 N.E. 235, 245 (1929) (jury view). Moreover, GE’s manager later testified that at the relevant times the crane was substantially the same electrically. Since defendant offered no evidence to show dissimilarity, e. g., Lee v. Commonwealth, 1972 Mass.Adv.Sh. 646, 281 N.E.2d 239, it was not prejudiced by the trial court’s refusal to strike Galagan’s testimony for this reason.
Defendant’s last theory to exclude Galagan’s testimony was that since he made no tests to determine whether any potential difference actually existed and since he could not say whether there was any leakage either at the time of the accident or at the time of his examination, his testimony was mere speculation and hence inadmissible. Defendant’s principle that “mere guesswork masquerading as expert testimony must be stricken” is sound, but the cases to which he analogizes the instant case are distinguishable.
Nass v. Duxbury, 327 Mass. 396, 99 N.E.2d 54 (1951), is the case most helpful to GE. In Nass the expert witness’s testimony that the sand defendant dumped on the beach would have changed the channel of the river was dismissed as insufficient to sustain a verdict for plaintiff because, among other inadequacies, there was no evidence in the case “that the sand allegedly in the channel was of the same texture or composition as that on the defendant’s beach.” 327 Mass, at 402, 99 N.E.2d at 57. The court held that the expert’s testimony did not foreclose other equally likely causes for the damages to plaintiff’s land. In Nass the expert’s attempt to show a causal connection between the presence of a blockade in the south channel and the defendant’s dumping of sand on his land adjacent to the south channel was treated as a mere guess or conjecture by the court. No such deficient causal connection is present in Galagan’s testimony. Plaintiff’s testimony of a “jolt” coupled with “stiffening,” in the absence of any other explanation, provided a sufficient predicate for the expert’s testimony of a high impedance shock, the most likely cause of which was a potential difference caused by current leakage. And taken collectively plaintiff’s testimony and the expert’s evaluation permitted a reasonable inference of a probable causal connection between an electrical shock and the fall. Nass would require reversal if there were no evidence that plaintiff received a shock, or if there were no evidence as to what he touched before he fell, but there was evidence as to both.
Galagan did not conduct any tests on the crane to verify his explanation that there must have been current leakage in 1968, while James Kirtley, the defendant’s expert and an assistant professor at MIT, testified that the tests he conducted in 1974 did not disclose any current leakage. Galagan’s failure to offer real evidence of current leakage does not mean plaintiff failed to establish a prima facie causal connection casting liability upon the defendant. The jurors could have discounted Kirtley’s tests because they were performed long after the accident, or they could have discounted his testimony because he had an ongoing contract to do consulting work for GE. Galagan’s failure to test for current leakage would entitle the jury to reject his opinion in favor of another explanation, but the defendant was not thereby entitled to have the opinion excluded or the case dismissed.
The case at bar is most analogous to Gelinas v. New England Power Co., 1971 Mass.Adv.Sh. 429, 268 N.E.2d 336. In that case the plaintiff was working on a conveyor whose highest point was 19 feet above the ground and some 11 feet below the defendant’s live wires. In attempting to show how he suffered an electrical shock because of the defendant’s negligence, the plaintiff introduced testimony from an expert in the electrical field. The expert stated “[i]t was his opinion that electricity from the defendant’s wires arced to the conveyor through a piece of wire hanging from the defendant’s wires and going down to within a foot of the conveyor.” 1971 Mass.Adv.Sh. at 432, 268 N.E.2d at 338. This evidence was held sufficient to allow the jury to find that the defendant was negligent in not maintaining its wires properly, even though such a hanging wire was not actually seen. Similarly in the case at bar, the plaintiff’s expert could explain the facts to which plaintiff testified as probably being caused by current leakage without proving that there actually was current leakage. Hence defendant’s motion to strike Galagan’s testimony was properly denied.
GE argues that the district court erred in denying its motion for a directed verdict. Its claim is that since the dangers of working on the crane were open and obvious, rather than hidden, there was no duty to the plaintiff which the defendant failed to perform. Viewing the evidence in the light most favorable to the plaintiff, as required in considering a motion for a directed verdict, we must treat this case as involving a hidden defect. Plaintiff’s expert witness testified that the most probable cause of the shock plaintiff received was a difference in potential between the plaintiff and the I beam he was touching, which difference was caused by current leakage. Massachusetts law is clear that the duty defendant owed this plaintiff, the employee of an independent contractor working on defendant’s premises, was the same duty defendant owed its own employees. Sparks v. Kepnes, 339 Mass. 349, 351, 159 N.E.2d 109, 110-11 (1959); Williams v. United Men’s Shop, Inc., 317 Mass. 319, 320, 58 N.E.2d 2, 3 (1944). That duty was to disclose hidden defects which GE knew of or could have discovered by exercising reasonable care. Hannon v. Hayes-Bickford Lunch System, 336 Mass. 268, 272, 145 N.E.2d 191, 193 (1957); Gallo v. Leahy, 297 Mass. 265, 268, 8 N.E.2d 782, 784 (1937). The testimony by plaintiff’s expert made it a jury question whether
there was a hidden defect which caused plaintiff’s injuries. Since GE controlled the premises and maintained the crane, the jury could decide that if it had exercised reasonable care GE would have discovered the defect. Thus the directed verdict was properly refused.
The cases defendant relies on do not change this conclusion. First, defendant cites Burr v. Massachusetts Electric Co., 356 Mass. 144, 248 N.E.2d 492 (1969), where the employee of an independent contractor was electrocuted when he contacted a live wire. The defendant there had hired the contractor to trim trees to prevent them from interfering with electric wires maintained by that defendant. The court held the defendant’s motion for a directed verdict should have been granted, saying:
“Burr knew of the existence and location of the wires; and even if not warned of their danger, he should have realized that they might be energized. There is no duty to warn of dangers which are obvious or could be discovered by reasonable inspection and therefore there was no breach of duty owed by defendant to Burr.” 356 Mass, at 147, 248 N.E.2d at 495.
In Burr plaintiff suffered his injury by carelessly touching the wire as he raised himself in the elevated bucket. There was no hidden defect. For example, if the wire, having deteriorated over time, had suddenly broken and hit plaintiff, a jury issue would undoubtedly have been presented. Cf. Gelinas v. New England Power Co., supra (plaintiff injured when electricity arced from defendant’s line to conveyor whose highest point was more than 10 feet below wire). Again, if the pole supporting defendant’s wire had suddenly collapsed from some hidden defect and brought the wire down on top of the plaintiff, defendant would not have been entitled to a directed verdict merely because the plaintiff knew electricity was dangerous and electricity was the immediate cause of the plaintiff’s injuries.
Lawler v. General Electric Co., 1973 Mass.App.Adv.Sh. 255, 294 N.E.2d 535, where the plaintiff received an electric shock while working around a General Electric crane, fails to support defendant’s position. The plaintiff in that case, knowing that the defendant owed him no duty to warn of obvious dangers, tried to argue that “irrespective of the red tag»procedure [also used there to warn whether the power was turned on], once the crane was turned on a duty arose on the defendant to warn all of the employees of the danger.” 294 N.E.2d at 538. The plaintiff was attempting to ignore the red tag safety procedure and use the passage of two weeks time to turn the previously obvious danger into a hidden defect. Since the court rejected this effort to transform an obvious danger into a hidden defect, the result followed that there was no evidence of a hidden defect which could be relied upon to recover. In contrast, this case contained evidence of a hidden defect for which defendant could be held liable.
GE next complains that Kukuruza voluntarily assumed the risk of injury as a matter of law. We do not agree. That Kukuruza knew that electricity and bare wires were dangerous does not mean he assumed the risk of shock from current leakage. See Ryan v. Gray, 316 Mass. 259, 261, 55 N.E.2d 700, 701 (1944) (dim light in hall leading to closet; plaintiff did not assume risk of there being no floor in closet). Plaintiff’s fall was precipitated by contact with the I beam, yet there was no evidence that he knew contact with it would be dangerous. “Intelligent appreciation of the risk cannot necessarily be predicated upon a mere knowledge of some danger,” McCarthy v. Morse, 197 Mass. 332, 336, 83 N.E. 1109, 1110 (1908), so knowledge of the danger posed by the wires does not establish knowledge that the I beam was also dangerous. See also Gobern v. Metals & Controls, Inc., 418 F.2d 290, 296 (1st Cir. 1969); Stewart v. Roy Bros. Inc., 358 Mass. 446, 453, 265 N.E.2d 357, 362 (1970) (plaintiff loading flammable liquid did not assume risk of burns caused by defendant’s negligence).
Similar infirmities require rejection of defendant’s argument that he proved plaintiff’s contributory negligence as a matter of law. Defendant’s argument is that since Kukuruza himself had turned on the power and since he knew of the danger the bare wires presented it was contributory negligence as a matter of law to return to work without checking the easily accessible switch. We note that it is a rare case where it can be ruled as a matter of law that defendant satisfied his burden of proving contributory negligence. See Halley v. Hugh Nawn, Inc., 356 Mass. 28, 30, 248 N.E.2d 5, 7 (1969). This is not such a case. Plaintiff testified that he was assured by GE employees that it was safe to resume work on the crane. Thus the jury could conclude that Kukuruza acted as a reasonably prudent person in not checking the switch. We cannot rule that Kukuruza “has by his own want of ordinary prudence contributed to the injury ..” Duggan v. Bay State St. Ry., 230 Mass. 370, 377, 119 N.E. 757, 759 (1918).
GE next asserts that an alleged admission by plaintiff was erroneously excluded from evidence. According to GE, the excluded document — an agreement for compensation from the company providing workmen’s compensation for the plaintiff — would have shown that the cause of the accident was not an electric shock but the mere slippage of a board from under his feet. The document, dated some seven weeks after the fall and allegedly signed by the plaintiff, stated in relevant part: “Cause of accidént[:] ‘Employee was painting a crane 20' above ground when board slipped from beneath his feet causing him to fall on ground.’ ” One reason the court gave for excluding this document was that it was cumulative evidence. GE had already introduced parts of the plaintiff’s interrogatory answers to the effect that the movement of the planking had thrown him to the ground and that the planks were greasy and not capable of being properly secured. And plaintiff had admitted that these interrogatory passages mentioned nothing about a jolt. Apparently the trial court ruled that the statement in the document was cumulative because GE had already presented to the jury its position that the testimony about a jolt was at best an afterthought and at worst a fabrication. But that reasoning was erroneous. A trial judge cannot keep relevant and material evidence from the jury simply because they already have before them evidence which, if believed, would warrant their adopting the view which the evidence was offered to support. Lipinsky v. Middlesex Supply Inc., 352 Mass. 771, 225 N.E.2d 359 (1967) (error to exclude document, even though it only corroborated much oral testimony); Perkins v. Rice, 187 Mass. 28, 72 N.E. 323 (1904); 1 G. Mottla, Proof of Cases in Massachusetts § 567 (2d ed. 1966).
The exclusion of the compensation claim form was proper for a different reason, however. That a plaintiff made a compensation claim would normally be inadmissible. Goldstein v. Gontarz, 1974 Mass.Adv.Sh. 357, 365-66, 309 N.E.2d 196, 202-03. Thus we are faced with deciding whether the harm of exclusion to defendant outweighed the harm of admission to plaintiff. See United States v. Hopkinson, 492 F.2d 1041, 1043 (1st Cir. 1974). Admission of the document might have led the jurors to consider plaintiff’s claim unimportant or to refuse him a verdict or to reduce his recovery to avoid double recovery. See Goldstein v. Gontarz, supra. Weighed against this is the harm to defendant from excluding a representation as to the cause of the accident which was made when plaintiff’s memory was most fresh. Two factors convince us that the balance was properly struck in favor of excluding the document. First, the exclusion did not deprive GE of the only evidence it had suggesting that Kukuruza’s claim of electrical shock may have been a recent contrivance. As we have already indicated, the defendant did get this defense before the jury through plaintiff’s interrogatory answers. Second, GE never attempted to offer into evidence only the statement claimed to be an admission. Had defendant sought to block out the indications that the document was a compensation claim form, instead of trying to introduce the whole document, the anticipated prejudice to plaintiff might have been reduced enough to change the equities. In light of these considerations, we do not think the exclusion of the document was reversible error.
(This portion of the opinion, dealing with the common employment defense, is of no precedential value and is not released for publication. See 1st Cir. Rules, Appendix B.)
Relying on Lawler v. General Electric Co., supra, where the plaintiff received an electric shock from contacting a live wire on another General Electric crane, GE argues that the trial court incorrectly charged the jury on the standard of care required of it. The specific portion of the charge under challenge was as follows:
“In assessing the potential danger of a situation you are to consider all of the circumstances which existed at the time of this accident. On this score you may consider that electricity is a force of highly dangerous potential and that those employing it are held to a commensurately high standard of care.”
The defendant’s objection is that Lawler held such a charge to be improper in a case remarkably similar to the case at bar. The language in Lawler upon which defendant relies is as follows:
“The plaintiff argues that the highly dangerous character of electricity requires that the defendant be held to a correspondingly high degree of care in its use. . . . The application of this doctrine is limited to those cases where the victim of the accident was, in relation to the defendant, a member of the general public. . . . ” 294 N.E.2d at 537 (citations omitted, emphasis added).
This language does not support defendant’s claim that the charge was improper. What the Appeals Court of Massachusetts stated in Lawler was that the defendant was not required as a matter of law to exercise a high degree of care merely because it used electricity. But the court below did not instruct the jury to measure defendant’s conduct against a high degree of care. The trial court merely charged the jury that they “may consider” that electricity is dangerous and thus they may decide that reasonable care in the circumstances meant more than ordinary care. The crucial distinction is between requiring as a matter of law that the defendant exercise a high degree of care (which Lawler disapproved in a case like this) and allowing the jury to decide that a high degree of care was what was required of a reasonable defendant in the circumstances presented.
Lawler certainly does not stand for any rule that the jury cannot be told they can consider all the relevant factors, including the aspect of electricity, which is all the trial court did. Though Massachusetts employers do not owe their employees a general duty of due care, see Barrett v. Foster Grant Co., 450 F.2d 1146 (1st Cir. 1971), and the discussion infra, that does not always render unnecessary jury consideration of the reasonableness of an employer’s conduct. In applying the duty to disclose hidden defects of which the defendant knew or which it could discover in the exercise of reasonable care, the jury must consider what degree of care is reasonable. For example, the reasonable care a jury may require of an employer to discover whether there is a defect in a short ladder may be much less than the reasonable care the jury may require to discover whether there is current leakage on an overhead high-voltage crane. The challenged portion of the charge was in accordance with this principle, and hence was not erroneous, even if it was less carefully phrased than desirable. See note 7 supra.
GE’s last claim is that the trial court improperly charged the jury as to the duty of care it owed Kukuruza. The trial court gave the jury a straight negligence charge, thus imposing on GE the full duties of due care owed to a business invitee from the general public rather than the more limited duty to disclose hidden defects either known or discoverable in the exercise of due care. See Powers v. Bethlehem Steel Corp., 477 F.2d 643, 649 (1st Cir.), cert. denied, 414 U.S. 856, 94 S.Ct. 160, 38 L.Ed.2d 106 (1973); Barrett v. Foster Grant Co., supra; Gobern v. Metals & Controls, Inc., supra. These cases clearly demonstrate that the charge impermissibly broadened defendant’s duty. But the fact that the charge was far from exemplary in this respect does not necessarily entitle GE to a new trial. See Charles A. Wright, Inc. v. F. D. Rich Co., 354 F.2d 710, 713-14 (1st Cir.), cert. denied, 384 U.S. 960, 86 S.Ct. 1586, 16 L.Ed.2d 673 (1966). Before a new trial can be granted, we must find that the error in the charge prejudiced the defendant’s rights. Fed.R. Civ.P. 61. For reasons that follow, we do not think there was such prejudice.
The starting place for our analysis must be the presumption that the jury understood and heeded the charge. This is important because the court charged the jury that “[t]he defendant has no duty to alter or reconstruct its premises so as to make them safe, and the plaintiff is held to assume all obvious risks incidental to his work . . . See note 8 supra. In light of that fact, we are unable to conceive of any theory by which the jury could have found for plaintiff and still have followed the charge as a whole. For example, the jury could not — consistent with the charge — -have found the defendant liable because it did not have a red tag procedure until after the accident. That would have required GE to “alter or reconstruct its premises so as to make them safe,” and it would have exonerated plaintiff from assuming an “obvious risk incidental to his work.” Nor could the jury have found the defendant liable on a theory that it furnished defective boards for planking. That theory was abandoned before trial, for the reason that Kenney supplied the boards, not GE.
A third theory the jury might have entertained was that there was no latent defect, but that a negligent misrepresentation was made by a GE employee that the power was off, and on that basis the defendant was liable. However, this theory was not squarely presented to the jury. But even if the jury did so conclude, we are not persuaded that the defendant was prejudiced. If GE had been doing this job itself and a GE employee had negligently told a fellow employee that the power was off, with the result that the fellow employee was injured when he accidentally touched a live wire, GE would have been liable to the plaintiff employee. Keeley v. Boston Elevated Ry., 192 Mass. 481, 78 N.E. 490 (1906) (night laborer on railway injured when power turned on to track without notice); cf. Hopkins v. O’Leary, 176 Mass. 258, 57 N.E. 342 (1900) (explosives). Since GE owes no less a duty to employees of Kenney than it owes to its own employees, Gray v. Boston, Revere Beach & Lynn R.R., 261 Mass. 479, 159 N.E. 441 (1928), it follows that GE would be liable to Kukuruza if he was injured because a GE employee told him it was safe to go back up when in fact it was dangerous.
The fourth and only remaining theory for the jury was that of a latent defect. The only way the jury could have imposed liability on the defendant via that theory would be by finding as a fact that a GE employee told plaintiff it was safe to go back up. Absent such a finding, the contributory negligence problems identified in note 11 supra would again make it impossible for a conscientious jury to comply with the charge. But neither this finding nor the finding that there was a latent defect would have been prejudiced by the straight negligence charge. In short, on the facts of this case we cannot see how the charge, even given its inadequacies, was prejudicial to the defendant.
Affirmed.
. In Kennedy v. U-Haul Co., 1971 Mass. Adv.Sh. 1211, 271 N.E.2d 346, the expert witness was not familiar with plastic to any great extent and yet he testified that a cap in the truck braking system was negligently designed because it was made of plastic. No claim is made here that Galagan was unfamiliar with electrical matters, such as circuitry and potential differences.
In King’s Case, 352 Mass. 488, 225 N.E.2d 900 (1967), there was no evidence that the employee’s death was causally related to his accident except the expert’s testimony. That testimony only established that it was mathematically more likely that there was a causal relation. But it was held that mathematical probability alone was insufficient to prove a conclusion by a preponderance of the evidence. Mathematical probabilities, however, are not at issue in this case.
Dolan v. Suffolk Franklin Savings Bank, 355 Mass. 665, 246 N.E.2d 798 (1969), is clearly distinguishable. No evidence existed that the individual defendant’s husband was responsible for the fire. The theory that he could have been was mere speculation. This same weakness in the evidence existed in Milch v. Boston Consolidated Gas Co., 341 Mass. 230, 167 N.E.2d 845 (1960), also cited by defendant.
. The defense theory in this case seemed to be either that defendant received no shock at all (e. g„ he slipped while he was rigging his scaffolding) or that he received his shock from touching a live wire. Both of these defenses were matters of the credibility of the plaintiff, and thus for the jury to decide. On the other hand, if the defense had been that while the plaintiff may have gotten a shock, it could equally well have been caused by mere static electricity generated on a cold, dry December afternoon in New England, cf. Friend v. Tropis Co., Ltd., 382 F.2d 633 (4th Cir. 1967), cert. denied, 390 U.S. 906, 88 S.Ct. 820, 19 L.Ed.2d 872 (1968), a Nass issue might have been more sharply raised. However, our review of the testimony of the experts offered by both sides does not persuade us that the latter defense was raised, and we will not speculate as to whether expert testimony could have supported it.
. Defendant’s brief states, “It matters little whether plaintiff was injured by contacting live wires or by contacting I beams energized from current leakage.” Since the live wires were an obvious danger while the energized I beams were a hidden danger, there is clearly a crucial difference between the two possibilities.
. Defendant apparently would have us hold that the switch box controlling power to the crane was itself the open defect: “The plaintiff is bound to know of defects which are open to view or which could have been if properly examined, as was the crane switch box here.” The gravamen of this argument is that no plaintiff (except perhaps a plaintiff who had to have power to the crane to perform his job) could recover for an electricity-connected injury unless he had first assured himself — by personally checking the switch box — that the power was off. We cannot accept such a broad rule. While failure to check the switch might be evidence of contributory negligence, defendant had not completely discharged his duty to plaintiff by making a switch box available for plaintiff’s inspection. Lawler does not state that defendant has no duty to plaintiff if the latter could have checked the switch box. That case turned on the fact that plaintiff ignored a known safety procedure. But Kukuruza testified he was never told about any red tag safety procedure.
. GE also objects that the trial court failed to charge the jury on the defense of assumption of the risk. The claim is that if the jury had been properly instructed they could have chosen to disbelieve plaintiff’s testimony that he was assured it was all right to return to work and thus could have found for GE. This claim is without merit. The trial court’s charge adequately informed the jury that if the condition which caused plaintiff’s injuries was open and obvious, the verdict should be for the defendant.
. Prevailing on a claim that the trial court ruled incorrectly on this question is not enough to secure a new trial for the appellant. The error must also be shown to have injuriously affected “the substantial rights of the parties.” Mass.Gen.Laws Ann. c. 231, § 132 (1959); Fed.R.Civ.P. 61. We do not reach that issue in this case, however, since we uphold the exclusion of the compensation claim form on another ground.
. In explicating the challenged sentence in the charge, one could argue that it states two mandatory rules of law (“that electricity is a force of highly dangerous potential” and “that those employing it are held to a commensurately high standard of care”) rather than a possible finding of fact and resultant legal conclusion which the jury may entertain at its option. Though this construction of the sentence might be defensible if the sentence is viewed in isolation, in context the sentence has the meaning given it in the text above. In introducing this part of the charge, the judge said, “The law does not say how a reasonably careful person would act under those circumstances [the ones shown by the evidence to have existed in this case]. That is for you to decide.” This clearly left to the jury the task of giving content to the notion of reasonable care in the circumstances of this case; read in its light the challenged sentence merely calls the jury’s attention to one of those circumstances.
. The charge was as follows:
“The degree of care required of the defendant in this case is reasonable care or due care. This standard never varies, but the care which it is reasonable to require of a defendant varies according to the circumstances involved.
“For example, the greater the potential danger, the greater the care which must be exercised.
“In assessing the potential danger of a situation, you are to consider all the circumstances which existed at the time of this accident.
“On this score you may consider that electricity is a force of highly dangerous potential and that those employing it are held to a commensurately high standard of care.
“It is for you to determine what procedures for supervising the use of electricity were actually employed by G. E. on the day and time in question and then determine whether such procedures were reasonably adequate considering all the circumstances.
“If you find that the procedures actually , employed by the defendant on the day and time in question were reasonable, then you should find for the defendant.
“If, on the other hand, you find that the procedures followed by the defendant on the day and time in question do not constitute reasonable care under all the circumstances, then you should find for the plaintiff.
“In addition, in weighing the reasonableness of defendant’s conduct, you are to have in mind that General Electric owed the plaintiff the duty of disclosing to him hidden defects which G. E. knew about or which by exercise of reasonable care it should have known about.”
The court’s use of the words “In addition” before its correct statement of the defendant’s duty makes somewhat difficult an argument that the court cured its earlier error. However, the argument becomes more plausible when the next paragraph of the charge is read:
“The defendant has no duty to alter or reconstruct its premises so as to make them safe, and the plaintiff is held to assume all obvious risks incidental to his work; but the plaintiff is not held to having assumed the risk of a defective condition on the defendant’s premises which was not open and obvious to him.”
In any event, since we decide infra that the error was harmless, we need not consider whether it was cured by subsequent instructions.
. E. g., Cole v. Boston Edison Co., 338 Mass. 661, 669, 157 N.E.2d 209, 214 (1959); Krinsky v. Whitney, 315 Mass. 661, 670, 54 N.E.2d 36, 41 (1944); Whitney v. Bayley, 86 Mass. (4 Allen) 173, 175 (1862).
. We acknowledge that a jury charge could be so unclear that an appellate court would be unwilling to indulge the presumption that the jury heeded one part of the instruction and thereby limited the apparently broader import of a separate part. However, this charge was not so confusing as to undermine the presumption that the jury understood it and followed it.
. Just prior to the quoted passage, the judge had instructed the jury: “It is for you to determine what procedures for supervising the use of electricity were actually employed by G.E. on the day and time in question and then determine whether such procedures were’ reasonably adequate considering all the circumstances.” This language can be understood as telling the jury that it is their job to determine the facts and apply the law to them, but even if it were understood as imposing a duty to have a red tag procedure it would not support a jury verdict for plaintiff either because of the absence of causation or because of contributory negligence. Causation would be absent because the plaintiff admitted that he did not check the switch before climbing back up to the crane. Contributory negligence would be present because, as the defendant itself argued, the situation would be that the man who had put the power back on went up to the crane shortly thereafter without any reason to believe the power was off. (This contributory negligence observation assumes that the sole basis for liability was the absence of a red tag procedure, rather than a jury finding that a GE employee negligently assured Kukuruza it was safe, which is considered separately.)
. Lawler v. General Electric Co., supra, might be read for the proposition that the defendant is not liable for negligently misleading the plaintiff that there is no danger if the danger would have been obvious in the absence of such a statement. In Lawler the plaintiff claimed that he had been told that the GE crane involved there had been permanently turned off and that in the event it was turned on again everyone on the job would be notified. 294 N.E.2d at 537. However, there are numerous reasons to distinguish Lawler. First, the effect of a negligent misrepresentation was never considered. We will not assume from Lawler’s silence on this point that negligent assurances of safety create no liability. Second, the facts do not make clear who allegedly made the false representation to Lawler. It is possible that the representation was not made by any GE employee. See id. at n. 1. Third, it is likely that the court regarded reliance on the representation as unreasonable, because of other knowledge Lawler had: “In the present case, a well-defined procedure had been agreed to by the contractors in the event the crane wires were energized. The plaintiff knew this procedure, and a reasonable inspection of the switch box would have revealed the danger.” 294 N.E.2d at 538. “The plaintiff cannot ignore the fact that the red tag safety procedure was in effect during this time [the two weeks preceding the accident], indicating that the danger remained open and obvious. There was no reason for the defendant to believe that an additional warning was needed.” Id. In short, Lawler was not treated as a case where a negligent misstatement by defendant was the cause of plaintiffs injury. | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to determine what category of business best describes the area of activity of this litigant which is involved in this case. | This question concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". What category of business best describes the area of activity of this litigant which is involved in this case? | [
"agriculture",
"mining",
"construction",
"manufacturing",
"transportation",
"trade",
"financial institution",
"utilities",
"other",
"unclear"
] | [
3
] | songer_appel1_1_3 |
Lillie T. CARQUEVILLE, Plaintiff-Appellant, v. Arthur S. FLEMMING, Secretary of Health, Education and Welfare, Defendant-Appellee.
No. 12464.
United States Court of Appeals Seventh Circuit.
Feb. 19, 1959.
Richard A. Walsh, Chicago, Ill., McCracken & Walsh, Chicago, Ill., of counsel, for appellant.
Robert Tieken, U. S. Atty., Charles R. Purcell, Jr., Asst. U. S. Atty., Chicago, Ill., John Peter Lulinski, Asst. U. S. Atty., Chicago, Ill., of counsel, for appellee.
Before DUFFY, Chief Judge, and SCHNACKENBERG and HASTINGS, Circuit Judges.
DUFFY, Chief Judge.
Plaintiff, as surviving widow of William L. Carqueville, filed an application for benefits under the Social Security Act, 42 U.S.C.A. § 301 et seq. This application was disallowed on September 6, 1956 by the Bureau of Old Age and Survivors Insurance, and plaintiff thereafter requested a hearing before a Referee. Such hearing was held on February 19 and March 27, 1957. Plaintiff was represented by counsel. The Referee recommended that the claim be disallowed. The Departmental Appeals Council declined plaintiff’s request for a review on July 31, 1957, and such action became the final action of the Secretary. This proceeding was brought in the District Court to reverse the Secretary’s decision. Both sides moved for summary judgment. The trial court granted defendant’s motion. This appeal followed.
William C. Carqueville was a commercial artist. He reached the age of 65 years on June 16, 1935. He died on August 14, 1946. For five or six years prior to 1939 he had prepared advertising art work for display on billboards of the General Outdoor Advertising Company (hereinafter called “General Outdoor”). He originated his own ideas; he did his work at home and was paid two, three or four hundred dollars for each drawing submitted to and accepted by General Outdoor. During this period he earned from $125 to $175 a week.
In 1939 Carqueville contracted Parkinson's Disease as a result of which he could not continue his art work. In her application for benefits, plaintiff stated that decedent “rendered no services for the company for approximately seven years prior to his death.” The record does show that occasionally he went down to the offices of General Outdoor and conferred with Mr. Robbins, the then president, with whom he was on very friendly terms. There was also some indication in the record that on some occasions he had discussions with and advised some of the younger artists.
Commencing March 15, 1939, and continuing until decedent’s death, General Outdoor paid decedent the sum of $86.90 on the 15th day and on the last day of each month. President Robbins was the person who authorized that such payments be made. Unfortunately, Robbins died before the time of the hearing, and the actual reason for such payments remains somewhat of a mystery. It is clear, however, that General Outdoor claimed as income tax deductions the amounts which were paid to Carqueville.
The payments were shown on the payroll record cards, and were made by payroll cheeks. From and after January 15, 1943, these payments were subject to deductions of various amounts. On General Outdoor’s records they were entered as “Deductions — Un. Ins.” However, the record cards showed no entries in columns headed “Positions”, “Time Worked” or “Deductions — O A B.” Throughout this period, decedent had no Social Security account number and no posting of wages earned by decedent were contained in the records of the Social Security Administration. There is no showing that Carqueville ever applied for a Social Security account number.
On this appeal, plaintiff contends that William L. Carqueville was an employee of General Outdoor from March 15, 1939 to August 12, 1946, and that the payments made to him during that period by General Outdoor constituted “wages” within the meaning of Sec. 209, Social Security Act. Plaintiff also points out certain errors made by the Referee such as his statement that all the entries that appeared on the payroll card records were the same. The fact is that there were some differences.
The plaintiff had the burden of proof before the Referee to establish that the required conditions for eligibility had been met. She also had to overcome the effect of the absence of any entry of wages earned by the decedent in the record of the Social Security Administration. Sec. 205(c) (3) of the Act, 42 U.S.C.A. § 405(c) (3), makes such records competent evidence on the question of whether wages were paid. Where a period of more than three years, three months and fifteen days have elapsed subsequent to the year in which the wages were allegedly paid, as in the case at bar, the absence of any entry in the records of the Social Security Administration is presumptive evidence that no wages were in fact paid. 42 U.S.C.A. § 405(c)(4)(b).
The jurisdiction of the District Court was exercised by authority of Sec. 205(g) of the Social Security Act as amended. 42 U.S.C.A. § 405(g). This section provides: “The findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive * * * ” Therefore, the function of the District Court was to review the record to determine whether it contained substantial evidence to support the administrative decision. Neither we nor the District Court have the right to make our own appraisal of the evidence. Rosewall v. Folsom, 7 Cir., 239 F.2d 724, 728.
The finality accorded by Sec. 205(g) of the Act to the administrative findings extends as well to the inferences from the evidence made by the Secretary if a substantial basis for them appears in the record. Rosewall v. Folsom, 7 Cir., 239 F.2d 724, 728; United States v. LaLone, 9 Cir., 152 F.2d 43, 44.
We conclude that the record which was before the District Court did contain substantial evidence to support the Referee’s findings. The plaintiff failed to sustain the burden of proof which was upon her. It follows the District Court was correct in entering judgment affirming the final decision of the Referee.
Affirmed. | 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 42. 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 42? Answer with a number. | [] | [
405
] | songer_usc1sect |
GALLARDO, Treasurer of Porto Rico, v. QUESTELL et al.
Circuit Court of Appeals, First Circuit.
December 18, 1928.
No. 2242.
William Cattron Rigby, of Washington, D. C. (J. A. Lopez Acosta, of San Juan, Porto Rico, J. A. Hull, of Washington, D. C., and James R. Beverley, Atty Gen., on the brief), for appellant.
Before BINGHAM, JOHNSON, and ANDERSON, Circuit Judges.
JOHNSON, Circuit Judge.
This is an appeal from the District Court of the United States for the District of Porto -Rico. No brief has been filed by the appellees. The appellant has done so and submitted an oral argument.
The hill of complaint alleges in substance that the defendants, the appellees, are copart-ners doing business under the firm name and style of Foreign Coffee Company; that they are citizens of the United States domiciled and resident on the island of Porto Rico; that the defendant Juan G. Gallardo, is the treasurer of Porto Rico; that the complainants are engaged in the wholesale and retail business of selling coffee imported from the United States, and have invested in said business more than $15,000, and that their sales are over $50/000 annually, and they have a valuable and prospective business and good will in said business worth many times $50,000; that the complainants, in the operation of their business, propose and intend to sell, and will sell and resell, in Porto Rico coffee imported from the United States, subject to the joint .resolution of the Legislature of Porto Rico approved June 5, 1919 (Laws 1919, Joint Resolution No 22); and that the defendant as the treasurer of Porto Rico has threatened to institute criminal proceedings against the complainants, and to attach, seize, and embargo their property in the event that they fail or refuse to submit to the defendant’s construction of said resolution.
This resolution is set out, and in substance requires all dealers in foreign coffee, who sell or export the same, to affix to the sacks or containers in which the coffee is packed seals or stamps provided by the treasurer of Porto Rico; that all dealers to whom the act applies shall place on their places of business a sign of such form and size as approved by the treasurer of Porto Rico, upon whieh shall appear the number of their license and the words “Dealer in Foreign Coffee”; that no foreign coffee shall be sold, exchanged, donated, or exported unless the information expressed on the sign shall be stated on the container; and that if the coffee is a blend of foreign and Porto Rican coffees there shall appear upon the container a clear, distinct statement of the origin of the foreign coffee and its proportion of the blend.
In section 6 of the act it is provided that all dealers in foreign coffee shall keep a register furnished by the treasurer of Porto Rico in whieh they shall enter daily the quantities of coffee entering and leaving their establishments, the country from whieh it comes, and the names and domiciles of the vendors and purchasers.
Section 7 provides that the dealers in blends of Porto Rican and foreign coffee shall keep another book, in whieh shall be entered the quantities of coffee daily blended by them, the country from which the same comes, and the proportion in whieh each is used in the blend, the deliveries of the same, whether because of purchase or otherwise, and the names and addresses of the vendors and purchasers or consumers.
Section 8 provides that the dealers in foreign coffee shall remit monthly to the treasurer of Porto Rico a copy under oath of the entries in their books.
Section 9 provides that violations of the act shall constitute a misdemeanor, and be punished by a minimum fine of $200, or by imprisonment for not less than 30 days, or by both, and in ease of a repetition of such violation the same shall be punished by a minimum fine of $5,000, or imprisonment for not less than 3 months, or by both, and by cancellation of the license to deal in foreign or blended coffee. Original jurisdiction for violations of this act is conferred upon the district courts of Porto Rico.
Section 10 provides that the treasurer of Porto Rico is intrusted with the enforcement of the act and may promulgate regulations not incompatible therewith.
The bill further alleges that the defendant, as treasurer of Porto Rico, has threatened the complainants with criminal prosecution for the violation of this act; that the act “violates the Constitution of the United States and the interstate commerce clause because it establishes an arbitrary exemption in favor of the coffee of Porto Rico, working thus a discrimination against coffee brought from the continental United States; that said act violates the Constitution of the United States and the Organic Act of Porto Rico because it deprives your petitioners of their property without due process of law”; that the attempted enforcement of the act by the criminal prosecution threatened by the defendant as treasurer of Porto Rico will cause complainants irreparable injury, deprive them of their property and liberty without due process of law, and make it impossible for the complainants to carry on the business in which they have invested large sums of money, and that they have no adequate remedy at law.
The complainants pray for an injunction restraining the treasurer of Porto Rico from instituting criminal prosecutions against the complainants by reason of their failure to comply with said act.
Only two witnesses were heard by the court — Antonio Escudero, a member of the partnership, called by the complainants, and Antonio Pereira, an internal revenue agent and coffee expert of the government of Porto Rico, called by the defendant.
The complainant expressed its willingness to comply with the act, with the exception of sections 6 and 7, which require keeping books in which should be entered the names of- customers to whom coffee was sold and other requirements.
Upon hearing the District Court granted an injunction prohibiting the defendant as treasurer of Porto Rico and his successors and agents from enforcing the provisions of sections 6, 7, and 8 of Joint Resolution No. 22, approved June 5, 1919, and held that said sections are “illegal, unconstitutional, unreasonable and void.”
In his answer the defendant denies that the amount in controversy exceeds the sum of $3,000, exclusive of interest and costs; denies that he has threatened to institute criminal proceedings against the complainants, or to attach, seize, and embargo their property in the event of their failure or refusal to obey the provisions of said joint resolution; alleges that said joint resolution is legal and valid, and clearly within the police power of the Legislature of Porto Rico; also that there is no federal question involved in the case, and that complainants have an adequate remedy at law by defense in any criminal proceeding which may be instituted.
The appellant contends in its brief and oral argument that the decree of the District Court should be reversed, and the case remanded to that court, with instructions to dismiss the same because (1) the case is moot; (2) for lack of necessary parties, the Attorney General and the people of Porto Rico; (3) because it does not appear that the jurisdictional amount of $3,000 is involved; and (4) for lack of jurisdiction in equity since plaintiffs have an adequate remedy at law in the defense of any criminal prosecutions that might be brought against them, and that, even if it had jurisdiction, the decree of the District Court, holding sections 6, 7 and 8 of said act invalid, is erroneous, “because it goes beyond the limits of the judicial power and trespasses upon the legislative discretion vested by the Congress in the Legislature of Porto Rico.”
While the bill of complaint is inartifieially drawn, it alleges with sufficient accuracy that the value of the plaintiff’s business is more than $15,000, that the sale and resale of coffee is necessary for its operation, and that the enforcement of the act by the defendant will make it impossible for them to carry on their business in which they have invested large sums of money. As the prayer of the bill is to enjoin the enforcement of the act by the defendant, and it is alleged that, if not granted the complainants’ business will be destroyed, which has a greater value than $3,-000, we think that determines the amount in dispute. Packard v. Banton, 264 U. S. 140, 142, 44 S. Ct. 257, 68 L. Ed. 596. In this case, as in the one cited, the value of the right of cbmplainants to carry on their business “freed from the restraint of the statute” exceeds the jurisdictional amount.
The District Court had jurisdiction to restrain criminal prosecution of the complainants if it is determined that the resolution is unconstitutional on the ground that the prevention of such prosecution is essential to- the safeguarding of property rights. Truax v. Raich, 239 U. S. 33, 37, 38, 36 S. Ct. 7, 60 L. Ed. 131, L. R. A. 1916D, 545, Ann. Cas. 1917B, 283; Terrace v. Thompson, 263 U. S. 197, 44 S. Ct. 15, 68 L. Ed. 255. The right of the complainants to purchase and sell foreign coffee is a property right guaranteed by the Constitution of the United States and the Organic Act of Porto Rico (39 Stat. 951), and whether the act of the Porto Rican Legislature of June 5, 1919, interferes with this right is a federal question. See Terrace v. Thompson, supra, page 214 of 263 U. S. (44 S. Ct. 15).
The treasurer of Porto Rico by the act is charged with the duty of its enforcement and authorized to promulgate regulations not incompatible therewith. He was therefore properly made a party to the bill, and it was unnecessary to join the Attorney General or the people of Porto Rico.
Congress has conferred upon the Legislature of Porto Rico general legislative power, reserving to itself the right to declare any act passed by it null and void. In the exercise of the authority conferred upon it the Legislature has enacted this law. In accordance with the authority conferred upon it by the Organic Act, the Legislature of Porto Rico could for the purposes of taxation make any classification which was reasonable, and if all parties within the classification created by it were subject to the same tax, neither the Fourteenth Amendment to the Constitution of the United States nor section 2 of the Organic Act of Porto Rico (48 USCA § 737) was violated; nor would the equality provision of taxation be destroyed, because all of the same class are treated alike. Giozza v. Tiernan, 148 U. S. 657, 13 S. Ct. 721, 37 L. Ed. 599; Billings v. United States, 232 U. S. 261, 34 S. Ct. 421, 58 L. Ed. 596.
It was held in this circuit, in West India Oil Co. v. Gallardo (C. C. A.) 6 F.(2d) 523, that a tax imposed upon the sale or use of automobiles is not an import tax, but an excise tax on sale or use, under section 58 of the Organic Act, known, as the Jones Act (39 Stat. 968).
The ground upon which the District Court rested its decree seems to have been that this resolution of the Porto Rican Legislature was unreasonable. With its wisdom or reasonableness the courts are not- concerned, and are without jurisdiction to interfere upon that ground. If it is an unwise law, the taxpayer has his remedy by an appeal to the Legislature for its amendment.
The decree of the District Court is reversed, and the case is remanded to that court, with instruction to dismiss the bill.
ANDERSON, Circuit Judge, concurs 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.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the second listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to determine what category of business best describes the area of activity of this litigant which is involved in this case. | This question concerns the second listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". What category of business best describes the area of activity of this litigant which is involved in this case? | [
"agriculture",
"mining",
"construction",
"manufacturing",
"transportation",
"trade",
"financial institution",
"utilities",
"other",
"unclear"
] | [
5
] | songer_respond2_1_3 |
Louise M. BLAIR, Appellant, v. INTER-OCEAN INSURANCE COMPANY.
No. 77-1657.
United States Court of Appeals, District of Columbia Circuit.
Argued March 31, 1978.
Decided Dec. 22, 1978.
Eugene J. Fitzpatrick, Rockville, Md., with whom Melvin M. Feldman, Rockville, Md., was on the brief, for appellant.
Roger E. Warin, Washington, D. C., for appellee.
Before LUMBARD, Senior Circuit Judge for the Second Circuit, and MacKINNON and WILKEY, Circuit Judges.
Sitting by designation pursuant to 28 U.S.C. § 294(d).
Opinion for the court PER CURIAM.
PER CURIAM:
Appellant, Louise M. Blair, brought an action based on diversity jurisdiction to recover the $40,000 proceeds of a life insurance policy issued to her deceased husband four months before his death of portal cirrhosis of the liver, and for consequential damages flowing from appellee’s, Inter-Ocean Insurance Co., refusal to pay the policy. Inter-Ocean was granted summary judgment on the grounds that appellee was excused from paying off its policy because the deceased both at the time of his application for insurance and thereafter before the policy was actually issued, had, as a matter of law, materially misstated his medical history in respects that materially affected the acceptance of the risk and the hazard assumed by the insurer. We find no error in the district court’s ruling and affirm its judgment.
As part of his application for insurance, the deceased, Daniel R. Blair, was required to provide information requested on a company medical form, “Answer Made to the Medical Examiner.” In his answers to this questionnaire, Mr. Blair disclosed that he had a history of diabetes, but when specifically asked whether or not he had ever had or consulted a physician concerning any “Stomach or Intestinal Trouble, Indigestion, Ulcers, Appendicitis, Gall Bladder or Liver Disorder, Jaundice, Dysentery or Hernia,” (emphasis added) he replied with an unqualified “no.” In fact, shortly before he gave that answer the deceased had been hospitalized for some six days during which he had been diagnosed as suffering from cirrhosis of the liver. In addition to concealing this diagnosis from appellee, in response to an inquiry on the medical form asking for the full details of any hospitalization during the past five years, Mr. Blair neglected to mention this confinement, although it had occurred only four months before he applied for insurance. Furthermore, during the period between the deceased’s application in March, 1974, and the issuance of the policy in June, 1974, Mr. Blair again required hospitalization for his cirrhotic liver, which at this point was producing symptoms — bleeding esophageal varices — suggestive of a rapidly deteriorating condition. Although the terms of his insurance required the applicant to inform Inter-Ocean of any hospitalization subsequent to the submission of his application for insurance and prior to its issuance, Mr. Blair did not inform Inter-Ocean of this hospitalization.
The appellant does not dispute these facts, but instead contends that since the deceased did disclose his diabetic condition, and his physician in answering a Special Diabetes Questionnaire commented that the deceased had developed “peripheral neuritis” and characterized the risk of insuring Mr. Blair as “moderately severe,” the insurance company was put on notice of the possibility of liver disease. Given such notice, appellant further contends that Inter-Ocean should in the exercise of due diligence have discovered deceased’s true medical condition; and that since appellee issued the disputed policy despite notice of “facts of such a nature as to require further inquiry by insurer” (Appellant’s Brief at 8), it allegedly is estopped from denying the validity of the insurance.
One need only examine the responses given by deceased’s doctor to the Special Diabetes Questionnaire to appreciate the frivolous nature of the claim that knowledge of Mr. Blair’s diabetes and peripheral neuritis should have led the appellee to inquire into the possibility of liver disease. Nowhere on this form, including the final section requesting general “Remarks,” is there any hint that deceased was suffering from cirrhosis.
Liver disease may well be, as appellant contends, a possible result of diabetes (although Mr. Blair’s own physician who had treated diabetics all his professional life had apparently never seen a case where the latter disease led to the former), but it can hardly be said that Inter-Ocean — having received deceased’s sworn statement disclaiming any liver disorder and two medical reports neither of which referred to any disease related to that organ — was put on a duty of inquiry into the condition of Mr. Blair’s liver. Numerous cases in which the information given to an insurance company was far more suggestive of serious illness than that which the deceased chose to divulge to Inter-Ocean have found that the insurer was not on a duty of investigation as to the possibility of such illness, e. g., Rutherford v. John Hancock Mutual Life Insurance Co., 562 F.2d 290 (4th Cir. 1977); Fleet Messenger Service v. Life Insurance Company of North America, 315 F.2d 593 (2d Cir. 1963) (per Lumbard, C. J.); Haub-ner v. Aetna Life Insurance Co., 256 A.2d 414 (D.C.App.1969). We see absolutely no basis for imposing such a duty on appellee in this case.
The district court’s grant of summary judgment in favor of the appellee was entirely proper, regardless of whether or not the intent with which decedent made the misrepresentations was an issue upon which testimony should have been taken, because, even if unintentional, these misrepresentations without doubt materially affected the hazard assumed by the company and its decision to accept the risk of insuring Mr. Blair. Under both District of Columbia and Maryland law, such a material misrepresentation is grounds for abrogating the policy of insurance, D.C.Code § 35-414 (1973); Md.Code Ann. Art. 48A, § 374 (1972), and Inter-Ocean’s underwriting manual explicitly states that it will not write life insurance of any kind for individuals suffering from active cirrhosis of the liver. Whether or not Mr. Blair’s cirrhosis was “passive” at the time he applied for insurance, it certainly gave signs of being “active” when he was rushed to the hospital for treatment three weeks before the issuance of the policy. Given the directives of appellee’s underwriting manual, it is clear that had deceased not misrepresented the condition of his health, no policy would have been issued to him. We accordingly affirm the grant of summary judgment for Inter-Ocean.
Affirmed.
. Peripheral neuritis is defined as “inflammation of the nerve endings or terminal nerves,” Dorland’s Medical Dictionary 1039 (25th ed. 1974), which can lead to loss of reflex and some loss of weight, but certainly could not be considered a threat to life itself.
. Decedent’s cirrhosis was not in fact caused by diabetes but by excessive consumption of alcohol.
. D.C.Code § 35-414 provides:
The falsity of a statement in the application for any policy of insurance shall not bar the right to recovery thereunder unless such false statement was made with intent to deceive or unless it materially affected either the acceptance of the risk or the hazard assumed by the company.
See Jones v. Prudential Insurance Co., 388 A.2d 476 (D.C.App.1978) (insured falsely stated that she was not a heroin addict; held that this misrepresentation precluded recovery on the policy under § 35-414 because “the misrepresentation would affect the company’s acceptance of the risk . . ..”) Cf. Taylor v. Time Insurance Co., 583 F.2d 743 (5th Cir. 1978).
. Md.Code Ann. Art. 48A, § 374 provides:
All statements and descriptions in any application for a life or health insurance policy or annuity contract, or for the reinstatement or renewal thereof, by or in behalf of the insured or annuitant, shall be deemed to be representations and not warranties.. Misrepresentations, omissions, concealment of facts, and incorrect statements shall not prevent a recovery under such policy or contract unless either:
(1) Fraudulent; or
(2) Material either to the acceptance or the risk, or to the hazard assumed by the insurer; or
(3) The insurer in good faith would either not have issued, reinstated, or renewed the policy or contract, or would not have issued a policy or contract in as large an amount, or would not have provided coverage with respect to the hazard resulting in the loss, if the true facts had been known to the insurer as required either by the application for the policy or contract or otherwise.
We have considered the applicable statutes in both states to avoid any dispute regarding which law governs.
. The second hospitalization in Intensive Care occurred on May 13th and the policy was issued on June 1st. | 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 - commercial disputes". | What is the specific issue in the case within the general category of "economic activity and regulation - commercial disputes"? | [
"contract disputes-general (private parties) (includes breach of contract, disputes over meaning of contracts, suits for specific performance, disputes over whether contract fulfilled, claims that money owed on contract) (Note: this category is not used when the dispute fits one of the more specific categories below)",
"disputes over government contracts",
"insurance disputes",
"debt collection, disputes over loans",
"consumer disputes with retail business or providers of services",
"breach of fiduciary duty; disputes over franchise agreements",
"contract disputes - was there a contract, was it a valid contract ?",
"commerce clause challenges to state or local government action",
"other contract disputes- (includes misrepresentation or deception in contract, disputes among contractors or contractors and subcontractors, indemnification claims)",
"private economic disputes (other than contract disputes)"
] | [
2
] | songer_casetyp1_7-3-3 |
BOAZE v. WINDRIDGE & HANDY, Inc.
No. 7177.
United States Court of Appeals for the District of Columbia.
Argued Jan. 17, 18, 1939.
Decided Jan. 30, 1939.
Alvin L. Newmyer and David G. Bress, both of Washington, D. C., for appellant.
Norman B. Frost and Frank H. Myers, both of Washington, D. C., for appellee.
Before GRONER, Chief Justice, and MILLER and VINSON, Associate Justices.
GRONER, C. J.
Tljis appeal is from a judgment for appellee entered on a verdict directed by the court. The action below was brought by Annie V. Boaze, as administratrix of the estate of her husband, to- recover damages for his death resulting f-rom a collision with a motorcycle operated by appel-lee’s agent on M Street in the City of Washington. Appellee’s plea admitted the collision and the death of appellant’s husband therefrom, but alleged that its agent was not negligent in any of the particulars charged in the declaration, and that deceased’s own negligence was the cause of the injury and death.
The single question we have to decide is whether the evidence, construed most favorably to plaintiff, was sufficient to warrant a finding by the jury that defendant was negligent as charged in the declaration. If so, the motion for binding instructions should have been denied. Improvement Company v. Munson, 14 Wall. 442, 448, 20 L.Ed. 867. On such a motion, in order to determine whether there is evidence upon which a jury can properly find a verdict, the court must assume that the evidence proves all that it reasonably may be found sufficient to establish. If fair minded men may honestly draw different conclusions as to the existence or nonexistence of the negligence charged, the question is not one of law but of fact to be settled by the jury. Gunning v. Cooley, 281 U.S. 90, 94, 50 S.Ct. 231, 74 L.Ed. 720.
The evidence introduced by the plaintiff shows that on the afternoon of June 19, 1934, deceased drove his car in an easterly direction on M Street, N. W., between 25th and 26th Streets and parked it adjacent to the south curb, headed in an easterly direction; that he got out of his car and started to walk across M Street to the north side; and that when he had got to a point about 6 or 7 feet from the north curb, he was struck by a motorcycle operated by defendant’s agent, Charles Rind. The eye witnesses to the collision were the injured and the operator of the motorcycle. The former died the following day. The driver did not testify. Of the witnesses who testified, two — Brenner and Otis — saw the deceased as he hit the ground immediately after the collision. Another — Mrs. Williams — saw him as he lay in the street just before he was removed to the hospital.
Brenner testified he was standing in an office door on the north side of M Street, nearly opposite the point of collision; that he saw deceased leave his car and take a step and did not see him again until he heard an exclamation from Otis, to whom he was talking at the time, as the result of which he looked and saw the deceased fall to the ground; that at that moment the motorcycle was on the north side of the street headed east and 6 to 7 feet from the curb; that he ran out into the street and when he reached the place of accident, deceased lay with his head a few feet from the north curb and with his body and feet in a southerly direction.
Otis testified that he did not see the impact but did see deceased’s head hit the ground. He placed the point of the accident as slightly on the north side of the center of the street,, stating that as the body lay on the ground injured’s feet were near the center line of the street and the head toward the north side.
Mrs. Williams, who saw the body before it was removed, testified it was near the center but more on the north half of the street. She said that after the accident she saw the driver of the motorcycle drive around and come back to the scene but did not know how far he went before turning around.
M Street runs east and west; and at the point where the accident occurred its width is a few inches less than 40 feet from curb to curb. The evidence showed that the driver of the motorcycle had shortly before the accident brought an automobile, with the motorcycle attached to its rear, to an “automobile laundry" on the north side of M Street some 40 or 50 feet west from the point of the accident; that the' automobile was brought to the “laundry” to be washed, and the motorcycle to convey the driver back to defendant’s place of business; that the automobile was driven to the rear of the lot fronting on the north side of M Street; and that the driveway from the rear which defendant’s agent would use in returning was, at the point of intersection with the street, approximately 38 feet from the place of accident. At the time of the collision there were no parked cars on the north side of the street, but there were cars parked against the curb on the south side, and there was also a milk truck with a tall body parked double on that side just to the west of deceased’s automobile. In these circumstances we think that, when deceased undertook to walk from the south to the north side of the street, especially in view of the presence of parked automobiles on the near sidé, it was his duty to look in the directions from which danger might be expected and that, if he failed to do so and his negligence in this respect was the sole proximate cause of the injury, there could be no recovery.
If, therefore, the evidence had shown that the collision occurred as deceased emerged from behind a parked car and when the view of the driver of the motorcycle was obscured, so that he could not see the deceased as he walked into his pathway, we should have to affirm the judgment of the court below. But that is not this case, for here the evidence, together with the inference that justifiably may be drawn from it, tends to show that the' collision occurred after deceased had fully cleared the parked automobiles and passed the center line of the street to a point within 6 or 7 feet of the north curb, a part of the roadway over which, in the circumstances, it was an act of negligence to drive a vehicle in an easterly direction.
In addition to this, the evidence at least tends to show that, on the side of the roadway on which the motorcycle was being driven, there was nothing to obstruct the view of the driver and that he could and should have seen deceased and realized his peril in time to avoid the accident. If this is true, the driver of the motorcycle was guilty of negligence for which a recovery could be had, notwithstanding deceased himself might have been guilty of contributory negligence in failing to look. Chunn v. City & Suburban Railway, 207 U.S. 302, 309, 28 S.Ct. 63, 52 L.Ed. 219; Jackson v. Capital Transit Co., 69 App.D.C. 147, 99 F.2d 380; Goodyear Service v. Pretzfelder, 65 App.D.C. 389, 84 F.2d 242; Terminal Taxicab Co. v. Blum, 54 App.D.C. 357, 298 F. 679.
Enough, we think, has been said to show that in our opinion the trial court was in error in taking the case from the jury.
Reversed and remanded for a new trial. | What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court rule for the defendant on grounds other than procedural grounds? For example, right to speedy trial, double jeopardy, confrontation, retroactivity, self defense." This includes the question of whether the defendant waived the right to raise some claim. 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 for the defendant on grounds other than procedural grounds? For example, right to speedy trial, double jeopardy, confrontation, retroactivity, self defense. This includes the question of whether the defendant waived the right to raise some claim. | [
"No",
"Yes",
"Yes, but error was harmless",
"Mixed answer",
"Issue not discussed"
] | [
4
] | songer_othcrim |
COUNTY OF HALIFAX, VIRGINIA, acting By and Through the BOARD OF SUPERVISORS, its governing body, a Political Subdivision of the Commonwealth of Virginia, Halifax, Virginia; Synergics, Inc., a Maryland Corporation having its principal place of business in Annapolis, Maryland, Appellees, v. Kenneth LEVER, c/o Actaeon Corporation; Banister Development, Ltd., c/o Actaeon Corporation, Appellants.
No. 82-2012.
United States Court of Appeals, Fourth Circuit.
Argued June 6, 1983.
Decided Sept. 29, 1983.
Rehearing and Rehearing En Banc Denied Nov. 2, 1983.
Joseph M. Winston, Jr., Danville, Va. (Luis A. Abreu, Clement & Wheatley, Dan-ville, Va., on brief), for appellants.
Thomas J. Wood, William W. Bennett, Jr., South Boston, Va. (Slayton, Bennett & Rand, South Boston, Va., on brief), for appellees.
Before RUSSELL and WIDENER, Circuit Judges, and BRYAN, Senior Circuit Judge.
DONALD RUSSELL, Circuit Judge:
The plaintiffs/appellees, County of Halifax, Virginia, and Synergies, Inc. filed this action in district court against Kenneth Lever and Banister Development, Ltd., defendants/appellants, asserting diversity jurisdiction and seeking by way of relief only “a mandatory injunction ... against defendants requiring [the defendants] to withdraw and relinquish all their rights obtained under the permit dated July 7, 1981, for the Banister Dam, Halifax County, Virginia, United States of America, Federal Energy Regulatory Commission, Project No. 3610-000, effective immediately; and further, to restrain and enjoin defendants from applying or filing with the Federal Energy Regulatory Commission any other permits, licenses or exemption applications for the Banister Dam, Halifax, Virginia; .... ” The defendants moved to dismiss the action for lack of subject matter jurisdiction because the controversy was in effect one to invalidate a permit issued by the Federal Energy Regulatory Commission [FERC] under the Federal Power Act and to overturn the decision of FERC not to rescind that permit. Such a proceeding, they contend, was within the exclusive jurisdiction of the FERC. Assuming that the proceedings were within the exclusive jurisdiction of the FERC, the defendants argued in their motion that the plaintiffs had not exhausted their administrative remedies before said Commission under the Act by filing a petition for rehearing within thirty (30) days after the issuance of the challenged order of permit nor had they within the required time petitioned for review of the order of the Commission refusing to invalidate the temporary permit to an appropriate United States Court of Appeals which had the exclusive jurisdiction “to affirm, modify, or set aside” the Commission’s order of permit. The District Court denied the motion to dismiss. Its ground for such denial was that plaintiffs’ action was one in tort for fraud and deceit and as such did not arise under the Federal Power Act. It relied on the decision in Montana-Dakota Utilities Co. v. Northwestern Pub. Serv. Co., 341 U.S. 246, 71 S.Ct. 692, 95 L.Ed. 912 (1951), as authority for this ruling. The cause thereafter, with issues joined, proceeded to trial before the District Court and resulted in an order and decree “requiring Defendant to surrender his permit [to produce hydroelectric power at a dam on Banister River in Halifax County, Virginia] to FERC and [to] take no further action on said permit.” The defendants have appealed. We reverse.
The threshold question which must first be answered in this appeal is the jurisdiction or power of the District Court. The resolution of that issue depends on the inherent nature and character of plaintiffs’ action, an issue which requires some review of the record. The plaintiffs in their complaint have not sued in tort for damages sustained as a result of fraud and deceit; they sue in essence, to hold and set aside, by way of a mandatory injunction in the District Court, a temporary permit issued the defendants, after a properly noticed hearing, by the FERC under the Federal Power Act. That permit, which is the real subject of this action, was issued pursuant to an application filed by the defendants with the FERC for a temporary permit to develop a dam to generate hydroelectric energy at Banister Dam in Halifax County under Section 797(e), 16 U.S.C. of the Federal Power Act. The FERC gave notice of this filing to “any States or municipality likely to be interested in or affected by such application,” which included Halifax County. It also published “notice of such application once each week for four weeks in a daily or weekly newspaper published” in Halifax County where the lands affected by the project were located as required in § 797(f), 16 U.S.C. In addition, the notices as given stated specifically that “notices of intent to file competing applications had to be submitted to the Commission by April 6, 1981” and “that parties filing notices of intent had to submit [their] competing applications by June 5,1981.” The notice further stated that any “comments, protests, or petitions to intervene must be received on or before April 6, 1981.”
On March 19, 1981, the plaintiff Halifax County filed a notice of intent to file an application for a preliminary permit prior to the April 6 deadline under the provisions of the Commission’s regulation 18 CFR, § 4.33(f) and (c), 1980, but it thereafter submitted no competing application by June 5, 1981, or by any later date. On July 2, 1981, however, after time for filing either a competing application or other type of application had expired, Halifax County filed a notice of intent to file an application for exemption from licensing. While such notice of the County was pending, the Director, Office of Electric Power Regulation in the FERC, (“Director”) issued the preliminary permit to the defendants on July 7,1981. Thereafter he “rejected as late the Halifax notice of intent for exemption.” On July 16 and '22, 1981, the plaintiffs filed appeals from the orders of the Director. The FERC issued on August 17, 1981, a notice of intent to act on the appeals and suspended the effective date of the preliminary permit pending Commission action on the appeals. After receiving arguments from the parties, on October 8, 1981, the FERC issued its order denying the appeals of the plaintiffs. In its order it gave very definite reasons for such denial. The plaintiffs did not petition the Commission for rehearing but filed this action in the District Court seeking, in effect, the same relief they had sought of the Commission.
In its appeal as filed on July 22, 1981, Halifax County raised a number of claims of defects in the FERC proceedings. The first was directed at the scope and effect of its notice of intent to file a competing application as submitted to the FERC on March 19, 1981. According to plaintiff’s argument, as set forth in its statement of grounds of appeal, such notice was “intended to protect fully [the County’s] rights and options regarding the Banister Dam” and “was not intended to confine the [County’s] options to the filing of an application for a preliminary permit or to preclude the filing of an exemption application.” Moreover, on July 2, 1981 (which, incidentally, was almost three months after the final date for filing a notice of intent to file a competing application and a month after the notice of the Commission required that a competing application be filed), the County asserts that it “reaffirm[ed] its intent to file a competing exemption application,” but, without replying to such notice of intent the “FERC issued a preliminary permit” to the defendants.
The County, also, in its appeal invoked the authority of the Commission to “cancel a permit for other good cause shown, after notice and opportunity for hearing.” 18 C.F.R. § 4.83. It identified particularly as “good cause” for the cancellation that the defendants had “promised” the County that, its “permit application would be withdrawn if [it] was not the successful bidder on the Banister Dam,” that it was not the successful bidder but that the defendants had “refused to honor this commitment,” thereby “substantially jeopardizing] [the County’s] ability to allow the successful bidder to develop the Banister Dam.” It added that, unless granted a cancellation of defendants’ permit, the County “will be unable to work with its developer of preference and will be compelled to work with a developer whose prior dealings with [it] can only be characterized as being in bad faith.” The plaintiffs’ final ground for cancellation was that it had been misled by members of the Commission’s staff, with whom it had consulted, as to the scope and effect of its notice of intent to file a competing application.
From this review of the record, there can be no question about the nature and character of plaintiffs’ proceedings in the District Court. It is not an action to recover damages for fraud or deceit; the plaintiffs do not even ask for damages. What they are asking the District Court to do is to grant them by way of relief in this proceeding in the District Court, in a somewhat left-handed way, exactly what it sought and was denied by the Commission in the administrative proceeding before it to which proceeding the County had been a party. After having unsuccessfully invoked the jurisdiction of the Commission to obtain that relief, the County now argues that the power to revoke the temporary permit issued by the Commission did not exist in the Commission and that the District Court has the power to provide it with relief by way of an improvised invalidation of the temporary permit granted the defendants.
We are unable to follow the County’s reasoning. The plaintiffs have pursued the wrong road for the relief they seek. The Federal Power Act, “written in words of plain meaning,” has committed to the Commission the exclusive right to grant, cancel, or rescind permits for the construction or operation of dams or reservoirs “necessary or appropriate” “for the development ... of [electric] power across, along, from, or in any of the streams or other bodies of water over which Congress has jurisdiction” under the commerce clause. 16 U.S.C. § 797(e). In exercising that authority, the Commission is expressly empowered “to perform any and all acts, and to prescribe, issue, make, amend, and rescind such orders, rules, and regulations as it may find necessary or appropriate”, including “the form or forms of all statements, declarations, applications, and reports to be filed with the Commission, the information which they shall contain, and the time within which they shall be filed.” § 825h, 16 U.S.C. This authority clearly covers the grant of the relief the plaintiffs sought in the administrative proceedings before the Commission. The power to rescind or cancel an order or permit is not narrow or severely circumscribed but is open-ended and covers any “good cause” found by the Commission. 18 C.F.R. § 4.83. It is manifest, therefore, that there was jurisdiction in the Commission to cancel, rescind or revoke the temporary permit granted the defendants for fraud. And, as we have already observed, the County recognized this power and initially invoked in its appeal of July 22 the jurisdiction of the Commission to rescind the temporary permit issued to the defendants. In so acting it was adopting the proper avenue for the relief it sought.
When the Commission refused to rescind its permit, the proper remedy for the County, if it was dissatisfied with the decision, was to petition for a rehearing by the Commission as provided and mandated in the Act. If dissatisfied with the action of the Commission in denying rehearing, the exclusive jurisdiction to review a decision of the Commission, whether it was to rescind the grant of a temporary permit or not, was then vested in the appropriate Court of Appeals. There is no de novo jurisdiction in either the State or the District Court to review, reverse or invalidate the action of the Commission in ruling on such petition to rescind. That was expressly held in City of Tacoma v. Taxpayers, 357 U.S. 320, 335-36, 78 S.Ct. 1209, 1218-19, 2 L.Ed.2d 1345 (1958). In that case, the Court, speaking to § 8257 of the Federal Power Act, said:
“This statute (§ 8257, 16 U.S.C.) is written in simple words of plain meaning and leaves no room to doubt the congressional purpose and intent.... It there provided that any party aggrieved by the Commission’s order may have judicial review, upon all issues raised before the Commission in the motion for rehearing, by the Court of Appeals which ‘shall have exclusive jurisdiction to affirm, modify, or set aside such order, in whole or in part,’ and that ‘[t]he judgment and decree of the court, affirming, modifying, or setting aside, in whole or in part, any such order of the Commission, shall be final, subject to review by the Supreme Court of the United States upon certiorari or certification .... ’ It thereby necessarily precluded de novo litigation between the parties of all issues inhering in the controversy, and all other modes of judicial review. Hence, upon judicial review of the Commission’s order, all objections to the order, to the license it directs to be issued, and to the legal competence of the licensee to execute its terms, must be made in the Court of Appeals or not at all.”
This ruling has been strictly adhered to in subsequent decisions, involving both proceedings before the FERC and before other federal administrative agencies. See City of Rochester v. Bond, 603 F.2d 927, 935 (D.C.Cir.1979); Town of Springfield, Vt. v. McCarren, 549 F.Supp. 1134, 1155 (D.C.D. Vt.1982). The rationale for such adherence was fully explicated in Bond. There, the Court said (603 F.2d at 936):
“First, we disagree that the district court may exercise concurrent jurisdiction merely because a violation of NEPA is alleged. The allegation may be raised directly in the courts of appeals; and insofar as it may affect the lawfulness of a directly appealable order we think it must be. The numerous cases cited by appellants in which district courts exercised original jurisdiction over suits complaining of NEPA violations are not to the contrary.
“The rationale for statutory review is that coherence and economy are best served if all suits pertaining to designated agency decisions are segregated in particular courts. The choice of forum is, as we have said, for Congress and we cannot imagine that Congress intended the exclusivity vel non of statutory review to depend on the substantive infirmity alleged. The policy behind having a special review procedure in the first place similarly disfavors bifurcating jurisdiction over various substantive grounds between district court and the court of appeals. The likelihood of duplication and inconsistency would exist in either case.”
Such rule has been applied, even where it was alleged in the district court action that the action of the administrative agency represented violations of other federal statutes, or where the plaintiff was not a party to the administrative proceedings and had no notice of such proceedings. Moreover, the Act in this case specifically provides that “[n]o proceeding to review any order of the Commission shall be brought by any person unless such person shall have made application to the Commission for a rehearing thereon.” § 8257 (a), 16 U.S.C.
The plaintiffs argue that Montana-Dakota Co. v. Northwestern Pub. Serv. Co., supra, 341 U.S. 246, 71 S.Ct. 692, supports their right of action here. We do not so read that authority. The relief the plaintiffs sought in that case was similar to that requested by the plaintiffs here” It sought to invalidate an action of the Commission under the Federal Power Act by an independent action in the District Court asserting fraud and deceit and seeking damages, something the County does not ask for here. One substantial difference between that case and this is a difference which makes the retention of this case by the District Court more impermissible. The plaintiff in Montana-Dakota had not raised the issue of fraud before the Commission and had the claim dismissed; the County here, however, raised the plea before the Commission and had lost. The District Court in Montana- Dakota sustained the suit on the assumed ground that since the plaintiff’s claim, just as the claim of the plaintiffs in this case, was for fraud and deceit, the action was one within the de novo jurisdiction of the District Court and it granted relief to the plaintiff largely on the theory that the Commission could not give relief for fraud by way of an award of reparations or damages. That decision was appealed to the Supreme Court. The plaintiffs have quoted a number of isolated sentences from the opinion of the Supreme Court in that case which they claim supports their position. What they overlook, however, is the ultimate decision of the Supreme Court which found unequivocally that the plaintiff had not established a cause of action in the District Court. In reaching that conclusion, the Supreme Court assumed that the Commission did not have power to grant damages to the plaintiff. Nonetheless, it declared finally (341 U.S. at 254-55, 71 S.Ct. at 696-97):
“The fact that the Congress withheld from the Commission power to grant reparations does not require courts to entertain proceedings they cannot themselves decide in order indirectly to obtain Commission action which Congress did not allow to be taken directly. There is no indication in the Power Act that that was Congress’ intent.
“Under such circumstances, we conclude that, since the case involves only issues which a federal court cannot decide and can only refer to a body which also would have no independent jurisdiction to decide, it must decline the case forthrightly rather than resort to such improvisation.”
That decision fits this case. By no form of improvisation could the District Court in this action in effect invalidate or rescind action by the Commission in a matter which Congress has committed to its exclusive jurisdiction. Yet that is precisely what the District Court has attempted to do in its indirect way by a mandatory injunction. In our opinion, it should have refused, just as the Supreme Court ruled the District Court should have done in Montana-Dakota, to entertain the action despite the claim of fraud and deceit.
It follows that the County’s exclusive remedy in this matter was by a petition for review with the appropriate Court of Appeals and not by an independent action in the District Court. We accordingly reverse the decision of the District Court sustaining its right to entertain this suit and remand the cause to that Court with direction to dismiss the complaint herein.
REVERSED.
. Section 791a, et seq., 16 U.S.C.
. § 8251(b), 16 U.S.C.
. The rules and regulations of the Commission have different provisions for filing notice of intent to file a competing application and for filing an application for exemption. The application of the County was filed on the approved form for notice of intent to file a competing application (§ 4.33(b) and (c) and not on the approved form for notice of intent to file an exemption application (§ 4.104(a)(2)).
. The evidence taken at trial indicated that the County knew almost a month before June 5 that the defendants would not withdraw its application for a temporary permit, yet it never took any steps to file a competing application or to seek an extension for such filing on or before June 5.
. Carey v. O’Donnell, 506 F.2d 107, 110 (D.C.Cir.), cert. denied 419 U.S. 1110, 95 S.Ct. 783, 42 L.Ed.2d 806 (1975).
. City of Rochester v. Bond, supra, 603 F.2d at 937-38.
. Since we find the District Court was without the power to entertain the suit, we do not consider the merits of the County’s claim of fraud. | 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_r_bus |
GEBHART v. HUNTER.
No. 4091.
United States Court of Appeals Tenth Circuit.
Oct. 25, 1950.
Marvin Gebhart, pro se.
Lester Luther, U. S. Atty., Eugene W, Davi-s, Asst. U. S. Atty., and Malcolm Miller, Asst. U. S. Atty., all of Topeka, Kan., for appellee.
Before PHILLIPS, Chief Judge, and MURRAH and PICKETT, Circuit Judges.
PHILLIPS, Chief Judge.
This is an appeal from an order dismissing an application for a writ of -habeas corpus.
An indictment containing three counts was returned against Gebhart in the United States District'-Court for the District of Nebraska, Lincoln Division. The first count charged that Gebhart, on August 25, Í934, in such Lincoln Division, with a pistol which he held, put in feár- Frank M. 'Farr and Mayme Erickson, and thereby took -from them $1535.40 in money belonging to the First National Bank in Aurora, Aurora, Nebraska, a banking institution organized under the laws of the United States. The second count charged that Gebhart at the same time and place, in committing the offense charged in count one, did make an assault by the use of a dangerous weapon, to wit, a ¡pistol, upon Farr and Erickson, ■by then and there pointing such pistol at Farr and Erickson. ¡Count three charged that Gebhart at the same time and place in committing the offense charged in count one, did put in jeopardy the lives of Farr and Erickson by the use of a dangerous weapon, to wit, a pistol, which pistol Gebhart pointed at Farr and Erickson.
Count one charged a violation of 12 U.S.C.A. § 588b(a), and counts two and three charged violations of 12 U.S.C.A. § 588t>(b)
Gebhart was found guilty on each of the three counts by a verdict of a jury, and was sentenced to a term of 20 years on count one, 25 years on count two and 25 years on count three, the sentence on the first count to run concurrently with the sentences on the second and third counts, and the sentences on the second and third counts to run concurrently with each other.
Prior to the effective date of 28 U.S. C.A. § 2255, September 1, 1948, and in February, 1947, Gebhart filed in the sentencing court a motion to vacate the judgment and sentence on the second and third counts on the ground that when the sentencing court imposed its sentence on count one it exhausted its power to sentence and therefore the sentences on counts two and three were void. On March 19, 1947, the sentencing court entered an order denying the motion. On appeal that order was affirmed. 4The sentencing court and the ■Court of Appeals, Eighth Circuit, followed the former decisions of the latter court in Holbrook v. United States, 8 Cir., 136 F.2d 649, and Holiday v. United States, 8 Cir., 130 F.2d 988,
In the instant case the trial court denied the motion primarily on the ground that Gebhart had not sought the remedy provided by 28 U.S.C.A. § 2255
The grounds set up in the motion in the instant case were identical with the grounds set up for the motion filed in the Eighth Circuit in February, 1947. Since the precise issue here raised was ■adjudicated by the order of the sentencing court, affirmed by the Court of Appeals, Eighth Circuit, Gebhart is ¡barred from relitigating it in this court, under the doctrine of res judicata.
Moreover, we agree with the decision of the Eighth Circuit, that since counts two and three charged facts.’ Warranting the imposition of the greater punishment ¡provided for by 12 U.S.C.A. § 588b (b) and Gebhart Was found guilty on those counts, the concurrent sentences imposed on ¡counts two and three, although longer than the sentence imposed on count one, were valid. This court’s observation in the closing sentence of the opinion in Holbrook v. Hunter, 10 Cir., 149 F.2d 230, has no .application in the, instant case. There, each of the two counts of the indictment charged facts bringing the offense within 12 U.S.C.A. § 588‘b(b), and both sentences were imposed under that section. Here, the sentence on count one was imposed under 12 U.S.C.A. § 588b(a) and the sentences on counts two and three were imposed under 12 U.S.C.A. § 588b(b).
Affirmed.
. 1948 Revised Criminal Code, 18 U.S.C.A. § 2113.
. United States v. Gebhart, D.C., 70 F. Supp. 824.
. Gebhart v. United States, 8 Cir., 163 F.2d 962.
. After the decision by the court below in the instant case,' Gebhart filed a motion in the sentencing court under § 2255, supra, seeking an order vacating the sentences imposed on counts two and three. That motion was denied. See United States v. Gebhart, D.C., 90 F.Supp. 509.
. Holbrook v. Hunter, 10 Cir., 149, F.2d 230, 231; Fowler v. Hunter, 10 Cir., 164 F 2d 668, 669; Garrison v. Hunter, 10 Cir., 149 F.2d 844, 845; Strewl v. Sanford, Warden, 5 Cir., 151 F.2d 648; Goldsmith v. Sanford, Warden, 5 Cir., 132 F.2d 126, 127; Spaulding v. Sanford et al., 5 Cir., 142 F.2d 444; Orencia v. Overholser, 82 U.S.App.D.C. 285, 163 F. 2d 763, 765.
. Ward v. United States, 10 Cir., 183 F.2d 270, 272. | 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_district |
Michael Gene BERRYHILL, Petitioner-Appellee, Cross-Appellant, v. Walter ZANT, Warden, Georgia Diagnostic and Classification Center, Respondent-Appellant, Cross-Appellee.
No. 87-8508.
United States Court of Appeals, Eleventh Circuit.
Sept. 29, 1988.
Michael J. Bowers, Atty. Gen., William B. Hill, Jr., Susan V. Boleyn, Sr. Asst. Attys. Gen., Atlanta, Ga., for Zant.
Stephen G. Milliken, Milliken, Van Sust-eren and Canan, Washington, D.C., Stephen B. Bright, Atlanta, Ga., for Berryhill.
Before TJOFLAT, VANCE and CLARK, Circuit Judges.
TJOFLAT, Circuit Judge:
I.
The petitioner in this case, Michael Gene Berryhill, is a Georgia death row inmate. In 1975, a jury in Bartow County, Georgia convicted him on charges of felony murder and armed robbery. At the conclusion of petitioner’s sentencing hearing, the jury returned a verdict imposing the death penalty. The Supreme Court of Georgia affirmed the conviction and sentence on direct appeal. Berryhill v. State, 235 Ga. 549, 221 S.E.2d 185 (1975), cert. denied, 429 U.S. 1054, 97 S.Ct. 769, 50 L.Ed.2d 771 (1977). Petitioner thereafter filed, pursuant to Ga.Code Ann. § 50-127 (1979), a petition for a writ of habeas corpus in the Superior Court of Butts County. The court denied relief, and, on appeal, the Supreme Court of Georgia affirmed. Berryhill v. Ricketts, 242 Ga. 447, 249 S.E.2d 197 (1978), cert. denied, 441 U.S. 967, 99 S.Ct. 2418, 60 L.Ed.2d 1073 (1979).
Petitioner then filed a petition for a writ of habeas corpus in federal district court. The district court, in an unpublished order, directed the state of Georgia to grant petitioner a new trial. We affirmed in an unpublished opinion.
A Bartow County grand jury reindicted petitioner on May 7, 1981, charging him once again with felony murder and armed robbery. The Superior Court of Bartow County convened a jury trial on June 1, 1981, at the conclusion of which the jury returned a verdict of guilty. The jury trial then reconvened and, once again, petitioner received the death penalty. The Supreme Court of Georgia affirmed the conviction and sentence on direct appeal. Berryhill v. State, 249 Ga. 442, 291 S.E.2d 685, cert. denied, 459 U.S. 981, 103 S.Ct. 317, 74 L.Ed.2d 293 (1982). As he had done after his 1975 conviction was affirmed on direct appeal, petitioner filed a petition for a writ of habeas corpus in the Superior Court of Butts County. The court denied relief, and the Supreme Court of Georgia denied petitioner’s application for a certificate of probable cause to appeal. The United States Supreme Court denied certiorari on August 2, 1984. Berryhill v. Francis, 467 U.S. 1220, 104 S.Ct. 2670, 81 L.Ed.2d 375 (1984).
On August 25, 1985, petitioner returned to federal district court and filed a petition for a writ of habeas corpus. It is this petition that we consider in this case. Petitioner asserts that his 1981 conviction and sentence are invalid on several grounds. Four of the grounds he cites are based on alleged violations of his right, under the sixth and fourteenth amendments, to an impartial jury. First, he claims he was denied the right because his trial jury was drawn from a master jury list which, due to an underrepresentation of women, failed to reflect a fair cross section of the community. Second, he claims he was denied the right because the trial court “fail[ed] to grant a change of venue, or [to] take other appropriate measures, such as individual sequestered voir dire, to ensure that [his] verdict and sentence [were] not affected by strong community feeling against [him].” Third, he claims he was denied the right because the trial judge prevented his attorney from asking questions at voir dire which were essential to ascertaining the impartiality of the prospective jurors. And fourth, he claims he was denied the right because the trial court refused to strike from the venire an individual who expressed an irrevocable commitment to imposing the death penalty.
The remaining grounds petitioner cites involve a variety of other constitutional violations. His fifth claim is that his conviction and sentence are invalid under the due process clause of the fourteenth amendment because misconduct by the prosecutor and bias on the part of the trial judge rendered his trial fundamentally unfair. His sixth claim is based on the equal protection clause of the fourteenth amendment: he argues that his conviction must be overturned because the underrepresen-tation of women on the master jury list was the result of intentional discrimination against women. His seventh claim is that he was denied effective assistance of counsel, in violation of the right to counsel guaranteed by the sixth and fourteenth amendments. His eighth claim is that he was denied his right, under the eighth and fourteenth amendments, to be free from cruel and unusual punishment because the trial court coerced the jury into returning a death sentence. Finally, his ninth claim is that he was denied his right to be free from cruel and unusual punishment because the trial court failed properly to instruct the jury that it could, in reaching its sentencing verdict, consider as mitigating evidence testimony concerning petitioner’s mental condition.
Following an evidentiary hearing, the district court determined that the second and eighth claims had merit, and accordingly entered an order directing the State of Georgia to grant petitioner a new trial. The court considered the remaining claims, but concluded that each lacked merit. Respondent now appeals from the order granting relief on the basis of the second and eighth claims, and petitioner cross-appeals the district court’s rejection of the other seven claims. Because we conclude that petitioner is entitled to relief on the basis of the first claim, we need not address the merits of the others.
II.
At the time of the events pertinent to this case, Georgia law required the superi- or court of each county to appoint a six-member board of jury commissioners, whose duty it was to “compile and maintain and revise a jury list of intelligent and upright citizens of the county to serve as jurors.” Ga.Code Ann. § 59-106 (1979). Pursuant to this mandate, the Bartow County board of jury commissioners would compile a master jury list every other year, choosing a sufficient number of names to fill trial jury venires for a two-year period. The venire from which petitioner’s trial jury was selected was drawn from the master list compiled by the Bartow County board in August 1979.
At the evidentiary hearing in the district court, petitioner introduced, without objection by respondent, evidence showing that the master list contained the names of 2833 persons, of whom 1115 — or 39.36% — were women. Petitioner also introduced, again without objection by respondent, population figures from the 1970 census. These figures showed a total population for Bartow County of 32,663. Of that total, 16,753 — or 51.29% — were females. The census figures also showed the gender makeup of various age groups in Bartow County. The eighteen-and-above age group was comprised of 21,015 persons, of whom 11,092 — or 52.78% — were women.
Petitioner also introduced into evidence the testimony of the clerk of the Superior Court of Bartow County, Woodrow H. Bradley, who explained the procedures the board of jury commissioners used when it compiled the master jury list. Bradley testified that as clerk he was an ex officio member of the board, as well as its secretary. Under his direction, the board met in August 1979 to compile a new master jury list. The board projected at the time that approximately 3000 names would be needed to fill the trial jury venires that would be called over the next two years. In amassing names for the list, the commissioners used as their primary source the Bartow County voter registration roll from the 1978 general election.
Bradley testified that the commissioners considered the names in the order in which they appeared on the voter registration roll, and, applying the criteria set out in Ga.Code Ann. § 59-106, selected for the master jury list persons they considered “intelligent and upright.” Bradley further testified that the commissioners summarily passed over the names of some women. He stated that they did so in certain instances because they were not sufficiently familiar with the particular woman to determine whether she was “intelligent and upright.” Bradley explained that
we tried our best to stick to women that we knew, professional business women, ... and we tried our best to not — where a man’s name was in the jury list, unless his wife was a business or professional woman we did not select the wife.
In other instances, Bradley stated, the commissioners passed over a particular woman’s name because she had contacted one of them and had specifically asked that they not include her name on the list. Bradley testified that if a woman making such a request was pregnant, had young children, or was employed as a teacher or a nurse, the commissioners would comply with the request.
After the commissioners had amassed a sufficient number of names to meet the projected need for the next two years, they analyzed the gender makeup of the list. According to Bradley, the commissioners believed that they were required by law to compile a list that included a percentage of women that corresponded to some degree with the percentage of women in the county. Using the population percentage shown by the 1970 census, the commissioners determined that the percentage of women on the list fell short of the mark. To correct the deficiency, they went about adding more women to the list. They added women until 39.36% of the persons on the list (1115 out of 2833) were women. “Then we quit,” Bradley testified, because 39.36% was “in the ballpark guidelines that the Supreme Court would allow.”
In analyzing petitioner’s claim, the district court first identified the Bartow County adult population (persons age eighteen or older) as the relevant community for fair-cross-section purposes. The court found that petitioner had established that women comprised 52.78% of that community. The court further found that women comprised only 39.36% of the persons included on the master jury list. Notwithstanding this disparity, the court concluded that “women were sufficiently represented on the [master] jury list to meet the requirements of the Sixth Amendment.”
III.
A violation of a state criminal defendant’s rights under the sixth and fourteenth amendments occurs when he is tried by a jury drawn from a source which, due to systematic exclusion of a distinctive group, fails to reflect a “fair cross section” of the community. Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975). The terminology used to describe the right provides the key to understanding its nature: the defendant is entitled not to a perfect cross section of the community, but to a fair cross section. Put another way, the defendant is entitled to a trial jury drawn from a source in which the representation of distinctive groups is “fair and reasonable” in relation to their representation in the community. Duren v. Missouri, 439 U.S. 357, 364, 99 S.Ct. 664, 668, 58 L.Ed.2d 579 (1979).
The right is defined, therefore, in a way that makes some allowance for the difficulty of achieving a master jury list that precisely mirrors the makeup of the community. Common sense tells us that achieving a perfect cross section is a near impossibility. Factors outside the state’s control may affect the makeup of the master jury list. Often, for example, some of the persons chosen for the list will die before a new list is compiled, thus upsetting whatever balance the original list reflected. Additionally, some groups that are distinct for fair-cross-section purposes may be made up of persons who do not exhibit characteristics that obviously distinguish them from others in society. Ensuring adequate representation of such a group is inherently problematic due to the difficulty of determining in the first instance how large a segment of the community it comprises. Finally, even if the state’s selection procedure involves drawing names on a purely random basis from a source which itself is made up of a near-perfect cross section, some deviation is inevitable due to chance.
These common sense observations compel the conclusion that what is “fair and reasonable” in the sixth amendment fair-cross-section sense is a function of the difficulty of achieving a perfectly representation master jury list. This means, of course, that a given degree of deviation from perfect representation with respect to a particular group has little, if any, meaning apart from the specific context in which it occurs. Thus, a given degree of deviation might be constitutionally permissible in a case where the state took every reasonable step to ensure representation of all distinctive groups, yet constitutionally impermissible in a case where the state neglected to take such steps.
These observations about the nature of the fair-cross-section right have direct implications for the kind of showing a defendant must make to establish a violation. The burden of proving a fair-cross-section violation falls on the defendant. After the defendant has established that the group in question is “distinctive” for fair-cross-section purposes, and that the group was systematically excluded from the jury source, he must then establish that the group’s underrepresentation was unfair and unreasonable. Because the state usually controls the evidence necessary to prove this last element, the law accords the defendant the benefit of a presumption, based on a bare showing of underrepresentation, which operates to compel the state to come forward with evidence relevant to that element. See generally Duren, 439 U.S. at 363-69, 99 S.Ct. at 668-71. Thus, once the defendant establishes the facts that give rise to the presumption, the state must provide some explanation why, under the circumstances, the underrepresentation of the group was not unfair and unreasonable. If the state offers no plausible explanation, the defendant prevails on the strength of the presumption: based on the bare showing of underrepresentation, the court must hold as a matter of law that the exclusion of the group was unfair and unreasonable. If, on the other hand, the state does offer a plausible explanation, the defendant will not prevail on the strength of the presumption unless he persuades the court not to accept the state’s explanation.
In this case, petitioner did not rely on the presumption, for he presented direct evidence that the demonstrated degree of underrepresentation was, under the circumstances, unfair and unreasonable. Notwithstanding this evidence, the district court simply considered the demonstrated disparity in isolation and concluded that it was insufficient to support a constitutional claim. The court in effect focused on whether petitioner had made a sufficient showing of underrepresentation to invoke the presumption described above. This approach was mistaken. In a case where the defendant has presented direct evidence that the underrepresentation was unfair and unreasonable, the presumption becomes irrelevant. In such a case, the ultimate legal question of whether the under-representation was unfair and unreasonable is directly before the district court. Thus, the focus of the court’s analysis should not have been the size of the disparity viewed in isolation, but the size of that disparity weighed against the difficulty of achieving a cross section.
Where, as here, a district court has misapplied the law in deciding a mixed question of law and fact, we usually remand the case for further proceedings. That is unnecessary in this case, however. There is no dispute that the group alleged to be underrepresented is a distinctive group for fair-cross-section purposes; precedent clearly holds that women constitute such a group. Duren, 439 U.S. at 364, 99 S.Ct. at 668; Taylor, 419 U.S. at 531, 95 S.Ct. at 698. There is no dispute that women were in fact underrepresented on the Bartow County master jury list. Women made up 52.78% of the adult population of the county, but only 39.36% of the persons on the master jury list. There is also no dispute that this underrepresentation was the result of systematic exclusion; respondent does not dispute that the method of selection the commissioners used produced the demonstrated underrepresentation. The only question remaining in this case is the legal question of whether the underrep-resentation petitioner demonstrated is unfair and unreasonable, in violation of the fair-cross-section requirement.
Petitioner’s direct evidence established that the Bartow County jury commissioners, acting pursuant to Georgia law, used a highly subjective method to construct the master jury list. That method involved including on the list only the names of those persons the commissioners considered “intelligent and upright.” Petitioner’s evidence further established that the commissioners realized that their method had resulted in significant underrepresen-tation of women, but then added more women to the list only to a point substantially short of full representation.
Certainly, a selection method such as that used by the Bartow County jury commissioners is not incapable of producing a constitutional result. Turner v. Fouche, 396 U.S. 346, 90 S.Ct. 532, 24 L.Ed.2d 567 (1970). Indeed, a system by which names are handpicked based on knowledge of the potential jurors’ personal traits provides an opportunity to achieve with relative ease something approaching a perfect cross section, especially with respect to groups, such as gender-based groups, that exhibit readily identifiable physical characteristics. Yet here, even though they recognized that women were underrepresented on the list, the jury commissioners chose not to correct the problem by way of means that were very readily available to them. Therein lies the strength of petitioner’s case.
Relying on Bradley’s testimony, respondent argues that the underrepresentation of women was justified under the circumstances. Reduced to its essentials, respondent’s argument is that the jury commissioners held a good faith belief that they had achieved a fair cross section. In Bradley’s own words, the commissioners believed that representation of women on the order of 39.36% “was in the ballpark guidelines that the Supreme Court would allow.” This explanation is inadequate as a matter of law. A defendant’s right to a fair cross section does not evaporate merely because those selecting the master jury list operated under misguided notions of constitutional law. The focus of our inquiry is not the bona fides of the state, but whether the representation of women was, under the circumstances, objectively fair and reasonable. Given the relative ease with which the underrepresentation could have been corrected in this case, we simply cannot conclude that the representation of women on the master jury list was fair and reasonable. Petitioner has therefore established a violation of the sixth amendment’s fair-cross-section requirement.
AFFIRMED.
. The district court concluded that petitioner’s trial was constitutionally infirm under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), because the state had introduced at trial statements by petitioner which police had elicited from him, while he was in custody, after he had requested counsel.
. Zant v. Berryhill, 640 F.2d 382 (5th Cir.1981).
. This section has been recodified, with minor modification of language, in section 15-12-40 of the current Georgia Code.
. Petitioner introduced Bradley’s testimony in the form of transcripts from three prior proceedings. Two of the prior proceedings were pretrial hearings in petitioner's own prosecution. The third proceeding was a pretrial hearing in an unrelated criminal case which, like petitioner’s case, involved a challenge alleging underrepresentation of women on the Bartow County master jury list compiled in August 1979.
. Bradley testified that the commissioners used some secondary sources. For example, they obtained some names from high school graduation lists.
.In complying with these requests, the commissioners acted contrary to state law. Under a Georgia statute then in force, "housewifves] with children 14 years of age or younger” could claim an exemption from jury service. Ga.Code Ann. § 59 — 112(b) (1979) (repealed 1984). A person claiming that exception could be excused, however, only "by the judge of the court to which [she] ha[d] been summoned or by some other person ... duly appointed by order of the chief judge to excuse jurors.” Id. The board of jury commissions had no power to grant such excuses. See Barrow v. State, 239 Ga. 162, 168, 236 S.E.2d 257, 261-62 (1977); see also Robinson v. Kimbrough, 558 F.2d 773, 774 (5th Cir.1977) (en banc).
. Bradley testified that the jury commissioners had followed the same procedure when compiling the prior master jury list and had achieved approximately the same level of representation of women.
. The question is a mixed question of fact and law. The degree of underrepresentation is a question of fact. Whether that underrepresen-tation is fair and reasonable in light of the circumstances is a question of law.
. For this reason, we have no occasion to address the issue of what bare showing of under-representation would suffice to invoke the presumption in the circumstances of this case.
. Respondent has not challenged the district court’s ruling that the adult population (persons age eighteen or older) of Bartow County is the relevant community for fair-cross-section purposes. We therefore express no opinion on the correctness of that ruling. Cf. United States v. Esle, 743 F.2d 1465, 1478 (11th Cir.1984) (Tjoflat, J., specially concurring).
Nor has respondent challenged the district court's finding that women made up 52.78% of the relevant community. Such a finding, if challenged, will stand unless clearly erroneous. Id. at 1472 n. 12.
We note that the 52.78% figure is taken from the 1970 census. Petitioner also introduced into evidence population figures from the 1980 census. These figures show that in 1980, women comprised 53.10% of the Bartow County adult population. | 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_numresp |
In the Matter of GRAND JURY SUBPOENA DUCES TECUM ISSUED ON JUNE 9, 1982, TO “CUSTODIAN OF RECORDS, Ellison, Nelson & Kennedy,” Attorneys. DOROKEE COMPANY; Jonis Co.; Andor, Inc.; Finis Smith; and Doris Smith, Appellants, v. UNITED STATES of America, Appellee.
No. 82-2093.
United States Court of Appeals, Tenth Circuit.
Jan. 5, 1983.
Carl Hughes of Hughes, Nelson & Gassaway, Oklahoma City, Okl., for appellants.
Frank Keating, U.S. Atty., and Nancy A. Nesbitt, Asst. U.S. Atty., Tulsa, Okl., for appellee.
Before McWILLIAMS, McKAY and SEYMOUR, Circuit Judges.
SEYMOUR, Circuit Judge.
After examining the briefs and the appellate record, this three-judge panel has determined unanimously that oral argument would not be of material assistance in the determination of this appeal. See Fed.R. App.P. 34(a); Tenth Cir.R. 10(e). The cause is therefore ordered submitted without oral argument.
Appellants Finis and Doris Smith, Dorokee Company, Jonis Company, and Andor, Inc. (hereinafter referred to collectively as the Smiths) appeal a district court order denying a motion to quash a grand jury subpoena duces tecum. The subpoena directed the production of the Smiths’ federal tax returns for the years 1977-81, and the related work papers, financial statements, and correspondence. The subpoena was issued to the Smiths’ attorney/accountant, Kenneth Ellison, who had prepared the federal income tax returns of the Smiths for the years in question. The Smiths intervened and filed a motion to quash, asserting that production of the material would violate the attorney-client privilege, the attorney work product privilege, and their Fourth and Fifth Amendment rights.
The district court reformed the subpoena and determined that it was not overbroad as reformed and was otherwise properly issued. After an in camera inspection of the subject material, the court suppressed the production of three documents that it determined were covered by the attorney-client privilege, and ordered production of the rest. On appeal, the Smiths argue that production would violate the attorney-client privilege, and the Fourth and Fifth Amendments.
I.
THE ATTORNEY-CLIENT v PRIVILEGE
Although Ellison is a certified public accountant as well as an attorney, he holds himself out solely as a practicing attorney. Consequently, the attorney-client privilege could be applicable. The privilege protects “confidential communications by a client to an attorney made in order to obtain legal assistance” from the attorney in his capacity as a legal advisor. Fisher v. United States, 425 U.S. 391, 403, 96 S.Ct. 1569, 1577, 48 L.Ed.2d 39 (1976). The privilege is to be construed narrowly. Id.; In re Sealed Case, 676 F.2d 793, 806-07 (D.C.Cir.1982). When it is raised as a bar to the production of preexisting documents given by a client to his attorney to aid in legal representation, it protects only that material which would have been privileged in the hands of the client. Fisher, 425 U.S. at 404, 96 S.Ct. at 1577.
In this case, the district court concluded that the subject material was not covered by the attorney-client privilege on two grounds: the Smiths could not have refused to produce it themselves by asserting their Fifth Amendment privilege against self-incrimination; and the material was not generated in the course of obtaining legal advice.
A.
In determining that the documents would not have been shielded by the Fifth Amendment, the court observed that the Smiths had made a blanket assertion of privilege without explaining why a particular privilege attached to a particular document. The court also pointed out that the record did not identify which documents were in fact authored by the Smiths. Consequently, it concluded that the Smiths failed to meet their burden of proving the existence of the privilege. The court alternatively held that, even assuming the Smiths had authored some of the material, the documents are not both testimonial and incriminating in nature so as to be protected by the Fifth Amendment. See Fisher, 425 U.S. at 408, 96 S.Ct. at 1579.
Whether the act of producing documents in response to a subpoena is both testimonial and incriminating is a difficult issue whose resolution depends “on the facts and circumstances of particular cases or classes thereof.” Id. at 411, 96 S.Ct. at 1581; see also id. at 414-30, 96 S.Ct. at 1582-1590 (Brennan, J., concurring). Our review of this question here is rendered impossible by the Smiths’ failure to specify either the origin of each document or which privilege allegedly pertains to each one. We cannot determine to which documents the Fisher analysis may be applicable. We will not speculate or render what is in essence an advisory opinion.
The burden of establishing the applicability of a privilege rests on the party seeking to assert it. United States v. Bump, 605 F.2d 548, 551 (10th Cir.1979); see Fisher, 425 U.S. at 423, 96 S.Ct. at 1587 (Brennan, J., concurring). The Smiths’ broad declarations simply do not meet this burden. Because the Smiths have failed to show that they could have asserted the Fifth Amendment to bar production of the material, they cannot invoke the attorney-client privilege on this ground.
B.
We now turn to the question whether the documents are subject to the attorney-client privilege because they involve confidential communications with respect to the seeking of legal advice. The district court found that Ellison had not been retained by the Smiths for legal assistance in connection with the grand jury investigation generating the subpoena. The court further found that “the documents are of a financial and accounting nature pertaining to the routine annual preparation of the Smiths’ joint income tax returns by Ellison.” Rec., vol. I, at 114. The court then concluded that the work performed for the Smiths by Ellison was not the provision of legal advice, but instead constituted the provision of business advice by the rendering of financial and accounting services.
On their face the documents at issue appear to be copies of the Smiths’ joint tax returns prepared by Ellison, and either tax work sheets prepared by Ellison or financial and accounting documents furnished to Ellison by the Smiths for use in preparing the returns. The Smiths contend on appeal that these documents are covered by the attorney-client privilege because the giving of tax advice and the preparation of tax returns constitute the provision of legal advice.
The courts have not resolved this issue uniformly. The Fifth Circuit has squarely held that “although preparation of tax returns by itself may require some knowledge of the law, it is primarily an accounting service. Communications relating to that service should therefore not be privileged, even though performed by a lawyer.” United States v. Davis, 636 F.2d 1028, 1043 (5th Cir.), cert. denied, 454 U.S. 862, 102 S.Ct. 320, 70 L.Ed.2d 162 (1981) (footnote omitted); see also United States v. Gurtner, 474 F.2d 297, 298-99 (9th Cir.1973); Olender v. United States, 210 F.2d 795, 806 (9th Cir.1954), cert. denied, 352 U.S. 982, 77 S.Ct. 382, 1 L.Ed.2d 365 (1957). However, the court in Davis recognized that “[s]ome courts have suggested, to the contrary, that tax return preparation and tax advice is sufficiently ‘legal’ in nature to trigger the privilege.” Davis, 636 F.2d at 1043; see, e.g., Colton v. United States, 306 F.2d 633, 637 (2d Cir.1962), cert. denied, 371 U.S. 951, 83 S.Ct. 505, 9 L.Ed.2d 499 (1963); In re Shapiro, 381 F.Supp. 21, 22 (N.D.Ill.1974).
We need not resolve this issue here because the Smiths have failed to establish their entitlement to the privilege. Even those courts holding that the attorney-client privilege can arise from the preparation of income tax returns do not apply the privilege to documents given by a client to an attorney for inclusion in the client’s income tax return, because such information is obviously not intended to remain confidential. See Colton, 306 F.2d at 638; In re Shapiro, 381 F.Supp. at 23; United States v. Merrell, 303 F.Supp. 490, 492-93 (N.D.N.Y.1969); United States v. Threlkeld, 241 F.Supp. 324, 326 (W.D.Tenn.1965). The same is true for retained copies of income tax returns, Colton, 306 F.2d at 640, Shapiro, 381 F.Supp. at 23; Merrell, 303 F.Supp. at 493, and income tax work sheets or schedules prepared by an attorney to aid in preparation of a tax return, id. However, it may well be that the attorney-client privilege is applicable when a client provides information to an attorney and leaves the decision whether to include that information in the return to the attorney’s discretion. See, e.g., United States v. Baucus, 377 F.Supp. 468, 472 (D.Mont.1974); Threlkeld, 241 F.Supp. at 326.
The Smiths argue that the subpoenaed material must be held to fall within this latter category of information, “since no attempt was made to have the witness disclose whether there were any non-privileged statements contained in the documents which could be separated from the privileged statements.” Brief of Appellants at 20. However, the Smiths misconceive the nature of their burden. It is not the Government’s responsibility to sort out what is privileged from what is not; the burden of establishing a privilege is on the one who asserts it. See, e.g., United States v. Hodgson, 492 F.2d 1175, 1177 (10th Cir.1974). As the district court noted, the Smiths made no attempt to explain why a particular document should be found privileged. They have totally failed to establish which, if any, of the subpoenaed materials were supplied by them, much less whether the information was “communicated by the client with the direction that it not be inserted in the return or with the direction that it be, or not be, so inserted in the discretion and judgment of [the attorney].” Threlkeld, 241 F.Supp. at 326. As we have previously stated, we will not speculate as to the nature of the information provided by the Smiths to their lawyer. Accordingly, even assuming arguendo that the attorney-client privilege may arise from the preparation of tax returns, we conclude that it does not apply in this case.
II.
FOURTH AMENDMENT CLAIMS
The Smiths assert that failure to quash the subpoena will result in denial of their Fourth Amendment rights. They claim the enforcement order violated procedural due process and was based on an insufficient showing of relevancy. We disagree.
“[T]he party seeking enforcement of a grand jury subpoena [is] required to make some minimum showing of the existence of a proper purpose before it can trigger the enforcement machinery of the judicial branch.” In re Schofield, 486 F.2d 85, 92 (3d Cir.1973). The Government must make a preliminary demonstration that the material sought is relevant to a proper grand jury investigation. Id. at 93.
The Smiths object to the form of the required showing in this case, which was provided by the sworn testimony of a special agent of the Federal Bureau of Investigation. In Schofield, the court stated that the showing could be made by an affidavit disclosed to the witness in the enforcement proceeding. Id. To the extent that the Smiths contend this sworn testimony is not the substantial equivalent of an affidavit, their argument borders on the frivolous.
We likewise find no merit in the Smiths’ contention that they were denied adequate notice by the use of sworn testimony. The court in Schofield did not require that the affidavit be provided to the witness until the enforcement proceeding. Moreover, in this case seven hearings on the motion to quash were held following the one at which the FBI agent testified, and the alleged lack of adequate notice was never brought to the attention of the trial court.
The Smiths also argue that the showing of relevancy was insufficient. A grand jury subpoena is not unreasonable under the Fourth Amendment if it: (1) commands the production only of things relevant to the investigation; (2) specifies the items with reasonable particularity; and (3) covers only a reasonable period of time. In re Berry, 521 F.2d 179, 183 (10th Cir.), cert. denied, 423 U.S. 928, 96 S.Ct. 276, 46 L.Ed.2d 256 (1975); United States v. Gurule, 437 F.2d 239, 241 (10th Cir.1970), cert. denied, 403 U.S. 904, 91 S.Ct. 2202, 29 L.Ed.2d 679 (1971).
The district court in this case concluded that the agent’s testimony more than satisfied the above requirements, noting that “the records sought to be produced relate to the matters under investigation.” Rec., vol. I, at 104. The Smiths apparently contend that a higher standard of relevancy should apply, citing In re Appeal of Hughes, 633 F.2d 282 (3d Cir.1980). However, that case is inapposite because the material sought by subpoena there was subject to a valid work product claim. No valid claim of privilege exists with respect to the material in this case. Accordingly, the trial court correctly concluded that the Gurule requirements are applicable and that they were satisfied.
The order is affirmed.
. This court has explicitly condemned such a blanket assertion. See United States v. Hodgson, 492 F.2d 1175, 1177 (10th Cir.1974). The district court noted that this failure by the Smiths was sufficient in and of itself to justify denying the motion to quash.
. We agree with the district court’s conclusion that the work product privilege does not apply to these documents because they were not prepared in anticipation of litigation. See, e.g., Thompson v. United States, 532 F.2d 734, 738 (10th Cir.1976).
. The Smiths also raise Fifth Amendment self-incrimination claims. In an attempt to avoid the rule that the Fifth Amendment rights of a client are not implicated by the compelled production of documents held by an attorney, see Fisher v. United States, 425 U.S. 391, 402, 96 S.Ct. 1569, 1576, 48 L.Ed.2d 39 (1976), the Smiths argue that they have been in construcfive possession of the documents at issue. This argument was never presented to the district court and we decline to consider it on appeal. | 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_numresp |
Gary Lee ROLLER, Plaintiff-Appellant, v. Michael J. CAVANAUGH, Executive Director of the South Carolina Department of Probation, Parole, and Pardon Services; South Carolina Department of Probation, Parole, and Pardon Services, Defendants-Appellees.
No. 91-6688.
United States Court of Appeals, Fourth Circuit.
Argued Dec. 3, 1992.
Decided Jan. 15, 1993.
W. Gaston Fairey, Fairey & Parise, P.A., Columbia, SC, argued, for plaintiff-appellant.
Carl Norman Lundberg, Chief Legal Counsel, South Carolina Dept, of "Probation, Parole & Pardon Services, Columbia, SC, argued (Edwin E. Evans, Chief Deputy Atty. Gen., on brief), for defendants-appel-lees.
Before RUSSELL and HALL, Circuit Judges, and MORGAN, United States District Judge for the Eastern District of Virginia, sitting by designation.
OPINION
K.K. HALL, Circuit Judge:
Gary Lee Roller appeals an order of the district court granting summary judgment for the defendants in Roller’s 42 U.S.C. § 1983 suit challenging the frequency of his parole reconsideration hearings. We must decide whether a statutory amendment increasing the length of time between parole reconsiderations from every year to every two years is an unconstitutional ex post facto law if applied to prisoners whose crimes were committed before the amendment. Concluding that it is, we reverse.
I.
In early 1983, Gary Roller was convicted of voluntary manslaughter and grand larceny in South Carolina state court. Both of these crimes occurred on December 13, 1982. On March 25, 1983, he was sentenced to consecutive terms of imprisonment of thirty and five years. At that time, a South Carolina statute provided that, within ninety days of the prisoner’s becoming eligible for parole, the Parole Board would review the case and determine whether to grant parole. If the Board decided not to grant parole, “the prisoner’s case shall be reviewed every twelve months thereafter for the purpose of such determination.” Former S.C.Code 24-21-620 (1976 & Supp.1981). In 1986, this statute was amended to make reconsideration of parole for violent offenders less frequent — every two years. S.C.Code § 24-21-645 (1989 & Supp.1991). The date at which a prisoner initially becomes eligible for parole, however, was not changed.
In 1990, Roller became eligible for parole. On October 31, 1990, the Board rejected parole, and advised Roller that his next hearing would be held October 31, 1992.
On December 28, 1990, Roller filed this suit under 42 U.S.C. § 1983 against the members of the Parole Board in their official and personal capacities. He sought monetary, declaratory, and injunctive relief. The gravamen of his claim was that application of the less-frequent parole review to him violated the federal constitution’s prohibition of ex post facto laws.
The defendants moved for summary judgment. The magistrate recommended that the motion be granted. Over Roller’s objections, the district court adopted the magistrate’s recommendation.
Roller appeals.
II.
A.
The district court held that Roller’s official-capacity claims for damages were not cognizable under § 1983, see Will v. Michigan Dept. of State Police, 491 U.S. 58, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989), and that the defendants had not overstepped their qualified immunity so as to subject themselves to personal liability. See Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). On appeal, Roller does not challenge these rulings. Because, however, prospective relief to stop unconstitutional practices by states is available in federal courts, Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), Roller’s claims for declaratory and injunctive relief are not affected by the defendants’ immunities. Pulliam v. Allen, 466 U.S. 522, 104 S.Ct. 1970, 80 L.Ed.2d 565 (1984).
B.
In 1973, in the midst of an unprecedented influx of civil rights suits by prisoners, the Supreme Court held that
when a state prisoner is challenging the very fact or duration of his physical imprisonment, and the relief he seeks is a determination that he is entitled to immediate release or a speedier release from that imprisonment, his sole federal remedy is a writ of habeas corpus.
Preiser v. Rodriguez, 411 U.S. 475, 509, 93 S.Ct. 1827, 1846, 36 L.Ed.2d 439 (1973). The defendants here argue that Roller is attacking a part of his sentence—parole eligibility—and § 1983 does not provide relief. The Preiser distinction is important here because Roller has not exhausted his state remedies on his ex post facto claim— a general prerequisite to federal habeas corpus relief, but not to a § 1983 suit.
In Strader v. Troy, 571 F.2d 1263 (4th Cir.1978), we held that § 1983 was the proper vehicle for a defendant who sought to preclude a state parole board from considering allegedly invalid prior convictions. Because the petitioner did not assert that he was entitled to parole, “now or ever,” no exhaustion of the state habeas remedy was required. Like the inmate in Strader, Roller does not say he is entitled to parole. We follow Strader and find that Roller has stated a cognizable § 1983 claim.
III.
A.
The Constitution prohibits both the federal and state legislatures from passing ex post facto laws. U.S. Const, art. I, § 9, cl. 3 and § 10 cl. 1. Neither Congress nor the states may “enact any law ‘which imposes a punishment for an act which was not punishable at the time it was committed; or imposes additional punishment to that then described.’ ” Weaver v. Graham, 450 U.S. 24, 28, 101 S.Ct. 960, 964, 67 L.Ed.2d 17 (1981) (quoting Cummings v. Missouri, 4 Wall. 277, 325-26, 18 L.Ed. 356 (1867)). Though there is no constitutional requirement that a state permit parole or early release from confinement, Green-holtz v. Inmates of Nebraska Penal & Correctional Complex, 442 U.S. 1, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979), statutes providing for parole are “part of the law annexed to the crime at the time of the person’s offense.” Schwartz v. Muncy, 834 F.2d 396, 398 n. 8 (4th Cir.1987) (quoted in Fender v. Thompson, 883 F.2d 303, 305 (4th Cir.1989)).
The ex post facto clauses are a restriction on the power of government and operate without regard to the affirmative “rights” of the individual. Consequently, it is immaterial to an ex post facto challenge to computation of a release or parole eligibility date that the prisoner does not have a “vested” liberty or property right in parole, “good time,” or the like. Weaver, 450 U.S. at 29-30, 101 S.Ct. at 964-965 (criticizing state court for rejecting ex post facto claim by finding no “vested right” to good time credits).
The South Carolina Supreme Court has rejected a challenge identical to Roller’s. Gunter v. State, 298 S.C. 113, 378 S.E.2d 443 (1989).
B.
Four of our sister courts of appeals have directly addressed whether a retroactive reduction in the frequency of parole consideration violates the ex post facto clause. Three have held that it does, though the Ninth Circuit’s opinion was vacated on other grounds and is thus a nullity. Rodriguez v. United States Parole Comm’n, 594 F.2d 170 (7th Cir.1979) (parole reconsideration changed from one-third point in sentence to every eighteen months; ex post facto clause violated as to a prisoner serving only a two-year sentence); Watson v. Estelle, 859 F.2d 105 (9th Cir.1988), vacated, 886 F.2d 1093 (1989); Akins v. Snow, 922 F.2d 1558 (11th Cir.), cert. denied, — U.S. -, 111 S.Ct. 2915, 115 L.Ed.2d 1079 (1991); but see Bailey v. Gardebring, 940 F.2d 1150 (8th Cir.1991), cert. denied, — U.S. -, 112 S.Ct. 1516, 117 L.Ed.2d 652 (1992) (lead judge held that administrative rule was not a “law” subject to ex post facto clause; one judge concurred only in the result; the third dissented).
In Akins, the Eleventh Circuit considered a Georgia statute that decreased the frequency of parole hearings from once a year to once every eight years. The court held that this change affected the substantive rights of persons who committed crimes before its enactment, and was not simply a “procedural change.” The court reasoned:
Since the [parole board] is required to hold some type of parole reconsideration hearing before granting parole, an inmate is effectively ineligible for parole between two reconsideration hearings. Because an inmate is not paroled without a parole reconsideration hearing, the hearing must be considered an essential part of parole eligibility.
922 F.2d at 1562 (boldface in original).
The appellees cannot convincingly distinguish Akins. They concede that a seven-year increase in a prisoner’s wait between reconsiderations is so long that it is substantive, but assert, “[a]s if you could kill time without injuring eternity,” that a one-year wait is “procedural” and presents no ex post facto difficulty. See Dobbert v. Florida, 432 U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977) (ex post facto clause does not “limit the legislative control of remedies and modes of procedure which do not affect matters of substance”). We are not willing to disparage the “substance” of a year, especially a year in prison.
Defendants also point out that Roller becomes and remains “eligible” for parole just as he would have under the law in effect when he committed his crimes. The defendants do not, however, identify any benefit flowing from the status of “eligibility” other than the right to be heard and considered for parole. Eligibility without consideration is a cold comfort.
This circuit has no case so directly on point as Akins; however, two cases provide us considerable guidance. In Schwartz v. Muncy, 834 F.2d 396 (4th Cir.1987), the court reviewed a Virginia statute that increased the time before an inmate would become eligible for parole on existing sentences if the inmate committed a third offense after the statute’s effective date. The court held that the statute increased the punishment for a crime completed before its enactment, and thus the statute violated the ex post facto clause.
In Fender v. Thompson, 883 F.2d 303 (4th Cir.1989), a state inmate was serving a life sentence. Under the state law in effect at the time of the crime, the inmate was eligible for parole after fifteen years. The state legislature later passed a law revoking the parole eligibility of inmates who escaped while serving life sentences. The inmate escaped after passage of the new law, and his eligibility for parole was revoked. We held that, though the state could punish escape in almost any manner it pleased, it could not do so by increasing the punishment for crimes committed before the new escape statute was enacted. We stated this general rule:
[Statutes enacted or amended after a prisoner was sentenced cannot be applied to alter the conditions of or revoke his or her preexisting parole eligibility....
883 F.2d at 306. South Carolina has undoubtedly applied its new statute to “alter the conditions of ... [Roller's] preexisting parole eligibility.” Indeed, it has effectively “revoked” eligibility for an extra year following a denial.
The judgment is reversed, and the case is remanded with instructions to grant declaratory, and, if necessary, injunctive, relief in favor of Roller. Our decision does not, of course, require or even suggest that Roller be paroled. South Carolina need never parole him, so long as it considers the question every year.
REVERSED AND REMANDED.
. We were advised at oral argument that this hearing was held, and parole was denied.
. Because qualified immunity suffices to shield the defendants from personal liability, we need not decide whether the scheduling of parole reconsiderations is performance of a quasi-judicial function, for which the defendants would have absolute immunity. See generally, Forrester v. White, 484 U.S. 219, 225-229, 108 S.Ct. 538, 543-545, 98 L.Ed.2d 555 (1988); Pope v. Chew, 521 F.2d 400, 405 (4th Cir.1975).
. Thoreau, Walden; or, Life in the Woods, "Economy,” reprinted in Walden and Other Writings by Henry David Thoreau 111 (Bantam Classic ed. 1981).
. Cf. cases in which changes in the manner of reimposing sentence after the original sentence is set aside have been held to present no ex post facto problem. Collins v. Youngblood, 497 U.S. 37, 110 S.Ct. 2715, 111 L.Ed.2d 30 (1990) (Texas statute allowing appellate court to reform illegal sentence); Evans v. Thompson, 881 F.2d 117 (4th Cir.1989), cert. denied, 497 U.S. 1010, 110 S.Ct. 3255, 111 L.Ed.2d 764 (1990) (Virginia statute providing that capital defendants whose sentences are vacated may be resentenced before a new jury).
. See Steffel v. Thompson, 415 U.S. 452, 468-471, 94 S.Ct. 1209, 1220-1222, 39 L.Ed.2d 505 (1974) (district court may anticipate that state authorities will comply with a declaratory judgment and thereby forego issuing an injunction). | 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. | [] | [
2
] | songer_numresp |
WHITE, Collector of Internal Revenue, v. ATKINS.
No. 2860.
Circuit Court of Appeals, First Circuit.
March 14, 1934.
MORTON, Circuit Judge, dissenting.
J. P. Jackson, Sp. Asst. to Atty. Gen. (Sewall Key, F. J. Wideman, and J. Louis Monarch, Sp. Assts. to Atty. Gen., and Francis J. W. Ford, U. S. Atty., of Boston, Mass., on the brief), for appellant.
Edward C. Thayer, of Boston, Mass. (Earle W. Carr and Gaston, Snow, Saltonstall & Hunt, all of Boston, Mass., on the brief), for appellee.
Before WILSON and MORTON, Circuit Judges, and LETTS, District Judge.
WILSON, Circuit Judge.
This is an appeal from a judgment of the District Court of Massachusetts involving the construction of sections 21, 22, 23, and 101 of the Revenue Act of 1928 (2.6 USCA §§ 2.021-2023, 2101). Sections 21, 22!, and 23 provide for the method of determining the net income of an individual as a basis for assessing his income tax according to the normal a,nd surtax rates provided in the act; while section .101 provides, at the option of the taxpayer, for a separation of the taxpayer’s capital net gain realized from the salé or exchange of capital assets, from his net income from other sources, and for the assessment of a tax on his capital net gain at a different rate than the normal or surtax rates.
The taxpayer in 1929 had a total net income of $118,743.40, computed in accordance with the provisions of sections 21, 22, and 2-3, $23,897.5-0 of which was due to capital net gains. During the year she had made contributions to charity to an amount in excess of 15 per cent, of her net income of $118,743.40, and in her return deducted $17,811.51 under section 23 (n) (2© USCA § 2023 (n), and elected to be taxed at 12% per cent, on her capital net gain under section 101 (26 USCA § 21.01).
The appellant collected of the taxpayer a tax computed by allowing a deduction for charitable contributions of 15 per cent, of her net income less her capital net gain, or a deduction of $14,301.88, which resulted in an increase in her tax of $782.55. The taxpayer paid and filed a claim for a refund which was disallowed by the Commissioner, and the taxpayer brought this action to recover the sum of $782.55, with interest, amounting to $887.14.
Tho District Court sustained the taxpayer’s contention and ordered judgment for the taxpayer.
The method oC determining an individual’s net income has remained substantially the same since tho first income tax act was enacted, viz., by taking tho taxpayer’s gross income from all sources and deducting certain items specified in the acts. In the 1917 Act, § 3201 (40 Stat. 330), Congress first provided that an individual in determining his net income might deduct from his gross income all contributions for charitable purposes, but not in excess of 15 per cent, of his net income, before allowing such deduction. The purpose of this amendment was to encourage such contributions. Its meaning was clear. The substance of this provision has been retained in every Revenue Act since 1917, and is found in section 23 (n) of the 1928 Act (26 USCA § 2-023 (n).
The provision for separating capital not gain from a taxpayer’s net income and, at the option of the taxpayer, the assessment of a flat rate of 12% per cent, on tho former, instead of the surtax rates provided in the act, first appears in section 20® of the Revenue Act of 1921 (42 Stat. 232), and was added to that act in order to encourage more activity in tho transfers of capital assets. Burnet v. Harmel, 287 U. S. 103, 106, 53 S. Ct. 74, 77 L. Ed. 199. In connection with the assessment of the capital net gains tax, Congress in section 206 defined, “capital gain,” “capital loss,” “capital deduction,” and “capital net gain.” Capital net gain was declared to mean the excess of the total or gross capital gain, over the sum of the capital deductions and capital losses. No provisions for any form of special assessment in ease of a capital net loss were contained in the 1921 Act.
It is obvious that, if section 206 of the 1921 Act was invoked by the taxpayer, a new base was necessary on which the normal and surtax should he computed, and the term “ordinary net income” was adopted by Congress. “Ordinary net income,” as defined in section 206 of the 1921 Act, means the taxpayer’s “net income computed in accordance with the provisions of the Act,” which can only refer to sections 212-214 of the 1921 Act (42 Stat. 237-242), “after excluding all items of capital gain, capital loss, and capital deductions”; or, in other words, a taxpayer’s “ordinary net income” under this act was his “net ineome” from all other sources than the sale or exchange of capital assets, sinee section 206 was concerned only with capital net gains.
Ordinary net income, therefore, as defined in section 206 of the 1921 Act, is something different from net ineome as determined in sections 212-214 of that Act. Net income is what is left of one’s gro'ss income from all sources, including capital gains, after making the deductions permitted under the acts, which include capital losses and capital deductions. Ordinary net ineome under the 1921 Act is net income computed in accordance with sections 212-214 after excluding any capital net gain resulting from the sale or exchange of capital assets. It is significant, we think, that no reference to ordinary net ineome is found in section 214 (a) (11) of the 1921 Act (42 Stat. 241), or in section 23 (n) of the 1923 and 1932 Acts, 26 USCA § 2023 (n), 3023 (n), as the base for determining the amount of the deduction for charitable contributions.
There is nothing to indicate that Congress by the enactment of this provision for taxing capital net gains in the 1921 Act, in order to encourage greater activity in the sale of capital assets, intended thereby in any way to change the amount deductible for charitable contributions by limiting them to 15 per cent, of the individual’s “ordinary net income” instead of his net income as hitherto. The result is inconsistent with the purpose for which the deduction was allowed in the 1917 Act. If Congress had so intended by the provision for a flat rate assessment on capital gains, it would, we think, have made its intent clear. It has never done so.
Under the provisions of section 208 (c) of the 1924 Act (26 USCA § 939 note) for determining an individual’s tax in case there is a capital net loss from the sale or exchange of capital assets, the individual’s normal and surtax, as in the case of capital net gain, is first computed on his “ordinary net income,” and is then reduced by deducting 12% per cent, of his capital net loss. There is no reason to think Congress by the same language intended anything different by the words “ordinary net ineome” in section 208 of the 1924 Act (26 USCA § 939 note) than in section 206 of the 1921 Act. It is the taxpayer’s net income in either ease from other sources than the sale or exchange of capital assets, but found by first determining “net income” as provided in sections 212-214, and then deducting capital net gains, or adding capital net losses.
The provision in case of capital net loss was not made optional with the taxpayer, but was allowed only when the tax computed under section 208 of the 1924 Act was greater than that computed on the “net ineome” as determined under sections 210-214 of the Act (26 USCA §§ 951, 952 notes, 953-955 and noted). The objective of seetion 206 of the 1921 Act, and seetion 208 (e) of the 1924 Act (26 USCA § 939 note), is entirely different. In the former, presumably, if the taxpayer exercises his option, the tax is less, if the flat rate is applied to the capital net gain; in the latter, if applicable, the tax is increased.
We find no logical ground, derived from the history or prior construction of these acts, for holding that “ordinary net ineome” as defined in section 101 of the 1928 Act (26 USCA § 2101) is the base for limiting the deduction of contributions for charitable purposes under seetion 23 (n), 26 USCA § 2028 (n).
These sections from 1921 to 1931 were construed by the Treasury Department in accordance with the taxpayer’s contention. The 1924, 1926, 1928, and 1932 Acts were all passed by Congress with this construction, as a background, and indicate no change in the construction of these sections. In neither of these acts is there any reference to “ordinary net income,” 'as the base for determining the allowable deductions from gross ineome of charitable contributions. In all the Revenue Acts deductions of charitable contributions are expressly based on net ineome as determined in the sections relating to the method of determining net ineome.
Again, in the 1932 Act, seetion 120 (26 USCA § 3120), Congress provided that in ease an individual’s contributions to eharita-ble purposes, plus his income, war profits, and excess taxes in each of the ten preceding taxable years, exceeded 90 per cent, of his net income for each year, computed without the benefit of section 23 (n), 28 USCA § 3023 (n), then the deduction of contributions for charitable purposes is not limited to 15 per cent. Here, again, there is no reference to “ordinary net income” as a basis for such deductions.
It is made clear in the 1932 Act that the precisions for the assessment of taxes when capital net gains and losses are involved are entirely separate from, and have no relation to, sections 2-1, 22, and 23 of part 2 of that Act (26 USCA § 3021-3023). Subtitle C (26 USCA § 3101 et seq.), under which the provisions relating to capital net gains and capital net losses are found, provides that these provisions are merely supplementary to subtitle B in part 1 (26 USCA § 3011 (it seq.) which relatos solely to rates and not to the manner of determining net income.
In November, 1931, in the case of Hallie D. Elkins v. Commissioner, 24 B. T. A. 572, a single member of the Board of Tax Appeals erroneously, we think, held in the ease of a capital loss that the limitation of the deductions for charitable purposes was 15 per. cent, of ordinary net income as defined in section 101.
This decision apparently did not convince the Treasury Department that it had erred in its construction of these sections, and it yielded only to the extent that it would preserve the government’s rights by following the construction in the Elkins Case. For a year or more thereafter single members of the Board followed the Elkins Case. In the case of capital net losses, see Charles J. Livingood, Ex’r v. Commissioner, 25 B. T. A. 585; and in case of capital net gains, Harbison v. Commissioner, 26 B. T. A. 896, Mary Colgate v. Commissioner, 27 B. T. A. 506, and Bliss v. Commissioner, 27 B. T. A. 205.
In 1933, however, on a review by the full Board, in the case of Straus v. Commissioner, 27 B. T. A. 1116, the Board reversed the ruling of the single members in the previous cases and held that in ease of a capital net gain the basis for limiting deductions for charitable contributions was net income as defined in sections 21, 2-2, and 23 of the 1928 Act, and not ordinary net income ns defined in section 101. This ruling was followed in two memorandum decisions Leslie T. Iglehart v. Com’r, 27 B. T. A. 1126, and Robinette v. Commissioner, 27 B. T. A. 1426.
The Bliss Case, supra, has been recently overruled in the Circuit Court of Appeals for the Second Circuit, January 8-, 1934. 68 F. (2d) 890. A similar construction was followed in the decision by the District Court in this case, and in the case of Blow et al., Adm’rs v. United States, in the Northern District of Illinois, 5 F. Supp. 737, see Fed. Tax Service, vol. 3, p. 9275.
As the matter now stands, the Treasury Department for ten years following the 1921 Act held to the construction contended for by the taxpayer in this ease, and approved by the District Court. Its first regulation relating to these provisions was issued in 1924, but referred to both the 1921 and 1924 Acts. Such consistency in the construction of a stat- , uto by the Department and the subsequent enactment by Congress of four Revenue Acts without indicating any change in the construction, is entitled to weight in determining the intent of Congress, as the Supreme Court held in Brewster v. Gage, Collector, 280 U. S. 327, 50 S. Ct. 115, 74 L. Ed. 457.
It has also been sustained in all the recent decisions by the Board of Tax Appeals after review by a. full Board in the Straus Case, supra, and in every case, as far as we are advised, that has been heard by any court. This construction also has the approval of the leading commentators and text-book writers on federal income tax law. Joseph J. Klein, on Federal Income Taxation, p. 754; Robert H. Montgomery’s Federal Tax Handbook.
Such contrary views as have been expressed seem to us to misconstrue the language of subparagraph (c) (7) of section 101, 26 USCA § 2101 (c) (7) defining “ordinary net income,” and either treat the words “computed in accordance with the provisions of this title” as modifying the words “ordinary net income,” when they clearly, we think, modify the words “net income,” as there is no provision in sections 21, 22, and 23-, or other “provisions of this title,” for computing “ordinary net income”; or the contrary views lose sight of the fact that it is “ordinary net income” that is being defined in subparagraph (c) (7) of section 101 for the purpose of assessing a capital not gain or capital net loss tax, and not -a new definition of net income for determining the allowable deductions for charitable contributions under section 23 (n). If the words “computed in accor*danee with tha provisions of this title” modified “ordinary net income,” the words “means the not income” arc superfluous. Congress might have provided that a taxpayer’s “ordinary net in come” should be “computed in accordance with the provisions of this title, after excluding all items of capital gains, capital losses, and capital deductions,” but it did not. In fact, in some cases it may be necessary to compute first the net income in accordance with sections 21, 22, and 23, since otherwise it might not appear whether section 101 (b) can be applied until the results of the two methods of computing the tax are compared.
The judgment of the District Court is affirmed, with interest. | What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal statute, and if so, whether the resolution of the issue by the court favored the appellant. | Did the interpretation of federal statute by the court favor the appellant? | [
"No",
"Yes",
"Mixed answer",
"Issue not discussed"
] | [
0
] | songer_fedlaw |
Wilton ESTERS, Appellant, v. UNITED STATES of America, Appellee.
No. 15987.
United States Court of Appeals Eighth Circuit.
Oct. 23, 1958.
See also 255 F.2d 63.
George F. Edwardes, Texarkana, Tex., submitted brief for appellant.
Charles W. Atkinson, U. S. Atty., Henry M. Britt, Asst. U. S. Atty., and Robert E. Johnson, Asst. U. S. Atty., Fort Smith, Ark., submitted brief for appellee.
Before JOHNSEN, VAN OOSTER-HOUT and MATTHES, Circuit Judges.
MATTHES, Circuit Judge.
A jury found defendant guilty of selling approximately 56 gallons of whiskey in unstamped containers, in violation of Title 26 U.S.C.A. § 5008(b); and of possessing certain items of personal property intended for use in violating the provisions of the federal internal revenue laws relating to intoxicating liquor, in violation of Title 26 U.S.C.A. § 5686 (b). Fi'om the judgment imposing sentence, the defendant has appealed.
Since the factual background leading to the indictment is detailed in the opinion of the trial court in denying defendant’s application for bail, pending appeal, see United States v. Esters, D.C., 161 F.Supp. 203, we dispense with again setting out in full the facts developed on trial. For the purpose of disposing of the points presented by appellant, it will suffice to make this summary of the material evidence: On February 22, 1956, the Sheriff of LaFayette County, Arkansas, and a member of the Arkansas State Police, along with other officers, observed a moonshine whiskey still in operation on property formerly owned by appellant’s father-in-law, and which at that time was owned by appellant and his wife, or by his wife. The officers kept the still under surveillance during the afternoon of that day, and, upon returning that night, they found 56 one-gallon containers of moonshine whiskey at the still site; that early in the morning of February 23, 1956, the officers observed Clarence Robinson and an unidentified person load the 56 one-gallon containers of moonshine whiskey in a GMC pickup truck; that shortly after the arrest of Clarence Robinson, appellant drove his Willys pickup truck via the only road leading into the area, and within 100 to 120 feet of the still. Upon examining appellant’s truck, the officers found that it contained 600 pounds of cane sugar, a 100 pound sack of bran, 8 five-gallon cans of gasoline, 70 empty one-gallon jugs and a siphon hose. According to the testimony of the sheriff, cane sugar and bran are ingredients adapted to the manufacture of illicit liquor.
The sheriff testified that at the scene ke “ * •» * asked Mr. Esters why he continued to deal with this type of business, and he (the defendant) said that he was in ill health and wasn’t able to work and it wasn’t too much work involved around that still.” The patrol officer testified that in addition to the above admission, appellant also stated “-x- * •* (T)here was only one thing he hated, he said he had a son, that he hated to have him learn and know about this, him being engaged in this business.”
Through Clarence Robinson, the Government developed that Robinson had purchased the 56 gallons of moonshine whiskey found in his truck from appellant, and had agreed to pay appellant $5 a gallon therefor; that on the morning of February 23, Robinson was given directions by appellant as to the road which would lead to where the whiskey was located.
Appellant challenges the sufficiency of the evidence to sustain the conviction. It would appear that this contention is predicated upon the belief that, absent the testimony of appellant’s accomplice, Clarence Robinson, there is no factual basis upon which to rest the verdict. And from this premise the argument is advanced that the uncorroborated testimony of an accomplice is insufficient to furnish a legal basis for a conviction. This is an erroneous concept of the law. For, as this court said in Haakinson v. United States, 8 Cir., 238 F.2d 775, at page 779:
“Even if the jury may have regarded Chesling as an accomplice, that fact would not be of any help to appellant on this appeal, for the testimony of an accomplice, though uncorroborated, can legally constitute a sufficient basis for a conviction, if it is not otherwise incredible or unsubstantial on its face. Caminetti v. United States, 242 U.S. 470, 495, 37 S.Ct. 192, 61 L.Ed. 442; Harrington v. United States, 8 Cir., 267 F. 97, 103; Greenberg v. United States, 8 Cir., 297 F. 45, 47; Webb v. United States, 8 Cir., 8 F.2d 145, 146; Rossi v. United States, 8 Cir., 9 F.2d 362, 366; Johns v. United States, 10 Cir., 227 F.2d 374, 375; McClanahan v. United States, 5 Cir., 230 F.2d 919, 922.”
Moreover, there were facts, circumstances and incidents developed in the trial, which properly could have been regarded by the jury as corroborative of Robinson’s version of appellant’s connection with the offenses. As we have seen, appellant appeared at the scene of the illegal operation on the morning when the attempt was made to convey the moonshine whiskey from the premises; he possessed supplies and equipment adapted for use in distilling the same type of whiskey which Robinson had purchased from him; and at the scene he made voluntary and damaging admissions. In this state of the record we see no room for the contention that the case should not have been submitted to the jury.
The appellant also contends that the judgment cannot stand because the court made comments upon the evidence and the weight thereof which were prejudicial and deprived him of a fair trial. The assignment springs from the testimony of J. H. Porterfield, a member of the Arkansas State Police, and the remarks of the court in connection therewith. The following presents a full picture of the incident complained of.
(By Witness Porterfield) “The question was asked, and I can’t remember whether I asked or if Sheriff Baker asked it, but I remember the answer, that he was in bad health and had lots of doctor bills and was not able to do heavy work and in that business he didn’t have to do heavy work and that was the way he was making his livelihood.
“The Court: What business— you say that business?
“The Witness: In the liquor business. We were referring to this liquor business. I spoke to Mr. Esters in a friendly friendship tone of voice. I have known Mr. Esters a long time and I asked him why he was still engaged in this business, and I believe he answered the second time about the doctor bills; he said there was only one thing he hated, he said he had a son, that he hated to have him learn and know about this, him being engaged in this business. One other remark I recall, he said: T guess I will have to go down and spend some time with my brother-in-law.’
“By Mr. Britt: Who is his brother-in-law, if you know? A. A. P. Powell.
“The Court: Powell?
“The Witness: Yes, sir.
“By Mr. Britt: Will you explain that; did Mr. Esters explain that to you?
“The Witness: Well, in our conversation — I was one of the arresting officers in the Powell case.
“Mr. Shaver: I object to that, if the Court please.
“The Court: Well, he said he might have to spend some time with Powell — do you know where Powell was?
“The Witness: Yes, sir.
“The Court: Where was he ?
“The Witness: He was out here at the Correctional Institute out here.
“Mr. Shaver: I certainly object to that.
“The Court: Overruled.
“Mr. Shaver: Well, save my exception.
“The Court: Now, for the sake of the record, he was questioning, as I understand, Mr. Porterfield was questioning — this defendant as to why he was engaged in the liquor business at that particular still. Is that it, Mr. Porterfield?
“The Witness: Yes, sir.
“The Court: And he gave his reasons as to why he was, and he said he reckoned he would have to spend some time with his brother-in-law, and then his brother-in-law, it seems, was in the Federal Penitentiary. I think that—
“Mr. Shaver: That is what I object to.
“The Court: I think that is perfectly competent, for it is in the nature of an admission on his part.
“Mr. Shaver: Because A. P. Powell was in the Federal Correctional Institute would not be any evidence as to Wilton Esters.
“The Court: No, but—
“By Mr. Shaver: And it has a tendency to prejudice the jury.
“The Court: But it is evidence on Esters’ part that he was engaged in this business; it is some evidence; it can be explained possibly.
"By Mr. Shaver: You mean it is some evidence — that A. P. Powell was in an institution is some evidence—
“The Court: Oh, no, but what I am getting at, the man states there, according to Mr. Porterfield and his recollection, he is being questioned about being in this business and he is explaining why he is in that business, and he goes on and says I guess I will have to go down and spend some time with my brother-in-law. I think that is competent.
“Mr. Shaver: Save my exceptions.”
Appellant places emphasis on the statement, “But it is evidence on Esters’ part that he was engaged in this business; it is some evidence; it can be explained possibly,” and urges that it had the effect of placing a greater burden upon defendant than imposed by law, especially since the remark was made prior to the time defendant had testified. To our mind this contention is tenuous and without substance. The statement of this court, appearing in Batsell v. United States, 217 F.2d 257, 262, embodying the apposite principle of law, is apropos to the instant question. There we said:
“Complaint is also made of the trial court’s questions put to the defendant-witness Qualls with reference to the reputation of the appellant Batsell on the north side in Minneapolis. We find nothing improper in the Court’s questions. In the trial of any case, the judge has the responsibility of seeing that justice shall prevail and to that end may question the witnesses and may even express his opinion with reference to their testimony, provided, of course, that he makes it clear to the jury that they are the ultimate determiners of the facts in question. See Glasser v. United States, 1942, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680; Fischer v. United States, 10 Cir., 1954, 212 F.2d 441, 444; Griffin v. United States, 83 U.S.App.D.C. 20, 164 F.2d 903, certiorari denied 333 U.S. 857, 68 S.Ct. 727, 92 L.Ed. 1137.”
See also Goldstein v. United States, 8 Cir., 63 F.2d 609, and Costello v. United States, 8 Cir., 255 F.2d 389, certiorari denied 79 S.Ct. 52. When the comment complained of is viewed in context, we are of the opinion that it was not intended or calculated to disparage the appellant in the eyes of the jury, and we are unwilling to hold that the alleged offensive remark reveals prejudice on the part of the trial judge toward appellant. Indeed, from a careful study of the entire record, it is apparent that the trial judge conscientiously endeavored to preside over the trial with fairness and impartiality.
This brings us to consideration of the assignment that prejudicial error resulted from the failure of the court to instruct the jury that Clarence Robinson was an accomplice and that his testimony was to be viewed and considered by the jury with extreme caution. Again, we are compelled to hold the contention is without merit. It should be observed in connection with this point that appellant did not see fit to request the court to give such a cautionary instruction, neither was objection made nor exception taken to the failure of the court to specifically instruct on this question. The rule is well settled that, “(i)n the absence of a request for charge, a reversal is justified only if the failure to instruct constitutes ‘a basic and highly prejudicial error.’ United States v. Levy, 3 Cir., 1946, 153 F.2d 995, 998.” United States v. Gordon, 3 Cir., 242 F.2d 122, 126, certiorari denied 354 U.S. 921, 77 S.Ct. 1378, 1 L.Ed.2d 1436. In Gicinto v. United States, 8 Cir., 212 F.2d 8, at page 12, certiorari denied 348 U.S. 884, 75 S.Ct. 125, 99 L.Ed. 695, this pronouncement appears: “It is the long-established rule in the federal courts that 'Failure to give instructions is not reversible, as matter of right, in absence of proper request or exception.’ ” See also Pereira v. United States, 5 Cir., 202 F.2d 830, 835-836, affirmed on other grounds 347 U.S. 1, 74 S.Ct. 358, 98 L.Ed. 435; Obery v. United States, 95 U.S.App.D.C. 28, 217 F.2d 860, 861, certiorari denied. 349 U.S. 923, 75 S.Ct. 665, 99 L.Ed. 1255.
Furthermore, we do not understand that an absolute and mandatory duty is imposed upon the court to advise the jury by instruction that they should consider the testimony of an uncorroborated accomplice with caution. See Caminetti v. United States, 242 U.S. 470, at page 495, 37 S.Ct. 192, at page 198, 61 L.Ed. 442, where the Court, in passing on a similar contention stated: “In Holmgren v. United States, 217 U.S. 509, [30 S.Ct. 588, 54 L.Ed. 861] this court refused to reverse a judgment for failure to give an instruction of this general character, while saying that it was the better practice for courts to caution juries against too much reliance upon the testimony of accomplices and to require corroborating testimony before giving credence to such evidence. While this is so, there is no absolute rule of law preventing convictions on the testimony of accomplices if juries believe them.” Compare also Papadakis v. United States, 9 Cir., 208 F.2d 945, 954 and Cowell v. United States, 9 Cir., 259 F.2d 660.
Not only is appellant’s contention rendered impotent by the foregoing rules of procedure, but the factual situation obviated the necessity for giving the cautionary instruction. As previously demonstrated, there were facts established by probative evidence which the jury had the right to consider as corroborative of Robinson’s testimony.
The judgment 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.
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
] | songer_appnatpr |
Sandra L. MILTON, Plaintiff-Appellant, v. Patricia Roberts HARRIS, Secretary of Health, Education and Welfare, Defendant-Appellee.
No. 79-1634.
United States Court of Appeals, Seventh Circuit.
Heard Nov. 6, 1979.
Decided Feb. 20, 1980.
Gerald M. Rubin, Chicago, Ill., for plaintiff-appellant.
Thomas P. Sullivan, U. S. Atty., Steven Plotkin, Asst. U. S. Atty., Chicago, Ill., for defendant-appellee.
Before CUMMINGS and SPRECHER, Circuit Judges, and DUMBAULD, Senior District Judge.
The Honorable Edward Dumbauld, Senior District. Judge of the Western District of Pennsylvania, is sitting by designation.
PER CURIAM.
According to the district court complaint, plaintiff became disabled on December 8, 1971, and received disability payments under the Social Security Act until the end of November 1975 when defendant Secretary of Health, Education and Welfare (HEW) terminated those benefits and sought a refund of overpayments plaintiff had allegedly received. When upon reconsideration the HEW’s Bureau of Disability Insurance affirmed its initial termination decision and upheld the claimed refund of overpayments, plaintiff sought de novo review of the overpayment question before an Administrative Law Judge (ALJ). The ALJ found for the Secretary and upon the plaintiff’s administrative appeal the Appeals Council agreed. Plaintiff then sought review of the ALJ’s decision in the district court, seeking to bar the Secretary from collecting any of the alleged overpayments. The defendant filed a motion for summary judgment on the ground that the ALJ’s decision was supported by substantial evidence in the record (Record Item 4 at 8) and plaintiff filed a cross-motion for summary judgment “in view of all the evidence” (Record Item 7 at 12). Finding that “there is substantial evidence in the record to support the administrative law judge’s holding that recovery of the overpayment would not defeat the purposes of the [Social Security] Act or be against equity and good conscience” (Record Item 8), the district court granted the Government’s motion on January 31, 1979. When on April 30, 1979, the district court denied plaintiff’s petition for rehearing plaintiff appealed. We affirm.
Background
Section 223(a)(1) of the Social Security Act provides for insurance benefits for certain persons who are “under a disability.” (42 U.S.C. § 423(a)(1)). Under the Act, a “disability” is an “inability to engage in any substantial gainful activity by reason of any medically determinable physical * * impairment * * * which has lasted or can be expected to last for a continuous period of not less than 12 months” (42 U.S.C. § 423(d)(1)). To qualify, a person must be unable to do either his previous work or, considering his personal characteristics, “any other kind of substantial gainful work which exists in the national economy” (42 U.S.C. § 423(d)(2)). Under Regulations called for by the Act, even work activity performed on a part-time basis is considered substantial, though the work must be productive in nature and remunerative (20 C.F.R. § 404.1532(b)). The Regulations also specify that a disability ceases in the month in which the impairment is no longer of such severity as to prevent the individual from engaging in any substantial gainful activity, or the month in which the individual has regained his ability to engage in such activity (20 C.F.R. § 404.1539(a)).
Section 204 of the Act directs the Secretary to recover any overpayment of disability benefits, but provides that the United States cannot recover overpayments from “any person who is without fault if such adjustment or recovery would defeat the purpose of [the Act] or would be against equity and good conscience” (42 U.S.C. § 404(b)). Again the Regulations explain that recovery would defeat the purpose of benefits under the Act if it would “deprive a person of income required for ordinary and necessary living expenses.” They specify that the existence of such a deprivation depends “upon whether the person has an income or financial resources sufficient for more than ordinary and necessary needs, or is dependent upon all of his current benefits for such needs” (20 C.F.R. § 404.508(a)). They also state that “recovery will defeat the purposes of [the Act] in (but is not limited to) situations where the person from whom recovery is sought needs substantially all of his current income (including social security monthly benefits) to meet current ordinary and necessary living expenses” (20 C.F.R. § 404.508(b)). The phrase “against equity and good conscience” meanwhile is interpreted in the Regulations to make recovery inequitable if the individual has “relinquished a valuable right * * * or changed his position for the worse” by reason of the overpayments (20 C.F.R. § 404.-509).
Finally, Section 205(g) of the Act governs judicial review by a district court of the Secretary’s insurance benefit determinations and specifies that “[t]he court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Secretary, with or without remanding the cause for a rehearing.” In such cases the Secretary’s findings of fact “if supported by substantial evidence, shall be conclusive * * * ” (42 U.S.C. § 405(g)).
In his August 9, 1977, decision, the ALJ found, “based upon a preponderance of the credible evidence,” that plaintiff was a 47-year-old woman, that she had attended school through the twelfth grade and had the equivalent of two years of college education, and that her usual and steady employment was secretarial work. According to the ALJ, plaintiff began receiving disability benefits under the Act in August 1972 after the Social Security Administration (SSA) determined that spinal surgery had left plaintiff under a disability that had commenced on December 8, 1971. Plaintiff continued to receive these benefits until November 1975. From July 1973 to March 1974 plaintiff engaged in a trial office work program under Social Security regulations (20 C.F.R. § 404.1536) so that the SSA could determine if she was still disabled. A September 1973 letter from the SSA notified her that after the nine months of trial work the SSA would decide whether plaintiff was still disabled; otherwise she would receive benefits only for three months after the close of the trial work period.
The ALJ found that plaintiff’s trial work activity demonstrated that she possessed the ability to engage in substantial gainful activity commencing in April 1974, the first month after the close of the trial work period. Her entitlement to disability insurance benefits thus should have continued only through June 1974. Because she was not then officially notified of the termination of her entitlement, however, plaintiff continued to accept disability benefit payments from July 1974 through November 1975. In the meantime, plaintiff continued to work approximately half time for her trial period employer, earning over $200 per month through December 1975. After working intermittently during 1976, plaintiff began her own secretarial service in December 1976, to which she devoted between thirty and sixty hours per week in both a supervisory and secretarial capacity. The secretarial service continued through the date of the ALJ’s decision, though it apparently never turned a profit and subsequently closed.
Based on the foregoing findings, the ALJ concluded that plaintiff’s entitlement to disability insurance payments terminated at the end of June 1974, “the second month after the month in which the claimant’s disability ceased.” Therefore, he held that plaintiff had been overpaid benefits totaling $5,034.60 for the months of July 1974 through November 1975. Relying on the September 1973 notice from the SSA, the ALJ found that plaintiff was not without fault in causing the overpayments. He then held that since plaintiff was operating her own business and had over $40,000 in savings accounts, recovery of the overpayments would not defeat the purposes of the Act. Moreover, since she gave up no valuable right by accepting the overpayments, recovery would not be against equity and good conscience. Finally, the ALJ determined that recovery of the overpayments could not be waived by the defendant. On November 10, 1977, the Appeals Council upheld the ALJ’s decision.
As previously noted, the district judge granted summary judgment for the Secretary in plaintiff’s subsequent district court suit, stating that, unlike the ALJ, he regarded plaintiff as without fault, but that recovery would not defeat the purposes of the Act or be against equity and good conscience. In denying a petition for rehearing by plaintiff, the district judge filed a memorandum opinion on April 30,1979, further explaining his ruling. Citing Beane v. Richardson, 457 F.2d 758, 759 (9th Cir. 1972), certiorari denied, 409 U.S. 859, 93 S.Ct. 144, 34 L.Ed.2d 105, and declining to follow Nickol v. United States, 501 F.2d 1389 (10th Cir. 1974), Judge Kirkland stated that a judicial determination of the correctness of an administrative finding (such as the ALJ’s finding here) presents only a question of law and not a question of fact, so that summary judgment was appropriate. He noted that the district court’s duty on review to determine whether the ALJ’s findings and conclusions were supported by substantial evidence represents a limitation on review and does not present new questions of fact. Then, relying on Sierakowski v. Weinberger, 504 F.2d 831, 835-836 (6th Cir. 1974), and Hatfield v. Richardson, 380 F.Supp. 1048, 1052-1053 (D.Kan.1974), the court reaffirmed its earlier conclusion that the ALJ’s “findings and conclusions in this case are supported by substantial evidence when the record is considered as a whole, and that the ALJ properly applied the appropriate legal standard.” The court concluded by stating that
“[sjpecifically, substantial evidence supports the ALJ’s conclusions that plaintiff possesses assets sufficient to prevent repayment from depriving plaintiff or her family of ordinary and necessary living expenses, and that plaintiff gave up no valuable right by accepting the overpayments.” (Record Item No. 14.)
The ALJ Applied Correct Legal Standards and Allowed Full Development of the Record.
As a preliminary matter, plaintiff contends that the district court failed to consider and determine properly whether the ALJ employed the correct legal standards or allowed a sufficient development of the record. The district court’s response to the rehearing motion addressed the question of legal standards, and the record indicates that the ALJ followed the dictates of the Act. To be sure, the ALJ found both that plaintiff was at fault and that recovery would not defeat the purposes of the Act or be against equity and good conscience. Yet far from allowing his conclusion on one issue to influence improperly his consideration of the other, the ALJ merely found in the alternative on the chance that the district judge would decide differently on the question of fault, as of course he ultimately did. Such alternative rulings are indisputably proper.
Judge Kirkland’s disagreement with the ALJ on the question of fault adequately demonstrates that the district court considered the administrative record as a whole. There is also little evidence that the ALJ improperly restricted plaintiff’s proof at the administrative hearing. The ALJ’s apparent refusal to acknowledge the existence under the Act of a “partial disability” represented an accurate understanding of the law, while plaintiff’s evidence on her own understanding of “poverty level” was of doubtful relevance in considering whether she relinquished any valuable right as a result of the SSA overpayments. Plaintiff could not have shown that recovery of the overpayments was inequitable merely because she had subjectively determined that by virtue of the disability benefits her income was too high for her to qualify for public assistance. The record meanwhile is devoid of any suggestion that the ALJ otherwise limited the evidence on plaintiff’s actual loss of public aid entitlements. Finally, if the record were underdeveloped, the proper course for plaintiff was to request the district judge to remand the case to the Secretary for further fact-finding, a request that should specify the additional evidence to be introduced. Lechelt v. Cohen, 428 F.2d 214, 216 (7th Cir. 1970). Plaintiff neither made such a request nor identified the relevant evidence.
Recovery of the Overpayments Would Not Defeat the Purpose of the Social Security Act.
The hearing before the ALJ showed that plaintiff had savings of over $40,000 and $17,000 worth of equity in Tennessee real estate, that she received $3,500 per year in interest income from her savings, and that she earned over $200 per month from July 1973 through December 1975. At the time of the hearing she had begun to operate a business that was meant to show a profit in six months. Her children were no longer dependent upon her, she lived alone in a five-room apartment, and she was able to devote 60 hours per week to her new business. This evidence was sufficiently substantial to make “conclusive” under Section 205(g) of the Act the ALJ’s ultimate finding that plaintiff did not need the benefits for subsistence and thus that recovery of the overpayment would not defeat the statutory purpose.
Plaintiff ' maintains, however, that the Regulations’ permitted the ALJ to consider only, her income, not her other financial resources, in making this determination. The Regulations suggest otherwise. Although, as noted earlier, 20 C.F.R. § 404.508(a) speaks initially in terms of “income,” it also acknowledges that any determination will ultimately depend on “whether the person has an income or financial resources sufficient for more than ordinary and necessary needs” (emphasis added). Given this explicit reference to financial resources, the statement in Section 404.508(b) of the Regulations that recovery will defeat the purposes of the Act if a person needs “all of his current income * * * to meet current ordinary and necessary living expenses” must describe the rule when other means of support are absent. This conclusion is buttressed by the frequent suggestions in the case law that a person’s entire financial position should be considered. Sierakowski v. Weinberger, 504 F.2d 831, 836 (6th Cir. 1974); Cucuzzella v. Weinberger, 395 F.Supp. 1288, 1297 (D.Del.1975); Hatfield v. Richardson, 380 F.Supp. 1048, 1053 (D.Kan. 1974); see also Waldron v. Finch, 307 F.Supp. 1384, 1387 (S.D.W.Va.1970). The cases plaintiff cites to the contrary merely refer to the language on income in the Regulations without deciding the question whether other resources may be considered.
Recovery of the Overpayments Would Not Be Against Equity and Good Conscience.
Although plaintiff argues that recovery here would be “against equity and good conscience,” she has not carried her burden of showing relinquishment of a valuable right or a change for the worse in her position. Plaintiff does urge that without the benefits she would have been eligible for public housing, but the record shows that after some inquiry into the matter she chose not to apply, apparently because her landlord refused to assign her lease to the Chicago Housing Authority. As already noted, plaintiff’s private understanding of her position is insufficient evidence of a change in position. Further, although plaintiff testified that her benefits led to a reduction in financial aid for her daughter’s education, a letter in the record from the Art Institute of Chicago states that plaintiff’s entitlement to disability insurance benefits did not reduce the amount of financial aid available to Cheryll.
Cucuzzella v. Weinberger, 395 F.Supp. 1288 (D.Del.1975), upon which plaintiff relied in her brief and at oral argument, lends scant support to her position. In that decision, the court remanded a case to the Secretary to consider whether a mother receiving benefits to which she was not entitled for one child had herself incurred any additional expense by thereafter sending another child to college. In the case at bar, plaintiff has offered no evidence that she incurred such additional expenses as a result of her daughter Cheryll’s enrollment at the School of Art Institute. The most plaintiff could say is that without her own benefits she would have been forced to rely on the benefits for Cheryll and thus would not have allowed Cheryll to apply to a school where, as the record does show, the benefits for Cheryll were considered in the calculation of financial aid. But even assuming this attenuated proof of reliance were within the intention of the Regulations, plaintiff has never offered evidence that Cheryll’s enrollment reduced the amount available to the household from Cheryll’s benefits. Thus although as Gucuzzella indicates a “change of position may be quite minor” and yet sufficient (395 F.Supp. at 1298), any change here is too speculative as well as too remote to upset the ALJ’s finding that recovery would not be inequitable.
Summary Judgment Was Appropriate.
Having herself sought summary judgment unsuccessfully in the district court, plaintiff is .now in the awkward position of arguing that summary judgment is inappropriate when the district court is required to consider whether substantial evidence in the record supports the ALJ’s decision. Even assuming this belated challenge is proper, plaintiff’s argument runs counter to both the language of the statute and our understanding of this standard of review. As noted above, Section 205(g) of the Act expressly permits a reviewing district court to enter judgment “[upon] the pleadings and transcript of record,” a mandate that át least entitles a district judge to restrict consideration as in a summary judgment procedure. See Orlandini v. Weinberger, 421 F.Supp. 586, 589 (E.D.Wis.1976). This conclusion seems all the more appropriate since the statute describes the ALJ’s factual determinations in such cases as “conclusive” when supported by substantial evidence. Here Judge Kirkland had the pleadings and the transcript before him and he obviously scrutinized them carefully. The procedure he adopted was therefore free from error.
The question whether substantial evidence supports an ALJ’s finding does not, as plaintiff contends, itself raise material issues of fact. Rather that standard of review presents the district court with a question of law. Beane v. Richardson, 457 F.2d 758, 759 (9th Cir. 1972), certiorari denied, 409 U.S. 859, 93 S.Ct. 144, 34 L.Ed.2d 105. See also 6 Moore’s Federal Practice 56.17[3] at 56-694 and nn. 6-8 and cases cited therein. We are aware that in Nickol v. United States, 501 F.2d 1389 (10th Cir. 1974), the Tenth Circuit has reached a different conclusion, arguing that Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136, requires a more thorough consideration of an administrative record than is possible under a summary judgment procedure. But neither Nickol nor Citizens was an SSA case, and neither discussed the effect of a provision such as Section 205(g). In Citizens, moreover, the Supreme Court made clear that its decision was not an interpretation of a “substantial evidence” requirement. 401 U.S. at 414—415, 91 S.Ct. at 822-823. Nor does that case indicate that the kind of scrutiny required of a district court makes summary judgment inappropriate. The “substantial evidence” requirement imposes a specific limitation on the district court, barring it from overruling the ALJ if the record before it provides a substantial evidentiary basis for the ALJ’s decision. In seeking to establish whether the ALJ’s factual determinations support his legal conclusions, the district court obviously must carefully peruse the proceedings below. But for this purpose the evidence adduced by the ALJ remains an uncontested matter of record in the district court. Of course, a plaintiff can always choose instead to challenge the completeness of the record or the ALJ’s authority (see 6 Moore, supra, at 56.17[3] n. 6), and Citizens directs the district court to consider such matters. But this option does not preclude the use of summary judgment where, as here, the administrative hearing was satisfactory. Therefore, we respectfully decline to follow the holding of the Nickol case and align ourselves with the Ninth Circuit in Beane.
Judgment affirmed.
. The district court disagreed with the ALJ’s additional finding that the claimant was not without fault in causing the overpayments. That holding of the court below has not been challenged and therefore its correctness is not before us.
. Section 216 (42 U.S.C. § 416) provides for benefits for the children of certain qualifying persons. The qualifying persons must be under a disability defined in terms similar to those in Section 223(d)(1). The “period of disability” applicable to benefits for these children is also similar to the period for the disabled person himself. See, e. g., Section 216(i) (42 U.S.C. § 416(i)).
. Exhibit 6 attached to the ALJ’s decision is a September 7, 1973, letter from the SSA stating that plaintiffs nine-month trial work would conclude in March 1974, at which time the Social Security district office would review her disability claim to see whether she was still disabled within the meaning of the Act. The letter informed plaintiff that she would receive three months’ additional benefits after the trial period even if she was found to be no longer disabled. The letter also suggested that plaintiff contact any Social Security office if she had any questions about the contents of the letter or about other Social Security matters. Plaintiff afterwards never contacted an SSA office.
. Plaintiff also had been receiving benefits for her daughter Cheryll pursuant to Section 216 of the Act. In an attachment the SSA notice of termination notified plaintiff that through plaintiff Cheryll had been overpaid $2,050.80, bringing the total family overpayment to $7,085.40. Plaintiff’s district court complaint alleges that the Secretary is seeking repayment of the $2,050.80 paid to plaintiff for Cheryll. Yet the ALJ’s decision states that the Secretary seeks only $5,034.60. Furthermore, defendant’s memorandum in support of summary judgment in the district court states that only $5,034.60 is at issue (Record Item 5 at 2). We therefore do not reach the question of overpayment benefits for Cheryll.
. The ALJ also referred to plaintiff’s testimony that she owned a single-family residence in Tennessee with a value of $32,000 and a mortgage of $15,000.
. That letter does state that plaintiffs benefits for Cheryll were considered in computing Cheryll’s financial aid at the Art Institute’s School. This statement is perhaps germane to a decision whether recovery of plaintiff’s benefits for Cheryll by the Secretary would be inequitable, but because that issue is not before us (see note 4 supra), we do not express an opinion on the matter.
. Plaintiff did raise the issue in her motion for rehearing in the district court (Record Item 9).
. It should be noted that the judgment of the district court in Nickol merely stated without explanation that there was evidence to support the ALJ’s decision. 501 F.2d at 1390.
. In Orlandini v. Weinberger, supra, the district court found that because Section 205(g) bars the district court from considering evidence outside the record, summary judgment is too liberal a procedure and that a procedure like judgment on the pleadings would be more appropriate. It concluded, however, that the entire issue is more a matter of form than of substance. Indeed, even when Section 205(g) is not at stake the Tenth Circuit itself has apparently approved a mere formal compliance with Nickol. See Roberts v. Morton, 549 F.2d 158 (10th Cir. 1976).
. It is of course mere sophistry to argue that the material issue of fact is whether substantial evidence exists. One might just as well say that summary judgment is never proper because there is always a dispute over whether a material issue of fact exists.
. Although the Court in Citizens also directed the district court to “consider whether the [administrative] decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment” and specified that “this inquiry into the facts is to be searching and careful,” 401 U.S. at 416, 91 S.Ct. at 823-824, it did so in the context of a standard that inquires whether the administrative decision is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” That standard is inapplicable in this case. | 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 42. 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 42? Answer with a number. | [] | [
404
] | songer_usc1sect |
SAN LUIS OBISPO MOTHERS FOR PEACE, et al., Petitioners, v. UNITED STATES NUCLEAR REGULATORY COMMISSION and United States of America, Respondents, Pacific Gas and Electric Company, Intervenor. (Three Cases). SAN LUIS OBISPO MOTHERS FOR PEACE; Scenic Shoreline Preservation Conference, Inc.; Ecology Action Club; Sandra Silver; Gordon Silver; Elizabeth Apfelberg; and John J. Forster, Petitioners, v. UNITED STATES NUCLEAR REGULATORY COMMISSION and United States of America, Respondents, Pacific Gas and Electric Company, Intervenor. George DEUKMEJIAN, Governor of the State of California, Petitioner, v. UNITED STATES NUCLEAR REGULATORY COMMISSION and United States of America, Respondents, Pacific Gas and Electric Company, Intervenor.
Nos. 81-2035, 83-1073, 84-1042, 84-1410 and 81-2034.
United States Court of Appeals, District of Columbia Circuit.
Argued Oct. 3, 1985.
Decided April 25, 1986.
Mikva, Circuit Judge, filed opinion concurring in part and concurring in result in part.
Wald, Circuit Judge, filed dissenting opinion in which Spottswood W. Robinson, III, Chief Judge, and J. Skelly Wright and Ginsburg, Circuit Judges, concurred.
Joel R. Reynolds for petitioners, San Luis Obispo Mothers for Peace, et al. in Nos. 84-1410, 81-2034, 81-2035, 83-1073 and 84-1042.
David S. Fleschaker entered an appearance for petitioners in Nos. 81-2035, 83-1073 and 84-1042.
Herbert H. Brown, Charles Lee Eisen and Lawrence Coe Lanpher entered appearances for petitioner in No. 81-2034.
William H. Briggs, Jr., Sol., Nuclear Regulatory Com’n, with whom Herzel H.E. Plaine, Gen. Counsel, E. Leo Slaggie, Deputy Sol., Nuclear Regulatory Com'n, Peter R. Steenland, Jr., Jacques B. Gelin, Attys., Dept, of Justice, Richard L. Black, Sheldon L. Trubatch, É. Neil Jensen, Carole F. Ka-gen, A. Laurence Ralph, and Lawrence J. Chandler, Attys., Nuclear Regulatory Commission were on the brief for respondents in Nos. 84-1410, 81-2034, 81-2035, 83-1073 and 84-1042.
Mark E. Chopko and Richard A. Parrish, Attys., Nuclear Regulatory Commission entered appearances for respondents in Nos. 81-2034, 81-2035 and 83-1073.
William T. Coleman, Jr., with whom Aaron S. Bayer, Malcolm H. Furbush, Douglas A. Oglesby, Joseph B. Knotts, Jr., Scott M. DuBoff and Daniel F. Stenger were on the brief for intervenor, Pacific Gas and Elec. Co. in Nos 84-1410, 81-2034, 81-2035, 83-1073 and 84-1042.
F. Ronald Laupheimer entered an appearance for intervenor in Nos. 81-2034 and 81-2035.
J. Michael McGarry, III entered an appearance for intervenor in Nos. 81-2034 and 83-1073.
Barton Z. Cowan entered an appearance for amicus curiae, Atomic Industrial Forum, Inc., in No. 84-1410.
Peter B. Kelsey, Edward H. Comer and William L. Fank entered appearances for amicus curiae, Edison Elect. Institute, in No. 84-1410.
Before ROBINSON, Chief Judge, and WRIGHT, WALD, MIKVA, EDWARDS, GINSBURG, BORK, SCALIA and STARR, Circuit Judges.
Opinion for the Court filed by Circuit Judge BORK.
Concurring opinion filed by Circuit Judge MIKVA, concurring in Parts I and II of Circuit Judge BORK’s opinion and in the result reached by Part III.
Dissenting opinion filed by Circuit Judge WALD, in which Chief Judge SPOTTS-WOOD W. ROBINSON III, and Circuit Judges J. SKELLY, WRIGHT and GINSBURG concur.
BORK, Circuit Judge:
This case presents two questions. The first is whether the Nuclear Regulatory Commission (“NRC” or “Commission”), before issuing a license for the operation of the Diablo Canyon Nuclear Power Plant, is required to hold a hearing concerning the potential complicating effects of an earthquake on responses to a simultaneous but independently caused radiological accident at the plant. The risk of that happening is calculated as being one in several tens of millions. The second question is whether this court should examine transcripts, not a part of the record, of a closed meeting of the Commission.
In San Luis Obispo Mothers for Peace v. NRC, 751 F.2d 1287 (D.C.Cir.1984), a panel of this court affirmed a decision by the NRC to allow issuance of low power and full power licenses for the Diablo Canyon plant. In so doing, the panel majority considered and rejected petitioners’ claim that the Commission improperly excluded from licensing hearings specific consideration of the potential complicating effects of an earthquake on planned emergency responses at the Diablo Canyon facility. The same majority refused to examine the proffered transcripts. See id. at 1323-29. Subsequently, the full court vacated a portion of the original opinion and judgment and granted rehearing en banc to consider the questions more fully. See 760 F.2d 1320. We now affirm the Commission’s decision.
I.
Licensing proceedings for nuclear power plants are typically long and complex and the Diablo Canyon proceedings were no exception. In this section, we set forth only a skeletal history of those proceedings, taken largely from the panel opinion. See 751 F.2d at 1296-97. Additional facts relevant to the specific issues we consider are set forth throughout the opinion.
The petitioners in this case consist of a number of individuals who, and groups whose members, live and work near the Diablo Canyon plant. They have been active in the Commission's proceedings related to the licensing of the plant.
The Atomic Energy Commission (“AEC”), the predecessor to the NRC, issued construction permits to the Pacific Gas and Electric Company (“PG & E”) for Units 1 and 2 of the pressurized water reactor plant at Diablo Canyon in 1968 and 1970. See Docket No. 50-323, 4 A.E.C. 447, 460 (1970), affd, ALAB-27, 4 A.E.C. 652, 664 (1971) (Unit 2); Docket No. 50-275, 4 A.E.C. 89, 98-99 (1968) (Unit 1). Construction began shortly thereafter, based on the assumption that the nearest significant earthquake fault was eighteen to twenty miles away. See ALAB-519, 9 N.R.C. 42, 45 (1979). Four years later, offshore exploration for petroleum revealed the presence of the Hosgri Fault within three miles of the Diablo Canyon site. See id. Petitioners, who had intervened in the administrative proceedings, requested that construction at the facility be stopped until the implications of the discovery could be assessed, but the AEC permitted construction at the plant to continue. See 4 A.E.C. 914 (1972). Following an extensive reexamination, the Commission’s Appeal Board approved the plant’s seismic design on June 16, 1981. ALAB-644, 13 N.R.C. 903 (1981).
On September 21, 1981, the Commission rejected claims that the emergency planning program at Diablo Canyon was deficient and issued a license to PG & E to load fuel and conduct low power testing at Unit 1. See CLI-81-22, 14 N.R.C. 598 (1981). Investigation by PG & E and the Commission’s staff, however, soon uncovered various design errors, see CLI-81-30, 14 N.R.C. 950, 951 (1981), and on November 19, 1981, the Commission suspended PG & E fuel loading and low power test license. Id. at 950. To ensure that the plant would be adequately protected against seismic disturbances, the Commission ordered PG & E, as a condition of reinstatement of the license, to institute an independent design verification program. See id. at 951, 955-58. In addition, several requirements concerning seismic and other design verification issues were imposed on PG & E as conditions of its eligibility for a full power license. See CLI-84-13, 20 N.R.C. 267 (1984).
Professionals expended more than 2,000,-000 hours on the reanalysis and modification of the plant’s design, which were completed in October 1983. CLI-84-5, 19 N.R.C. 953, 971 (1984) (views of Commissioner Bernthal). The NRC staff undertook an independent review of the results of the Independent Design Verification Program after which the Commission progressively reinstated elements of the suspended low power license in late 1983 and early 1984. See CLI-84-5, 19 N.R.C. 953 (1984); CLI-84-2, 19 N.R.C. 3 (1984); CLI-83-27, 18 N.R.C. 1146 (1983). Reinstatement of the license was consistent with the Appeal Board’s findings that “[t]he applicant’s verification efforts provide adequate confidence that the Unit 1 safety-related structures, systems and components are designed to perform satisfactorily in service and that any significant design deficiencies in that facility resulting from the defects in the applicant’s design quality assurance program have been remedied.” ALAB-763, 19 N.R.C. 571, 619 (1984).
On August 10, 1984, the NRC approved issuance of a full power license for the Diablo Canyon plant. CLI-84-13, 20 N.R.C. 267 (1984). Petitioners appealed both the low power and full power orders to this court and, before the license had issued, the court granted petitioners’ motion for a stay. On October 31, 1984, after oral argument, the court lifted the stay, thereby permitting issuance of the full power license and the commencement of operations at Diablo Canyon. On December 31, 1984, the court affirmed the Commission’s decision to permit issuance of the low power and full power licenses. See San Luis Obispo Mothers for Peace v. NRC, 751 F.2d 1287 (D.C.Cir.1984). The court found that the Commission made two legal errors (not related to the issues considered in this en banc proceeding), but that neither warranted judicial relief since one was harmless and the other had already been remedied by the Commission. See id. at 1311-12.
Specifically with regard to emergency planning, the panel majority held that the Commission did not err by excluding consideration of the effects of earthquakes on emergency responses at Diablo Canyon. In addition, the majority denied petitioners’ motion to supplement the administrative record with the transcripts of a closed meeting of the NRC. See 751 F.2d at 1323-29. Judge Wald, dissenting in part, thought that the Commission’s exclusion of consideration of earthquakes was arbitrary and capricious and that the court should make an in camera inspection of the transcripts in deciding whether to grant petitioners’ motion to supplement the record. 751 F.2d at 1329-35.
II.
Petitioners argue that the Commission’s decision to exclude from the Diablo Canyon licensing proceedings consideration of the potential complicating effects of an earthquake on emergency responses “has deprived Petitioners of their right to an on-the-record hearing on a material safety issue ... in violation of § 189(a) of the Atomic Energy Act as applied by this Court in Union of Concerned Scientists v. [NRC, 735 F.2d 1437 (1984), cert. denied, — U.S. —, 105 S.Ct. 815, 83 L.Ed.2d 808 (1985) ].” Supplemental Brief for Petitioners on Rehearing En Banc (“Pet.Supp.Br.”) at 11 (citations omitted).
Section 189(a)(1) of the Atomic Energy Act provides that “[i]n any proceeding under this chapter, for the granting ... of any license ..., the Commission shall grant a hearing upon the request of any person whose interest may be affected by the proceeding.” 42 U.S.C. § 2239(a)(1) (1982). It follows from Union of Concerned Scientists, however, that the “interest” which entitles a person to a hearing is defined by the Commission’s rules and regulations. In that case, we invalidated an NRC amendment to its rule on emergency preparedness. The amendment eliminated the requirement of a hearing on the results of emergency preparedness exercises as a prerequisite to authorization of a license. But those results remained a factor that the Commission was required to consider in its licensing decision. “Since the NRC, by its own regulations, has made correction of deficiencies identified in emergency exercises a requirement of its ultimate licensing decision, it would seem to follow that results of these exercises must be subject to the § 189(a) hearing requirement.” 735 F.2d at 1442; accord id. at 1445.
Union of Concerned Scientists holds only that the Commission cannot exclude from a section 189(a) hearing issues that its rules of regulations require it to consider in its licensing decisions. As the opinion stated: “Today, we in no way restrict the Commission’s authority to [limit the purposes for which it considers emergency exercises relevant] as a substantive licensing standard.” 735 F.2d at 1448 (footnote omitted). Thus, to establish, on the rationale of Union of Concerned Scientists, that the Commission in this case impermissibly refused a hearing, petitioners must show that NRC rules or regulations required the Commission to consider the potential complicating effects of earthquakes on emergency responses in deciding whether to license Dia-blo Canyon. Petitioners have made no such showing.
Petitioners assert that “the Commission’s interpretation and application of its own regulations are entitled to no weight,” Pet.Supp.Br. at 20, because “the Commission’s conclusion is undermined both by the language and prior application of the NRC’s regulations,” Pet.Supp.Br. at 12, and also because “ ‘the Commission’s outright refusal to make explicit provision in emergency response plans for an earthquake in a nuclear plant within three miles of a major, active fault in California is by definition an arbitrary and capricious act,’ ” Pet. Reply Br. at 3 (quoting 751 F.2d at 1335 (Wald, J., dissenting)); see also Pet. Supp.Br. at 15-21. We think these contentions do not survive analysis.
A.
We consider first the question whether the Commission’s regulation requires consideration of earthquakes and thereby triggers section 189(a)’s hearing requirement.
1. The Commission’s interpretation of the regulation. We note at the outset that courts are not at liberty to set aside an agency’s interpretation of its own regulations unless that interpretation is plainly inconsistent with the language of the regulations. See United States v. Larionoff, 431 U.S. 864, 872-73, 97 S.Ct. 2150, 2155-56, 53 L.Ed.2d 48 (1977); National Association of Regulatory Utility Commissioners v. FCC, 746 F.2d 1492, 1502 (D.C.Cir.1984). The degree of deference due is great. We “need not find that the agency’s construction is the only possible one, or even the one that the court would have adopted in the first instance.” Belco Petroleum Corp. v. FERC, 589 F.2d 680, 685 (D.C.Cir.1978). As stated by the Supreme Court:
Since this involves an interpretation of an administrative regulation a court must necessarily look to the administrative construction of the regulation if the meaning of the words used is in doubt____ [T]he ultimate criterion is the administrative interpretation, which becomes of controlling weight unless it is plainly erroneous or inconsistent with the regulation.
Bowles v. Seminole Rock Co., 325 U.S. 410, 413-14, 65 S.Ct. 1215, 1217, 89 L.Ed. 1700 (1945).
The only NRC regulation relevant to this case is the regulation dealing with emergency planning. Promulgated in 1980 following the accident at Three Mile Island, that regulation provides in pertinent part that “no operating license for a nuclear power reactor will be issued unless a finding is made by NRC that there is reasonable assurance that adequate protective measures can and will be taken in the event of a radiological emergency.” 10 C.F.R. § 50.47(a)(1) (1984). Though that regulation represents a departure from the Commission’s previous policy of requiring little or no emergency planning, the Commission has consistently interpreted that regulation not to require specific consideration of the potential complicating effects of earthquakes. See Pacific Gas & Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 & 2), CLI-84-12, 20 N.R.C. 249 (1984); Southern California Edison Co. (San Onofre Nuclear Generating Station, Units 2 & 3), CLI-81-33, 14 N.R.C. 1091 (1981).
Petitioners’ claim that the Commission’s interpretation contradicts the language of the emergency planning regulation is supported only by a quotation of the regulatory language. That language, however, does not contradict, but amply supports, the Commission.
The regulation does not address any particular emergency or natural hazard; rather, it sets forth a general standard that envisions judgment and implies discretion: the Commission is to satisfy itself that there is “reasonable assurance” of “adequate” protective measures. In this case, we think that the Commission’s view — that it need not consider the potential effects of earthquakes to determine “that there is reasonable assurance that adequate protective measures can and will be taken in the event of a radiological emergency” — is not, by any stretch of the imagination, “plainly inconsistent” with the regulatory language.
Petitioners assert, however, that the Commission’s interpretation is “undermined” by an NRC staff report referred to in the emergency planning regulation. Subsection (b) of the regulation sets forth sixteen specific standards which the onsite and offsite emergency response plans for nuclear power reactors must meet. A footnote to subsection (b) states: “These standards are addressed by specific criteria in NUREG-0654; FEMA-REP-1 entitled ‘Criteria for Preparation and Evaluation of Radiological Emergency Response Plans and Preparedness in support of Nuclear Power Plants — for Interim Use and Comment’, January 1980.” 10 C.F.R. § 50.47(b) n. 1 (1984). NUREG-0654 was a joint project of the NRC and FEMA staffs “to provide a common guidance and reference source for ... State and local governments and nuclear facility operators in the development of radiological emergency response plans and preparedness in support of nuclear power plants.” NUREG-0654 at 1.
We do not think NUREG-0654 undermines the Commission’s interpretation of its emergency planning regulation. Petitioners state that NUREG-0654 contains “general references to ‘natural hazards.’ ” Pet.Supp.Br. at 13. But we can find no reference, general or specific, to “natural hazards” in the body of the document. Petitioners quote two statements from the report in support of their assertion. The first is that “[e]ach State and local organization should have procedures in place that provide for emergency actions to be taken which are consistent with the emergency actions recommended by the nuclear facility licensee, taking into account local offsite conditions that exist at the time of the emergency.” NUREG-0654 at 42. The second statement is that “[t]he organization’s plans to implement protective measures for the plume exposure pathway shall include ... [identification of and means for dealing with potential impediments (e.g., seasonal impassability of roads) to use of evacuation routes, and contingency measures.” NUREG-0654 at 61-63. Petitioners’ argument is that these sentences constitute “references to ‘natural hazards’ ” and that the Commission is therefore required to consider the effects of earthquakes on emergency planning. This argument is unsound.
It is not at all clear that the phrases, “local offsite conditions” and “potential impediments ... to evacuation routes,” were intended to suggest specific consideration of all conceivable “natural hazards.” Taken in context, these phrases constitute broad references. They might suggest some consideration of natural phenomena reasonably anticipated at the plant such as seasonal rains, fog, or “seasonal impassibility of roads.” But petitioners’ reading of these references to require specific consideration of such highly unlikely and infrequent events as an earthquake at the plant sweeps much too broadly. If we accept petitioners’ argument, we can think of no potential natural or unnatural hazards, regardless of their improbability, that the Commission would not be required to consider. That is a prescription for licensing proceedings that never end and plants that never generate electricity. Petitioners themselves attempt to disavow that logical conclusion of their argument. For example, at oral argument petitioners conceded that the emergency planning regulations (and presumably NUREG-0654) do not require the Commission to consider the potential complicating effects of a meteorite striking the plant. Yet we do not see why NUREG-0654 would not require just such consideration given a holding that it requires consideration of potential simultaneous earthquakes and independently caused radiological accidents at the plant. As we will show, the latter is not significantly more likely than the former.
Moreover, our conclusion that NUREG-0654 does not counsel specific consideration of earthquakes is more in keeping with NUREG-0654’s stated policy that “[n]o single specific accident sequence should be isolated as the one for which to plan because each accident should have different consequences, both in nature and degree,” NUREG-0654 at 6, than is petitioners’ contrary assertion.
Petitioners also claim that a reference to earthquakes in NUREG-0654’s appendix undercuts the Commission’s interpretation of the applicable regulations. See Pet. Supp.Br. at 13. The appendix contains a list of “example initiating conditions” that could lead to a “site area emergency” that includes: “Severe natural phenomena being experienced or projected with plant not in cold shutdown.” NUREG-0654 app. 1 at 1-13. It is to be noted that this example refers to an earthquake that causes a radiological emergency, not an earthquake that complicates emergency responses. The former risk, to which the example pertains, was the subject of extensive hearings and is not under review here. Under this example is listed: “Earthquake greater than SSE levels.” Id. “[T]he SSE is the most powerful earthquake ever expected to occur at the plant site.” ALAB-644, 13 N.R.C. 903, 911 (1981). For Diablo Canyon, the SSE was calculated to be an earthquake of 7.5 magnitude. Id. at 910. Far from being “projected” for the Diablo Canyon, an earthquake greater than SSE levels, by definition, is never expected to occur at the plant site.. Indeed, the Commission has noted that the probability that an earthquake at the SSE level will occur has “typically been estimated to be on the order of one in a thousand or one in ten thousand per year.” CLI-84-4, 19 N.R.C. 937, 948 (1984). Evidence before the Licensing Board indicated that “there have not been recurrent earthquakes above 6.5 magnitude on the Hosgri in the past 17,000 years.” LBP-79-26, 10 N.R.C. 453, 482 (1979). The fact is particularly significant because the Hosgri is 90 miles long, see id. at 472, and only a small portion of it is near the Diablo Canyon plant. As the panel majority stated in a portion of its opinion not vacated by our May 1, 1985 Order: “We must assume, therefore, that the likelihood that an earthquake will trigger a nuclear accident at the facility is so small as to be rated zero.” 751 F.2d at 1304 (footnote omitted).
Moreover, even if we agreed with petitioners’ claim that NUREG-0654, in its body or appendix, suggests consideration of earthquakes, the emergency planning regulations’ reference to NUREG-0654 makes plain that it is a staff document intended simply to provide guidance to parties in complying with the standards set forth in the emergency planning regulations: “NRC staff has developed ... a joint NRC/FEMA report, NUREG-0654 ... to provide guidance in developing plans for coping with emergencies.” 10 C.F.R. Part 50 app. E n. 1 (1984). Under the regulations, the Commission is required to make its own finding that emergency plans “provide reasonable assurance” of “adequate protective measures” and meet the specified regulatory standards. See 10 C.F.R. § 50.47(a)(1) & (b) (1984). These regulatory standards contain no references to “natural hazards,” to say nothing of earthquakes. To accept petitioners’ argument, therefore, we would have to hold that NU-REG-0654, a staff document intended as guidance, supersedes the regulation itself. The only virtue of that approach is novelty.
2. The Commission’s applications of the regulation. Petitioners’ next argument is that the Commission’s interpretation conflicts with “prior application of the NRC’s regulations.” If petitioners suggest an inconsistency with prior Commission applications, their assertion is false. The Commission has never applied its regulation in any way except the way it did here. Indeed petitioners’ only support for their claim is apparently that the Commission’s staff has called for emergency plans to consider the potential complicating effects of earthquakes. The position of an agency’s staff, taken before the agency itself decided the point, does not invalidate the agency’s subsequent application and interpretation of its own regulation.
The facts are as follows. In December, 1980, a member of the NRC’s staff sent PG & E a letter requesting that it evaluate “the potential complicating factors which might be caused by earthquakes which either initiate or follow the initiation of accidents,” Record, vol. 69, exh. 117 (Letter from Tedesco (NRC) to Furbush (PG & E) (Dec. 16, 1980)). See Pet.Supp.Br. at 5, 13. A staff member wrote a memorandum on November 3, 1980 requesting that the Federal Emergency Management Agency review the adequacy of state and local capabilities for emergency response to a radiological accident occurring during an earthquake. See Pet.Supp.Br. at 5-6 (citing Record, vol. 69, attachment to exh. 117 (Memorandum from Grimes (NRC) to McConnell (FEMA) (Nov. 3, 1980))). Petitioners ignore the fact that both of these documents were written before the Corn-mission itself had interpreted its emergency planning regulation.
The regulation was promulgated in 1980 and the question whether it required consideration of earthquakes first came before the Commission in 1981, after it was raised by the Atomic Safety and Licensing Board in the context of licensing the San Onofre Nuclear Generating Station. The Commission decided “that its current regulations do not require consideration of the impacts on emergency planning of earthquakes which cause or occur during an accidental radiological release.” San Onofre, CLI-81-33, 14 N.R.C. at 1091. In so interpreting its regulation, the Commission stated:
A review of the rulemaking file associated with the Commission’s emergency planning regulations reveals that ... [t]hree commenters suggested that the NRC specifically require the occurrence of earthquakes or severe natural phenomena to be part of the basis for emergency response planning, but the comments were not accepted in the final rule. The current regulations are designed with the flexibility to accommodate a range of onsite accidents, including accidents that may be caused by severe earthquakes. This does not, however, mean that emergency plans should be tailored to accommodate specific accident sequences____
San Onofre, CLI-81-33, 14 N.R.C. at 1092 (citations omitted). Thus, the 1980 staff documents on which petitioner rely in no way affect the legitimacy of the Commission’s subsequent decision not to require consideration of earthquakes on emergency planning at Diablo Canyon. The positions of an agency’s staff do not preclude the agency from subsequently reaching its own conclusion.
The San Onofre rule has been followed since. The Appeal Board relied explicitly on San Onofre to reject a challenge to the Licensing Board’s authorization of low power testing at Diablo Canyon on the ground that it should have required consideration of earthquakes in emergency planning. See ALAB-728, 17 N.R.C. 777, 792-93 (1983), aff'g LBP-81-21, 14 N.R.C. 107 (1981). The Commission itself then summarily declined review. See CLI-83-32, 18 N.R.C. 1309 (1983).
Prompted in part by two staff memoran-da, the Commission in 1984 decided to consider whether “the circumstances of [the Diablo Canyon] case ... provide a basis for departure from its decision in” San Onofre. See Diablo Canyon, CLI-84-12, 20 N.R.C. at 249. Specifically, the Commission requested that petitioners, PG & E and the NRC staff submit comments addressing “whether NRC emergency planning regulations can and should be read to require some review of the complicating effects of earthquakes on emergency planning for Diablo Canyon.” CLI-84-4, 19 N.R.C. 937, 938 (1984). After receiving and considering these comments, the Commission reaffirmed its original interpretation “that the NRC’s regulations ‘do not require consideration of the impacts on emergency planning of earthquakes which cause or occur during an accidental radiological release.’ ” Diablo Canyon, CLI-84-12, 20 N.R.C. at 250 (quoting San Onofre, CLI-81-33, 14 N.R.C. at 1091). Thus, there can be no doubt that the NRC’s position has not only been consistently applied by has been thoughtfully reconsidered in this very proceeding.
Petitioners cite the two staff memoranda just referred to for the proposition that “[s]ince 1980, the Commission’s staff has frequently advocated the view that consideration of the effects of earthquakes on emergency planning ‘may be warranted’ for reactor sites in California because of their ‘relatively high’ seismic risk.” Pet. Supp.Br. at 6 & n. 15 (citing Memoranda of Jan. 13, 1984 and June 22, 1982, attachments 1 & 2 to CLI-84-4, 19 N.R.C. 937 (1984)). Petitioners support their assertion that the staff “frequently advocated” a view contrary to the Commission’s with the following parenthetical: “(‘planning for earthquakes which might have emergency preparedness implications may be warranted in areas where the seismic risk to offsite structures is relatively high (e.g., California sites...)’).” Pet.Supp.Br. at 6 n. 15. This is a single occasion, not a frequent event. Worse, the claim that it constitutes “advocacy” is completely misleading. Petitioners have taken the quoted language out of context.
The language in question comes from the January 13, 1984 memorandum. The memorandum first recounts the substance of the Commission’s San Onofre decision and the Commission’s statement that it would consider whether its regulations should be changed. The memorandum then states that the Commission’s Secretary directed the staff to undertake such consideration and that the staff responded in a memorandum dated June 22, 1982. In a footnote, the memorandum then states:
To very briefly summarize the Staff’s position as expressed in its June 22nd response, the Staff concluded that the Commission’s regulations do not require amendment since (1) for most sites there is only a very low likelihood that an earthquake severe enough to disturb on-site or offsite planned responses will occur concurrently with or cause a reactor accident, and (2) while planning for earthquakes which might have emergency preparedness implications may be warranted in areas where the seismic risk to offsite structures is relatively high (e.g., California Sites and other areas of the Western U.S.), current review criteria set forth in NUREG-0654 (which are derived from the Commission’s regulations in 10 C.F.R. § 50.47) are considered adequate.
Attachment 2 to CLI-84-4, 19 N.R.C. at 947 n. 2.
Petitioners substantially mischaracterize the staff’s views. The staff was summarizing its reasons for rejecting an amendment to the Commission’s emergency planning regulations that would have required specific consideration of the effects of earthquakes on emergency planning. Similarly, since the staff was expressing its views about an amendment to the regulation and not the regulation itself, there can be no suggestion that the staff was expressing an opinion about the correctness of the Commission’s interpretation of the existing regulation. Moreover, since both memoranda were written after the Commission’s San Onofre decision, the staff was well aware of the Commission’s interpretation.
We have now reviewed the sum of petitioners’ arguments and find disingenuous petitioners’ assertion that the Commission’s refusal to allow consideration of the effects of earthquakes on emergency responses for Diablo Canyon was “in disregard of its own technical staff’s longstanding practice of considering earthquakes in their emergency planning reviews for California nuclear power plants.” Pet.Supp.Br. at SA 3. By petitioners’ own admission, “the earthquake risk affects only two nuclear plants, Diablo Canyon and San Onofre.” See 751 F.2d at 1308; Opening Brief for Petitioner at 44-45. With respect to the licensing of the San Onofre plant, petitioners’ claim that the NRC staff “considered earthquakes” is unsupported. Further, it appears inaccurate. In San Onofre, the Commission stated that the issue “whether emergency planning should be concerned with earthquakes” was “raised sua sponte by the Atomic Safety and Licensing Board.” CLI-81-33, 14 N.R.C. at 1091. After concluding that its current regulations do not require consideration of earthquakes, the Commission “directed [the Licensing Board] not to pursue this issue.” Id.
In the case of Diablo Canyon, it is true that the NRC staff requested PG & E to consider the effects of earthquakes in its emergency plans. But as already noted, this request came before the Commission’s San Onofre decision. There is no indication that the staff persisted in requiring consideration of earthquakes in Diablo Canyon emergency plans after San Onofre was decided. Indeed, it seems unlikely that they would have done so given that the Commission’s Appeal Board and then the Commission itself specifically rejected challenges to Diablo Canyon licenses on the ground that emergency plans failed to consider earthquakes. We do not believe that the one instance cited by petitioners constitutes a “longstanding practice.”
3. Consistency with Atomic Energy Act. Though petitioners make only a cursory assertion that the Commission’s interpretation of its emergency planning regulation contradicts the Atomic Energy Act, we consider this contention briefly since the Supreme Court has stated that “regulations, in order to be valid, must be consistent with the statute under which they are promulgated.” See United States v. Lario-noff 431 U.S. 864, 873, 97 S.Ct. 2150, 2156, 53 L.Ed.2d 56 (1977).
Enacted in 1946, the Atomic Energy Act provides that “[i]n the performance of its functions the Commission is authorized to ... make, promulgate, issue, rescind, and amend such rules and regulations as may be necessary to carry out the purposes of this chapter.” 42 U.S.C. § 2201(p) (1982). This is a broad grant of authority. One of the stated purposes of the Act is to provide for “a program to encourage widespread participation in the development and utilization of atomic energy for peaceful purposes to the maximum extent consistent with the common defense and security and with the health and safety of the public.” Id. § 2013(d).
Petitioners’ argument must be that emergency planning regulations that do not specifically require consideration of earthquakes are inconsistent with “the health and safety of the public” as those terms are used in the Act. But this argument disappears when it is recalled that prior to 1980, there were no emergency planning regulations at all. Apparently the Commission did not think the Act required such regulations and, so far as we can tell, no litigant claimed that the Act did so. It would be a strange reading of the statute to say that it permits no emergency planning at all (the situation for over thirty years), but that, once an emergency planning regulation is promulgated, it must mandate consideration of earthquakes. The current regulation does not contradict, but furthers, the Act’s stated purposes. Under these circumstances, we cannot say that the current emergency planning regulation, as interpreted by the Commission, is in any way inconsistent with the Atomic Energy Act.
The Commission has consistently interpreted its emergency planning regulation not to require consideration of earthquakes. This interpretation contradicts neither the regulatory language nor the Atomic Energy Act and is therefore controlling. Thus, we must uphold the Commission’s decision to exclude from the Dia-blo Canyon licensing proceedings consideration of the potential complicating effects of earthquakes on emergency planning unless we find that the action was arbitrary, capricious, or an abuse of discretion.
B.
Petitioners' final argument that the Commission’s exclusion of consideration of earthquakes is arbitrary and capricious is somewhat difficult to follow. The argument appears to take two forms. The first is that the danger of simultaneous but independent events (an earthquake and a radiological emergency) is so great that it must be considered in licensing, and hence be the subject of a hearing. In that form, the argument goes beyond anything said in Union of Concerned Scientists and has already been answered. If the Atomic Energy Act and the emergency planning regulation do not require such consideration, then petitioners may not ask this court to rewrite the statute and regulation to deal with their concerns.
The second form of the argument is that the Commission already interprets its regulation to require consideration of such complicating phenomena as fog and heavy rain. It follows, petitioners contend, that it is arbitrary and capricious to refuse to consider earthquakes. This contention rests upon the assumption that the probabilities of fog, heavy rain, and an earthquake are similar. If the probabilities are not similar, it is rational to consider some but not others. At some point the probability of an occurrence becomes so infinitesimal that it would be absurd to say that a hearing about it is required. Thus, no one would argue, or so we assume, that the Commission had to consider the possibility that a space satellite might fall on the Diablo Canyon plant. And, as we have already pointed out, petitioners agree that no hearing is required on the possibility that a meteorite might strike the plant. It can be shown that the danger posited by petitioners here falls into the same range of improbability. We will first establish that this case concerns only the likelihood of the simultaneous occurrence of an earthquake and a radiological emergency arising from an independent cause. We then turn to the probability of such an event and show why the Commission’s decision to exclude its consideration was by no means arbitrary.
The Administrative Procedure Act, 5 U.S.C. § 706 (1982), made applicable by 42 U.S.C. § 2231 (1982), establishes the scope of our review: “The reviewing court shall ... hold unlawful and set aside agency action, findings, and conclusions found to be ... arbitrary [and] capricious____” Id. § 706(2)(A). This “standard of review is a narrow one. The court is not empowered to substitute its judgment for that of the agency.” Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 824, 28 L.Ed.2d 136 (1971). Moreover, the party challenging an agency’s action as arbitrary and capricious bears the burden of proof. See, e.g., National Association of Regulatory Utility Commissioners v. FCC, 746 F.2d 1492, 1502 (D.C.Cir.1984). We note that in determining whether agency action is arbitrary and capricious, the Administrative Procedure Act directs that “[t]he court shall review the whole record or those parts of it cited by a party.” 5 U.S.C. § 706 (1982). Thus, that the Commission did not include citations to specific pages of the record in its Diablo Canyon decision provides no basis for overturning the Commission’s decision.
Under its emergency planning regulations, the NRC cannot issue an operating license for a nuclear power reactor unless it makes “a finding ... that there is reasonable assurance that adequate protective measures can and will be taken in the event of a radiological emergency.” 10 C.F.R. § 50.47(a)(1). Thus, the Commission’s decision to exclude consideration of earthquakes from the Diablo Canyon licensing hearings was in effect a decision that it could find that emergency plans for Diablo Canyon that do not plan specifically for the effects of potential earthquakes provide the requisite “reasonable assurance” of “adequate protective measures.”
The Commission cited three considerations in support of its decision. We turn to these now.
1. Earthquake-initiated radiological emergency. The Commission considered the possibility that an earthquake might cause a radiological emergency at Diablo Canyon and observed: “For earthquakes up to and including the Safe Shutdown Earthquake (SSE), the seismic design of the plant was reviewed to render extremely small the probability that such an earthquake would result in a radiological release. While a radiological release might result from an earthquake greater than the SSE, the probability of occurrence of such an earthquake is extremely low.” Diablo Canyon, 20 N.R.C. at 251 (footnotes omitted).
The Commission’s reasoning is rational and supported by the record. “[T]he SSE is the most powerful earthquake ever expected to occur at the plant site.” ALAB-644, 13 N.R.C. 903, 911 (1981). For Diablo Canyon, the SSE was calculated to be an earthquake of 7.5 magnitude. Id. at 910. The Licensing Board found that value to be “very conservative.” LBP-79-26, 10 N.R.C. 453, 485 (1979). Thus, the Commission could properly conclude that the possibility of an initiating earthquake of a magnitude greater than 7.5 is so low that specific consideration is not justified.
Similarly, the Commission could rationally exclude from consideration earthquakes of magnitudes 7.5 or smaller. The Commission determined that Diablo Canyon’s seismic design is more than adequate to withstand the forces of an SSE without releasing dangerous quantities of radioactivity. See CLI-84-12, 20 N.R.C. at 251-52. This means that such earthquakes pose no material threat to the plant. Since petitioners have not challenged this conclusion on appeal, we have no grounds to conclude that the Commission’s exclusion of such consideration was arbitrary and capricious. As the panel majority stated in a portion of its opinion not vacated by our May 1, 1985 Order: “We must assume, therefore, that the likelihood that-an earthquake will trigger a nuclear accident at the facility is so small as to be rated zero.” 751 F.2d at 1304 (footnote omitted). The original panel was unanimous on this point. As Judge Wald stated in her partial dissent, the Commission’s first conclusion “is adequately supported by findings in the record.” Id. at 1332. Thus, the only risk to be considered here is that of the simultaneous occurrence of an earthquake and a radiologic release for reasons unrelated to the earthquake.
2. Simultaneous occurrence of an earthquake and an independently caused radiological emergency. The Commission determined that “earthquake[s] that would complicate emergency response” as well as occur contemporaneously with “a radiologic release from the plant caused by an event other than an earthquake” are “so infrequent that their specific consideration is not warranted.” Diablo Canyon, CLI-84-12, 20 N.R.C. at 252. This determination is supported by the record, not merely adequately but, we think, conclusively.
The NRC estimates the representative probability of a serious core melt accident with offsite radiation release requiring protective action (sheltering or evacuation) to be one in a hundred thousand per year. See Technical Guidance for Siting Criteria Development, NUREG/CR-2239, SAND 81-1549 at iii, 2-11, 2-12 & table 2.3.1-1 (1982). In 1981, the Commission’s Appeal Board considered evidence relating to the Diablo Canyon operating basis earthquake (“OBE”) and rejected the claim that the Diablo Canyon plant is located in an area of high seismicity. The OBE is defined as “that earthquake which, considering the regional and local geology and seismology and specific characteristics of local subsurface material, could reasonably be expected to affect the plant site during the operating life of the plant.” 10 C.F.R. Part 100 app. A § III.(d)(1984). By definition, less severe earthquakes are not expected to affect the Diablo, Canyon plant site.
Petitioners argue, however, that earthquakes of a magnitude smaller than the OBE might complicate emergency response and therefore should have been considered. Petitioners have cited no support for this assertion. Moreover, the record supports the Commission’s decision to exclude consideration of earthquakes of any size. Record evidence indicates that seismic activity of any magnitude occurs infrequently along the Hosgri Fault and more particularly, in the San Luis Obispo area. For example, in reviewing the geologic setting of the Diablo Canyon plant site, the Atomic Safety and Licensing Board observed that “[i]n the main southern part of the Coast Ranges province, no [faults other than the San Andreas] show evidence of more than minor seismic activity during Holocene time (the last 10,000 years).” LBP-79-26, 10 N.R.C. 453, 469 (1979). Evaluation of the site prior to the discovery of the Hosgri Fault “established that it is an area of relatively low seismicity.” Id. at 470. Indeed, a major reason the Hosgri was not discovered sooner was “the absence of seismic activity that would indicate a nearby significant fault.” Id.
Petitioners have cited nothing to contradict the Commission’s conclusion that earthquakes of sufficient magnitude to disrupt emergency responses occur very infrequently. On this point, petitioners cite only a portion of Commissioner Asselstine’s dissent, see Pet.Supp.Br. at 18 n. 39, which states:
Publicly available information compiled by the U.S. Geological Survey (USGS) would seem to indicate that earthquakes of sufficient magnitude to cause possible damage, obstruction or disruption to roads, buildings, bridges and communication networks occur throughout many parts of California, including the San Luis Obispo area, with some regulari-ty____ According to this information, four earthquakes have occurred in the immediate San Luis Obispo area since 1830....
CLI-84-12, 20 N.R.C. 249, 263 n. 2 (1984) (dissenting views of Commissioner Assel-stine).
Petitioners’ citation of Commissioner As-selstine’s information does not contradict, but amply supports the Commission’s conclusion. The source on which Commissioner Asselstine was relying indicates that only four earthquakes of any magnitude have occurred at or near San Luis Obispo during the last 200 years. See National Oceanic & Atmospheric Administration, U.S. Dep’t of Commerce, Pub. No. 41-1, Earthquake History of the United States 155-86 (Rev.ed.1973). Moreover, none of these earthquakes is reported to have caused any damage that would interfere with emergency responses. The earthquake of 1830 damaged a church. Id. at 156. The earthquake of December 17,1852 knocked down part of an adobe dwelling and fractured the walls of two others. Id. Although the earthquake of June 11, 1903 was felt at San Luis Obispo, the only damage (fallen chimneys) occurred near San Jose. Id. at 162. Similarly, the earthquake of December 6, 1906 was felt at San Luis Obispo, but the damage was limited to a cracked lighthouse at Piedras Blancas. Id. In short, the information on which petitioners rely in no way undermines the Commission’s observation that “earthquakes of sufficient size to disrupt emergency responses at Diablo Canyon would be so infrequent that their specific consideration is not warranted.” CLI-84-12, 20 N.R.C. at 252.
The probability of any size earthquake occurring in San Luis Obispo in any given year is about one in fifty. If the operating life of the plant is forty years, the probability that any size earthquake and an independent radiologic emergency both will occur at Diablo Canyon during a single year during the life of the plant is one in 125,-000. The probability that the two events will occur contemporaneously in a single week during the life of the plant is approximately one in 6,500,000. Thus, it is no objection that the Commission did not hold hearings to determine the size earthquakes required to interfere with emergency responses since earthquakes of any size are very infrequent events in the San Luis Obispo area.
The probabilities are even smaller when we consider the OBE, a somewhat larger earthquake that might more conceivably interfere with emergency responses. For Diablo Canyon, the OBE was calculated to be an earthquake with maximum vibratory ground acceleration of 0.2g. See ALAB-644, 13 N.R.C. 903 (1981). The Appeal Board observed that for the Diablo Canyon OBE, “the lowest average return period computed by any of the methods used in the analyses is 275 years.” Id. at 992 (emphasis added). Based on its review, the Appeal Board concluded:
The record ... does not bear out the claim that the Diablo Canyon site is one of “high seismicity.” The term refers to the frequency of seismic events. Drs. Anderson and Trifunac plotted for the years 1950 through 1974 the known epicenters in the region, centered around Diablo Canyon, between 33° and 37° north latitude and 119° to 123° west longitude. That plot, and the calculated low recurrence rate of an earthquake of the magnitude assigned the OBE, indicate that the region is at most one of low to moderate seismicity.
ALAB-644, 13 N.R.C. at 993-94 (emphasis added) (footnotes omitted).
Based on these figures, the Commission could properly conclude that the probability of the two events occurring contemporaneously is extraordinarily low. The record establishes that the probability of an OBE at Diablo Canyon in any given year is, at most, one in 275. The probability that an independent radiological emergency will occur in a given year is one in a hundred thousand. Since the operating life of the plant is forty years, this means that the probability that an OBE and a radiological emergency will both occur at Diablo Canyon within the space of a single year during the life of the plant is one in 687,500. The probability that the two events will occur contemporaneously (say, within the space of a single week during the life of the plant) is approximately one in 35,750,-000. The possibility that an earthquake would disrupt a response to a radiological emergency is so extremely low as to be, for any practical purpose, non-existent. If the NRC is required to hold hearings on the emergency plans to deal with contingencies of that level of improbability, we can think of no speculative danger that would not require a hearing. Such a conclusion would serve no purpose other than to enable petitioners to hold up licensing for many more years, and probably for a period long enough to make the construction of nuclear power plants entirely economically unfeasible.
Perhaps petitioners’ real objection is not that the Commission erroneously concluded that the probability is exceedingly low that an earthquake and an independent accident will occur contemporaneously, but that the Commission acted arbitrarily in refusing to consider earthquakes while permitting consideration of other natural phenomena. See Pet.Supp.Br. at 17-18. “Hence,” petitioners argue, “[the Commission’s] exclusion of earthquakes in the context of emergency planning is not only arbitrary, but irrational.” Id. at 18. Despite this assertion, it is clear that the Commission’s differential treatment of these phenomena is entirely rational.
Petitioners assert that “the Commission does consider ... volcano[es], hurricanefs], [and] tornado[es],” and then state: “Notably, with respect to Diablo Canyon, the Commission allowed Petitioners the opportunity to litigate the potential impacts of tornadoes and hurricanes on emergency response, but provided no basis upon which to conclude that their occurrence is any more probable than an earthquake — the potential impacts of which were excluded from the hearing process.” Pet.Supp.Br. at 17-18 (emphasis in original). These are strong statements, and so it is remarkable that petitioners offer no support in their initial brief for either of those assertions. In their reply brief, however, petitioners cite as support, and their only support, Commissioner Asselstine’s Diablo Canyon dissent. The only possibly relevant portion of that dissent states:
The probability that a tornado will travel through a particular 10-mile area and thereby initiate or disrupt response to an emergency at a nuclear plant must be quite low; yet, the Commission requires consideration of that issue for certain plants. Similarly, the probability of a hurricane striking the San Luis Obispo coastal area and initiating or disrupting an emergency response must also be quite low; yet the Commission considered that very issue in the Diablo Canyon case.
Diablo Canyon, CLI-84-12, 20 N.R.C. at 263 (dissenting views of Commissioner As-selstine).
With respect to tornadoes, petitioners simply misstate Commissioner Asselstine’s position. His dissent clearly states that “the Commission requires consideration of [tornadoes] for certain plants. ” Id. (emphasis added). It does not, as petitioners assert, state that the Commission considered tornadoes in the case of Diablo Canyon or that the Commission considers tornadoes for most plants.
Commissioner Asselstine does assert in his dissent that the Commission considered the possibility of a hurricane striking the Diablo Canyon plant. Id. But Commissioner Asselstine, like petitioners, provides no record citation to establish that such consideration in fact took place. Indeed, PG & E asserts that Commissioner Assel-stine was simply mistaken. PG & E Brief at 17. Thus, petitioners’ reliance on Commissioner Asselstine’s dissent does nothing to advance their claim. At oral argument, petitioners repeatedly emphasized Commissioner Asselstine’s dissent. Petitioners were then specifically asked whether they could produce any citations of instances where the Commission had required consideration of infrequent natural phenomena other than earthquakes. Petitioners’ reply was that they could not. As a matter of law, petitioners’ reliance on Commissioner Asselstine’s unsubstantiated assertion is insufficient to establish that the Commission considered any highly infrequent natural phenomena in its review of the Diablo Canyon emergency plans, and therefore acted arbitrarily in excluding consideration of earthquakes.
In its Diablo Canyon decision, the Commission observed that “[w]ith one exception, the focus has always been on frequently occurring natural phenomena.” CLI-84-12, 20 N.R.C. at 252. “The one exception is Trojan, for which consideration has been given to the effects of volcanic eruption due to the expectation that another explosion is imminent at Mt. St. Helens.” Id. at 252 n.4. The Commission’s consideration of a volcanic eruption at Mt. St. Hel-ens on emergency planning at the nearby Trojan plant does not render arbitrary the Commission’s decision not to consider earthquakes at Diablo Canyon. A major eruption occurred at Mt. St. Helens in May, 1980, and there was scientific evidence that there was a probability of further volcanic activity in the near future. This is in significant contrast to the situation at Diablo Canyon. Petitioners have pointed to nothing in the record to suggest that there has been an earthquake near Diablo Canyon in the recent past that would have posed any threat to the plant or to emergency responses. As we have already discussed, the Commission reasonably concluded that the possibility that an earthquake would occur at the plant contemporaneously with an independently caused radiological release is too small to require specific consideration. Under these circumstances, the Commission’s decision to consider volcanic eruptions at Trojan, but exclude consideration of earthquakes at Diablo Canyon, was entirely rational.
Petitioners correctly point out that “on-the-record consideration was given to complications resulting from other natural phenomena, such as fog and heavy rain.” Pet. Supp.Br. at 18-19. In Diablo Canyon, the Commission itself stated that “[i]n prior cases, such frequently occurring natural phenomena as snow, heavy rain, and fog have been considered.” CLI-84-12, 20 N.R.C. at 252. The Commission went on to stress, however, that “the focus has always been on frequently occurring natural phenomena.” Id. (emphasis added). Thus, the Commission may require consideration of snow for a plant in Pennsylvania where snow occurs frequently. This does not mean, however, that the Commission acts arbitrarily if it excludes consideration of snow for plants in southern Florida.
We cannot say that the Commission decision to consider such frequently occurring natural phenomena as rain and fog, but not to consider the infrequent phenomenon of a major earthquake, was arbitrary and capricious. There is record evidence that dense fog (visibility of less than a quarter mile) occurs, on average, approximately eighty-eight times a year, see Evacuation Time Assessment for the Diablo Canyon Nuclear Power Plant at 7, Sept. 1980, Record, vol. 102, applicant’s exh. 78 at 7, at Operating License Hearing, Jan. 19-26, 1982, and that heavy rainfall (greater than .31 inches per day) has occurred up to twenty-five times in a given year. See Diablo Canyon Units 1 and 2 Final Safety Analysis Report at 2.3A-44, 2.3A-45 table 7 (applicant’s exh. 5 at Operating License Hearing, Oct. 18, 1977). This establishes that rain and fog are far more likely to occur at the plant than a major, disrupting earthquake.
It is of no significance that the Commission did not announce a general standard for determining what constitutes frequently occurring and infrequently occurring natural phenomena. We are reviewing the Commission’s action in this case to determine if it is arbitrary and capricious. To conclude that the Commission did not act arbitrarily and capriciously in this case, it is sufficient that the record establishes that fog is 24,200 times more likely to occur, and rain is 6,875 times more likely to occur, at Diablo Canyon than is a major earthquake. (Contrary to the dissent’s charge, this comparison relates the frequencies of rain and fog to that of earthquakes and does not involve multiplying either by the chances of an independent nuclear accident.) Under these circumstances, the Commission certainly drew a rational distinction between rain and fog, on the one hand, and earthquakes, on the other. Given the relative probabilities, this court cannot conclude that the Commission’s decision was arbitrary and capricious.
3. Flexibility of emergency plans. The Commission gave a third reason for excluding consideration of earthquakes:
The Commission’s view that it need not give specific consideration to the complicating effects of earthquakes on emergency planning in this case is bolstered by the following consideration. Specific consideration has been given in this case to the effects of other relatively frequent natural phenomena. The evidence includes the capability of the emergency plan to respond to disruptions in communication networks and evacuation routes as a result of fog, severe storms and heavy rain. In the extreme, these phenomena are capable of resulting in area-wide disruptions similar to some of the disruptions which may result from an earthquake. Testimony in the Diablo Canyon record indicates that adverse weather conditions such as the effect of heavy fog could increase evacuation time to approximately 10 hours. Thus, while no explicit consideration has been given to disruptions caused by earthquakes, the emergency plans do have considerable flexibility to handle the disruptions caused by various natural phenomena which occur with far greater frequency than do damaging earthquakes, and this implicitly includes some flexibility to handle disruptions by earthquakes as well.
Diablo Canyon, CLI-84-12, 20 N.R.C. at 252-53.
Petitioners argue that “the Commission majority provides no support whatsoever for its third assertion” and that therefore the Commission’s conclusion about the flexibility of the emergency plans “is complete speculation and nothing more.” See Pet. Supp.Br. at 18-19. Petitioners’ argument is both irrelevant and wrong. The Commission expressly stated that it was citing the inherent flexibility of the emergency plans only to “bolster” its conclusion that specific consideration of earthquakes is not warranted. See CLI-84-12, 20 N.R.C. at 252. At the outset of its decision, the Commission set forth the positions of the parties, attributing the flexibility argument to PG & E and the argument based on probability to its staff. See id. at 251. The Commission then began its analysis by stating: “The Commission agrees with the NRC staff’s analysis in this case.” Id. Thus, even if petitioners’ attack on the flexibility rationale were successful, that would not damage the Commission’s basic argument, which was that the coincidence of two highly improbable events was so radically improbable as not to require a hearing.
In any case, the Commission’s observations about the inherent flexibility of emergency plans does, in fact, support its decision not to consider earthquakes. Those remarks are also entirely consistent with the emergency planning regulation. Both of these conclusions are easily demonstrated. The regulation sets forth sixteen general standards with which emergency plans must comply. For example, these standards require emergency plans to provide and maintain “[ajdequate emergency facilities and equipment to support the emergency response,” as well as to use “[ajdequate methods, systems, and equipment for assessing and monitoring actual or potential offsite consequences of a radiological condition.” 10 C.F.R. § 50.47(b)(8) & (9). The regulations make no reference to specific conditions or accident sequences. As early as 1981, just one year after the regulations were promulgated, the Commission observed in another context: “The current regulations are designed with the flexibility to accommodate a range of onsite accidents, including accidents that may be caused by severe earthquakes. This does not, however, mean that emergency plans should be tailored to accommodate specific accident sequences____” San Onofre, CLI-81-33, 14 N.R.C. at 1092. Thus, the Commission’s observation in this case that the Diablo Canyon emergency plans contain a measure of inherent flexibility is supported by the fact that the plans were designed and approved in accordance with the standards of flexibility set forth in the emergency planning regulation.
As the NRC points out, the emergency response plan already in place to deal with frequent natural phenomena has the capacity to be of assistance in coping with problems that may be expected to occur as the result of an earthquake. For example, in the event that commercial telephone lines go down, the plans provide for back-up communications, including radio transmission and telephone lines dedicated specifically to all critical facilities and organizations. See LBP-82-70, 16 N.R.C. 756, 775, 817-18 (1982). Similarly, if roads become unusable, the plan specifically contemplates the use of helicopters, overland vehicles, and boats. Id. at 773, 814-16, 834-35. Petitioners’ argument is that the Commission should have held a hearing to determine whether these alternate facilities will be useful in the event of an earthquake. But the Commission is not required to hold a hearing to prove what common sense shows, that such backup communication and transportation plans and facilities are likely to prove helpful in the event of an earthquake as well as in the event of a heavy rain. It was, therefore, entirely rational for the Commission to bolster its conclusion with the observation that the emergency response plan already in place has flexibility that would aid in dealing with disruptions caused by earthquakes.
We conclude that petitioners have failed to establish that the Commission’s refusal to require emergency response plans to consider earthquakes was arbitrary and capricious or irrational.
C.
In short, petitioners have been unable to advance any reason why the deference normally accorded to an agency’s interpretation of its own regulations should not be given to the Commission’s interpretation in this case. The Commission has consistently and repeatedly interpreted its emergency planning regulation not to require consideration of the effects of earthquakes in emergency planning and this interpretation is neither plainly inconsistent with the regulatory language nor arbitrary and capricious. Under these circumstances, the Commission’s interpretation is controlling. See United States v. Larionoff, 431 U.S. at 872-73, 97 S.Ct. at 2155-56.
Because the NRC was not required by its regulations to consider the potential complication effects of earthquakes on emergency planning in its decision to license Diablo Canyon, and in fact affirmatively excluded such consideration, there is no merit to petitioners’ claim that they were denied a hearing on this issue in violation of section 189(a) of the Atomic Energy Act. See Union of Concerned Scientists, 735 F.2d 1437.
III.
Petitioners ask this court to supplement the record to consider transcripts of a closed meeting of the Nuclear Regulatory Commission. Petitioners claim that “[t]he illegitimacy of the Commission majority’s decision to exclude earthquakes from emergency planning at Diablo Canyon is confirmed by an examination of the closed meeting transcripts.” Pet.Supp.Br. at 21.
Judicial examination of these transcripts would represent an extraordinary intrusion into the realm of the agency. These transcripts record the frank deliberations of Commission members engaged in the collective mental processes of the agency. In a case reviewing action by the Secretary of Agriculture, the Supreme Court had this to say about the district court’s authorization of deposition of the Secretary:
[T]he Secretary should never have been subjected to this examination. The proceeding before the Secretary “has a quality resembling that of a judicial proceeding.” Such an examination of a judge would be destructive of judicial responsibility. We have explicitly held in this very litigation that “it was not the function of the court to probe the mental processes of the Secretary.” Just as a Judge cannot be subjected to such scrutiny, so the integrity of the administrative process must be equally respected.
United States v. Morgan, 313 U.S. 409, 422, 61 S.Ct. 999, 1004, 85 L.Ed. 1429 (1941) (citations omitted).
As the Supreme Court has stated, “there must be a strong showing of bad faith or improper behavior before [inquiry into the mental processes of the administrative deci-sionmaker] may be made.” Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 420, 91 S.Ct. 814, 825, 28 L.Ed.2d 136 (1971). Petitioners have made no such showing in this case.
Petitioners offer nothing but the transcripts to support their motion to supplement the record. Apparently unable to point to any independent evidence of improper conduct by the Commission, petitioners simply assert that the transcripts alone are sufficient to establish the requisite bad faith and improper conduct on the part of the Commission. We reject this approach. Petitioners must make the requisite showing before we will look at the transcripts. We will not examine the transcripts to determine if we may examine the transcripts.
There may be cases where a court is warranted in examining the deliberative proceedings of the agency. But such cases must be the rare exception if agencies are to engage in uninhibited and frank discussions during their deliberations. Were courts regularly to review the transcripts of agency deliberative proceedings, the discussions would be conducted with judicial scrutiny in mind. Such agency proceedings would then be useless both to the agency and to the courts. We think the analogy to the deliberative processes of a court is an apt one. Without the assurance of secrecy, the court could not fully perform its functions.
We deny petitioners’ request to supplement the record in this case since petitioners have failed to make an independent showing that the Commission acted improperly or in bad faith.
The Commission’s decision is, therefore,
Affirmed.
. Courts show deference to an agency’s interpretation of its governing statute. “When the construction of an administrative regulation rather than a statute is in issue, deference is even more clearly in order.” Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 801, 13 L.Ed.2d 616 (1965).
. Nevertheless, the dissent insists that the Commission’s interpretation of its emergency planning regulation is entitled to no weight because it "is inconsistent with the fundamental purposes of those regulations." Dissent at 5. This requirement is found nowhere in the controlling Supreme Court precedent and we decline to adopt it here. Given the dissent’s view of the regulation’s purpose — to plan for the unexpected — any Commission interpretation that declines to require consideration of any particular occurence, no matter how improbable, would be invalid. The dissent repeatedly stresses that the Diablo Canyon plant is "located only three miles from an active geological fault." Dissent at 32; see id. at 31. But under the dissent’s own approach, a plant’s proximity to a fault is irrelevant. Every plant must plan for the disrupting effects of an earthquake regardless of the likelihood that one will actually occur.
Even the dissent, however, stops short of following its analysis to its logical conclusion. For example, at one point it states:
[T]he Commission can ... exclude from consideration (initiating or complicating events] with such low probabilities that they would not warrant prudent risk reduction meth-ods____ While drawing the line between probabilities will sometimes prove difficult, the Commission clearly does not have to consider an event as unlikely as an earthquake greater than the 7.5 magnitude SSE for Diablo Canyon.
Dissent at 51 n. 7 (citations omitted). In this the dissent is obviously correct. But once the dissent concedes that there exist some contingencies which the Commission is not required to consider, it cannot at the same time maintain that the Commission’s refusal to consider an occurrence because of its improbability conflicts with the purpose of the regulation. It follows that the Commission is left with a comparison of relative probabilities — a matter of line drawing. In this circumstance, we think the only inquiry open to us is whether the Commission’s decision that the regulation does not require consideration of earthquakes was rational. The dissent might wish to draw the line elsewhere, but, as will be shown, petitioners have not met their burden of demonstrating that the Commission’s decision was irrational.
. Our conclusion is buttressed by the fact that the emergency planning regulation cites a preliminary version of NUREG-0654 "for Interim Use and Comment," issued in January 1980 before the regulation itself was adopted in August 1980. See 10 C.F.R. § 50.47(b) n. 1 (1984).
. The Commission noted, however, that it "will consider on a generic basis whether regulations should be changed to address the potential impacts of a severe earthquake on emergency planning." San Onofre, 14 N.R.C. at 1092. On the basis of this consideration, the Commission decided that the regulations should not be amended to require consideration of earthquakes and has proposed instead a rule providing explicitly that earthquakes need not be considered in emergency planning. See 49 Fed. Reg. 49,640 (1984).
. The Commission in addition determined that petitioners made no showing of special circumstances within the meaning of 10 C.F.R. § 2.758 (1984) warranting a waiver of the regulations to permit consideration of the effects of earthquakes on emergency planning at Diablo Canyon. See CLI-84-12, 20 N.R.C. at 253-54.
. We note that even if petitioners were accurate in their assertion that the Commission’s staff "frequently advocated" the view that emergency plans should consider the effects of earthquakes, the Commission would be under no obligation to accept the staffs view and either interpret or amend its regulations to require such consideration.
. The probability that the two events will occur in a particular year is 1 in 5,000,000. The probability that the two events will occur during any year during the life of the plant is obtained by multiplying the above probability times 40 years, the life of the plant.
. This probability is derived by multiplying one over 52 times the probability that the two events will occur in any single year during the life of the plant.
. The probability that the two events will occur in a particular year is one in 27,500,000. The probability that the two events will occur during any year during the life of the plant is obtained by multiplying the above probability times 40 years, the life of the plant.
. The probability is derived by multiplying one over 52 times the probability that the two events will occur in any single year during the life of the plant.
. For an earthquake to complicate an emergency response the two events would probably have to occur closer in time than one week. If a period of 48 hours were chosen, for example, the odds against a simultaneous occurrence would be far higher even than those mentioned in the text.
. The dissent states that we unfairly refuse to look at Commission decisions not cited by petitioners, yet "unquestionably accept[ ]" the Commission’s assertion that it had previously considered only frequently occurring natural phenomena. Dissent at 55-56. "Fairness would seem to dictate that both parties cite cases to support their opposing claims before the court accepts either. Here, unfortunately, neither party did so.” Id. In addition to requiring that the Commission prove a negative, this objection ignores the more basic point that the burden of proof is on the petitioners and that, consequently, they bear the risk of nonpersuasion. Moreover, the cases cited by the dissent (involving, for example, the possibility of severe winter storms), while they may consider occurrences that are to some degree “infrequent,” do not compare in degree of rarity with the event whose occurrence is considered here. These are judgments of degree and wherever the spectrum is cut it will always be possible to point out that events on opposite sides of the line are not vastly different. | 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. | [] | [
0
] | songer_appnatpr |
Jerrell DORSEY, Plaintiff-Appellant, v. J.C. EDGE, Officer, Defendant-Appellee.
No. 86-8706
Non-Argument Calendar.
United States Court of Appeals, Eleventh Circuit.
June 22, 1987.
Wesley Williams, (Court appointed), Blairsville, Ga., for plaintiff-appellant.
Phillip L. Hartley, Harben & Hartley Law Firm, Gainesville, Ga., for defendant-appellee.
Before HILL, KRAVITCH and EDMONDSON, Circuit Judges.
PER CURIAM:
Jerrell Dorsey, a Georgia inmate, brings this appeal from the district court’s dismissal of his civil rights suit against Officer J.C. Edge and Warden Dale Glenn. Finding no abuse of discretion, we affirm the district court’s order.
Dorsey filed this civil rights action under 42 U.S.C. § 1983, alleging that Edge struck him in the head and mouth with a set of keys and then conspired with Glenn to conceal the truth about the assault. After determining that Dorsey's complaint was not frivolous, the district court appointed counsel and granted a 90 day extension of time for discovery. The pre-trial order listed Dorsey as the only witness in his own behalf; it further stated that if-the warden of the facility where Dorsey was incarcerated would not produce him for trial, Dorsey's evidence was to be submitted by deposition. Although the court requested that the Department of Corrections authorize Dorsey's transfer and that the county sheriff transport him to and from trial, the court advised the parties that it would not require the production of the plaintiff by writ of habeas corpus ad testificandum. When Dorsey did not appear at trial, his attorney indicated that he could not proceed without Dorsey's presence since he had not taken his client's deposition. At this point, the district court concluded that it had no alternative but to dismiss the case for want of prosecution.
Normally, the dismissal of a prisoner civil rights case for failure to prosecute is disfavored because such a harsh sanction "runs counter to the policy of the law favoring the disposition of cases on the merits." Holt v. Pitts, 619 F.2d 558, 562 (6th Cir.1980). In this case, however, the district court appointed counsel and explicitly informed both Dorsey and his counsel in the pre-trial order that the plaintiff's evidence could be presented by deposition. The trial judge thus complied with this court's mandate that district courts should be "imaginative and innovative" in devising ways to afford a prisoner plaintiff his day in court. See Ballard v. Spradley, 557 F.2d 476, 480 (5th Cir.1977). A prisoner's right of access to the courts does not necessarily guarantee him the right to be physically present at the trial of his civil suit. Pollard v. White, 738 F.2d 1124, 1125 (11th Cir.1984), cert. denied, 469 U.S. 1111, 105 S.Ct. 791, 83 L.Ed.2d 785 (1985). Here the district judge took reasonable steps to insure that the plaintiff would be able to present his case, but Dorsey and his counsel failed to avail themselves of that opportunity. The district court therefore did not abuse its discretion in dismissing this action for want of prosecution.
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 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. | [] | [
0
] | songer_r_bus |
NATIONAL LABOR RELATIONS BOARD, Petitioner, v. WEATHERCRAFT COMPANY OF TOPEKA, INC., Respondent.
No. 85-2804.
United States Court of Appeals, Tenth Circuit.
Nov. 9, 1987.
Collis Suzanne Stocking, Attorney, Rosemary M. Collyer, General Counsel, John E. Higgins, Deputy General Counsel, Robert E. Allen, Associate General Counsel, and Elliott Moore, Deputy Associate General Counsel, N.L.R.B., Washington, D.C., on the brief, for petitioner.
Richard D. Anderson and Jeffrey A. Cha-nay of Entz, Anderson & Chanay, Topeka, Kan., on the brief, for respondent.
Before SEYMOUR, MOORE, and BALDOCK, Circuit Judges.
SEYMOUR, Circuit Judge.
After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed.R.App.P. 34(a); 10th Cir.R. 34.1.8. The cause is therefore ordered submitted without oral argument.
The National Labor Relations Board has petitioned this court for enforcement of its order against Weathercraft Company of Topeka, Inc. (Weathercraft). The Board’s order concluded that Weathercraft had committed an unfair labor practice by instituting unilateral modifications to a collective bargaining agreement without providing timely notice to state and federal mediation agencies as required by section 8(d)(3) of the National Labor Relations Act, 29 U.S.C. § 158(d)(3) (1982). The Board ordered Weathercraft to, inter alia, refrain from terminating or modifying the agreement until thirty days after it had provided notice under section 8(d)(3), and to make whole all employees and fringe benefit funds for losses suffered as a result of the unilateral modifications. Weathercraft contends that it did not bear the burden of providing notice under section 8(d)(3), and that the “make whole” remedy is unwarranted in any event. We find no merit in these arguments and grant enforcement of the order.
I.
The facts underlying this enforcement action are undisputed. Weathercraft, a roofing contractor, executed a collective bargaining agreement negotiated between the roofers union and the roofing contractors association, to be effective June 1, 1982, through May 31, 1983. This contract contained an “evergreen provision,” under which the contract would automatically renew from year to year unless the union or the roofing contractors gave notice, not less than sixty days prior to the expiration date, of a desire to modify, amend, or terminate the agreement. During 1982, the union filed an unfair labor practice charge. As a result, the union and Weathercraft entered into a settlement agreement and an interim agreement extending the 1982-83 collective bargaining agreement, as modified, until May 31, 1984. These agreements recognized Weathercraft’s right to withdraw from the roofing contractors association and negotiate with the union on its own after May 31, 1984.
On March 22, 1984, the union received a letter from Weathercraft which stated:
“So there are no misunderstandings, Weathercraft Co. of Topeka hereby advises each of you listed above that it is withdrawing from the Associated Roofing Contractors of Topeka, Kansas, and it will not participate in the Employers Bargaining Unit in upcoming labor contract negotiations. Weathercraft Company of Topeka, will negotiate a contract separately with Roofers Local 20B.”
Rec., vol. II, at 75. On May 29, 1984, the union’s business manager sent Weather-craft a letter stating: “I am pleased to inform you that the members of Local #20B voted not to open the contract for negotiations as provided for in Article XX of the Agreement [the evergreen provision], thus agreeing to work under the contract without change for another year.” Id. at 77.
In subsequent correspondence, Weather-craft insisted it and the union had agreed that the contract would expire on May 31, 1984 and that its March 22 letter confirmed that understanding. The union took the position that the evergreen clause was incorporated into the interim agreement, and insisted that because it had allegedly received no timely notification of Weather-craft’s desire to modify or amend the contract, the contract renewed automatically. Efforts to bargain over a new contract were unavailing and Weathercraft instituted its unilateral changes on September 10, 1984.
II.
The Board’s complaint charged Weathercraft with committing unfair labor practices by failing to notify federal and state mediation agencies of its dispute with the union, and by instituting unilateral changes in the collective bargaining agreement. Section 8(a)(5) of the Act states that it is an unfair labor practice for an employer to refuse to bargain collectively with the representatives of his employees. 29 U.S.C. § 158(a)(5) (1982). Section 8(d) provides that
“the duty to bargain collectively shall also mean that no party to such contract shall terminate or modify such contract, unless the party desiring such termination or modification—
(1) serves a written notice upon the other party to the contract of the proposed termination or modification sixty days prior to the expiration date thereof, or in the event such contract contains no expiration date, sixty days pri- or to the time it is proposed to make such termination or modification;
(2) offers to meet and confer with the other party for the purpose of negotiating a new contract or a contract containing the proposed modifications;
(3) notifies the Federal Mediation and Conciliation Service within thirty days after such notice of the existence of a dispute, and simultaneously therewith notifies any State or Territorial agency established to mediate and conciliate disputes within the State or Territory where the dispute occurred, provided no agreement has been reached by that time; and
(4)continues in full force and effect, without resorting to strike or lock-out, all the terms and conditions of the existing contract for a period of sixty days after such notice is given or until the expiration date of such contract, whichever occurs later.”
Id. § 158(d). The courts have consistently interpreted section 8(d) as imposing these four requirements only “ ‘upon the party to the contract who raises the possibility of industrial conflict by moving to open up the existing contractual agreements.’ ” NLRB v. Peoria Chapter of Painting Contractors, 500 F.2d 54, 56 (7th Cir.1974) (quoting United Furniture Workers v. NLRB, 336 F.2d 738, 741 (D.C.Cir.1964)); see also International Alliance of Theatrical Employees v. NLRB (IATSE), 779 F.2d 552, 555-56 (9th Cir.1985), cert. denied, — U.S. -, 106 S.Ct. 3273, 91 L.Ed.2d 563 (1986). The party who first gives notice as provided by section 8(d)(1) is thus considered the initiating party and bears the burden of complying with section 8(d)(3), notwithstanding the other party’s subsequent indication that it desires to renegotiate as well. See IATSE, 779 F.2d at 554 n. 3; NLRB v. Mar-Len Cabinets, Inc., 659 F.2d 995, 998 (9th Cir.1981).
In this case, Weathercraft concedes in this court that the Board correctly characterized the March 22 letter as appropriate notice of Weathercraft’s desire to terminate or modify the collective bargaining agreement within the meaning of section 8(d)(1). Weathercraft’s argument that it was nonetheless not the initiating party for purposes of section 8(d)(3) because the union subsequently attempted to invoke the evergreen clause is simply without legal support.
Section 8(d)(4) expressly prohibits the initiating party from modifying the existing contract only for sixty days after notice has been given to the other party under section 8(d)(1). However, the courts have uniformly held that an initiating party who gives untimely section 8(d)(3) notice to the Federal Mediation and Conciliation Service commits an unfair labor practice by resorting to strike, lock-out, or unilateral modification within thirty days of such notice even when the action occurs more than sixty days after notice to the other party. See, e.g., United Furniture Workers, 336 F.2d at 740-41; Local Union 219, Retail Clerks Int’l Ass’n v. NLRB, 265 F.2d 814, 818 (D.C.Cir.1959); see also R. Gorman, Basic Text on Labor Law, ch. 20, § 7, at 425-26 (1976). We agree with this interpretation. Accordingly, Weathercraft committed an unfair labor practice by unilaterally changing its agreement with the union when no section 8(d)(3) notice had been given.
III.
Based on its conclusion that Weathercraft committed unfair labor practices by failing to give the notice required by section 8(d)(3) and by unilaterally modifying the agreement before such notice had been given, the Board ordered Weather-craft to restore wages, rights, and benefits to the affected employees and benefit funds for the period from September 10, 1984, to thirty days after Weathercraft had complied with section 8(d)(3). Weather-craft contends that, because it attempted to bargain in good faith and because its failure to give section 8(d)(3) notice was inadvertent, a make whole remedy extending beyond thirty days from the date of the unilateral changes is unwarranted.
Section 10(c) of the Act authorizes the Board “to take such affirmative action including reinstatement of employees with or without backpay, as will effectuate the policies of [the Act].” 29 U.S.C. § 160(c) (1982). The Supreme Court “has repeatedly interpreted this statutory command as vesting in the Board the primary responsibility and broad discretion to devise remedies that effectuate the policies of the Act, subject only to limited judicial review.” Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 898-99, 104 S.Ct. 2803, 2812, 81 L.Ed.2d 732 (1984). The Court has cautioned the courts of appeals that “they should not substitute their judgment for that of the Board in determining how best to undo the effects of unfair labor practices.” Id. at 899, 104 S.Ct at 2812. We have accordingly held that “[t]he Board’s remedial order should not be disturbed unless it can be shown that the order is a patent attempt to achieve ends other than those which can fairly be said to effectuate the policies of the Act.” Dayton Tire & Rubber Co. v. NLRB, 591 F.2d 566, 570 (10th Cir.1979).
Awards of backpay clearly fulfill the policies of the Act by restoring the economic status quo that would have existed but for the employer’s unlawful conduct. See, e.g., NLRB v. J.H. Rutter-Rex Mfg. Co., 396 U.S. 258, 263, 90 S.Ct. 417, 420, 24 L.Ed.2d 405 (1969); NLRB v. International Ass’n of Bridge Workers, Local 433, 600 F.2d 770, 777 (9th Cir.1979), cert. denied, 445 U.S. 915, 100 S.Ct. 1275, 63 L.Ed.2d 599 (1980); Dayton Tire & Rubber, 591 F.2d at 570. While we agree with Weathercraft that the Board is not empowered to devise a punitive measure, see Republic Steel Corp. v. NLRB, 311 U.S. 7, 11-12, 61 S.Ct. 77, 79-80, 85 L.Ed. 6 (1940), we see nothing punitive under the circumstances here in requiring a remedy that covers the entire period during which Weathercraft’s conduct was in violation of the Act. See, e.g., NLRB v. Joseph Magnin Co., 704 F.2d 1457, 1462 (9th Cir.1983), cert. denied, 465 U.S. 1012, 104 S.Ct. 1014, 79 L.Ed.2d 244 (1984); NLRB v. Atlantic Int’l Corp., 664 F.2d 1231, 1233 (4th Cir.1981); Leeds & Northrup Co. v. NLRB, 391 F.2d 874, 879-80 (3d Cir.1968).
The Board’s petition for enforcement of its order is granted.
. The Board did not decide whether the evergreen clause was incorporated into the interim agreement. Rather, it concluded that the issue was rendered immaterial by Weathercraft’s failure to give notice as required by section 8(d)(3).
. The courts have disagreed on the violating party’s right to strike, lock-out, or modify the contract once thirty days has run from the untimely section 8(d)(3) notice. See, e.g. Local Union 219, Retail Clerks Int'l Ass’n v. NLRB, 265 F.2d 814, 818-19 (D.C.Cir.1959); see also R. Gorman, Basic Text in Labor Law, ch. 20, § 7, at 426 (1976). In this case, the Board ordered Weathercraft to cease and desist from terminating or modifying the agreement only until thirty days after it had complied with section 8(d)(3). The union has not challenged that portion of the Board’s order. | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "groups and associations". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. | What is the total number of appellants in the case that fall into the category "groups and associations"? Answer with a number. | [] | [
0
] | songer_appnonp |
Clarence C. JOHNSON, Appellant v. UNITED STATES of America, Appellee.
No. 16063.
United States Court of Appeals District of Columbia Circuit.
Argued April 17,1961.
Decided June 22, 1961.
Petition for Rehearing Denied Aug. 15, 1961.
Mr. Harold F. Golding, Washington, D. C. (appointed by the District Court) for appellant.
Mr. Arnold T. Aikens, Asst. U. S. Atty., with whom Messrs. Oliver Gasch, U. S. Atty., at the time of argument, and Carl W. Belcher, Asst. U. S. Atty., at the time of argument, were on the brief, for appellee. Mr. Donald S. Smith, Asst. U. S. Atty., also entered an appearance for appellee.
Before Wilbur K. Miller, Chief Judge, and Bazelon and Burger, Circuit Judges.
BURGER, Circuit Judge.
Appellant was convicted of “forging and uttering” under 22 D.C.Code § 1401 (1951). At his own request he was tried without a jury. A motion to suppress the victim’s stolen credit card was denied and the appellant contends this was error because the search warrant which authorized search of his dwelling did not describe the credit card but only other stolen articles which were recovered in the search.
A police officer engaged in searching appellant’s bedroom under a warrant which described numerous articles of stolen personal property opened a dresser drawer in the process of search. In the drawer he saw a credit card issued in the name of the complaining witness whose other stolen personal property had just been found in appellant’s possession. With the credit card was a statement from Lansburgh’s Department Store also in the complaining witness’ name. Neither the credit card nor the statement was specified in the warrant.
Appellant contends that it was reversible error for the District Court to refuse to suppress the card and statement as evidence. He argues that the police could not seize the credit card and statement without securing a new warrant as provided by Rule 41(c) Fed.R.Crim.P., 18 U.S.C.A. With the credit card were documents of purchase of merchandise in the name of the same person. Appellant’s brief states that the searching officer “discovered what ostensibly appeared to be forged documents * * An officer engaged in a lawful search is not confined to seizing only those items described in the warrant, especially where the unlisted items seized are instrumentalities of a crime. “The Fourth Amendment provides that the warrant must particularly describe the ‘things to be seized.’ But it is well established that given a lawful search some things may be seized in connection therewith which are not described in the warrant * Palmer v. United States, 1953, 92 U.S. App.D.C. 103, 104, 203 F.2d 66, 67. See also Bryant v. United States, 5 Cir., 1958, 252 F.2d 746. “This Court has frequently recognized the distinction between merely evidentiary materials, on the one hand, which may not be seized either under the authority of a search warrant or during the course of a search incident to arrest, and on the other hand, those objects which may validly be seized including the instrumentalities and means by which a crime is committed * * Harris v. United States, 1947, 331 U.S. 145, 154, 67 S.Ct. 1098, 1103, 91 L.Ed. 1399.
Affirmed.
. Appellant lias been tried and convicted for housebreaking and larceny of the personal property described in the warrant. Johnson v. United States, 110 U.S.App. 193, 290 F.2d 384. After the complaining witness had reported theft of the listed articles he learned that someone had forged his name to purchase agreements and he promptly reported this to the police.
In No. 16073 appellant challenged the validity of the instant search warrant under which certain goods later admitted into evidence were seized. He contended that the warrant was obtained upon information derived in executing an arrest warrant which was based upon a fatally defective complaint. No such contention was advanced in the instant case.
. The warrant included a maroon colored Atlas vacuum cleaner, a black and white Sylvania clock radio, wood cabinet radio, 2 hats, 15 shirts, blue suit, etc. | 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"
] | [
0
] | songer_origin |
POWELL et ux. v. WUMKES.
No. 10945.
Circuit Court of Appeals, Ninth Circuit.
June 6, 1945.
H. R. Griffin, of San Bernardino, Cal., for appellants.
Nichols, Cooper & Hickson, of Pomona, Cal., and C. P. Von Plerzen, of Los Angeles, Cal., for appellee.
Before MATHEWS, STEPHENS, and HEALY, Circuit Judges.
HEALY, Circuit Judge.
On a former appeal, Powell v. Wumkes, 9 Cir., 142 F.2d 4, we affirmed a decision of the bankruptcy court setting aside a referee’s valuation order and recommitting the matter for a further hearing. On the second hearing the referee fixed the value of the debtor’s property at $5,575. The secured creditor (appellee) again sought review, this time before Judge McCormick. On the review the judge set aside the referee’s valuation and recommitted the case once more. The debtor appeals.
The judge was of opinion that the referee had erred prejudicially in failing to consider evidence of sales of comparable property, as well as in rejecting evidence of a cash offer for the debtor’s property tendered by a witness for the creditor during the course of the hearing. It was thought that the unfair aspect of the referee’s determination was further manifested by affidavits received and considered on review.
We think the referee was right in ■rejecting evidence of cash offers. The purpose of a revaluation proceeding under the first proviso of § 75, sub. s(3) of the Bankruptcy Act, 11 U.S.C.A. § 203, sub. s(3), is not to effect a sale, but to determine the fair value at which the debtor may redeem Under such circumstances an offer to purchase is a meaningless gesture, if for no other reason than that there is no possibility of its being accepted. Cf. Sharp v. United States, 191 U.S. 341, 24 S.Ct. 114, 48 L.Ed. 211. However, there were other grounds upon which the judge might reasonably conclude that the hearing was unfair. For example, the debtor’s chief witness, on whose opinion the referee appears to have relied, fixed the value of the citrus grove in question at a figure in excess of $7,000 but arrived at a “net” value of $5,575 by the process of deducting a portion of the value of the growing crop. This was improper, since the unmatured crop was part of the real estate constituting the creditor’s security. Again, witnesses for the debtor were permitted to enlarge upon or explain their estimates of value by reference to their knowledge of sales of comparable property, whereas witnesses for the creditor were not allowed to do that. In their case the referee adhered to the altogether too narrow theory that such evidence is permissible only if developed on cross examination. Further, affidavits of competent persons, presented on review, fixed the reasonable 'value of the property at figures greatly in excess of that determined by the referee.
For the reasons given we are not disposed to disturb the judge’s order.
Affirmed.
Tile property is a citrus grove.
This witness was by profession an inheritance tax appraiser. | 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"
] | [
0
] | songer_genresp1 |
UNITED STATES of America, Plaintiff-Appellee, v. John Martin HUFFMAN, Defendant-Appellant.
No. 77-1741.
United States Court of Appeals, Tenth Circuit.
Submitted Aug. 8, 1978.
Decided March 29, 1979.
Steven W. Snarr, Asst. U. S. Atty., Salt Lake City, Utah (Ronald L. Rencher, U. S. Atty., Salt Lake City, Utah, on brief), for plaintiff-appellee.
John R. Bucher, Salt Lake City, Utah, for defendant-appellant.
Before HOLLOWAY, DOYLE and McKAY, Circuit Judges.
HOLLOWAY, Circuit Judge.
Defendant-appellant Huffman has brought this timely direct appeal of his conviction under 18 U.S.C. § 659 for theft from an interstate shipment. His primary contentions on appeal are (1) that his prosecution violated the Fifth Amendment guarantee against double jeopardy, (2) that the Government should have been collaterally estopped from introducing evidence on certain issues at his trial, and (3) that his Sixth Amendment right to a speedy trial has been violated.
Viewing the record in the light most favorable to the Government as we must on this appeal from a guilty verdict, United States v. Twilligear, 460 F.2d 79, 81-82 (10th Cir.), the evidence tended to show the following facts:
Defendant entered into a lease agreement with Hams Express, Incorporated on May 21, 1975, for the transportation of canned hams and ham hocks from Chicago, Illinois, to the United States Navy at Alameda and Los Angeles, California. The agreement encompassed the lease of a tractor-trailer for hauling the goods and the services of the defendant to drive the shipment to California. When defendant failed to make daily telephone reports, Hams Express, Incorporated contacted the Federal Bureau of Investigation on May 28, 1975, and reported the truck and shipment as missing.
On May 30, F.B.I. agents in Salt Lake City located defendant and interviewed him. He told the agents he had been on a “bender,” that he had gone to a bar at a Travelodge and tried to sell some of the hams, and that he got angry and told two men to “just take the whole truck.” (I R. 46). There was other proof the hams were sold for $5,500, that defendant got $4,000 in cash, and another man got $1,500. (Id. at 55 — 56). Since defendant had no authority to sell the cargo of hams, on June 2, 1975, the United States Magistrate issued a complaint against him. On July 11, defendant waived indictment and was arraigned on an information charging him with the theft of Government property in violation of 18 U.S.C. §§ 641 and 2.
After the case was set for trial, the Government discovered in the course of interviews with its witnesses that title to the hams had not yet vested in the United States when defendant sold the hams. On October 28, 1975, the Government filed a supplemental complaint against defendant alleging violation of 18 U.S.C. § 659, theft from an interstate shipment, and a motion to dismiss the charge under § 641. When the § 641 charge was called for trial on November 12, the Government renewed its motion to dismiss. The court ordered a jury impanelled and sworn. After counsel for the Government stated that elements of the offense originally charged could not be proved, the court granted a judgment of acquittal.
On January 16, 1976, when present for arraignment on the second charge, the defendant refused to waive indictment by a grand jury. (Ill R. 2). A grand jury indicted defendant on July 26, 1976, for violation of 18 U.S.C. §§ 659 and 2, theft of an interstate shipment and aiding and abetting. Defendant filed a “Motion for Order of Acquittal” on December 15, 1976, directed to the new charge under 18 U.S.C. §§ 659 and 2, claiming that the Government was collaterally estopped from proving elements of the new charge and that the defendant was twice put in jeopardy. The trial occurred on July 7, 1977, on the second charge, and the jury returned a guilty verdict that day. After several continuances, the judgment of conviction and sentence was filed on March 15, 1978. (I Supp. R. 1). Defendant appeals, and we turn now to his three major appellate contentions.
I
First, defendant argues that his conviction on the second charge under 18 U.S.C. §§ 659 and 2, theft from an interstate shipment, must be set aside on double jeopardy grounds.
Defendant recognizes the rulings that where one act is a transgression under two statutes, and where different evidence must be used to convict under the statutes, there may be prosecution under both, citing Gavieres v. United States, 220 U.S. 338, 31 S.Ct. 421, 55 L.Ed. 489. He says however that there is a test of more recent origin since Ashe v. Swensen, 397 U.S. 436, 445, 90 S.Ct. 1189, 25 L.Ed.2d 469, and he refers to views in the separate opinions of Justice Brennan in Abbate v. United States, 359 U.S. 187, 198, 79 S.Ct. 666, 3 L.Ed.2d 729, and Ashe, supra, at 448, 90 S.Ct. 1189. He urges adoption of the same transaction test and says that cases applying the same evidence test are distinguishable. He argues that cases applying the same evidence test were ones where the statutes were aimed at substantially different evils, e. g., United States v. DeMarrias, 441 F.2d 1304 (8th Cir.) (earlier plea of guilty to driving while intoxicated, etc., and later prosecution for manslaughter), whereas in our case both statutes deal with theft.
The Government replies with two basic contentions. In the first place it is argued that this case is closely parallel to United States v. Appawoo, 553 F.2d 1242 (10th Cir.), where we held that the Government was entitled to appeal a “judgment of acquittal” under the circumstances and that the trial court erred in entering a “judgment of acquittal” for defendant when the court had failed properly to hear a motion to dismiss on constitutional grounds before trial, had impanelled a jury and then taken some evidence, and had then entered the “judgment of acquittal” which was actually based on a holding that the application of the statute was unconstitutional. However, in Appawoo the Government appealed the “judgment of acquittal” and obtained a reversal to lay a predicate for retrial, along with an appellate ruling that the constitutional holding of the trial judge had been in error. Here, there was no appeal by the Government from the “judgment of acquittal.” The judgment was not reversed as was the case in Appawoo. The first contention of the Government is thus untenable and we must reckon with the effect of the “judgment of acquittal” on the subsequent prosecution under the theft of interstate shipment charge.
The second response of the Government to defendant’s double jeopardy defense is that the two offenses are separate and distinct and not identical in fact and law, that the same evidence could not prove both offenses, and that therefore the Double Jeopardy Clause does not apply at all.
We do agree with this contention. It is true that the same theft of property was charged in both indictments. However, a conviction under 18 U.S.C. § 641 for theft of Government property requires proof that the property taken belonged to the Government. On the other hand, a conviction under 18 U.S.C. § 659 for theft of an interstate shipment requires proof of movement of the property in interstate commerce. Thus each statute requires proof of an ultimate fact in addition to the theft, which the other does not, and double jeopardy principles are not infringed. See Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 40, 76 L.Ed. 520; Gavieres v. United States, supra, 220 U.S. at 342, 31 S.Ct. 421; Cox v. Gaffney, 459 F.2d 50 (10th Cir.), cert. denied, 409 U.S. 863, 93 S.Ct. 153, 34 L.Ed.2d 110; Bell v. Kansas, 452 F.2d 783, 792 (10th Cir.).
There remains the contention of defendant that we should adopt the same transaction test and the views on double jeopardy expressed by some Justices of the Supreme Court. See Abbate v. United States, supra, 359 U.S. at 196-201, 79 S.Ct. 666 (Brennan, J., concurring); Ashe v. Swenson, supra, 397 U.S. at 448-460, 90 S.Ct. 1189 (Brennan, J., concurring). The instant case does present directly problems such as have been addressed in these concurring opinions. However, the test of a single transaction or the same criminal episode has not been adopted by the Supreme Court and we have declined to apply it. See United States v. Addington, 471 F.2d 560, 568 (10th Cir.); Birch v. United States, 451 F.2d 165, 167 (10th Cir.).
In sum, since we agree that the charge of theft of Government property under § 641 is separate and distinct from that of theft of an interstate shipment under § 659, we conclude that the judgment for defendant on the former charge does not bar prosecution on the latter.
II
Defendant’s second major argument is that in multiple prosecutions the Government should be collaterally estopped in a later trial from introducing evidence on issues decided against it in a first trial. Defendant says that here the Government at the first trial failed to present evidence on any issue and therefore a judgment of acquittal was granted. More specifically, he argues that the issues of intent, identity, taking and the like were necessarily found for the defendant at the first trial and hence the Government was collaterally es-topped from introducing evidence on those elements of the charge of theft from the interstate shipment at the second trial. (Brief for Appellant, 7).
It is clear that principles of collateral estoppel are available in proper circumstances in criminal trials. See Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469; Sealfon v. United States, 322 U.S. 575, 68 S.Ct. 237, 92 L.Ed. 180; United States v. Oppenheimer, 242 U.S. 85, 37 S.Ct. 68, 61 L.Ed. 161. The rule is not applied with a hypertechnical and archaic approach, but with realism and rationality. This approach requires examination of the record in the prior proceeding, including the pleadings, evidence, charge and other relevant matters. Ashe, supra, 397 U.S. at 444, 90 S.Ct. 1189. The inquiry must be set in a practical frame with an eye to all the circumstances of the proceedings. Sealfon, supra, 322 U.S. at 579, 68 S.Ct. 237.
Following this approach, we must focus particularly on the proceeding when the trial court granted the “judgment of acquittal” on the first charge, theft of Government property. On that occasion on November 12, 1975, the case was called on a calendar where it had apparently been set for trial. (II Supp. R. 1, 4). An array of jurors was available.
When the case was called Government counsel advised the court of his pending motion to dismiss which had been filed October 28. The Assistant United States Attorney told the court that a supplemental complaint for theft of an interstate shipment had been filed, that the Government had been misinformed as to ownership of the property, and that the Government could not prove the charge originally made for theft of Government property. (Id. at 1-5). The defendant objected to dismissal. His counsel said that the Government had had five months to determine if the property was that of the Government. At this point the court had a jury impanelled and sworn.
The Government attorney then said further that the Government did not “have witnesses to prove the essential elements of the crime. They are non-existent.” (II Supp. R. 3). The attorney explained that the F.B.I. had advised that the hams were Government property, that when the case was set for trial witnesses were re-interviewed, that it was discovered for the first time that there was an ownership question, that ownership had not passed to the Government, and that a supplemental charge had been filed.
The defendant objected again to dismissal. His attorney said the Government had been advised of these facts earlier, that the defendant was ready for trial, that he was from California and had had great expense and inconvenience, and that he was unable to work. (Id. at 5).
The trial judge then stated that he agreed with defendant’s position, that it sounded as though there was a belated attempt by the Government to get a postponement, and that defendant “has been in jeopardy.” The jury was excused and the court then directed preparation of an order, stating:
All right. Dismissed. That is, not dismissed. Judgment of acquittal. Motion for judgment of acquittal is granted.
There were thus two apparent grounds for the trial court’s action — failure of the Government to offer any evidence and the Government’s announcement that it could not prove the elements of the charge of theft of Government property under 18 U.S.C. § 641. More specifically, it is clear that what the Government confessed was that it could not prove Government ownership of the property in question.
From these circumstances we cannot agree that the Government is collaterally estopped from proving the elements of the second charge of theft of an interstate shipment under 18 U.S.C. § 659. If the judgment is viewed as a sanction imposed for failure to prosecute the charge of theft of Government property, no particular issues were decided which are pertinent to the subsequent charge of theft from an interstate shipment. And if the whole record and the judgment adverse to the Government are considered, as Ashe requires, the only ultimate fact determined clearly seems to be lack of proof of Government ownership of the property, which defect the Government confessed in court. From this record that is the only ultimate issue of fact determined by the prior judgment for collateral estoppel purposes. Ashe, supra, 397 U.S. at 443, 445, 90 S.Ct. 1189.
Thus we conclude that the Government was not collaterally estopped to prove the elements of the second offense charged, theft of an interstate shipment.
Ill
Finally, defendant strenuously argues that his Sixth Amendment right to a speedy trial has been violated so that the case should be dismissed as required by Strunk v. United States, 412 U.S. 434, 93 S.Ct. 2260, 37 L.Ed.2d 56. He maintains that this conclusion is clear when the four factors for judging the speedy trial claim identified in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101, are considered.
First, we turn to the factor of the length of the delay. The theft allegedly occurred on May 27, 1975. Defendant was arrested and taken into custody on May 30, 1975. (Brief of Appellant, 8). It may be that we should view protection of the speedy trial provision as applying from that date of initial restraint. See United States v. Marion, 404 U.S. 307, 313, 320-21, 92 S.Ct. 455, 30 L.Ed.2d 468. And, of course, the actual trial on the second charge did not occur until July 7, 1977. From this standpoint the delay, of course, is very considerable and disturbing.
The case, however, has unusual circumstances which we have outlined earlier. The Government found it was misinformed by the F.B.I. and moved to dismiss the first charge and also filed the second charge of theft from an interstate shipment on October 28, 1975. The case was called for trial on November 12 on the original charge of theft of Government property, the Government brought its motion to dismiss to the court’s attention, but the court instead granted a judgment of acquittal on the first charge that day.
The defendant claims that he vigorously objected at that time to any dismissal on the ground that resulting delays would seriously prejudice his interests and defense and argues that this was a strenuous assertion of his right to a speedy trial. We note that it was on this occasion that the trial judge said he agreed with defendant, and that it sounded as though this was a belated attempt to get a postponement. (II Supp. R. 6). In any event, the court then entered the “judgment of acquittal.”
The new complaint under § 659 remained on file, however. On January 16, 1976, defendant refused to waive indictment by a grand jury and he was indicted for theft of an interstate shipment on July 26, 1976. Defendant’s counsel filed his “Motion for Order of Acquittal” on December 15, 1976, directed to that charge, relying on collateral estoppel and double jeopardy grounds. As noted, trial actually commenced on July 7, 1977.
Thus, there was considerable delay until trial, and this was sufficient to be presumptively prejudicial, causing inquiry into the other factors.
Second, we consider the reasons for the delay. The charges made fall far short of being a “serious, complex conspiracy charge,” Barker, supra, 407 U.S. at 531, 92 S.Ct. 2182, so as to justify some delay. Moreover the delay caused by the need to dismiss and file the new charge resulted from a Government error. We see nothing in the record suggesting any intentional harassment or oppression on the part of the Government; nevertheless, the error is not a plus for the Government and the delay it caused is a factor of some weight against the Government.
The Government says that the defendant contributed to the delay by his refusal to waive indictment by a grand jury. We do not agree. Defendant’s reliance on his Fifth Amendment right to indictment by a grand jury should not be charged against him. This is a neutral factor we feel.
For the most part the delay is not explained. Perhaps crowded dockets and responsibilities of the court and prosecutors contributed to the delay. However, even such unintentional delay must be considered since the ultimate responsibility for such circumstances rests with the Government and not the defendant. Strunk v. United States, supra, 412 U.S. at 436, 93 S.Ct. 2260.
Third, we come to the defendant’s assertion of his right to a speedy trial. As noted, he claims he asserted the right when he objected to dismissal of the first charge on November 12, 1975. This objection was made when the case was called for trial, the Government sought to dismiss, and the judgment of acquittal was granted. The defendant did then object on grounds relevant to his right to a speedy trial, asserting his readiness for trial, hardship to him and expense since he was from out of state, the difficulty of finding work and the like. The trial judge said that he agreed with defendant that the Government’s action looked like a belated effort to obtain a continuance. While we see no real basis for this conclusion by the court, we do agree that defendant’s objections did have the clear effect of demanding a speedy trial — at that time.
However, after the judgment of acquittal was granted that day, the story changed. The defendant did not thereafter reassert his right to a speedy trial by motion or otherwise until he orally moved for dismissal on July 5, 1977, two days before actual trial. (I R. 3-4). Failure to assert the right makes it difficult for a defendant to prove that he was denied a speedy trial. Barker, supra, 407 U.S. at 532, 92 S.Ct. 2182. In view of defendant’s long silence until his oral motion, we feel that his position is seriously weakened in claiming a Sixth Amendment infringement.
Fourth, we must weigh possible prejudice to the defendant. There is no claim of prejudice from pretrial incarceration. Anxiety and concern of defendant regarding the charges must be presumed, and they were endured for some time. In this connection we note that defendant’s counsel referred to his great expense and great inconvenience and inability to work when he objected on November 12, 1975, to dismissal of the first charge and filing of a new charge. (II Supp. R. 5).
The most significant element of possible prejudice is impairment of the defense. Barker, supra, at 532, 92 S.Ct. 2182. In this regard defendant’s claim is that by the time of trial three witnesses had “become unavailable, leading to impairment of the defense.” (Brief of Appellant, 10). Defendant’s attorney stated the day the trial began that they would support the defendant’s motion to suppress his statements made to the F.B.I. on the basis that he was intoxicated when he spoke to the agents.
It is true that defendant’s statements to the F.B.I. were damaging evidence against him. However, the three witnesses were not identified, and there was merely a conclusory statement that they had “become unavailable . . . ” In the circumstances we feel that the basis for the claim in this respect is not overly persuasive. See United States v. Gibson, 513 F.2d 978, 981 (6th Cir.).
While there is some force to the Sixth Amendment claim, particularly because of the length of delay, weighing all of the Barker factors, we conclude that the defendant’s constitutional right to a speedy trial was not infringed.
In sum, we find no reversible error and the judgment is accordingly
AFFIRMED.
. Conviction under 18 U.S.C. § 659 carries a maximum penalty of ten years of imprisonment or a fine of up to five thousand dollars ($5,000), or both. Appellant was sentenced to a term of imprisonment of five years, which sentence was suspended. He has been placed on probation for five years subject to the condition that he participate in an alcohol treatment program to be designated by his probation officer.
. On July 5, 1977, the case was called, some motions were presented and disposed of, and a jury was impanelled. The defendant requested that the case go to the end of the calendar for trial preparation. After the jury was impanelled the trial judge granted a two-day continuance and the case was tried on July 7, 1977.
. The delay until trial on July 7, 1977, might be viewed as running from the first arrest on May 30, 1975, or from the filing of the complaint on October 28, 1975, on the second charge. In United States v. Merrick, 464 F.2d 1087, 1090 (10th Cir.), cert, denied, 409 U.S. 1023, 93 S.Ct. 462, 34 L.Ed.2d 314, the entire period was considered where a reindictment was necessary, but this was on the same charge. Since the first charge here was disposed of by the judgment of acquittal, arguably we should only count the delay from filing of the second complaint in October, 1975. In either event the delay was considerable and sufficient to be of serious concern, triggering a full analysis under Barker.
. As noted earlier, on January 16, 1976, defendant refused to waive grand jury indictment and on July 26, 1976, the indictment under 18 U.S.C. §§ 659 and 2 was filed.
. The statement of defendant’s attorney made on July 7, 1977, just before the taking of evidence, was as follows (I R. 8-9):
MR. BUCHER: I have one other motion, Your Honor. It’s a motion to suppress any statements made by the defendant and I have lost three of my witnesses, Your Honor, because of the age of the case and because they evidently perhaps felt that the defendant was acquitted in the first instance. I have lost three of my witnesses to support that but I believe I can use the defendant to show he-was intoxicated at the time he spoke to the FBI.
THE COURT: Well, you are going to have to put on proof of that. The motion is denied at this time. Bring in the jury. | 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"
] | [
1
] | songer_treat |
JUDITH BASIN IRR. DIST. v. MALOTT et al.
No. 6878.
Circuit Court of Appeals, Ninth Circuit.
Oct. 15, 1934.
L. A. Foot, Atty. Gen., of Montana, C. E. Baker, Co. Atty., of Lewistown, Mont., E. K. Cheadle, of Lewistown, Mont., and L. V. Ketter and John C. Erickson, both of Helena, Mont. (John G. Brown, of Helena, Mont., of counsel), for appellant.
Gunn, Rasch, Hall & Gunn, of Helena, Mont., for appellees.
Dana E. Brinek and Albert Olsen, both of Spokane, Wash., amici curia,
Before WILBm SAWTELLE, and GAEEECHT, Circuit Judges,
_WILBUR, Circuit Judge.
This is an appeal from an order of the District Court of the United States directing the issuance of a writ of mandate. An aetion had been brought in that conrt to secure judgment against the Judith Basin Irrigation Distriet upon certain outstanding bonds issued by the district which were issued and sold in 1921. A judgment had been rendered in that action. The petition for writ of mandamus was filed in that action for the purpose of enforcing the judgment which was rendered on the 19th of October, 1931 in the sum of $77,716. It is alleged in the petition that the distriet had no property subject to execution and that there are no funds in the county treasury of Fergus county in which the irrigation distriet is situated applicable to the payment of the judgment. It is alleged that the petitioners and judgment creditors are the owners of all the bonds of the district ex-™m^;red f ’ 27i 39’ a*d ]}9 for $1,000 each. The judgment was for the principal of the first 40 bonds, to wit, $40,-000 and for the unpaid coupons excepting bonds numbered 21, 27, and 391. The judgment does not cover bonds to 160, which the petitioners alleged they now own. The bonds, by their terms, accrue at different times, ten or twelve bonds, as the casé may be, being payable annually until January 1, 1940'. It would follow that since the rendition of the judgment other bonds now owned by the plaintiff in that action have matured and other interest coupons have matured upon the bonds whieh are not yet due. The county commissioners are acting ex officio as commissioners for the irrigation distriet. All the property within the limits of the irrigation district, amounting to 4,253.35 acres, has been sold at tax sales by the county treasurer of said county to Fergus county for
« * * * delinquent taxes or assessments levied by said irrigation distriet and dp-li-ngnerit general taxes, together with penalties and interest, constituting liens thereon, and certificates of tax sales were issued to said county by said treasurer and filed in his office.
“13. That .the time for redemption from said tax sales and all thereof having expired, and no part of said lands having been redeemed, tax deeds were issued by said county treasurer to said Fergus County, conveying to said county all of said lands, and said county is now in possession and holding title to all of .said lands by virtue of said tax deeds.”
. ,, . , It is alleged that the board. of county commissioners have fixed the * fair market value of said land and parcels thereof for the purpose of such sale upon the assumption that said lands are not subject to future irrigation district taxes or assessments for the payment of any part of the principal or interest of said bonds, and threaten to and will, unless otherwise commanded by this court, notify and advise the purchaser, or purchasers, of the lands at said sale that the said lands will be sold and conveyed by said county free and clear from any and all liability to future taxation for the payment of any part of the principal or interest of said bonds.”
It is further alleged that the price fixed by the county commissioners is less than the amount due and to become due upon the bonds by over $50,006.
n ig d tbat tbe e0lmt commissi(m_ erg bave advertised aíld offered said lands £or gale ag ^ b seeticm 223ñ o£ tbe ^ vised Codes of Montana of 1921, as amended b seetkm g e gg ^ o£ Mont 1927< T]mt seeti(m ^ tbat tbe sale sball not be made &r legg than ^ maxkgb ^
, _ It is further alleged that the county comraissidners “ * * * claim and assert that the purchaser, ^ or purchasers, of said lands when so sold will obtain title thereto free and °tear from any and all liability for future taxes or assessments to pay the principal and interest said bonds which may remain unPaid after tke distribution and application of the proceeds of said sale as provided in said section 2235 as amended.”
That section (2285) was subsequently amended by the Legislature of Montana in 1929 (chapter 162) by providing that the sale should be made to the highest bidder, but the Supreme Court of Montana, in State ex rel. Malott v. Board of County Commissioners, 89 Mont. 37, 296 P. 1, held that this amendment was unconstitutional, in that it violated the contract rights of the bondholders of irrigation districts because it impaired the obligation of the contract between the distriet and the bondholders. They are further “cornmanded, in the event a levy of the taxes or assessments shall not be made for said Irrigation District by the Commissioners of said Distriet for any year, to ascertain the total amount necessary to be raised for all purposes °I sai^ distriet, and make a levy for that year for said distriet as provided in chapter 59 of the Laws of Montana, 1931, and furnisR the county clerk and recorder of said county with a list of said lands and the am0lmt o£ ^ t£m;s Qr assessmellte, as re_ quired by section 7246 of the Revised Codes q£ Montana; 1921 until tbe judgment in this actkm and gaid ^ fuUy id „
The basic question in this case is as to the nature of the obligation of the distriet upon the bonds issued and sold by it. At the time of the issuance of the bonds there were* no decisions by tlie Supreme Court of Montana as to whether or not the bonds wore the’ general obligation of the district. Later the matter came before that court in Cosman v. Chestnut Valley Irr. Dist., 74 Mont. 111, 238, P. 879, 40 A. L. R. 1344, and in Clark v. Demers, 78 Mont. 287, 254 P. 162, and the case of Drake v. Schoregge, 85 Mont. 94, 277 P. 627. In these eases it was held that the bonds of the irrigation district were general obligations of the district. Later, however, the matter was again presented to the Supreme Court of Montana in State ex rel. Malott v. Board of County Commissioners, 89 Mont. 37, 296 P. 1, supra. The Supreme Court of Montana expressly overruled its previous decisions and decided the bonds were not the general obligation of the district, but merely a charge against the lands within the district, and that each tract of land was only liable for its proportion of the entire bonded indebtedness. It wa,s also held in that case that when the land ... had been sold for taxes and conveyed to tlie . , . . . . .. ... county by tax deed and subsequently sold to the county, as provided by law, that the purchaser acquired the lands free and clear from any lien of the bonds or any future taxation for the payment thereof. Ordinarily, it is the duty of the federal court to follow the deeisions of the state court with reference to state legislation. But one of the exceptions to this rale is that when there is no decision of the state court interpreiing a statute and that statute has been the basis for the issua.nee of obligations the statute becomes a part of the contract between the purchaser of the bond and the political corporation issuing the same and the federal courts will exercise their independent judgment in determining the proper construction of the state statute regardless of subsequent decisions of the Supreme Court of the state upon the question, leaning strongly, however, to the adoption of such interpretation if reasonably possible, This case presents a situation of that nature. At the time the bonds involved in this action were issued and sold there was no interpretation of the statute by the Supreme Court of Montana. Under these circumstances this court must exercise its own independent judgment as to the meaning of the statute under which the bonds were issued. Davenport v. Lord, 9 Wall. 409, 19 L. Ed. 704; Bolles v. Town of Brimfield, 120 U. S. 759, 7 S. Ct. 736, 30 L. Ed. 786; Folsom v. Township Ninety-six, 159 U. S. 611, 16 S. Ct. 174, 40 L. Ed. 278; Bourbon County v. Block, 99 U. S. 686, 25 L. Ed. 491; Carroll County v. Smith, 111 U. S. 556, 4 S. Ct. 539, 28 L. Ed. 517; Burgess v. Seligman, 107 U. S. 20, 2 S. Ct. 10, 27 L. Ed. 359; Kuhn v. Fairmont Coal Co., 215 U. S. 349, 30 S. Ct. 140, 54 L. Ed. 228.
The law of Montana authorizing the formatlon of irrigation districts, like that of many western states, is patterned after the Wright Act of California (St. Cal. 1887, p. 29). Tomich v. Union Trust Co., 31 F.(2d) 515. As stated by the Supreme Court of Montana in Re Crow Creek Irrigation District, 63 Mont. 293, 207 P. 121, 122; “In its general legislative plan, our statute is modoled after the Wright Law of California (O’Neill v. Yellowstone Irr. Dist., 44 Mont, 492, 12l P. 283), the constitutionality of whieh has been established by numerous deefsions of the California court and by the deeigion Gf ^jj0 Supreme Court of the United States in Fallbrook Irr. Dist. v. Bradley, 164 U. S. 112, 17 S. Ct. 56, 41 L. Ed. 369.”
See, also, State ex rel. Malott v. Board of County Commissioners, 89 Mont. 37, 76, 80, 296 P. 1, supra.
Ii: ^as been uniformly held that the bonds an irrigation district issued in pursuance ^he Wright Act (St. Cal. 1887, p. 20, as amended) are general obligations o£ the distriet and. this has been true in states where the state legislation has varied slightly from the provisions of the Wright Act but has been based upon it. In Rialto Irr. Dist. v. Stowell, ^46 F. 294, 305, this court held that bonds issued under the Wright Act of California were general obligations of the district. We there stated': ‘We regard it as clear that the bonds here in question constitute a general obligat™11 of the irrigation district to pay the prmcipal and interest thereof as therein provided ^or.n The Circuit Court of Appeals of *he Eighth Circuit in Norris v. Montezuma Valley Irr. Dist., 248 F. 369; held that the bonds of an irrigation district organized under the laws of Colorado, patterned after the Wright Act, were the general obligations of the district.
In Noble v. Yancey, 116 Or. 356, 241 P. 335, 42 A. L. R. 1178, the Supreme Court of Oregon held that the obligations of the irrigation district were the general obligations of the district. The Supreme Court of Washington has held the irrigation district bonds issued under its statute to be the general obligation of the district. State ex rel. Clancy v. Columbia Irr. Dist., 121 Wash. 79, 208 P. 27; State v. Hartung, 150 Wash. 590, 274 P. 181. This holding of the Supreme Court of the State of Washington has been recently a£firmed by the Supreme Court of the United States in Roberts v. Richland Irr. Dist., 289 U. S. 71, 53 S. Ct. 519, 77 L. Ed. 1038.
rm. n ^ , ji th t. i. r. in The Supreme Court of Idaho has held j, , , ,, . . ,7 « that the law of Idaho authorizing the forma- . , . . tion of irrigation districts and providing for ,, . 8 „. t . •. . 3 .i t. t the usnanee of bonds eonstxtnted the bonds a genera ° ga ion o e is rie • ^eee^ decision of the Supreme Court of California . , A1 /v. x T7 -pv i. , is to the same effect. Dougery v. Bettencourt, 2 P.(2d) 765, Id., 214 Cal. 455, 6 P.(2d) 499. m, v\ ? a ,1 ^ ~ v . t The decision of the Supreme Court of. the t x /-o -L x United States above referred to (Roberts v. Riebland Irrigation Distnet) is significant m the ease at bar because it held that notwith0 z-t x^ttti.*^. standmg the Supreme Court of Washington *, t i n xt i . • x- t x ♦ o. t. a • a had held that irrigation district bonds issued under its law were- general obligations of the x • x i x -It x t xi /» x at x district, and notwithstanding the fact that J, n; . . , , 8 j. , «, these bonds were issued because of benefits . , ... i ,, , , . ,n .. expected to be denved by the lauds m the dmtnct, t^t the issuance of general obhgatmus of the district to pay therefor was a valid ex-x» 7 • i x- , ,, , t. 7 ercise of legislative power and that such legíslation did not conflict with the prior deci- „ ,, „ „ , . -vf , sion of tbe Supreme Court in Norwood v. Baker, 172 U. S. 269, 19 S. Ct. 187, 43. L. Ed. 443, which latter ease was strongly relied up-t xi n c, . , • on by the Supreme Court of Montana m reaching the conclusion that the bonds of an irrigation district issued in Montana did not create a general obligation of the district but represented a special lien upon tbe lands of the district.
The Supreme Court of Colorado, however, has held that bonds issued by an irrigation district in that state do not permit cumulative assessments upon the lands of the district to cover delinquent assessments upon other lands in the district. Interstate Trust Co. v. Montezuma Valley Irr. Dist., 66 Colo. 219, 181 P. 123. As we have already pointed out, the Circuit Court of Appeals of the Eighth ~ .,7 7 7 j xt. i r 1 j . 3 3 ,, Circuit has held that bonds issued under the . . .. t . . x i a 7 3 ,, irrigation district law of Colorado are the , ... ,. /» 17 t • x • x rm_ • general obhgations ox the district. There is f. _. P n- x 7 x 3 . . « thus a direet conflmt belween the decmions of the Circuit Court of Appeals of the Eighth Circuit and the Supreme Court of the State of Colorado with reference to the interpretation of the statutes of Colorado.
The Supreme Court of Utah, in Nelson v. Board of Commissioners, 62 Utah, 218, 218 P. 952, has held that bonds issued by irrigation districts incorporated under the laws of Utah are not the general obligations of tbe district.
The decision of the Supreme Court of the United States sustaining the validity of the Wright Act of California, Fallbrook Irr. Dist. v. Bradley, 164 U. S. 112, 17 S. Ct. 56, 41 L. Ed. 369, strongly indicated, but did not de- ., ,, ' ,, cide, that the obhgations of the irrigation dis- , . !' ,, 8 , , r *,♦ tnct were the general obligations of the dis- , . , T, . % , , , ° « ,, 3 . . tnct. It is no doubt because of the decisions of ^ gupreme Comrt of ^ TJnited gtates upholding the validity of the districts organ- . , 38 ^ . n , » ■ it, x xt. fix ized under the Wnght Act that other states , , , , . M 7.7,. a proceeded to enact similar legislation and ^ ,, , ,, . , 3 , were able to sell their bonds. While this fact _ ,3 , , ,, , ,. , . would not change the rule which requires the federal foUcw ^ stateHcourts in M tati(m of local Ration, it WOuld , aa a » .. • a n a be an added reason for asserting an mdepend- , . 3 , . , J3 , ñ\ ent judgment m cases where bonds had been A ^ . r „ „ * / ,. % ,, . . , « , able construction of the statute of the state , , , xi*¿. i.x-but also upon the interpretation of that stat- , , V^ 0 n ^ tt ute by the Supreme Court of the United ^ &e earlier decigions' q£ s reme Court of Montana holdin , , * ,7 7 7 T. ,. « the bonds were the general obligations of the .. . . . . ? and thaf 5 , t deci_ . , ,,, , , ... . . sions holding that the bonds constituted a ., , , . ,. , . , , , lien upon, the lands m the district and did not ..-r , , ,,. ,,, constitute general obhgations of the district, ™ are erroneous,
question has been so often presented courts of last resort and so frequently passed upon that we would feel justified in merely referring to those decisions as we have done. In view of the fact, however, that we are not witíl the general frame work ^e Wright Act, but with the specific provisions based thereon which had been enacted by tbe Legislature of Montana, and also with the general taxing system of’that state as enacted b7 tbe Legislature, and the mter-relation of these two ^sterns of taxation, we think *ba* farther comment upon the most °f oftb? SuP™m(i Coiurt oftbe State of Montana is desirable if not required . „ ,, ,3 ... 3 . . by reason 01 the respect due to the decisions ¿ , . , , ._ . . . of the highest court of a sovereign state. As . 3. , • • • we indicated m our previous per curiam memorandum ^ father argument, the eonfliet between tbe federal courts and the gtate courts as to the meaning of the state gtatlltes and ^ rigllts o£ tbe 0f an irrigation district organized under the laws of the state is highly undesirable and to be avoided if possible. We proceed, therefore, to a brief consideration of some of the propositions involved in the determination of whether or not the bonds were the general obligations of the district:
1. In ihe first place, where the Legislaturc authorizes a municipality to issue bonds, the bonds thus evidenced are agreements to pay certain amounts therein speeified by the municipality to the holder of the bond and are on their face a general obligation of the municipality. The bonds in question were issued in that form and the law clearly contemplates that they should he so issued. Authority to issue the bonds implies ar* authority to levy a tax to pay them.
2. It seems to us an insuperable obstacle to the declaring that the bonds constitute a lien only upon the lands of the district that no method is provided by Ihe law of Montana for the apportionment of the debt upon ihe several pieces of land within the district. The only segregation provided is that which results from the imposition of the annual tax to pay interest and principal of the bonds American Falls Reservoir Dist. v. Thrall, 39 Idaho, 105, 228 P. 236. I'his tax was to be levied upon the irrigable land of the district and apportioned according to the irrigable acreage and not ad valorem.
3. The bonds were sold to various individuals'. The amount of the bond does not represent a lien upon any particular piece of property.
, rm_ , •, ,, . j. , . , 4. The bonds on their face purport to be ... j , a ihe obligation of the district and not of any ■ n ■ j. , n specilie piece ox property or ox any owner „ . .. , . i , ox any individual piece ox property. J r r r j
5. The purchaser of a bond cannot enforce it against any particular piece of property nor can tho owner of any particular piece of property pay the bond and thus discharge his land from the lien. The purchaser of the bond must rely solely upon the annual assessments and collection of those assessments by the public authorities. .
6. The bond expressly provides for the annual levy of a tax to pay the installments of interest due upon tho bond and to pay the bond itself when due. Tho Revised Code of Montana of 1921, § 7232, provides as follows: “Tax or assessment to pay bonds and interest. All bonds and the interest thereon issued hereunder * * ” shall be paid by revenue derived from a special tax or assessment levied as hereinafter provided upon all illo lands included in the district, except upon such lands as have boon included in such district on account of the exchange or substitution of water under the provisions of section 720G) if any there be; and all the lands in tho district at the time said bonds are issued, and all lands subsequently ineluded which are so chargeable under the provisions of this act, shall be and remain Viable to be taxed and assessed for the paymont of said bonds and interest. * * * It shall be the duty of the board of eommissioners of the district, in the order or resolution authorizing and directing the issuance of bonds of the district, mentioned in section 7210, to provide for the annual levy and collection of a special tax or assessment upon all the lands included in the district and subjoot taxation and assossmolJit as aforesaid, gllfgeion^ jn am0nnt to meet the interest on said b(>nds promptly when and as the same aeomcS) and to discbarg,e tbe prineipal there-o£ at tbcir maiurity? or respcetive maturities, «, , * A certified copy of such resolution sñall bo flled wii}l tbo ekrk of the board of eouid;y commissioners of each county in which tho landg of the irrig.ation distóet lie; and tbo special tax or assessment therein provided for sbajj bn ¡eded and co]jeeb;d as hereinafter prcseribod) and when so collected shall, by the county treasurer having custody of the funds 0£ £jie digbc[et, hg piaeed jn a special fund and used solely for the payment of all amounts due or to become due to the United States * * * and for the payment of the interest on and principal of said bonds when due, so long as any of said bonds or the interest coupons ,, , , . . . x , . .. ” , thereto appertaining remain Outstanding and • j v , ,, . „ 65 unpaid. In the event that for any reason any • , , , , . , J special tax or assessment hereinabove pro- „ I . JIT-T T vided tor cannot or shall not be levied and collected in time to meet any interest falling due on any bonds issued hereunder, then the board of commissioners shall have the power and authority, and it shall be their duty, to provide for and pay such interest when duo, either out of any of tho funds in hand in the treasury of the district not otherwise appropriated, or by warrants (which may bear intercst at a rato not to ^ceed six per centum Pcr ammm) drawn against the next district ta* ” assessment levied or to be levied.” (Italles ours-)
It will be noted that the provision that the amounts due on the bonds should be paid from any money in tho treasury of the district is inconsistent with the idea that the bonds are not an obligation of the district. In sections 7251 and 7253 of the Revised Code of Montana the bonds are referred to as an “indebtednoss of the district.” In section 7251 it is said, “provided, however, that this limitation shall not apply to the indebtedness for which bonds have been or may be issued as provided for by law.”
Section 7253, supra, providing for the dissolution of the district, where “no bonded indebtedness has been incurred,” provides if, upon said hearing, the court finds that no bonded indebtedness of the district has been created, and all the expenses of organization and all other indebtedness have been paid,’ e^c-
These statutes recognize the indebtedness as an obligation of the district. The bond issued by the district in pursuance of the statute contained an express promise by the district to pay the amount of the bond; that promise is as follows: “The Judith Basin Ir-ligation District, a municipal corporation of the state of Montana, organized and existing under the laws of the state of Montana, for value received, promises to pay to the bearer the sum of One Thousand Dollars ($1,000.00') in gold coin of the United States.” The bond also provides:
“All of said bonds are issued under the provisions of chapter 146 of the Session Laws of 1909 of the State of Montana and of the acts amendatory thereof, and all of said bonds are secured by a hen m all of the lands included within said Irrigation District, as provided in said chapter and the acts amendatory thereof
“All of the lands included within said Irrigation District are subject to a special tax and assessment for the payment of the interest on, and the principal of, all of said bonds, and said special tax and assessment are declared by the laws of Montana to constitute a first and prior hen on the land against which it is levied, to the same extent and with like force and effect as taxes levied for state and county purposes.
“The Board of Commissioners of said District has duly provided for the annual levy and collection of a special tax and assessment ,, ,, , - • i n j t • upon all the lands included within said Irni • j * j. * , , j. gation District sufficient m amount to meet ?. . , , „ .. , . ,, , the interest on all said bonds promptly when and as the same shah accrue and to discharge ,, the principal amount of all ox said bonds at i • . 3 7 their respective maturities, as required by the laws of Montana.” ■
The coupon attached to the bond contains an express agreement of the irrigation district to pay the bearer of the coupon the face value thereof.
7. The payment of the bonds of earliest maturity does not release any parcel of land from the lien of the bond, and all the lands within the district, according to the terms of the bond and of the statute, are liable for the payment of the unpaid bonds,
g_ yle ^-^g 0f tbe decision by the Supreme Court of Montana in State ex rel. Malott v. Board of County Com’rs, 89 Mont. 37, 296 P. 1, 15, that court was of opinion that jf by reason of the sale of a portion of the lands free and clear of the lien of the bonds, the balance of the land in the district would be compelled to bear the whole burden of the payment of the balance owing for the bonds, that the law requiring this resrdt would be “violative of both the state and Federal Constitutions, in that it amounts to the taking of private property for public use without just compensation.” .See Kadow v. Paul, 274 U. S. 175, 181, 47 S. Ct. 561, 71 L. Ed. 982. This view is not in accord with the most recent decisión of the Supreme Court (Roberts v. Richland Irr. Dist., 289 U. S. 71, 53 S. Ct. 519, 521, 77 L. Ed. 1038) dealing with the distlet “d state of Washington, where said: Norwood v. Baker 172 U. S. 269, 19 S. Ct. 187, 43 L. Ed. 443, and similar cases, has no apP1^10? her\ Appellant’s land will be assessed meet a general obhgation of the corporation and the mere tact that the apportioned burden will exceed estimated beneg£yeg no color to the claim of confiscation, _^g p0in£ed out the eases cited lands may be taxed to pay for local improvements although they receive no actual benefits. Never? ag £be Supreme Court of the state has said, was appellant entitled to the segregation of bis sbare af the corporate obligation. The gtatute -did n0,t eontempiate that assessments agains£ any tract should be limited to payment of its increased value. A general obligation was created and every tract subject thereto.”
This ease was originally argued upon the theory that a determination or the basic question as to whether or not the bonds or an lrrigation district were the general obligation the district or merely a lien upon all the lands m the district was determinative of the appeal, and that if the obligations were general obligations of the district that the order 0f the District Court appealed from should be affirmed. Upon an examination of the questions involved and the legislation of Montana relating thereto, we concluded that before the matter was determined we should ask the attorneys for further briefs and argument bearing particularly upon the statutory law of Montana. These briefs have been filed and the ease has been reargued. We do not deem it necessary to discuss many of the questions raised by us. One of the questions was as to whether or not the statutory law of Montana contemplated that after a deed had been issued to the county for unpaid state, county, and irrigation district taxes it was contemplated that subsequent irrigation district taxes should be levied from year to year pending the sale hv the county of the lands thus acquired. On the argument it is stated that there is no decision of the Supreme Court of Montana upon that subject. In the absence of such decision it would seem that the duty to assess the tax is clearly imposed by section 7232 of the Revised Codes, which authorizes the issuance of irrigation district bonds, and provides that when the bonds are issued provision should be made for the annual levy of the tax. We also suggested that the question of the disposition of the funds derived by the sale of lands deeded'to the county for state, county, and irrigation district taxes suggested by the Supreme Court of Montana in its dictum in the ease of State ex rel. Malott v. Board of County Commissioners, supra, was in conflict with the statutory rule (Rev. Code Mont. 1921, § 2235, subd. 1, as amended by Laws 1927, c. 85, § 3) in relation thereto.
Having determined the basic question in favor of the appellee, for the reasons above stated, it is unnecessary to discuss this matter. Wo are also satisfied with the fact that there are other outstanding' bonds and that these bonds were included in the order directing the sale and further assessment therefore does not impair the power of the court to enforce the rights of the petitioning bondholders. See Freeman on Judgments (5th Ed.) vol. 1, pp. 952, 957, 1098; New Orleans v. Citizens’ Bank, 167 U. S. 371, 17 S. Ct. 905, 42 L. Ed. 202; Gunter v. Atlantic Coast Line R. Co., 200 U. S. 273, 26 S. Ct. 252, 50 L. Ed. 477.
In our request to counsel for further argument we suggested a discussion of whether or not it was an improper interference with the discretion of the Board of Commissioners to direct that the board fix a different market value of the property to he sold by them from that already fixed. We are satisfied that the writ was proper where the market value was fixed by the hoard because of an erroneous interpretation of the law. The market value was fixed by them upon the theory that the land in the hands of a purchaser would not be liable for the outstanding and unpaid bonds. According to the law, as we interpret it, the land would still be subject to the outstanding bonds and the market value should be fixed with that fact in mind as directed by the trial court.
Order 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. 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"
] | [
6
] | songer_geniss |
HAAG v. COMMISSIONER OF INTERNAL REVENUE.
No. 4680.
Circuit Court of Appeals, Seventh Circuit.
June 14, 1932.
Petitioner complains of the assessment of a deficiency tax of $5,784.85 for the year 1922 against the estate of Louis E. Haag. The deceased and his brother were engaged in the retail drug business in Indianapolis under the firm name of Haag Drug Company. One brother, Julius, died in 1922, and Louis died June 7, 1923. Petitioner, a sister, was named executrix in the Louis E. Haag will. The administration of this estate was closed prior to November 14, 1924.
Louis Haag filed an income tax return for the year 1922, and on February 19, 1927, Commissioner determined the tax and mailed a notice of deficiency which was directed to the petitioner as executrix of the estate of Louis E. Haag. On April 20, 1927, petitioner filed a petition for review of the Com.mis- ■ sioner’s decision with the Board of Tax Appeals. Therein she designated herself as “former executrix of the estate of Louis E. Haag, deceased.”
After a hearing, the Board modified and reduced the amount of the deficiency tax to the amount above stated. Thereafter, on July 29, 1930, petitioner moved the Board to set aside its findings and dismiss the proceedings on the ground that the Board was without jurisdiction, because petitioner had been discharged as executrix before respondent had mailed her its notice of deficiency. This motion was denied, and the Board made an order disposing of the ease. Thereafter, on March 21, 1931, petitioner presented a similar motion wherein she asked that the last order be vacated and the proceedings dismissed. On March 30, 1931, this petition was denied.
Geo. E. H. Goodner, of Washington, D. C., for petitioner.
G. A. Youngquist, Asst. Atty. Gen., Sewall Key and Hayner N. Larson, Sp. Assts. to Atty. Gen. (C. M. Charest, Gen. Counsel, Bureau of Internal Revenue, and W. Frank Gibbs, Sp. Atty., Bureau of Internal Revenue, both of Washington, D. C., of counsel), for respondent.
Before ALSCHULER, EVANS and SPARKS, Circuit Judges.
EVANS, Circuit Judge
(after stating the facts as above).
Petitioner relies on two grounds for reversal of the order of the Board: (a) The statute of limitations had run, and the claim was barred, (b) The administration of the estate of Louis E. Haag had been closed and Elnora C. Haag discharged as executrix, when respondent mailed the deficiency notice to Elnora C. Haag, executrix. The Board of Tax Appeals was therefore without jurisdiction to hear the application of one who no longer existed.
Statute of Limitations. Section 277(a), Revenue Act 1924 (26 USCA § 1057 note) provides for a short period of limitation for the assessment of a tax against an estate on income received during the lifetime of the decedent. It reads:
“(3) In the case of income received during the lifetime of a decedent, the tax shall be assessed, and any proceeding in court for the collection of such tax shall bo begun, within one year after written request therefor (filed after the return is made) by the executor, administrator, or other fiduciary representing the estate of such decedent, but not after the expiration of the period prescribed for the assessment of the tax in paragraph (1) or (2) of this subdivision.”
Petitioner testified that on November 14, 1924, she sent a letter to respondent, which reads as follows:
“November 14, 1924.
“Commissioner of Internal Revenue, Income Tax Division, Treasury Department, Washington, D. C.
“Re: Estate of Louis Haag.
“Dear Sir: As Executrix of the Estate of my brother, Louis Haag, who died June 7, 1923, I filed an income tax return.
“I have been advised by officials of the local revenue office that before I can be relieved of my responsibilities as Executrix I should request the Commissioner of Internal Revenue to make a final examination and audit of said return and of all tax returns of Louis Haag.
“I, accordingly, hereby make formal request of you, as Commissioner, to make a final audit and examination of the tax return which I filed as Executrix of the Estate of Louis Haag, and of the tax returns filed by him prior to his death, upon which any liit-bility might bo found to exist against me as Executrix or as Beneficiary of his Estate.
“Please consider this letter as my formal request for a final determination and assessment of any further income tax which may be found to be due the government on income received during the lifetime of the decedent.
“Very respectfully yours,
“Executrix of Louis Haag.”
Respondent disputed both the mailing and receipt of such letter, and the Board found “that the petitioner had not sustained the burden of proof that she requested an assessment of the taxes in question” and that “the assessment and collection are not barred.”
We are satisfied that the evidence necessitated a finding1 that the letter was sent as testified by petitioner. Whether it was correctly addressed and received by the Commissioner presents a closer question. The finding of the Board is not entitled to the weight it would otherwise receive if based upon conflicting evidence. As we view the question, it is one of presumption. As we are satisfied that the letter was mailed, the presumption arises that it was received. It follows, therefore, that we must assume that the letter was sent by petitioner and received by the Commissioner and later apparently lost or misplaced.
There is likewise some uncertainty as to the exact date the income tax return was filed. The evidence however is sufficient for us to assume that it was filed on or before June 7, 1923. Likewise, the exact date when the administration of the estate was closed is not definitely fixed. Petitioner states, however, that the estate was closed before she wrote the letter of November 14, 1924.
These facts being settled, we can approach the consideration of petitioner’s contention that the claim was barred because of section 277(a) (3) above quoted. Had this letter been sent by petitioner as executrix or administratrix of the estate while it was in process of administration, there would be no doubt of the application of this section. However, the letter was sent after the administration of the estate was closed. Consequently, if this section applies, it is by reason of the words “or other fiduciary representing the estate of such decedent.”
Considering the obvious purpose of the statute, it would seem an unjustifiable extension of the right conferred upon the representative of the estate of a decedent to permit its application to one who was representing herself and not the estate. The letter, it is true, was signed by the “Executrix of Louis Haag.” There was no such person on November 14, 1924. When that letter was written, Elnora C. Haag, the former executrix of the estate of Louis E. Haag, was representing the party to whom the estate had passed by decree of the probate court. In other words, she was representing herself.'
We therefore conclude that the claim was npt barred by section 277(a) (3)'.
(b) The notice of the deficiency tax, which the Commissioner mailed February 19, 1927, was addressed to the executrix of the estate of Louis E. Haag. Inasmuch as there was no sueh executrix in existence at this date and inasmuch as there was no deficiency tax assessed against Elnora C. Haag, individually, the recipient of the estate upon its being fully administered, it is argued that there was no valid deficiency tax assessed. Associated with this contention is the fact that petitioner sought relief from the Board of Tax Appeals through a petition signed by her as “former executrix of the estate of Louis E. Haag, deceased.” Thereafter, petitioner sought to avoid the consequences of such petition and adjudication of her petition by asserting that she, as the former executrix of the estate, could not take an appeal from the assessment of a tax against the executrix of the estate. Complete answer to this position is. to be found in the decisions of this court and of other courts. Whitmer v. Lucas (C. C. A.) 53 F.(2d) 1006; Commissioner v. New York Trust Co. (C. C. A.) 54 F.(2d) 463; Burnet v. San Joaquin Fruit & Investment Co. (C. C. A.) 52 F.(2d) 123; American Auto Trimming Co. v. Lucas, 59 App. D. C. 171, 37 F. (2d) 801. These eases hold that. although the notice was not directed to the proper party, nevertheless if it appeared that the proper party had received the notice or that the party who succeeded to the title of the party filing the return had received the notice, it was sufficient.
That Elnora C. Haag as the legatee under the will of her deceased brother became liable for the tax which, but for the com-! pleted administration of the estate, would have been assessed against the executrix is established both by statute and regulatians of the Treasury Department. Section 311, Revenue Act of 1928 (26 USCA § 2311), Regulations 74, Articles 1231, and 864; section 280, Revenue Act of 1926 (26 USCA § 1069 and note).
Moreover petitioner appealed to the Board of Tax Appeals, and the partially successful outcome of the contest there waged, which resulted in a reduction of her tax, constituted a waiver of this point.
The order of the Board of Tax Appeals is affirmed. | What follows is an opinion from a United States Court of Appeals.
The most frequently cited title of the U.S. Code in the headnotes to this case is 26. Your task is to identify the second most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if fewer than two U.S. Code titles are cited. To choose the second title, the following rule was used: If two or more titles of USC or USCA are cited, choose the second most frequently cited title, even if there are other sections of the title already coded which are mentioned more frequently. If the title already coded is the only title cited in the headnotes, choose the section of that title which is cited the second greatest number of times. | The most frequently cited title of the U.S. Code in the headnotes to this case is 26. What is the second most frequently cited title of this U.S. Code in the headnotes to this case? Answer with a number. | [] | [
26
] | songer_usc2 |
D. C. FEDERATION OF CIVIC ASSOCIATIONS et al., Appellants v. John A. VOLPE, Secretary of Transportation, et al. D. C. FEDERATION OF CIVIC ASSOCIATIONS et al. v. John A. VOLPE, Secretary of Transportation, Appellant The District of Columbia, et al., Walter J. Hickel, Secretary of Interior, et al., Appellants.
Nos. 24838, 24843.
United States Court of Appeals, District of Columbia Circuit.
Argued July 22, 1971.
Decided Oct. 12, 1971.
Dissenting Opinion Filed Nov. 4, 1971.
Supplemental Opinion and Denial of Rehearing March 2, 1972.
Certiorari Denied March 27, 1972.
See 92 S.Ct. 1290.
Messrs. Roberts B. Owen and Gerald P. Norton, Washington, D. C., for appellants in No. 24,838 and appellees in No. 24.843.
Mr. Thomas L. McKevitt, Atty., Department of Justice, with whom Asst. Atty. Gen. Shiro Kashiwa, Messrs. Thomas A. Flannery, U. S. Atty., Joseph M. Hannon, Asst. U. S. Atty., and Edmund B. Clark, Atty., Department of Justice, were on the brief, for federal appellees in No. 24,838 and federal appellants in No. 24,843.
Mr. John R. Hess, Asst. Corporation Counsel for the District of Columbia, with whom Messrs. C. Francis Murphy, Corporation Counsel, and Richard W. Barton, Assistant Corporation Counsel, were on the brief, for D. C. appellees in No. 24,838 and D. C. appellants in No. 24.843.
Before BAZELON, Chief Judge, FAHY, Senior Circuit Judge, and Mac-KINNON, Circuit Judge.
BAZELON, Chief Judge:
This appeal injects us back into the midst of a long and sometimes acrimonious imbroglio over the proposed construction of a bridge across the Potomac River from Virginia into the District of Columbia. In an earlier appeal we held that the so-called Three Sisters Bridge could not be built except in compliance with the hearing, environmental protection, safety, and other provisions of federal law applicable to the construction of federally-assisted highway projects. That question, accordingly, is no longer open. We must now decide whether the Department of Transportation did, in fact and in law, heed the applicable federal statutes when it decided that the bridge should be built. On the basis of an extended factual inquiry, the District Court concluded that the Department had failed to comply with some of the provisions. We affirm that part of the District Court’s judgment. As to the provisions with which the District Court found compliance, however, we have concluded that the statutory requirements were not satisfied, and the case will therefore be remanded to afford the Secretary an opportunity to make appropriate determinations as required by the statute.
The factual background of this dispute has been described in detail in our earlier opinion and in the opinion of the District Court. Briefly stated, the controversy concerns a projected bridge between the Georgetown waterfront in the District of Columbia and Spout Run in Virginia. The bridge, which would be part of the Interstate Highway System and would be built largely with federal funds, would traverse the Three Sisters Islands, would “affect the Georgetown Historic District,” and would use some parkland. The precise amount of harm to parkland and historic sites has not yet been determined, however, since the planning of the bridge —including the approaches and access roads — is not yet finalized. A source of continuous controversy since its conception, the proposed bridge was deleted from the Interstate Highway System in January, 1969, when the National Capital Planning Commission, the official planning body for the District, adopted “a comprehensive transportation plan which did not include the Three Sisters Bridge.” The bridge was redesignated part of the Interstate System six months later after Representative Natcher, Chairman of the Subcommittee on the District of Columbia of the House Appropriations Committee, indicated unmistakably that money for construction of the District’s subway system would be withheld if the bridge plan were not revived. To satisfy the Chairman, it was necessary, first, for the Distinct of Columbia City Council to reverse its earlier position, and vote to approve the project. On August 9, 1969, the District government so voted, with the swing members loudly protesting that they would not have changed their votes but for the pressures exerted by Representative Natcher. The second prerequisite of redesignation was a decision by Transportation Secretary Volpe that the project should go ahead as part of the Interstate System. He announced that decision on August 12, 1969, and the project sprang full-blown back to life on the following day.
On April 6, 1970, we held that the hearing and planning requirements of title 23 of the United States Code were fully applicable to this project notwithstanding a 1968 Act directing that construction of the bridge begin not later than thirty days after the Act’s passage. We remanded the case to the trial court for an evidentiary hearing to determine whether the Secretary had complied with the pertinent provisions in concluding that the project should be revived. The case is before us on appeal and cross-appeal from the trial court’s decision.
I.
Given our earlier decision, the Secretary’s approval of the bridge must be predicated on compliance with a number of statutory provisions. Plaintiffs challenged with two lines of argument the District Court’s finding of compliance. First, they maintain that the Secretary’s determinations under the statute were tainted by his consideration of extraneous factors unrelated to the merits of the questions presented. They allege — and argue, moreover, that the District Court specifically found — that pressures exerted by Representative Natcher contributed to the decision to approve the bridge. Second, they argue that quite apart from the allegations of pressure, the record and applicable legal principles do not support a finding of compliance. The two strands of argument are plainly related, in plaintiffs’ view, since the alleged shortcomings under each statutory provision illustrate and lend substance to the argument that the rational, impartial evaluation of the project envisioned by the statute was impermissibly distorted by extraneous pressures. We consider first plaintiffs’ argument that the determinations could not stand even if there were no issue of extraneous pressure.
A. Requirements of § IS8
If a proposed federally-assisted highway project would encroach on parkland or historic sites, the Secretary of Transportation must determine before construction can begin that there is “no feasible and prudent alternative to the use of such land,” and, assuming such a finding, that the “program includes all possible planning to minimize harm to such park * * * or historic site.” The District Court concluded that Secretary Volpe had complied with each of these requirements.
In defending the Secretary’s action, the government can hardly maintain that there was no “feasible” alternative to construction of the Three Sisters Bridge. This exemption applies, as the Supreme Court indicated in Citizens to Preserve Overton Park, Inc. v. Volpe, only if the Secretary finds that “as a matter of sound engineering it would not be feasible to build the highway along any other route.” It could still be argued, however, that the Secretary rejected each of the feasible alternatives because none of them was “prudent.” In construing this second exemption, the Supreme Court pointed out that
the very existence of the statute indicates that protection of parkland was to be given paramount importance. The few green havens that are public parks were not to be lost unless there were truly unusual factors present in' a particular case or the cost or community disruption resulting from alternative routes reached extraordinary magnitudes. If the statutes are to have any meaning, the Secretary cannot approve the destruction of parkland unless he finds that alternative routes present unique problems.
Our review of the Secretary’s determination is hindered not only by the lack of any formal findings, but also by the absence of a “meaningful administrative record within the Department of Transportation evidencing the fact that proper consideration has been given to the requirements of this section.” However regrettable, the failure to provide explicit findings indicating why all possible alternatives to the bridge would be unfeasible or imprudent does not, in itself, invalidate the Secretary’s action. But the complete non-existence of any contemporaneous administrative record is more serious. Absent a record, judicial review of the Secretary’s action can be little more than a formality unless the District Court takes the disfavored step of requiring the Secretary to testify as to the basis of his decision. And even the Secretary’s “post hoe rationalizations,” filtered through a factfinder’s understandable reluctance to disbelieve the testimony of a Cabinet officer, will rarely provide an effective basis for review. Furthermore, it is hard to see how, without the aid of any record, the Secretary could satisfactorily make the determinations required by statute. The absence of a record, in other words, simultaneously obfuscates the process of review and signals sharply the need for careful scrutiny.
Secretary Volpe’s testimony before the District Court did little to allay the doubts generated by the lack of an administrative record. Indeed, his testimony — on occasion uncertain and inconsistent with the testimony of others —itself gives rise to at least a serious question whether he considered all possible alternatives to the plan eventually approved. It is clear, moreover, that the Department of Transportation failed to apply its own procedures generally applicable to determinations under § 138. That failure is especially disquieting since the procedures at issue were designed specifically to insure that determinations under § 138 would be made, in the Secretary’s words, only after “a great amount of real independent and genuine review [by] people who were not particularly highway oriented . ”
Furthermore, an apparent misconception about our earlier decision may itself have distorted the Secretary’s determination under § 138. The government has read our earlier opinion to mean that a bridge must be built, albeit in accordance with the provisions of title 23, somewhere in the vicinity of the proposed Three Sisters Bridge. Congress did direct, as we previously indicated, “that a bridge be built over the Potomac following the general configurations laid out in the cost estimates.” Viewed in context, however, the statement does not convey the meaning which the government suggests, for we held that “nothing in the statute indicates that Congress intended the Bridge to be built contrary to its own laws.” If the bridge cannot be built consistently with applicable law, then plainly it must not be built. It is not inconceivable, for example, that the Secretary might determine that present and foreseeable traffic needs can be handled (perhaps by expansion of existing bridges) without construction of an additional river crossing. In that case, an entirely prudent and feasible alternative to the Three Sisters Bridge might be no bridge at all, and its construction would violate § 138. Thus, the Secretary may have disregarded one possible prudent and feasible alternative to the use of parkland and historic sites on the mistaken assumption that that alternative was foreclosed by our earlier decision.
While these difficulties give rise to at least a substantial inference .that the Secretary failed to comply with § 138, that inference ripens into certainty when one turns to the second determination required by § 138. Before the project can begin, the Secretary must determine that all possible planning has been done to minimize harm to the affected parkland and historic sites. Yet the District Court found, and the Secretary apparently concedes, that final design of the ramps and interchanges is not yet complete. Thus, when Secretary Volpe purportedly complied with § 138 in August, 1969, he could at best have been “satisfied * * * that the designs which would be developed based on the preliminary plans would result in a minimum taking of parkland,” but he could not have concluded that the necessary planning had already been'done. The District Court reasoned that the expectation of future planning could satisfy § 138. But that reasoning seems inconsistent with the Supreme Court’s subsequent admonition that § 138 can be obeyed “only if there has been ‘all possible planning to minimize harm’ to the park.” Moreover, the District Court approved the § 138 determination on the basis of the Secretary’s testimony that a “minimum of parkland would be taken” for the ramps and interchanges. More is at stake, however, than the “minimum taking” of parkland. Section 138 speaks in terms of minimizing “harm” to parkland and historic sites, and the evaluation of harm requires a far more subtle calculation than merely totaling the number of acres to be asphalted. For example, the location of the affected acres in relation to the remainder of the parkland may be a more important determination, from the standpoint of harm to the park, than determining the number of affected acres. The Secretary has not yet determined which acres will be taken. In addition, a project which respects a park’s territorial integrity may still, by means of noise, air pollution and general unsightliness, dissipate its aesthetic value, crush its wildlife, defoliate its vegetation, and “take” it in every practical sense.
Absent a finalized plan for the bridge, it is hard to see how the Department could make a meaningful evaluation of “harm.” Furthermore, Secretary Volpe did not consult with other planning agencies to coordinate efforts to minimize harm to the park and historic sites. He also made no studies of potential air pollution damage to the park. His approval of the project under § 138 was, in short, entirely premature, and we hold that he must make new determinations consistent with the statutory standards.
B. Requirements of § 134
The Secretary cannot approve federally-assisted highway projects in urban areas unless he finds “that such projects are based on a continuing comprehensive transportation planning process” carried out in conformance with Congress’s objective of promoting the development of transportation systems. The Secretary reasoned, and the District Court approved his reasoning, that the bridge project was consistent with such a planning process since the bridge had been approved by, and was subject to the continuing scrutiny of, the Transportation Planning Board (TPB) of the Metropolitan Washington Council of Governments. Plaintiffs, on the other hand, emphatically deny compliance with § 134 on the grounds that the “comprehensive transportation plan promulgated by the National Capital Planning Commission (NCPC) in December 1968, specifically ‘rejects the Three Sisters Bridge . as being both unnecessary and undesirable.’ ” While plaintiffs point out that NCPC is the official planning agency for the District of Columbia and that it alone has prepared a comprehensive transportation plan, the government contends that the Council of Governments, unlike the NCPC, is a regional organization which must consider the interests of the surrounding jurisdictions.
We are unwilling to resolve this dispute by some abstract balancing of NCPC disapproval against TPB approval. That approach would, we are convinced, entirely miss the point of § 134. That section does not suggest that the Secretary has satisfied his statutory responsibility as soon as he has found a single plan which incorporates a proposed highway project. Nor can it reasonably be interpreted to mean that the project must be approved by every plan applicable to the affected region. The section speaks, after all, in terms of “planning,” not “plans,” and it is not our function to decide that one plan has merit while another does not. Rather, it is for the Secretary to determine whether a particular project will be consistent with sound transportation planning for the region.
Decisionmaking responsibility under § 134 has been delegated by Secretary Volpe to the Public Roads Division Engineer, Mr. Hall. Mr. Hall disregarded NCPC disapproval of the project because he believed that “TPB [was] the primary agency to which he should look in making his finding.” The District Court approved his finding on that same reasoning. But that reasoning cannot do service for the more sophisticated determination required by the statute. In making his “mental” finding of compliance with § 134, Mr. Hall apparently did no more than adopt TPB’s conclusion that the project was “consistent with comprehensive planning” for the region. Yet that is precisely the determination that the Department of Transportation, taking into account the recommendations of local plans, must make. The statute plainly does not permit the Department to delegate its statutory responsibility to a local planning agency. On remand, the Department must reevaluate the project in light of the purposes of § 134.
Since the determination was not grounded on a correct understanding of the statute’s requirements, we need not now decide whether the substantive result, if reached pursuant to appropriate procedures, would itself be supportable. But to aid the Department’s redetermi-nation under § 134, we should make clear our misgivings about the result and our doubts that it could be upheld on the present record even under the constrained standard of substantive review. TPB approved the bridge project in 1967, two years before Mr. Hall made his finding under § 134. No comprehensive transportation plan had been adopted at that time, either by TPB or any other planning agency. NCPC, which did not formulate its plan until December, 1968, was on record at the time of TPB’s action in 1967 as approving- the bridge project. TPB approved the project not under § 134, but under the Demonstration Cities and Metropolitan Development Act of 1966. NCPC, on the other hand, developed a transportation plan in response to President Johnson’s call for the development of a “comprehensive plan for a D.C. highway system” which would permit the Department of Transportation to determine whether the Three Sisters Bridge and other projects would be “appropriate links” in such a plan; it then rejected the bridge proposal. And even if TPB approval were not — at least on its face — stale, inapposite, and unsupported by any underlying, comprehensive plan, we would still have difficulty accepting the Department’s finding without some explanation of how the § 134 determination could be made before plans for the bridge are finalized. Nothing in the record suggests that TPB approval— whatever its other apparent shortcomings — embraced each conceivable design that might eventually be adopted.
C. Requirements of § 109(a)
The Secretary’s approval of plans for a federally-assisted highway project is conditioned on a determination that the proposed facility will “adequately meet the existing and probable future traffic needs and conditions in a manner conducive to safety, durability, and economy of maintenance.” The District Court held that planning for the Three Sisters Bridge had not “proceeded to a sufficient degree for the responsible officials to determine that the planned facility is structurally feasible.” Accordingly, the Court enjoined construction of the bridge until the planning had advanced to a stage where structural feasibility was assured. We find the District Court’s judgment consistent with the statute' and the facts presented, and it is therefore affirmed.
Plaintiffs also argue, however, that the project was approved before the Secretary could be certain, first, that river bed conditions would support the bridge, and second, that no safety hazard would arise from the increase in air pollution attributable to traffic on the bridge. Again, we are unable to accept the District Court’s disposition. With regard to river bed conditions, the District Court noted that
[bjefore the construction of a bridge, it is necessary to make extensive investigations of subsurface conditions to determine if they are sufficient to support the foundations for the bridge piers. This is done primarily by means of borings. * * * At the time Mr. Hall approved the plans, specifications and estimates for the pier construction, these borings had not been completed, and subsequently problems developed so that the plans for the project had to be modified.
Called to testify before the District Court, Mr. Hall still could not be certain “that the present planned foundation is adequate.” Nevertheless, the District Court found compliance with § 109(a) because of Mr. Hall’s testimony “that there is no question that the piers can be built to support the bridge as presently planned.” The Department of Transportation is obviously unwilling to construct a bridge known to be unsafe, and during the course of construction the Department would surely verify the suitability of the river bed conditions. But § 109(a) requires not only that the bridge be safe, but also — and no less important — that its safety be ascertained before the Secretary approves the project. That requirement minimizes the safety hazards and at the same time insures that public funds will not be squandered on a demonstrably unsafe proposal. Where planning reveals defects in design or location, those defects can be corrected on paper rather than on steel and concrete.
The District Court’s findings are not entirely clear as to whether questions about the safety of river bed conditions could be more fully resolved before construction resumes. We hold that if such questions do exist, the Secretary must take steps to resolve them to the fullest practical extent before granting approval of the project under § 109(a).
Plaintiffs' second contention under § 109(a) concerns the dangers of air pollution. The District Court concluded that evidence of a potential air pollution hazard was insufficient to support a finding “that the defendants are required to undertake a study of such [air pollution] effects.” We can find no basis in the statute’s language or purpose for the conclusion that certain hazards are, as a matter of law, immaterial to the Secretary’s evaluation of a project’s safety. The District Court would surely agree that Congress did not intend to permit construction of a bridge in a situation, however rare, where air pollution would be a significant threat to safety. It does not follow, of course, that air pollution will be a significant hazard in all — or even any — highway projects. And the District Court apparently concluded that no extraordinary dangers are likely to arise from the Three Sisters Bridge. Still, the gathering and evaluation of evidence on potential pollution hazards is the responsibility of the Secretary of Transportation, and he undertook no study of the problem. His staff has far greater resources and expertise on this matter than the District Court, and it is possible that a study by the Department would reveal significant dangers which had escaped the attention of the District Court. Inquiry into this issue cannot be foreclosed merely because the District Court found no significant evidence of air pollution hazards. That determination must be made in the first instance by the Secretary of Transportation.
D. Requirements of § 128
Section 128 requires that public hearings be held before construction can begin. In the earlier appeal we specifically held applicable to the Three Sisters Bridge project not only § 128, but also the Department of Transportation’s implementing regulations. Those regulations require, in certain specified situations, a hearing on project location and a hearing on project design. After exhaustive consideration of the record, the District Court concluded that the Department had not complied with the design hearing requirement, but that the location hearing requirement had been satisfied.
While the government did not admit error with regard to the design hearing, it nevertheless chose to hold the necessary hearing in a commendable effort to reduce the number of issues outstanding. Since the question has now been mooted, we express no opinion on the District Court’s conclusion. As for the location hearing, the District Court reasoned that a hearing held in 1964 satisfied the requirement, even though different proposals were the subject of that hearing, since the change in plan was “so insubstantial that the public would not be affected any differently than by the original proposal which formed the basis for the first hearing . ” We have no quarrel with the District Court’s reasoning, but on the present record we are unable to accept its application to this case. Of the proposals submitted at the 1964 hearing, the one most similar to current plans for the bridge was still off by 1500 feet on the District of Columbia shore and 950 feet on the Virginia shore. Ramps and interchanges as well as the routing of traffic have also been substantially redesigned. Nevertheless, the District Court could not “conceive how many members of the public would be affected differently by the present location than by one of the three” considered in 1964. It is entirely conceivable to us that the differences in the plans would, in fact, have a substantially different impact on persons on both shores. We would be reluctant, of course, to disturb the District Court’s finding of fact on this point if it were clear that a finding had actually been made. But there is no indication in the record before us that the District Court gathered evidence on this issue, and we have nothing to support the conclusion but the conclusion itself. Moreover, in making the determinations required by this opinion, the Secretary may conclude that current plans must be abandoned in favor of a new location. Accordingly, we remand this issue to the District Court for clarification of the factual basis of its conclusion, and for reconsideration in light of any further location changes the Secretary of Transportation may order.
E. Requirements of § 817
If the Secretary determines that lands owned by the United States are needed for a proposed highway project, he must
file with the Secretary of the Department supervising the administration of such lands or interests in lands a. map showing the portion of such lands or interests in land which it is desired to appropriate.
After concluding that the bridge project would use federal parklands under the jurisdiction of the Interior Department’s National Park Service, and after noting defendant's admission that a map had not been filed, the District Court still found “compliance with the spirit, if not' the letter, of § 317.” The court based its findings on the consultation between the Transportation and Interior Departments with regard to this project, and on the issuance by the latter of permits for the use of the parkland.
We agree with the District Court that the failure to supply a map should not be an absolute bar to the construction of the bridge if the purposes of § 317 have in fact been realized. That section is designed, as the District Court acknowledged, to
require the Secretary of Transportation to give notice to the Secretary of the Department having control of the land, and provide a means by which the latter may protect any governmental interest in use of the property for purposes other than highway construction.
We need not decide whether the District Court erred in finding compliance with the spirit of § 317. In view of our conclusion that the case must be remanded for new determinations, it would not appear to be a significant burden on the Department to remove all doubts under this section by filing the appropriate map.
F. Provisions Other Than Title 23
At the hearing below, the District Court barred plaintiffs from presenting evidence on ■ a number of allegations in their complaint because those allegations related to statutory provisions which the District Court found inapplicable to the Three Sisters Bridge project. Thus, the Court concluded that the project was exempted by Congress from compliance with certain provisions of the federal Code, as well as provisions of the District of Columbia Code.
In 1968 we held in D.C. Federation of Civic Associations, Inc. v. Airis that this project must comply with pertinent requirements of the D.C.Code. Later that year, Congress directed, in Section 23 of the Federal-Aid Highway Act, that
[notwithstanding any other provision of law or any court decision or administrative action to the contrary . . . construction [of the Three Sisters Bridge] shall be undertaken as soon as possible . . . and shall be carried out in accordance with all applicable provisions of Title 23 of the United States Code.
The District Court then held explicitly that the Three Sisters Bridge had been exempted from all of the pre-eonstruetion provisions of title 23, and implicitly that the bridge had been exempted from the comparable provisions of the D.C. Code. On appeal from that decision, we held that the bridge must comply with all applicable provisions of title 23. Our opinion did not indicate flatly, however, that the project must also comply with non-title 23 provisions. In view of the District Court’s conclusion that compliance with nontitle 23 provisions is not required, we must now resolve the ambiguity arguably left by our earlier opinion.
The applicability of these provisions was not squarely faced in the parties’ briefs, nor was it discussed at oral argument. While our earlier opinion did make one specific reference to the issue, the parties now draw opposite conclusions from that reference. Discussing section 23’s directive that the bridge be built “notwithstanding any * * * court decision * * * to the contrary,” we pointed out that
[presumably the “court decision” language refers to our decision in Airis [holding D.C.Code provisions applicable to the Three Sisters Bridge], but the reference is mistaken since that decision was not “to the contrary.”
Under these circumstances, we are reluctant to resolve the dispute without providing the parties an opportunity to discuss the question on the merits. Accordingly, we defer judgment on this issue to permit the parties to file, within twenty days from the date of this opinion, memoranda dealing with the question.
II
As Part I of this opinion makes clear, the Secretary’s determinations failed to comply with a significant num- • ber of title 23 provisions applicable to the Three Sisters Bridge. Taken as a whole, the defects in the Secretary’s determinations — in particular, his effort to make the determinations before plans for the bridge were complete — lend color to plaintiffs’ contention that the repeated and public threats by a few .Congressional voices did have an impact on the Secretary’s decisions. As the District Court pointed out,
[t]here is no question that the evidence indicates that strong political pressure was applied by certain members of Congress in order to secure approval of the bridge project. Congressman Natcher stated publicly and made no secret of the fact that he would do everything that he could to withhold Congressional appropriations for the District of Columbia rapid transit system, the need for which is universally recognized in the Washington metropolitan area, until the District complied with the 1968 Act.
When funds for the subway were, in fact, blocked, Representative Natcher
made his position perfectly clear, stating that “as soon as the freeway project gets under way beyond recall then we will come back to the House and recommend that construction funds for rapid transit be approved.”
The author of this opinion is convinced that the impact of this pressure is sufficient, standing alone, to invalidate the Secretary’s action. Even if the Secretary had taken every formal step required by every applicable statutory provision, reversal would be required, in my -opinion, because extraneous pressure intruded into the calculus of considerations on which the Secretary’s decision was based. Judge Fahy, on the other hand, has concluded that since critical determinations cannot stand irrespective of the allegations of pressure, he finds it unnecessary to decide the ease on this independent ground.
In my view, the District Court clearly and unambiguously found as a fact that the pressure exerted by Representative Natcher and others did have an impact on Secretary Volpe’s decision to approve the bridge. The Court pointed out that
[t]he statement issued by the Secretary at the time he directed the Federal Highway Administrator to restore the bridge to the Interstate System indicates that the pressure on the rapid transit funds was a consideration at that time.
The Court also found, on the basis of the Secretary's contemporaneous statements and his testimony before the Court, that
There is no question that the pressure regarding the rapid transit appropriations was given some consideration at the time of the approval of the project in August, 1969.
The Secretary’s testimony indicated, as the court below pointed out, that “his decision was based on the merits of the project and not solely on the extraneous political pressures.”
Notwithstanding these findings of fact, the Court determined as a matter of law that since the Secretary was not acting in a judicial or quasi-judicial capacity, his decision would be invalid only if based -solely on these extraneous considerations. I cannot accept that formulation of the applicable legal principle. While Judge Fahy is not entirely convinced that the District Court ultimately found as a fact that the extraneous pressure had influenced the Secretary’s decision — a point which is for me clear- — he has authorized me to note his concurrence in my discussion of the controlling principle of law: namely, that the decision would be invalid if based in whole or in part on the pressures emanating from Representative Natcher. Judge Fahy agrees, and we therefore hold, that on remand the Secretary must make new determinations based strictly on the merits and completely without regard to any considerations not made relevant by Congress in the applicable statutes.
The District Court was surely correct in concluding that the Secretary’s action was not judicial or quasi-judicial, and for that reason we agree that much of the doctrine cited by plaintiffs is inap-posite. If he had been acting in such a capacity, plaintiffs could have forcefully argued that the decision was invalid because of the decisionmaker’s bias, or because he had received ex parte communications. Well-established principles could have been invoked to support these arguments, and plaintiffs might have prevailed even without showing that the pressure had actually influenced the Secretary’s decision. With regard to judicial de-cisionmaking, whether by court or agency, the appearance of bias or pressure may be no less objectionable than the reality. But since the Secretary’s action was not judicial, that rationale has no application here.
If, on the other hand, the Secretary’s action had been purely legislative, we might have agreed with the District Court that his decision could stand in spite of a finding that he had considered extraneous pressures. Beginning with Fletcher v. Peck, the Supreme Court has maintained that a statute cannot be invalidated merely because the legislature’s action was motivated by impermissible considerations (except, perhaps, in special circumstances not applicable here). Indeed, that very principle requires us to reject plaintiffs’ argument that the approval of the bridge by the District of Columbia City Council was in some sense invalid. We do not sit in judgment of the motives of the District’s legislative body, nor do we have authority to review its decisions. The City Council’s action constituted, in our view, the approval of the project required by statute.
Thus, the underlying problem cannot be illuminated by a simplistic effort to force the Secretary’s action into a purely judicial or purely legislative mold. His decision was not “judicial” in that he was not required to base it solely on a formal record established at a public hearing. At the same time, it was not purely “legislative” since Congress had already established the boundaries within which his discretion could operate. But even though his action fell between these two conceptual extremes, it is still governed by principles that we had thought elementary and beyond dispute. If, in the course of reaching his decision, Secretary Volpe took into account “considerations that Congress could not have intended to make relevant,” his action proceeded from an erroneous premise and his decision cannot stand. The error would be more flagrant, of course, if the Secretary had based his decision solely on the pressures generated by Representative Natcher. But it should be clear that his action would not be immunized merely because he also considered some relevant factors.
It is plainly not our function to establish the parameters of relevance. Congress has carried out that task in its delegation of authority to the Secretary of Transportation. Nor are we charged with the power to decide where or when bridges should be built. That responsibility has been entrusted by Congress to, among others, the Secretary, who has the expertise and information to make a decision pursuant to the statutory standards. So long as the Secretary applies his expertise to considerations Congress intended to make relevant, he acts within his discretion and our role as a reviewing court is constrained. We do not hold, in other words that the bridge can never be built. Nor do we know or mean to suggest that the information now available to the Secretary is necessarily insufficient to justify construction of the bridge. We hold only that the Secretary must reach his decision strictly on the merits and in the manner prescribed by statute, without reference to irrelevant or extraneous considerations.
For the purposes of the foregoing discussion, we have assumed that pressures exerted by Congressional advocates of the bridge are irrelevant to the merits of the questions presented to Secretary Volpe. It does not seem possible to make even a colorable argument of relevance except with regard to § 138. But it might be argued that the potential loss of the subway was the type of “unique problem” and cost of “extraordinary magnitude” that the Secretary could properly consider in deciding, pursuant to § 138, that there were no prudent alternatives to the use of parkland for the bridge. The Secretary plainly understood that the price of abandoning, modifying, or even delaying construction of the bridge was the loss of appropriations for the District’s subway. He undoubtedly viewed the prospect of that loss with understandable alarm, and may have concluded that the destruction of parkland was inescapable and appropriate in the face of Representative Natcher’s clear and enforceable threat. We cannot agree, however, that a determination grounded on that reasoning would satisfy the requirements of § 138.
Neither the section’s legislative history nor the Supreme Court’s decision in Overton Park indicates clearly whether or not this sort of consideration should be deemed relevant. We are persuaded, however, that holding these pressures relevant would effectively emasculate the statutory scheme. The purpose of § 138, in our view, was to preserve parkland by directing the Secretary to reject its use except in the most unusual situation where no alternative would be available. The “unusual situation” posited here is entirely the product of the action of a small group of men with strongly-held views on the desirability of the bridge, who, it may be assumed, are acting with the interests of the public at heart. They may well be correct in concluding that a new bridge is needed and that no alternative location is available. But no matter how sound their reasoning nor how lofty their motives, they cannot usurp the function vested by Act of Congress in the Secretary of Transportation. Until the statute is amended or repealed by another Act of Congress, the Secretary must himself decide, bearing in mind the statute’s mandate for the preservation of parkland, whether a prudent alternative is available. Congress could not have contemplated that an alternative would be “imprudent” merely because persons who are convinced that parkland should be used have the power to decree that all alternatives to the use of that parkland shall henceforth be agonizing. Our interpretation of § 138 is essential if the Secretary is to be insulated from extraneous pressures that have no relevance to his assigned statutory task.
To avoid any misconceptions about the nature of our holding, we emphasize that we have not found — nor, for that matter, have we sought — any suggestion of impropriety or illegality in the actions of Representative Natcher and others who strongly advocate the bridge. They are surely entitled to their own views on the need for the Three Sisters Bridge, and we indicate no opinion on their authority to exert pressure on Secretary Volpe. Nor do we mean to suggest that Secretary Volpe acted in bad faith or in deliberate disregard of his statutory responsibilities. He was placed, through the action of others,. in an extremely treacherous position. Our holding is designed, if not to extricate him from that position, at least to enhance his ability to obey the statutory command notwithstanding the difficult position in which he was placed.
III.
We conclude that the case should be remanded to the District Court with directions that it return the case to the Secretary for him to perform his statutory function in accordance with this opinion. It seems clear that even though formal administrative findings are not required by statute, the Secretary could best serve the interests of the parties as well as the reviewing court by establishing a full-scale administrative record which might dispel any doubts about the true basis of his action. Accordingly, the District Court is directed to enjoin construction of the bridge until the defendants have complied with the applicable statutory provisions as set forth in our opinion. Reversed and remanded.
. D.C. Federation of Civic Ass’ns, Inc. v. Volpe, 140 U.S.App.D.C. 162, 434 F.2d 436 (1970), holding that “both the planning and building of the Three Sisters Bridge [must] comply with all applicable provisions of Title 23.” Id., at 447. In their complaint before the District Court on remand plaintiffs alleged that the Secretary had not complied with the following provisions: 23 U.S.C. §§ 102, 103, 128(a), 134, 138, and 317 (1970), and the regulations implementing § 128 (a), 23 C.F.R. Part 1, App. A (1970). Apart from alleged violations of title 23, plaintiffs also complained of violations of various sections of title 7 of the District of Columbia Code, and of 16 U.S.C. §§ 1, 470; 33 U.S.C. §§ 401, 403, 525; and 49 U.S.C. § 1655 (1970). At the commencement of trial, the District Court granted plaintiffs’ motion to amend their complaint to allege also a violation of 23 U.S.C. § 109(a) (1970). The Court granted plaintiffs a hearing on each complaint under title 23, but not under any of the other statutory provisions. See pp. 1244, 1245, infra-, D.C. Federation of Civic Ass’ns, Inc. v. Volpe, 316 F.Supp. 754, 761 & nn. 13-14 (D.D.C.1970).
. 316 F.Supp. 754 (D.D.C.1970).
. 140 U.S.App.D.C. 162, 434 F.2d 436 (1970).
. 316 F.Supp. 754 (D.D.C.1970).
. Id. at 769.
. Id. at 774.
. Id. at 759.
. Id.
. On Jan. 17, 1969, the District’s City Council had voted to approve the NCPC transportation plan which rejected the Three Sisters Bridge as unnecessary and undesirable. Id.
. Id. at 764, 767.
. Pub.L.No.90-495, 82 Stat. 827 (1968) ; cf. pp. 1244-1245 infra.
. For purposes of this opinion we refer to the D.O. Federation of Civic Associations, appellants (and cross-appellees) in this Court, as “plaintiffs,” and to Secretary Volpe, the District of Columbia, and the other appellees (and cross-appellants) as “defendants.”
. 23 U.S.C. § 138 (1970).
. 401 U.S. 402, 411, 91 S.Ct. 814, 821, 28 L.Ed.2d 136 (1971) (emphasis added).
. Id. at 412-413, 91 S.Ct. at 821.
. 316 F.Supp. at 769.
. Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 409, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971). But see note 88 infra.
. Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 420, 91 S.Ct. 814, 825 (“review [of the Secretary’s decision) is to be based on the full administrative record that was before the Secretary at the time he made his decision”). Bee also Environmental Defense Fund, Inc. v. Ruckelshaus, 142 U.S.App.D.C. 74, 88 439 F.2d 584, 598 (1971).
. Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 420, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971) ; United States v. Morgan, 313 U.S. 409, 422, 61 S.Ct. 999, 85 L.Ed. 1429 (1941).
. Cf. Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 420, 91 S.Ct. 814, 826, 28 L.Ed.2d 136 (1971) (“Such an explanation will, to some extent, be a ‘post hoc rationalization’ and thus must be viewed critically.”).
. Secretary Volpe testified, for example, that he “believed that he had consulted with Mr. Braman’s office with respect to the Bridge project,” (Transcript at 808-809), but Mr. Braman pointed out that his office was “not involved in the Three Sisters matter at any time.” (Tr. at 1005.) The Secretary also testified that the Federal Highway Administrator, Mr. Turner, had discussed with him the § 138 problem, and that the Administrator had made an oral recommendation. (Tr. at 722.) Nevertheless, Mr. Turner indicated in his testimony that he did not believe he had made any recommendation to the Secretary or had even discussed with him the specific question of the determination under § 138. (Tr. at 977.) See generally Brief for Appellants at 34-35. Asked about his consideration of a number of alternatives to the Three Sisters Bridge, Secretary Volpe testified that he could not recall having considered the possibility of a tunnel at “any location other than the Three Sisters Islands,” (Tr. at 780), upgrading the Jefferson Davis Highway to Interstate standards (Tr. at 779), or a number of other potential alternatives. See Brief for Appellants at 36-38.
. 316 F.Supp. at 769-770. The procedures in question involved the Department’s Office of Environmental and Urban Systems, headed by Mr. James Braman.
. Tr. at 644 (testimony of Secretary Volpe).
. 140 U.S.App.D.C. at 172, 434 F.2d at 446.
. Id. at 447.
. Cf. Environmental Defense Fund, Inc. v. Corps of Engineers, 325 F.Supp. 749, 761 (E.D.Ark.1971).
. Testifying before the District Court, Secretary .Volpe did indicate that he “had considered several alternatives including the bridge, no bridge, the tunnel, various types of ramp connections etc. . . . ” (Tr. at 742) (emphasis added). It is possible, however, that the Secretary might have given that alternative (and the studies which seem to support it, see Brief for Appellants at 36 n. 2) more extensive consideration if his Department had not been convinced, judging by its representations before this Court, that “no bridge” was not a viable alternative in view of Section 23 of the Federal-Aid Highway Act of 1968.
. 316 F.Supp. nt 775 (emphasis added).
. Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 405, 91 S.Ct. 814, 816, 28 L.Ed.2d 136 (emphasis added).
. 316 F.Supp. at 775.
. Compare Brief for Federal Appellees at 11: “The park areas underneath the bridge would, in essence, remain available for park purpose uses. ...”
. 316 F.Supp. at 794.
. 23 U.S.C. § 184 (1970).
. 316 F.Supp. at 794.
. Id.
. 316 F.Supp. at 794.
. n>. at 1109.
. 316 F.Supp. at 794.
. See Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 415-416, 91 S.Ct. 814, 28 I>.Ed.2d 136 (1971).
. 316 F.Supp. at 794.
. 42 U.S.C. § 3334 (1970) ; see 316 F. Supp. at 794 n. 57.
. Statement of President Johnson, August 23, 1968, 114 Cong.Ree. (Part 24) 30959 (1968).
. The Secretary is not required, of course, to resolve every conceivable ambiguity in a proposed plan before testing its compliance with the applicable statutory provisions. But where he does purport to make a determination required by statute, for example under § 134, in advance of the completion of planning, his determination must remain flexible and be subject to continuing reconsideration as the plans for the project mature.
. 23 U.S.C. § 109(a) (1970).
. 316 F.Supp. at 793.
. 316 F.Supp. at 790.
. Tr. at 604.
. 316 F.Supp. at 790.
. 316 F.Supp. at 791.
. We express no opinion at this time on the amount or type of investigation which the Secretary should undertake in evaluating the air pollution hazards. In his testimony before the District Court, Secretary Volpe indicated that his Department “consider [s] air pollution in the overall consideration of all our projects,” Tr. at 811, and it is possible that the consideration already given would satisfy the requirements of the statute. But the District Court made no findings on the Secretary’s action, and approved the project apparently because the evidence seemed insufficient, in its view, to warrant a holding that the Department must undertake a study of the problem. 316 F. Supp. at 791. Bather than returning the case to the District Court for clarification of its findings on this point, it seems • most efficient, in view of our remand to the Secretary under other provisions, to permit the Secretary to reconsider at the same time his determination under § 109 (a).
. 23 U.S.C. § 128(a) (1970).
. Policy and Procedure Memorandum 20-8, 23 C.F.R. Part I, App. A (1970).
. Naturally, we do not decide whether the design hearing held by the Department complied with the requirements of PPM 20-8 and § 128(a). That question has not been presented to us. If plaintiffs have objections to the hearing, those objections should be lodged in the District Court.
. The plan under consideration in 1964, the so-called Howard Needles report, proposed three possible locations for a central Potomac crossing. 316 F.Supp. at 778.
. Id. at 779.
. Id. at 778.
. Id. at 779.
. The District Court made an additional finding of error under § 128(a). The section requires that the “State highway department . . . certify to the Secretary that it has had public hearings. . . . ” (emphasis added). The District Court held, and we agree, that the certifying officer “should be one who knows as a fact that the actions to which he is certifying have been taken.” 316 F.Supp. at 789. The District Court found that the certifying officer had assumed that certification was appropriate “merely because the project had reached the stage where the certification is normally made.” Id. That assumption, the District Court held, was an “insufficient basis for the certification.” Id. at 790. The defendants do not contest that finding, and it is therefore affirmed.
. 23 U.S.C. § 317 (1970).
. 316 F.Supp. at 796-797.
. United States v. 10.69 Acres of Land, 425 F.2d 317, 319 (9th Cir. 1970).
. Subsequent to the District Court’s decision, the National Park Service announced in a letter (a photocopy of which is included in Brief for Appellants) that it does object to at least one aspect of the bridge plan. ’Letter from George B. Hartzog, Jr., Director, National Park Service, Department of the Interior, to Martin K. Schaller, Executive Secretary, Office of the Mayor-Commissioner, Dec. 15, 1970, reproduced in Brief for Appellants at App. A. That objection, moreover, includes an allegation that current plans for the bridge “conflict with [the Service’s] understanding of the terms of an agreement signed May 25, 1966, by the National Park Service” and the Virginia and District of Columbia highway departments. It is precisely that prior — and, perhaps, misconstrued — agreement on which the government now relies to demonstrate compliance with the “spirit” of § 317. The letter may, in other words, have undercut the factual predicate of the District Court’s reasoning. Whatever the signifiance of this attempted supplementation of the record, it is clear that any doubts will be removed by our holding that the Secretary must comply with the letter of § 317.
. At issue are 16 U.S.C. §§ 1, 470; 33 U.S.C. §§ 401, 403, and 525; 49 U.S.C. § 1655 (1970), and various sections of title 7 of the District of Columbia Code.
. 129 U.S.App.D.C. 125, 391 F.2d 478 (1968).
. Pub.L. No. 90-495, 82 Stat. 827 (1968).
. 308 F.Supp. 423 (D.D.C.1970).
. Plaintiffs clearly asked for a ruling in this Court on 16 U.S.C. § 470f (1970), and provisions of title 7 of the D.C.Code. They have not explicitly asked for a ruling on any other non-title 23 provision.
. D.C. Federation of Civic Ass’ns, Inc. v. Volpe, 140 U.S.App.D.C. 162, 173, 434 F.2d 436, 447 & n. 50 (1970).
. 316 F.Supp. at 762. The “1968 Act,” section 23 of the Federal-Aid Highway Act of 1968, is discussed at pp. 1244-1245 supra.
. 316 F.Supp. at 762.
. Id. at 764-765 (emphasis added).
. Id. at 766 (emphasis added).
. Id. at 765-766 (emphasis added).
. Id. at 765.
. See Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 414-415, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971).
. See, e. g., Pillsbary Co. v. FTC, 354 F. 2d 952 (5th Cir. 1966); Jarrott v. Scrivener, 225 F.Supp. 827 (D.D.C.1964).
. See generally 2 K. Davis, Administrative Law §§ 12.01 et seq. (1958).
. Gf. Sangamon Valley Television Corp. v. United States, 106 U.S.App.D.C. 30, 269 F.2d 221 (D.C.Cir. 1959).
. See, e. g., Pillsbury Co. v. FTC, 354 F. 2d 952, 964 (5th Cir. 1966).
. 10 U.S. (6 Cranch.) 87, 129-131, 3 L. Ed. 162 (1810).
. Cf. Griffin v. County School Bd. of Prince Edward County, 377 U.S. 218, 231, 84 S.Ct. 1226, 12 L.Ed.2d 256 (1964); Gomillion v. Lightfoot, 364 U.S. 339, 347, 81 S.Ct. 125, 5 L.Ed.2d 110 (1960). But see Palmer v. Thompson, 403 U.S. 217, 224-225, 91 S.Ct. 1940, 29 L.Ed.2d 438 (1971).
. See 23 U.S.C. § 103(d) (1970).
. United States ex rel. Kaloudis v. Shaughnessy, 180 F.2d 489, 491 (2d Cir. 1950). See also United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 74 S.Ct. 499, 98 L.Ed. 681 (1954), a case remarkably similar to the one before us. Cf. Shaughnessy v. United States ex rel. Accardi, 349 U.S. 280, 75 S.Ct. 746, 99 L.Ed. 1074 (1955).
. Cf. Perry v. Perry, 88 U.S.App.D.C. 337, 338, 190 F.2d 601, 602 (1951).
. Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 823 (1971) (“the court must consider whether the decision was based on a consideration of the relevant factors”) (emphasis added) ; Wong Wing Hang v. I. & N. S., 360 F.2d 715, 719 (2d Cir. 1966), cited with approval in Citizens to Preserve Overton Park, Inc. v. Volpe, supra, 401 U.S. at 416, 91 S.Ct. 814, 28 L.Ed. 2d 136; L. Jaffe, Judicial Control of Administrative Action 182 (1965).
See also SEC v. Chenery Corp., 318 U.S. 80, 87-88, 92-94, 63 S.Ct. 454, 87 L.Ed. 626 (1942), where the Court pointed out, inter alia, that “[i]f an order is valid only as a determination of policy or judgment which the agency alone is authorized to make and which it has not made, a judicial judgment cannot be made to do service for an administrative judgment.” Id. at 88, 63 S.Ct. at 459. Accord, SEC v. Chenery Corp., 332 U.S. 194, 196, 67 S.Ct. 1575, 91 L.Ed. 1995 (1947) ; Sunbeam Television Corp. v. FCC, 100 U.S.App.D.C. 82, 243 F.2d 26 (1957) (Fahy, J.) ; Chae-Sik Lee v. Kennedy, 111 U.S.App.D.C. 35, 294 F.2d 231 (1961).
It might be argued that a remand would be futile here since the agency can only repeat the process it purports already to have undertaken: namely, considering the project solely on its merits. While we agree that a remand would be academic if the agency would inevitably arrive at the same result, NLRB v. Wyman-Gordon Co., 394 U.S. 759, 766-767 n. 6, 89 S.Ct. 1426, 22 L.Ed.2d 709 (1969) ; Friendly, The “Limited Office” of the Chenery Decision, 21 Ad.L.Rev. 1, 5 (1968), it seems entirely possible that the agency could reacli a different result if it could insulate itself from extraneous pressures unrelated to the merits of the question. On remand, the agency will have an opportunity to take steps to achieve the insulation required by statute and long-established principles of administrative law, perhaps by compiling a full-scale administrative record, utilizing fully intra-agency review procedures, and consulting with other agencies and planning groups.
. Cf. Sunbeam Television Corp. v. FCC, 100 U.S.App.D.C. 82, 243 F.2d 26 (1957).
. See Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 412-413, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971).
. Cf. id. at 419 n. 33, 91 S.Ct. 814, 28 L.Ed.2d 136.
. While formal findings are not required by statute, they are compelled by one of the Department’s own internal regulations, DOT Order 5610.1, issued on October 7, 1970. See generally Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 417-419, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971). That Order was not in effect at the time the Secretary’s determinations were made. Plaintiffs argue that the Order should be applied retrospectively, and that it should therefore constitute an independent basis for reversal. While the Supreme Court rejected a similar claim in Overton Park, supra, that decision may be distinguishable in that a full administrative record was available there to facilitate review. Id. at 419, 91 S.Ct. 814, 28 L.Ed.2d 136. While the proposed distinction would seem to have a good deal of force, we need not reach the question in view of our conclusion that the Secretary failed, irrespective of DOT Order 5610.1, to make the determinations required by statute. When the Secretary makes new determinations on remand, the Order will presumably apply. | 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"
] | [
6
] | songer_geniss |
George R. DESMOND, Trustee, Plaintiff, Appellant, v. Marilyn J. MOFFIE, Defendant, Appellee.
No. 6839.
United States Court of Appeals First Circuit.
April 13, 1967.
George R. Desmond, Framingham, Mass., for appellant.
Leonard M. Salter, Boston, Mass., for appellee.
Before ALDRICH, Chief Judge, Mc-ENTEE and COFFIN, Circuit Judges.
McENTEE, Circuit Judge.
In this action plaintiff trustee in bankruptcy seeks to set aside as fraudulent a conveyance of certain Massachusetts real estate made by the bankrupt to his wife in January 1962. The suit, which was commenced on August 22, 1966, is based on Section 70(e) of the Bankruptcy Act. Under this section a trustee in bankruptcy stands in the shoes of a creditor who has a provable claim and may set aside any transfer of property by the bankrupt which is fraudulent or voidable under applicable state law.
Plaintiff alleged facts which would render the conveyance in question voidable under the Massachusetts Uniform Fraudulent Conveyance Law. Mass.Gen. Laws ch. 109A (1932). Defendant countered with a motion for summary judgment on the ground that this is an action sounding in tort and therefore is barred by the two year statute of limitations applicable to suits on tort claims. Mass. Ann.Laws ch. 260, § 2A (1952). The district court granted defendant’s motion.
On appeal, plaintiff contends that his suit is not barred because it is founded on contract and hence is governed by the six year limitation applicable to contract actions. Mass.Gen. Laws ch. 260, § 2 (1932). This is the only issue raised by this appeal.
In Massachusetts the statutes of limitation applicable to law actions based on contract and tort are also applicable to suits in equity. Kagan v. Levenson, 334 Mass. 100, 134 N.E.2d 415, 62 A.L.R.2d 704 (1956). In deciding which statute applies in a given ease, it is necessary to determine the essential nature of plaintiff’s claim. Kagan v. Levenson, supra. In Blumenthal v. Blumenthal, 303 Mass. 275, 21 N.E.2d 244 (1939), the court held that the essential basis of the statutory proceeding to set aside a fraudulent conveyance is an indebtedness that could ordinarily be enforced in an action of contract, and that the nature of the claim is in no way changed by the form of procedure. Accord, State of Rio De Janeiro v. E. H. Rollins & Sons, 299 N.Y. 363, 87 N.E.2d 299, 14 A.L.R.2d 594 (1949); see Salvucci v. Sheehan, 349 Mass. 659, 212 N.E.2d 243 (1965) ; cf. Viera v. Menino, 322 Mass. 165, 76 N.E.2d 177, 179 (1947). Accordingly, since this claim is based on contract rather than tort, it follows that the two year statute of limitations is not applicable here and plaintiff’s suit is not barred.
Judgment will be entered vacating the judgment of the district court and remanding the case for further proceedings not inconsistent with this opinion.
. The petition in bankruptcy was filed on June 6, 1966 and plaintiff was appointed trustee on June 29, 1966.
. 11 U.S.C. § 110(e) (1). | 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. | [] | [
11
] | songer_usc1 |
Nicholas A. PALMIGIANO, Appellant, v. Joseph BAXTER et al., Appellees.
No. 73-1088.
United States Court of Appeals, First Circuit.
Argued Sept. 5, 1973.
Decided Nov. 16, 1973.
Kilkenny, Circuit Judge, dissented and filed opinion.
Stephen J. Fortunato, Jr., with whom McKinnon & Fortunato, Providence, R. I., and Ellen Katz, were on brief, for appellant.
Cary J. Coen, Providence, R. I., John M. Roney, Washington, D. C., Max D. Stern, Stern & Shapiro, Boston, Mass., and Stanley A. Bass, New York City, on brief for Robert Flint and Michael Roberts, amici curiae.
W. Slater Allen, Jr., Asst, Atty. Gen., with whom Richard J. Israel, Atty. Gen., was on brief, for appellees.
Before COFFIN, Chief Judge, KILKENNY and McENTEE, Circuit Judges.
Of the Ninth Circuit, sitting by designation.
COFFIN, Chief Judge,
This is an action seeking damages and declaratory and injunctive relief pursuant to 42 U.S.C. § 1983 and 28 U.S.C. § 1343(3) to redress certain alleged deprivations of procedural due process in the administration of discipline at Rhode Island’s Adult Correctional Institutions (A.C.I.). Appellant is a prisoner at the A.C.I., serving a life sentence for murder. In the early evening of November 11, 1972, a fellow prisoner became violently ill. When by 8:50 p. m. no medical assistance had yet been provided, appellant allegedly advised other prisoners not to return to their cells for the 9:00 lock-up, in protest against the failure to provide medical attention.
Appellant was charged with “inciting a disturbance and disrupt [sic] of A.C.I. operations, which might have resulted in a riot”, and summoned before a prison disciplinary board. He was informed that he might be prosecuted for a violation of state law, and that he should consult his attorney. However, his attorney was not permitted to accompany him into the prison disciplinary hearing. Just before the hearing commenced, appellant was advised by the Deputy Warden that his silence would be held against him. Even so, appellant remained silent through the hearing. The disciplinary board based its decision entirely upon the written statement submitted by a correctional officer who had witnessed the alleged infraction. Appellant was sentenced to thirty days in punitive segregation. The board recommended that he lose any good time credits for which he was eligible during that period and that he be considered for possible downgrading in classification at the expiration of the thirty days.
After reviewing the record, the district court concluded that appellant had not been denied due process and therefore was not entitled to any of the relief he sought. Although the claim of use immunity arguably did not arise in the original complaint, appellant twice moved for reconsideration of the question of whether he was deprived of his Fifth and Fourteenth Amendment rights against self-incrimination in the prison disciplinary hearing, where he had not been assured that his testimony could not be used to incriminate him in a subsequent criminal prosecution, and had been penalized for his failure to testify in the prison hearing. The district court denied both motions, concluding that the authorities on which appellant relied in support of his motion were distinguishable on their facts from the present case.
This ease is one of a lengthening list, raising the questions whether and to what extent due process exists behind prison walls. During the past decade, judicial reluctance to look behind the walls has given way to a special concern that fair and orderly procedures govern there. In the late 1960’s federal courts established the general principle that due process follows a prisoner through the prison doors. Jackson v. Bishop, 404 F.2d 571 (8th Cir. 1969) (Blackmun, Cir. J.); see also Johnson v. Avery, 393 U.S. 483, 89 S.Ct. 747, 21 L.Ed.2d 718 (1969). Our own Nolan v. Scafati, 430 F.2d 548 (1970) held that whenever substantial individual interests of prisoners are at stake, “some assurances of elemental fairness are essential”. In the past three years federal courts have been faced with the difficult task of giving specific content to that general principle. Recently the Supreme Court articulated specific requirements for minimum due process applicable to parole revocation proceedings, marking the first time that Court has ventured so directly into the area of due process rights for individuals under custodial authority. Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972).
The task is a delicate one for courts because of the sensitive and precarious nature of correctional institutions. Prison officials, facing complicated and combustible situations each day, must be free to make a wide range of decisions. Much muát be left to their good faith discretion. Sawyer v: Sigler, 445 F.2d 818 (8th Cir. 1971); Marnin v. Pinto, 463 F.2d 583 (3d Cir. 1972). Time has proved, however, that blind deference to correctional officials does no real service to them. Judicial concern with procedural regularity has a direct bearing upon the maintenance of institutiofaal order; the orderly care with which decisions are made by the prison authority is intimately related to the level of respect with which prisoners regard that authority. There is nothing more' corrosive to the fabric of a public institution such as a prison than a feeling among those whom it contains that they are being treated unfairly.
Control over official discretion within prison walls is vital for other reasons as well. Most decisionmaking of correctional personnel is less visible to the public than is the decisionmaking of other public officials, and therefore less likely to benefit from the inherent constraints of public discussion and scrutiny. Prisoners themselves have no opportunity to participate in a political process which might otherwise provide some guidance for official discretion. Moreover, because prisoners are under the constant care and supervision of correctional personnel within “total institutions” which regulate evey aspect of their lives, there exist awesome possibilities for misuse of discretion to the extent that decisions which affect prisoners in important ways may be made arbitrarily or based upon mistakes of fact. Finally, it is coming to be realized that almost all of the 1.2 million individuals who are at any one time subject to correctional authority will eventually rejoin the rest of our citizens oútside the prison walls; if they are to learn to respect public authority and to participate in the democratic control of that authority as normal citizens, they need to be able to challenge what appear to be arbitrary assertions of power by correctional officials during the course of their confinement.
In determining to what extent due process safeguards are required in prison disciplinary decisions, federal courts have employed two levels of analysis, first examining whether the questioned decision is one which requires due process at all, and then deciding upon the amount of due process which seems necessary under the precise circumstances. The first determination depends upon an assessment of the inmate’s stake in the decision, rather than upon a weighing of the inmate’s interest against the interests of the state. See Morrissey v. Brewer, 408 U.S. 471, 483, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972); Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972); Board of Regents v. Roth, 408 U.S. 564, 570-571, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). The stake will be sufficiently large to necessitate some due process if the consequences of the challenged actions of the state officials are sufficiently serious to amount to a “grievous loss”. See Joint AntiFascist Refugee Committee v. McGrath, 341 U.S. 123, 168, 71 S.Ct. 624, 95 L.Ed. 817 (1951) (Frankfurter, J., concurring) ; Morrissey v. Brewer, supra,, 408 U.S. at 481, 92 S.Ct. 2593.
In a prison setting where liberty is by necessity shrunken to a small set of minor amenities, such as work or schooling privileges, visitations,’ and some modicum of privacy, it is likely that any marked change of status which forecloses such liberties will be perceived and felt as a grievous loss. United States ex rel. Miller v. Twomey, supra, 479 F.2d at 717. This implies that a minimal level of due process must be achieved in reaching any decision concerning a particular inmate which may result in a marked change in the status of the inmate’s confinement, with the result that he may be deprived of amenities on which he has come to rely. The stakes are simply too high for the inmate, and the possibility for honest error or irritable mis judgment too great to allow such decisions to be taken without giving the inmate a chance to be fully informed of the case against him so that he may contest its basis. “In most cases it would probably be difficult to find an inquiry minimally fair and rational unless the prisoner were confronted with the accusation, informed of the evidence against him . . . and afforded a reasonable opportunity to explain his actions.” Sostre v. McGinnis, supra, 442 F.2d at 198. This is as true for a decision based on the security requirements of the institution or the rehabilitative interests of the inmate as it is for one based on a disciplinary violation.
Once it has been determined that the inmate’s stake in the decision is sufficient to require a minimal level of due process safeguards, the second task facing the court, more difficult and more subtle, is to decide how much due process is required beyond this minimal level. “[C]onsideration of what procedures due process may require under any given set of circumstances must begin with a determination of the precise nature of the government function involved as well as the private interest that has been affected by governmental action.” Cafeteria and Restaurant Workers Union v. McElroy, 367 U.S. 886, 895, 81 S.Ct. 1743, 1748, 6 L.Ed.2d 1230 (1961). After the precise interests of the inmate and the state have been identified, the two interests are weighed one against the other. See Goldberg v. Kelly, supra, 397 U.S. at 261, 90 S.Ct. 1011; Hannah v. Larche, 363 U.S. 420, 442, 80 S.Ct. 1502, 4 L.Ed.2d 1307 (1960).
Here, there is no question that some due process was required before appellant could be sentenced to punitive segregation and recommended for a downgraded classification. The real question concerns the extent to which due process was required. Pursuant to the so-called Morris rules, appellant was given (a) timely notice of the charge against him, (b) an opportunity to appear at the disciplinary hearing with the assistance of an authorized counsel-substitute, (c) an impartial tribunal, none of whose members reported upon or witnessed the alleged infraction, (d) the right to call witnesses and cross-examine them, (e) the right to a decision based upon “substantial evidence”, (f) notice of the rationale and consequences of the decision, and (g) the opportunity to appeal the decision to the Warden. Appellant contends that he should have been afforded the additional protections of the right to remain silent in the disciplinary hearing without his silence being used against him, the right to have the correctional officer who reported the infraction and any witnesses on whose testimony the fact-finding is based appear in person before the disciplinary board, and the right to retained counsel at the hearing. In effect, appellant argues that a proper balance of the state’s interest in efficient custody against the possibly grievous consequences of prison discipline in this case — including punitive segregation, loss of prison earnings for that period, recommended change in classification, possible effect of the decision upon his chances for parole, and possible use of the hearing record in a subsequent criminal prosecution — warranted greater due process safeguards than those offered by the Morris rules.
The task of striking a proper balance between appellant’s interest in due proe-ess safeguards and the state’s interest in efficient custody is at best an awkward and difficult one. No well defined standards have been developed for taking such measurements, and a utilitarian calculus of the benefits of possessing certain rights against the costs of supplying them seems a harsh and futile exercise in legal fiction. Moreover, it is an exercise that is bound to create uncertainty and litigation, - given the extraordinary and expanding range of correctional decisions that may result in a variety of deprivations, and the ever broadening catalogue of procedural rights which might be relevant to the prison setting. Yet certainty and consistency are no less desirable in the law relating to life in prison than they are in life beyond the walls.
The primary responsibility for articulating standards of due process lies with those who have the most intimate knowledge of both the interests of prisoners and the administrative burdens entailed with providing due process within prison. To the extent that legislators, prison officials, and prisoners themselves have spoken on the subject, they provide an essential source of guidance. We are fortunate in this case to have a set of rules for due process within prison that was carefully shaped by prisoners and correctional administrators working together under the aegis of the district court. The Morris rules have provided a workable and useful standard for measuring the extent to which • due process safeguards are required in correctional decisions which may result in punitive segregation, loss of good time, and changes in classification. Moreover, the standard is substantially the same as that employed elsewhere within this circuit, see Collins v. Hancock, supra-, Meola v. Fitzpatrick, supra, and conforms in large part to the standard set out in model' legislation.
The Morris rules, however, do not necessarily exhaust the constitutional imperative of the due process clause, or fill all the fissures. No questions are more elusive for courts than these: when does a constitutional interstice exist? By what reasoned process, consistent with constitutional precedents, changing perspectives of foreseeability and expectation and realistic restraints of practicability, can courts attempt to fill such a gap? While constitutional analysis on a macroscopic scale, dealing with the liberties specifically enshrined in the Bill of Rights, is rich with precedent, its application to the smaller liberties and their deprivations is still a new venture. But see n. 6. And the standards for measuring and balancing the interests of the individual and of society, except where one side or the other has the most compelling appeal, are as yet unarticu-lated. But unless a court were to accept the concept that the Constitution is limited to preventing only the grossest of governmental encroachments on personal freedoms, it must try to deal rationally with the emerging problems. While not usurping the legislative or executive roles, it must articulate a constitutional framework specific enough to guide government in government’s own continuing pursuit of constitutional norms.
We are fully sensitive to the fact that public administrators may view court decisions affecting “lesser” rights as intrusions into their own realm, and as setting the outer limits of constitutional accommodation. Two observations can help place this area of adjudication in perspective. The first is that the “realm” is that of the Constitution, and that the Constitution is, in the first instance, addressed to government and its officials; this is the premise, not the consequence, of judicial review. The second is that a court decision can most constructively be taken as not only prescribing, as a minimum, a specific rule arising out of a particular case, but as a helpful guide in suggesting the direction in which administrators may soundly proceed with their more detailed implementation.
The government would have us merely examine whether or not the current limitations upon due process are rationally related to the legitimate state goal of efficient custody; if such a rational relationship were found to exist, then the procedural safeguard would be unwarranted. We cannot accept, even by implication, this formulation of the rule in the type of situation presented by this ease. While due process safeguards have not as yet been elevated to the status of fundamental rights, such as freedom of speech, in relation to which the state’s interests in administrative efficiency must take second place, they are not to be abridged unnecessarily. That is, we think that if the state can accomplish its purpose just as well by observing some measure of due process as by not observing it, it should tread the former path. Where a due process safeguard entails little or no administrative burden, it should be employed whenever due process is merited. If the burden on the state is minimal, there seems to be no reason why the decision should not be made with the greatest possible care.
Perhaps because there may be few situations where it can be said that little or no administrative burden attends the provision of some due process safeguards, courts have not had occasion to speak in these precise terms. But we think this threshold test, limited though it may be in application, is but an extrapolation of the Court’s pronouncements in larger matters. The government’s obligation here is fundamentally the same as that underlying its obligation to use “less drastic means” when infringing upon First Amendment rights, see United States v. Robel, 389 U.S. 258, 267, 88 S.Ct. 419, 19 L.Ed.2d 508 (1967); Shelton v. Tucker, 364 U.S. 479, 488, 81 S.Ct. 247, 5 L.Ed.2d 231 (I960), or its obligation to use the “least restrictive alternative” when impinging up travel, free flow of commerce, or property-rights, see Aptheker v. Secretary of State, 378 U.S. 500, 507, 84 S.Ct. 1659, 12 L.Ed.2d 992 (1964) ; Polar Ice Cream and Creamery Co. v. Andrews, 375 U.S. 361, 375 n. 9, 84 S.Ct. 378, 11 L.Ed.2d 389 (1964); Dean Milk Co. v. City of Madison, 340 U.S. 349, 354, 71 S.Ct. 295, 95 L.Ed. 329 (1951); see also Griswold v. Connecticut, 381 U.S. 479, 485, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965). When the government has “reasonable and adequate alternatives available” to a given end, it must choose the measure which least interferes with individual liberties. Dean Milk Co. v. City of Madison, swpra, 340 U.S. at 354, 71 S.Ct. 295. In the present case, if the government can achieve its goai of efficient custody equally well under an alternative scheme which provides greater due process safeguards, it .is obligated to follow that alternative.
With this principle in mind, we turn to an examination of each of the due process claims of the appellant.
Appellant’s contention that he should have been afforded the additional protection, beyond the Morris rules, of the right to remain silent without his silence being used against him in the disciplinary hearing is based upon an understandable fear that any statements made at the hearing might have been used against him at a later criminal trial concerning the same offense. Without a right to remain silent in the disciplinary hearing, he faced the constitutionally obnoxious dilemma of either remaining silent and risking greater punishment from the disciplinary board or speaking out in his own defense and risking self-incrimination in a subsequent criminal prosecution. See Garrity v. New Jersey, 385 U.S. 493, 496, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967). Thus, to penalize silence in the disciplinary hearing is, in effect, to penalize the Fifth Amendment privilege against self-incrimination. See Spevack v. Klein, 385 U.S. 511, 87 S.Ct. 625, 17 L.Ed.2d 574 (1967) ; United States v. Jackson, 390 U.S. 570, 581-582, 88 S.Ct. 1209, 20 L.Ed.2d 138 (1968); Simmons v. United States; 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968); Melson v. Sard, 131 U.S.App.D.C. 102, 402 F.2d 653 (1968) ; Carter v. McGinnis, 351 F.Supp. 787 (W.D.N.Y.1972). Although under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) and Mathis v. United States, 391 U.S. 1, 4-5, 88 S.Ct. 1503, 20 L.Ed.2d 381 (1968), any incriminating statements made within a custodial interrogation would presumably be suppressed at a subsequent criminal trial, the exclusionary rule provides scant protection where, as here, a defendant can never be wholly certain that his statements will be suppressed later on, especially since his actions may be interpreted as a voluntary waiver of such rights. Moreover, even if suppressed, defendants’ statements within the disciplinary hearing may be useful to state prosecutors in planning and developing their prosecution. Evidence derived from such testimony may be seriously damaging to the defendant; the mere prospect of its use is likely to seriously inhibit the defendant from making any statements whatsoever. And because state prosecutors are apt to be interested in gathering evidence concerning a wide range of offenses occurring both inside and outside the prison walls, and implicating many prisoners, defendants within a prison disciplinary hearing may have an understandable fear of “fishing expeditions” designed to gather information. See Sands v. Wainwright, supra; Carter v. McGinnis, supra; Clutchette v. Procunier, supra, 328 F.Supp. at 778-779.
The right to remain silent in the disciplinary hearing without his silence being used against the inmate would, however, impose a significant burden upon the processes of fact finding within the disciplinary hearing. The hearings are designed to enable inmates to challenge and dispute allegations about their behavior, and to explain “their side of the story”. The practical effect of a right to remain silent would be to eliminate such an opportunity, and force the inmate and the disciplinary board to rely exclusively upon the statements of witnesses. Not only would such reliance be time consuming, but it might also prompt inmates “to pit their own resources against correctional staff in ways that-challenge institutional solidarity and encourage confrontations in other areas”. Moreover, an exercise of the right to remain silent does not impose a significant burden upon the defendant in a normal criminal trial, because of such procedural safeguards as a strong presumption of innocence, a high burden of proof which the prosecution must overcome, and the full right to call witnesses and cross-examine adverse witnesses. Such safeguards, however, do not exist within the prison disciplinary hearing; if they did, the administrative burdens thereby entailed would be significant. Thus, an inmate’s silence is likely to work against him in .the disciplinary hearing, because in maintaining his silence he sacrifices his most important defense.
We need not enter into a balancing equation concerning the right to remain silent, however, because another route is open which would protect the inmate from self-incrimination in a subsequent criminal prosecution, while imposing no burden upon the prison disciplinary hearing. Where the possibility exists of the inmate being penalized for the same criminal conduct in a disciplinary hearing and a criminal trial, he should be entitled to “use” immunity for statements he might make within the prison disciplinary hearing. See Sands v. Wainwright, supra, 357 F.Supp. at 1093; Carter v. McGinnis, supra, 351 F.Supp. at 793; cf. Melson v. Sard, 131 U.S.App.D.C. 102, 402 F.2d 653, 655 (1968); Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972). The provision of use immunity reflects a rational accommodation between the imperatives of the privilege against self-incrimination and the legitimate requirements of prison disciplinary procedures. In order for this immunity to be helpful to the inmate, however, it would be necessary that he be informed of its existence and its consequences at the prison disciplinary hearing.
Appellant’s second contention is that the disciplinary board should have required adverse witnesses to appear in person before it, rather than rely solely upon the written reports of prison personnel. Although the Morris rules specifically provide an accused inmate with “the right to call a reasonable number of witnesses, both adverse and favorable, and examine said witnesses”, appellant did not exercise his right to confront and cross-examine the complaining officer who witnessed the alleged infraction. Appellant claims, instead, that the burden of summoning adverse witnesses should be upon the disciplinary board, rather than upon the accused inmate. If the board declines to take the initiative and chooses to rely exclusively upon written reports, appellant argues that the board would thereby lack sufficient evidence to convict.
We disagree. We can envisage situations in which the board might justifiably conclude that written reports were sufficiently clear and complete so that further incriminating evidence was unnecessary. So long as the accused inmate might bolster his defense by having the opportunity to call adverse witnesses and cross-examine them, no purpose would be served by creating a per se rule that the board itself must rely only upon witnesses who appear before it. We would caution, however, that in instances where the identity of an adverse witness is withheld from an accused inmate, out of a legitimate fear that otherwise the witness would be subject to retributive violence, the board has a strong obligation to summon the adverse witness before it, in camera, and probe the credibility of the witness. See Birzon v. King, 469 F.2d 1241 (2d Cir. 1972).
Appellant’s final contention is that due process requires that he be allowed to retain legal counsel within the disciplinary hearing. The Morris rules provide for the assistance of a classification counselor or other individual specifically approved by the prison administration if the accused inmate requests help in the presentation of his case before the board. Here, the appellant was offered the assistance of a counsel-substitute during the hearing, and was permitted to consult with his retained legal counsel immediately before the hearing, but his retained counsel was barred from the hearing.
Appellant relies upon Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973), in which the Supreme Court indicated that, under some circumstances, counsel might be required within probation revocation hearings. We think, however, that appellant’s reliance is misplaced. In Gagnon, the Court did no more than leave the decision whether to supply counsel up to the discretion of the state, saying that the “participation of counsel will probably be both undesirable and constitutionally unnecessary” in most cases, and that the state should consider, among other things, the complexity of the evidence and “whether the probationer appears to be capable of speaking effectively for himself.” Gagnon v. Scarpelli, supra, 411 U.S. at 790, 93 S.Ct. at 1764. Here, there is no claim that the complexity of the evidence or special difficulties of communicating to the disciplinary board made counsel imperative.
While we are well aware that “[t]he right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel”, Powell v. Alabama, 287 U.S. 45, 68-69, 53 S.Ct. 55, 64, 77 L.Ed. 158 (1932), we do not feel that prison disciplinary hearings necessarily require professionally trained counsel. The requirement of professionally trained counsel in all eases could amount to a significant expense for the government, both in supplying counsel for the accused and, because the hearing is likely to become more adversarial as a result, in prolonging the proceeding and making it necessary for the state to be represented by its own attorney. The state is not now represented by a prosecutor within the hearings, nor are formal rules of evidence in force to the extent that a defendant’s procedural rights may be lost if not timely raised. Nor is there a jury for whom a defendant’s presentation must be made understandable. See Gagnon v. Scarpelli, supra, 411 U.S. at 789, 93 S.Ct. 1756. Moreover, the evidence as to whether the inmate has violated a prison regulation is likely to be simpler, more precise and more readily at hand than in most criminal trials, Sostre v. McGinnis, 442 F.2d 178 (2d Cir. 1971). While the requirement of legal counsel might be more compelling where the accused, faced with a possible criminal prosecution in the future, had to walk a tightrope between defending himself now and incriminating himself later on, the provision of use immunity eliminates this potentially complicated endeavor. We have no reason to believe that counsel-substitute, of the sort provided for in the Morris rules, will not normally provide adequate assistance to an accused inmate within the disciplinary hearing.
Appellant emphasizes that any mistakes of fact which may have slipped through the hearing are likely to find their way to the State Parole Board when appellant is eligible for parole, and that the presence of counsel at the hearing would have prevented this. Several courts have recognized the damaging nature of a mistake of fact in an inmate’s prison record which may follow him through the prison system, unfairly punishing him anew each time his record is used against him. Burgett v. Texas, 389 U.S. 109, 115, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967); McDonald v. Wolff, 483 F.2d 1059 (8th Cir. 1973); Hudson v. Hardy, 137 U.S.App.D.C. 366, 424 F.2d 854, 856 (1970). But we think that a counsel-substitute can be sufficiently effective within most hearings to protect against any serious mistakes of fact on which the disciplinary board might base it findings. Moreover, because a variety of reports and unsupported allegations of fact by correctional personnel may find their way, at various times, into the inmate’s prison record, a far better way of protecting the inmate from such mistakes would be to let him review and challenge his record whenever correctional decisions are based, wholly or in part, upon the prison record.
While we therefore conclude that there is, under normal circumstances, no duty upon the state to furnish counsel in prison disciplinary hearings, we are also of the opinion that an inmate should be permitted to bring retained counsel with him into the disciplinary hearing. We adhere to the approach of the Supreme Court in Goldberg v. Kelly, supra, 397 U.S. at 270, 271, 90 S.Ct. 1011 (1969) in saying that the right to retained counsel is constitutionally required where grievous loss is threatened and the presence of retained counsel will not unduly prolong or otherwise encumber the hearing. While authority is scarce in this developing area of law, the few courts which have faced this particular issue have permitted retained counsel, see Landman v. Royster, supra, 333 F.Supp. at 654; Sands v. Wainwright, supra, 357 F.Supp. at 1089.
Retained counsel might benefit the accused in several ways. Counsel could speak on behalf of the accused at the hearing, particularly in those cases where the accused inmate was inarticulate or had difficulty understanding the questions put to him. In addition, counsel’s presence at the disciplinary hearing and later recollection of what occurred therein might help assure that the immunity accorded the inmate is not violated in subsequent proceedings. The occasional presence of counsel might also have the helpful cautionary effect of assuring that all necessary due process safeguards were provided for within the hearing.
The presence of retained counsel at the disciplinary hearing could also benefit the correctional administration of the prison. Counsel might provide correctional administrators with useful guidance in novel situations where no procedural rules had as yet been developed. And because the precise rudiments of prison disciplinary hearings exist in a developing area of the law where no firm guidelines exist, trained legal counsel may be of important assistance in reaching accommodations between inmates and administrators which would avoid the necessity of continued litigation.
Finally, since inmates are currently permitted to consult with their retained counsel at the A.C.I. outside the disciplinary hearing, we can see no rational purpose served by not allowing them access to their counsel within the hearing. On the contrary, intermittent consultations with retained counsel outside the hearing room while the hearing is in progress would seem to result in unnecessary prolongation of the proceedings. Moreover, the government has offered no reason why retained counsel should not be permitted within the disciplinary hearings.
We therefore conclude that appellant was denied due process in the disciplinary hearing only insofar as he was not provided with use immunity for statements he might have made within the disciplinary hearing, and because he was denied access to retained counsel within the hearing. Since, however, this solution is novel, the appellee cannot in fairness be subjected to a sanction which would ordinarily accompany the violation of preexisting law, Jones v. Rundle, 358 F.Supp. 939 (E.D.Pa.1973); cf. Great Northern Railway Co. v. Sunburst Oil and Refining Co., 287 U.S. 358, 53 S.Ct. 145, 77 L.Ed. 360 (1932). It follows that appellant’s claim for money damages must be denied. However, appellant’s in-prison record will be expunged of all findings and decisions pertaining to the alleged infraction and the disciplinary board hearing. We will apply this rule in the future only to those cases where a disciplinary hearing occurs subsequent to the date of this opinion.
The judgment is- reversed.
. Punitive segregation normally requires that the prisoner be locked in his cell full time. He takes his meals in his cell, is deprived of recreation and exercise, and is not permitted to attend his work assignment. Here, appellant was locked in his cell for twenty-four hours a day during the first five days of punitive segregation, and twenty-three hours each day during the remaining twenty-five days of segregation.
. Pursuant to Rhode Island General Laws § 13-2-44, appellant, under sentence to imprisonment for life, was not eligible for good time credit. Were he not sentenced to life, however, he would have been entitled to a recommendation from the Warden that five days be deducted from his prison term for each month he serves on an original sentence of five or more years. Thus, if appellant had been eligible, a loss of thirty days good time would have the effect of extending his term of imprisonment by thirty days.
. Pursuant to the Regulations Governing Disciplinary Classification, and Mail Procedures for the Inmates at the Adult Correctional Institutions, State of Rhode Island [hereinafter the Morris rules]., the disciplinary board may recommend to the classification board that the prisoner’s status be changed. Before any downgrading of classification may occur, however, prisoners are entitled to receive (a) timely notice, (b) an opportunity to appear before the board, (c) an opportunity to call and examine witnesses, (d) explanation of the board’s rationale in coming to its decision. In addition, (e) decisions of the board must be based upon substantial evidence.
Inmates may be classified into one of four categories, each category carrying with it progressively closer supervision and more restrictions. Category “A” encompasses the general prison population; category “B” entails loss of work eligibility, television, and extended yard privileges, and requires that inmates have all their meals within their cells; category “C” entails all the restrictions of category “B” with the addition that the inmate is placed in a separate living location and deprived of participation in any institutional activities; category “D” entails all the restrictions of category “C” with the additional loss of radio privileges.
. The district court concluded that procedural due process was accorded the appellant in the disciplinary proceeding because he was fully advised prior to the hearing of the infraction of the rules, had an opportunity to confer with his counsel with respect thereto, had an opportunity to have a counsel-substitute during the hearing, the charges were read to him at the hearing and he was given the opportunity to explain his actions, he was informed of the evidence against him, and the decision of the disciplinary board was based on facts rationally determined.
. See Note, Beyond the Ken of the Courts: A Critique of Judicial Refusal to Review the Complaints of Convicts, 72 Yale L.J. 506 (1963). See, e. g., Roberts v. Pegelow, 313 F.2d 548, 550 (4th Cir. 1963).
. This newly awakened judicial sensitivity is but part of a growing concern that governmental decisions directly affecting individual interests and causing significant deprivations conform to the rudiments of due process, regardless of whether what is at stake is termed a right, privilege, liberty, or property. See, e. g., Gagnon v. Searpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973) (due process may require counsel in probation revocation hearings) ; Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972) (due process before parole revocation) ; Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972) (due process before repossession) ; Bell v. Burson, 402 U.S. 535 (1971) (due process before suspension of driver’s license) ; Wisconsin v. Constantineau, 400 U.S. 433, 91 S.Ct. 507, 27 L.Ed.2d 515 (1971) (due process before publicly advertised loss of right to purchase liquor) ; Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed. 2d 287 (1969) (due process before termination of welfare payments) ; Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969) (due process before removal or garnishment of wages).
. See, e. g., McDonnell v. Wolff, 483 F.2d 1059 (8th Cir. 1973) ; United States ex rel. Miller v. Twomey, 479 F.2d 701 (7th Cir. 1973) ; Sands v. Wainwright, 357 F.Supp. 1062 (M.D.Fla.1973) ; Rinehart v. Brewer, 360 F.Supp. 105 (S.D.Iowa 1973) ; Collins v. Hancock, 354 F.Supp. 1253 (D.N.H.1973) ; Lathrop v. Brewer, 340 F.Supp. 873 (S.D.Iowa 1972) ; Landman v. Royster, 333 F.Supp. 621 (E.D.V.a.1971) ; Meola v. Fitzpatrick, 322 F.Supp. 878 (D.Mass.1971) ; Clutchette v. Procunier, 328 F.Supp. 767 (N.D.Cal.1971) appeal docketed; Morris v. Travisono, 310 F.Supp. 857 (D.R.I.1970) ; Sostre v. Rockefeller, 312 F.Supp. 863 (S.D. N.Y.1970), rev’d in part, modified in part, aff’d in part, sub nom. Sostre v. McGinnis, 442 F.2d 178 (2d Cir. 1971), cert. denied sub nom., Sostre v. Oswald, 404 U.S. 1049, 92 S.Ct. 719, 30 L.Ed.2d 740 (1972).
. See generally, Fox, AVhy Prisoners Riot. 35 Fed.Prob. 9 (1971).
. See Note, Bargaining in Correctional Institutions : Restructuring the Relations Between the Inmate and Prison Authority, 81 Yale L.J. 726 (1972) ; McCleery, The Governmental Process and Informal Social Control, in The Prison 149 (D. Cressey, ed., 196J).
. E. Goffman, On the Characteristics of Total Institutions, in Asylums 49 (1961). See also Cloward, Social Control in the Prison, in Theoretical Studies in Social Organization of the Prison 20 (Social Science Research Council, ed., 1960).
. President’s Commission on Law Enforcement and the Administration of Justice, Task Force Report: Corrections 82 (1967).
. See nn. 1-3.
. In Morris v. Travisono, 310 F.Supp. 857, 859 (D.R.I.1970), the district court, in a significant and innovative role, oversaw negotiations between prisoners and prison officials and ordered that the results of the negotiations be printed and distributed to prisoners for their final approval. After receiving responses from the inmates to the proposed regulations, the court then implemented the rules by an interim decree, id. at 862, but retained jurisdiction to allow for necessary changes and to make sure that the new rules were implemented. The new rules were officially promulgated by the Assistant Director for Correctional Services in February, 1970. See Regulations Governing Disciplinary Classification, and Mail Procedures for All Inmates at the Adult Correctional Institutions, State of Rhode Island (1970).
. The findings of the disciplinary board may be taken into consideration at parole board hearings, as well as at classification board hearings. According to the Morris rules, supra, n. 13, the central file of each inmate committed to the A.C.I. for more than one year must include (a) regular case summaries ; (b) probation officer’s report and other diagnostic summaries from other agencies ; (e) up-to-date progress reports in the areas of work assignment, vocational training, education, psychiatry, and medical treatment; (d) records of disciplinary board determinations ; (e) any correspondence relating to the inmate; (f) identification material; (g) a record of all classification transactions.
. While some standards are emerging as to how much due process is due in the maintenance of prison discipline, see Miller v. Twomey, supra-, McDonnell v. Wolff, supra-, Sands v. Wainwright, supra-, Rinehart v. Brewer, supra; Collins v. Hancock, supra, the courts have not as yet articulated the methodology they employ in arriving at the appropriate balance between due process and the interests of the state in efficient custody. While there seems to be some general agreement that the extent of due process required by Goldberg v. Kelly, supra and Morrissey v. Brewer, supra, frames the outer limit of due process required within prison walls, federal courts have failed to come up with any useful measuring rod for determining the extent of due process within this outer limit. See Wick, Procedural Due Process in Prison Disciplinary Hearings: The Case for Specific Constitutional Requirements, 18 S.D.L.Rev. 309 (1973).
. As the correctional facility adds new rehabilitative programs and activities, administrative discretion becomes broader. The correctional officer or administrator can, in some cases, decide upon various degrees of custody within the same category of classification; he can offer schooling, jobs, and training programs (or decide not to offer them) ; he can grant furloughs, work-release, school release, weekend release (or stop granting them) ; he can provide the inmate with an interesting and relatively lucrative job assignment, or a poor one. See Rabow and Elias, Organizational Boundaries, Inmate Roles, and Rehabilitation, 6 Crime and Delinquency 8 (1969) ; see generally, Sykes, The Corruption of Authority and Rehabilitation, 34 Soc. Forces, 257 (1956).
At the same time, the possible catalogue of procedural rights which might be applicable inside the prison grows longer. The possible catalogue of rights might include, beyond what is already provided in the Morris rules, a right to the promulgation of written regulations which are reasonably specific, the suppression of any evidence which was wrongly discovered, the power to subpoena witnesses, and the power of discovery, a transcript of the disciplinary proceedings, formal rules of evidence during the hearing, a jury of peers, conviction only upon the overcoming of a high presumption of innocence, and direct appeal. We hasten to add that this cataloguing is not an invitation to inmates to further litigation but, rather is merely intended to illustrate the wide variety of safeguards encompassed within the concept of procedural due process.
. See, e. g., Boston University Center for Criminal Justice, Model Rules and Regulations on Prisoner’s Rights and Responsibilities (1973) ; National Council on Crime and Delinquency, Model Act to Provide for Minimum Standards for the Protection of the Rights of Prisoners § 4, 18 Crime and Delinquency -12 (1972) ; President’s Commission on Daw Enforcement and the Administration of Justice, Task Force Report: Corrections 86 (1967) ; see also legislation introduced in Congress which was designed to provide minimal procedural safeguards for prisoners in the maintenance of prison discipline, H.R. 12757, 92nd Cong., 2d Session (1972).
. See, e. g., the rational relation upheld in McGowan v. Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961).
. See Note, Less Drastic Means and the First Amendment, 78 Yale L.J. 464 (1969) ; see generally, Wormuth and Merkin, The Doctrine of the Reasonable Alternative, 9 Utah L.Rev. 254, 267 (1964).
. See Struve, The Less Restrictive Alternative Principle and Economic Due Process, 80 Harv.L.Rev. 1463 (1967).
. The government’s reliance upon McGautha v. California, 402 U.S. 183, 91 S.Ct. 1454, 28 L.Ed.2d 711 (1971) in this regard is misplaced. While McGmtha holds that a defendant faced with the difficult conundrum in a unitary trial of speaking out for a lenient sentence and risking self-incrimination on the issue of guilt is not denied the protection of the Fifth Amendment, the choice facing prisoners within a prison disciplinary hearing is far different. A criminal defendant faces many difficult choices during the course of his trial: whenever he exercises his right to remain silent, he quite naturally sacrifices one means of defense; on the other hand, if he speaks out, he may open himself to otherwise inadmissible matters which may be brought out on cross-examination and also to impeachment by proof of prior convictions. See Spencer v. Texas, 385 U.S. 554, 561, 87 S.Ct. 648, 17 L.Ed.2d 606 (1967). The dilemma faced in McGautha is but one variant on these traditional, strategic considerations that run through criminal trials. It should be kept in mind, however, that a defendant in a criminal trial may remain silent and yet still have the opportunity to mount a strong defense by calling and cross-examining witnesses. He is also protected by the high burden of proof which the government must sustain before he can be found guilty. Under these circumstances, silence is not a fundamental sacrifice. If is often a wise strategy.
The accused prisoner, however, has no such procedural safeguards within the prison hearings. His opi)ortunity to Ofill witnesses and cross-examine them is necessarily limited by the possibility that the disciplinary board may rely upon informants. The burden of proof which must be sustained against him is far lower than in a criminal trial, merely calling for “substantial evidence”. If he keeps silent, his silence is almost bound to seriously cripple his defense within the disciplinary hearing. Silence is not a strategic alternative for him.
. See Lovell and Nelson, Correctional Management and the Changing Goals of Correction, in Problems in Criminal Justice Administration 82 (M. Cohn, ed., 1969).
. Note, Bargaining in Correctional Institutions, swpra, at 733.
. Morris rules, Disciplinary Procedures § III, C,4.
. Id. at § 111,0,3.
. Id. § 111,0,5. We necessarily assume that counsel-substitute, reasonably experienced in the procedures to be employed in prison disciplinary hearings, will explain questions put to the accused, occasionally help the accused make himself understood, and advise the accused on how to proceed with his questioning of-the complaining officer or witnesses to the infraction.
. In light of our principle of extending procedural due process where there is little or no administrative burden, we assume that counsel’s role would be limited to consultation with the accused, observation of the proceedings, and occasionally speaking on behalf of the accused. Under our approach, it is likely that a larger role than this would begin to create an unwarranted administrative burden. Thus, counsel would not participate in cross-examination, for that might understandably prompt the prison officials to obtain legal counsel to represent the prosecution’s side of the adversarial process.
. Whatever the constitutional distinction between the right to retained counsel as opposed to appointed counsel, it is clear that the former is historically broader in scope than the latter. See Davis, Administrative Law Treatise, § 8.10 (1958). Contrary to the suggestion of our dissenting brother, we do not here purport to exercise any supervisory power.
We acknowledge that to permit retained counsel while not requiring appointed counsel might deny those who could not afford their own retained counsel the equal protection of the laws, a circumstance found by two circuits to arise in parole revocation proceedings, Earnest v. Willingham, 406 F.2d 681, 684 (10th Cir. 1969), and probation revocation proceedings, Wainwright v. Cottle, 477 F.2d 269 (5th Cir. 1973), vacated and remanded, 414 U.S. 895, 94 S.Ct. 221, 38 L.Ed.2d 138 (1973).
We do not, however, deal with that issue at this time. The prison administrative hearing, even when resulting in segregation or loss of good time, may require less of an adversarial proceeding and necessitate fewer due process safeguards than a hearing which could result in the revocation of the liberty entailed in parole or probation. Consequently, the possibility of a denial of equal protection for inmates too poor to afford retained counsel may be reduced in the prison context. Moreover, both Earnest and Wainwright were decided before Gagnon’s ad hoe rule for deciding when counsel is to be required in revocation proceedings. Apparently the Supreme Court felt that Gagnon’s rationale was sufficiently relevant to vacate Wainwright and remand it for further consideration in light of Gagnon. | 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"
] | [
0
] | songer_circuit |
ATLAS TRUCK LEASING, INC., Plaintiff, Appellee, v. FIRST NH BANKS, INC. (Formerly First Bancorp of New Hampshire, Inc.), Defendant, Appellant.
No. 86-1565.
United States Court of Appeals, First Circuit.
Argued Oct. 8, 1986.
Decided Jan. 12, 1987.
Mark Weaver with whom James E. Higgins and Sheehan, Phinney, Bass & Green Professional Association, Manchester, N.H., were on brief for defendant, appellant.
Gary S. Matsko with whom Judith Ash-ton and Davis, Malm & D’Agostine, Boston, Mass., were on brief for plaintiff, appellee.
Before COFFIN, BREYER and TORRUELLA, Circuit Judges.
BREYER, Circuit Judge.
Atlas Truck Leasing, Inc. (Atlas) sued First NH Banks, Inc. (FNH) for unlawfully terminating a Vehicle Lease Agreement. The jury found for the plaintiff, and awarded Atlas $50,000. FNH appeals. We affirm.
The facts of the case may be summarized briefly. Atlas is a corporation that leases vehicles. It is owned by the Trans-Lease Group, a Massachusetts Business Trust. FNH is a bank holding company that sends documents back and forth among its various offices. In contracting with Trans-Lease for a document courier service, FNH signed a Vehicle Lease and Service Agreement that governed the leasing of vehicles by Atlas to FNH. The Lease Agreement says that FNH, the lessee, “agrees to hire” from Atlas certain specified vehicles “for a term beginning on the date each such VEHICLE is ready for ... service ... and continuing until terminated, as hereinafter provided____” The termination provision of the Lease Agreement says:
This agreement may be terminated wholly or in part by either LESSOR or LESSEE on any anniversary date of the last vehicle installed in the customer service, upon sixty (60) days written notice thereof to the other party of its intent to terminate.
After Atlas had provided vehicles under the lease for about 17 months, FNH terminated the courier service with Trans-Lease and refused to accept cars from Atlas.
Atlas sued for breach. It argued that FNH terminated the lease nearly two months after the anniversary date indicated in the quoted provision; thus, the agreement, by its terms, should have remained in effect until the next anniversary. The jury found (contrary to FNH’s claims) that the Lease Agreement constituted a binding contract between the parties, and that FNH had breached that contract. Based on evidence of Atlas’ earnings during the last twelve months that it had leased vehicles to FNH, the jury found that Atlas had suffered $50,000 of lost profits.
FNH does not appeal the jury’s finding that the Lease Agreement constituted a binding contract. Rather, it makes three less central claims. It says the district court erred: 1) in denying FNH’s motion in limine to exclude certain exhibits and testimony, 2) in submitting the issue of damages to the jury, and 3) in instructing the jury on foreseeability of damages and on the effect of income taxes on the damage award. We consider each of these arguments in turn.
1. FNH claims that the district court abused its discretion when it denied FNH’s motion to exclude from evidence certain financial records and related testimony relevant to damage calculations. FNH says that the evidence should have been excluded because Atlas did not furnish the exhibits to the Clerk’s office at least one week before trial, as required by New Hampshire District Court Rule 16(a); instead it delivered them 5 days before trial. FNH adds that late delivery materially prejudiced its defense.
The trial court, however, has wide latitude in formulating pretrial orders and in imposing sanctions on parties who fail to comply with procedural rules. See Fed.R.Civ.P. 16; N.H.DistR. 2(a). We will reverse its determination only if the ruling results in clear injustice. See 8 C. Wright & A. Miller, Federal Practice and Procedure §§ 2006, 2284 (1970), and cases there cited. We can find no such injustice here because the exhibits in question were filed only two days late. The trial court granted FNH an additional half-day to review the late exhibits and Atlas provided FNH with work papers to assist FNH with its review. Under these circumstances, the trial court did not exceed the scope of its legal power to decide whether or not to exclude the evidence. Cf. Johnson v. H.K. Webster, Inc., 775 F.2d 1, 4-5 (1st Cir.1985) (upholding a ruling enabling a party to amend its list of expert witnesses seven days before trial); Clark v. Pennsylvania R.R. Co., 328 F.2d 591 (2d Cir.), cert. denied, 377 U.S. 1006, 84 S.Ct. 1943, 12 L.Ed.2d 1054 (1964) (upholding the admission of testimony by witnesses not named in the pre-trial order when the judge offered counsel an adjournment to prepare for cross-examination).
2. FNH also contends that the trial court should not have submitted the issue of damages to the jury because the amount of damages was not foreseeable. Cf. Hydraform Products Corp. v. American Steel & Aluminum Corp., 127 N.H. 187, 197, 498 A.2d 339, 345 (1985) (holding that one who breaches a contract is liable for reasonably foreseeable damages); Petrie-Clemons v. Butterfield, 122 N.H. 120, 124, 441 A.2d 1167, 1170 (1982) (same); Crawford v. Parsons, 63 N.H. 438, 444 (1885) (same). It says that damages were not reasonably certain to occur because the Lease Agreement, (which required Atlas to keep vehicles available for FNH’s use) provided for payment on the basis of per mile use, but it did not say how much FNH had to use the vehicles. FNH told the jury that it might have hired the vehicles from Atlas and just have left them sitting in the parking lot. Tr. 3-44—3-45. Left idle, the cars would produce no income for Atlas because FNH owed Atlas money only if the vehicles were used. If FNH could refuse to use the vehicles, then Atlas could not reasonably foresee damages from termination of the lease.
In fact, however, FNH was legally obliged to use the vehicles. Under New Hampshire law, every contract carries an implied covenant of good faith and fair dealing. See Albee v. Wolfeboro R.R. Co., 126 N.H. 176, 179, 489 A.2d 148, 151 (1985) (citing Seaward Constr. Co. v. Rochester, 118 N.H. 128, 383 A.2d 707, 708 (1978)). FNH would violate this covenant if it were unreasonably not to use the vehicles in order to deprive Atlas of the contract’s benefits. See Uproar Co. v. National Broadcasting Co., 81 F.2d 373, 377 (1st Cir.), cert. denied, 298 U.S. 670, 56 S.Ct. 835, 80 L.Ed. 1393 (1936). FNH therefore had to make reasonable good faith efforts to use Atlas’ vehicles to satisfy the banks’ ordinary needs. If FNH violated its obligation, Atlas would foreseeably suffer damages.
The jury could reasonably assess Atlas’ damages by looking to the time period when FNH lived up to its contractual obligation to act in good faith. It could have decided that Atlas would have earned profits roughly comparable to what it earned in that prior comparable period. It is, after all, common practice to estimate lost future profits by examining profits earned in the comparable past. See Van Hooijdonk v. Langley, 111 N.H. 32, 34, 274 A.2d 798, 799 (1971); 11 Williston on Contracts § 1346A (3d ed. 1968). The jury had ample evidence of the profits earned by Atlas during the 16 months before FNH said it wanted to terminate the contract. It also had evidence that FNH’s needs for courier services remained essentially unchanged. The jury could calculate probable lost profits with reasonable certainty. Therefore, the court was legally entitled to submit the issue of damages to the jury. See Hydraform, 127 N.H. at 197, 498 A.2d 345 (citing Whitehouse v. Rytman, 122 N.H. 777, 780, 451 A.2d 370, 372 (1982)); Van Hooijdonk, 111 N.H. at 34, 294 A.2d at 799-800.
3. Finally, FNH asserts that two of the court’s jury instructions were erroneous. It says that the court should have given the following requested instruction on damage foreseeability:
If Plaintiff Atlas is entitled to any damages in this case, they [sic] may only be granted compensation for those injuries the Defendant FNH had reason to foresee as a probable result of its breach of a contract with Atlas. Emery v. Caladonia Sand & Gravel Co., 117 N.H. 441, 446 [374 A.2d 929] (1977).
The court, however, actually instructed the jury as follows:
Profits that might reasonably be anticipated may be recovered as damages. You may determine lost profits based on evidence of the prior profits Atlas had under the agreement.
Damages ... including those of lost profits do not have to be proved with mathematical certainty, but they may not be wholly speculative. If profits were reasonably certain to result they may be awarded by the jury.
We can find no legally significant difference between the two instructions. We realize that the court spoke of damages that might “reasonably be anticipated” while FNH wanted it to use the words “reason to foresee” but, in the context of this case, that seems a distinction without a difference. FNH also tells us that the court instruction omitted details of the Emery holding, but FNH’s instruction also omitted those same details. In any event, we believe that the charge adequately reflects New Hampshire’s rule on contractual damages — at least insofar as the facts of this case are concerned. See, e.g., PetrieClemons, 122 N.H. at 125, 441 A.2d at 1171 (“We will uphold an award of damages for lost profits if sufficient data existed indicating that profits were reasonably certain to result.”); M.W. Goodell Construction Co. v. Monadnock Skating Club, Inc., 121 N.H. 320, 323, 429 A.2d 329, 331 (1981) (noting that “the law does not require ‘mathematical certainty’ in computing damages”); Zareas v. Smith, 119 N.H. 534, 538, 404 A.2d 599, 601 (1979) (holding that “consequential damages that ‘could have been reasonably anticipated by the parties as likely to be caused by the defendant’s breach’ ” may be awarded to plaintiff) (quoting Hurd v. Dunsmore, 63 N.H. 171, 174 (1884)).
FNH also complains about the fact that the trial court instructed the jury on the effect of income taxes on the damage award. The court told the jury:
In determining damages for lost profits you are not to consider income tax, because if there is an award of damages the plaintiff will have to pay taxes on that award.
This was a correct statement of the law. See Kennett v. Delta Air Lines, Inc., 560 F.2d 456, 462-63 (1st Cir.1977); McLaughlin v. Union-Leader Corp., 100 N.H. 367, 371, 127 A.2d 269, 273 (1956), cert. denied, 353 U.S. 909, 77 S.Ct. 663, 1 L.Ed.2d 663 (1957). And the judge might reasonably have believed the circumstances called for the instruction. FNH raised the tax issue when it asked witnesses several times whether or not tax consequences were considered in calculating profits. The instruction simply eliminated possible jury confusion about the role taxes should play in assessing damages. We find no legal error in any of the cited instructions.
The judgment of the district court is
Affirmed. | What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court conclude that the jury instructions were improper?" 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 conclude that the jury instructions were improper? | [
"No",
"Yes",
"Yes, but error was harmless",
"Mixed answer",
"Issue not discussed"
] | [
4
] | songer_juryinst |
NATIONAL LABOR RELATIONS BOARD, Petitioner, v. MT. VERNON TELEPHONE CORP., Respondent.
No. 16236.
United States Court of Appeals Sixth Circuit.
Dec. 2, 1965.
Celebrezze, Circuit Judge, dissented.
Nancy M. Sherman, N. L. R. B., Washington, D. C., Arnold Ordman, General Counsel, Dominick L. Manoli, Associate General Counsel, Marcel Mallet-Prevost, Asst. General Counsel, Julius Rosenbaum, Attorney, N. L. R. B., Washington, D. C., on brief, for petitioner.
Eldred A. Gentry, Cleveland, Ohio, Stanley, Smoyer & Schwartz, Cleveland, Ohio, on brief, for respondent.
Before WEICK, Chief Judge, CELE-BREZZE, Circuit Judge, and CECIL, Senior Circuit Judge.
WEICK, Chief Judge.
The National Labor Relations Board filed a petition in this Court for enforcement of its cease and desist order against respondent, Mt. Vernon Telephone Corp. The Board had found that respondent violated section 8(a) (3) and (1) of the National Labor Relations Act by discriminatorily demoting and laying off its employee, Robert Sanford, and ordered it to reinstate him with back pay. 29 U.S.C. § 158(a) (1), (a) (3). The Board’s decision and order are reported at 147 N. L. R. B. 125.
Respondent is an Ohio corporation engaged in supplying telephone service to local subscribers. Sanford had been employed by respondent in a number of different jobs from October, 1948 to August, 1963. This employment had been continuous except for two years’ military service and the layoff on January 15, 1963 to July 15, 1963. Sanford had been active in a union campaign to organize respondent’s employees. On June 29, 1962 the union was elected exclusive bargaining representative and certified by the Board on August 8, 1962. Thereafter, on May 1, 1963, respondent and the union entered into a collective bargaining agreement to run for one year and to continue from year to year unless terminated by either party upon notice.
After holding various jobs with respondent as instrument repairman, switchman, cable helper, and lineman, Sanford was transferred to switchman on May 1, 1961, and as such he worked in the switchroom maintaining central office equipment. On July 25, 1962 Sanford was transferred back to cable helper, from which position he was laid off on January 15, 1963. On July 15, 1963 he was recalled as switchman pursuant to the union contract to work during vacation periods and he was again laid off on August 15, 1963. He has not since been recalled.
The Board found that Sanford’s transfer from switchman to cable helper was discriminatorily motivated because of his union activities. Although the Board found a basis for the layoff from cable helper because of the introduction of labor saving equipment to that job, it reasoned that the demotion from switch-man was an unfair labor practice. The Board did not claim that respondent’s seniority policy was discriminatorily applied. The Board also found that Sanford’s layoff on August 15, 1963, after recall, was wrongful in that it was motivated by the prior discrimination and Sanford’s nomination to the office of union president on August 8, 1963.
The Board based its finding that the demotion from switchman to cable helper was discriminatorily motivated on several factors. The Board referred to alleged coercive statements of management, to show management’s preoccupation with union activities. The subject of union organizing was brought up by Sanford and discussed with Personnel Director Coleman. About the same time Manager Lahm inquired of employee Young if he had been contacted about union membership or if other employees had signed union cards. Later Superintendent Smith asked Sanford why “you guys upstairs” wanted the union, to which Sanford responded by inquiring as to Smith’s basis for the question, and Smith replied, “Oh, we know.” At about the same time District Manager Tanner expressed the hope to employees Blubaugh and Sanford that the union would not prevail. The National Labor Relations Act specifically provides that the expression of any views shall not be evidence of an unfair labor practice if such expression contains no threat of reprisal or force or promise of benefit. 29 U.S.C. § 158(c). There is nothing in the above statements to indicate that they had the effect of coercion, threat of reprisal, or promise of benefit. They were made in the exercise of free speech and as such have no evidentiary value of an unfair labor practice. N. L. R. B. v. Tennessee Coach Co., 191 F.2d 546 (6th Cir. 1951).
Employee Blubaugh testified in the hearing before the Trial Examiner that respondent’s President Quatman “said that within a year’s time that he would be rid of the union and everbody else that had anything to do with it.” Although Quatman denied making the statement, the Trial Examiner credited Blubaugh “on the basis of demeanor.” The Board adopted the Examiner’s findings.
It is clear that the crediting of a witness by a Trial Examiner is entitled to great weight by a reviewing court, but it is also true that the crediting is not conclusive on the court. The court may choose not to be bound if it believes that the crediting was improper. As stated by this Court in N. L. R. B. v. Elias Brothers Big Boy, Inc., 327 F.2d 421, 426 (6th Cir. 1964):
“In a proper case this Court may decline to follow the action of an examiner in crediting and discrediting testimony, even though the Board has adopted the Examiner’s findings.”.
Here the Trial Examiner credited the testimony of a prejudiced witness. When Quatman was alleged to have made this statement to Blubaugh they were alone in a meeting to discuss whether Blubaugh’s suspension for molesting a female employee and for intoxication, should be made permanent by dismissal. In crediting Blubaugh the Trial Examiner did not mention this incident. In addition, the Examiner apparently did not credit Blubaugh on the other aspects of his testimony, but did on this one aspect. The Examiner did credit Quatman’s testimony on some other matters, but discredited his denial of making the statement in question.
The Examiner also credited employee Young over Manager Lahm relative to Young’s testimony that Lahm stated that the Company would accelerate introduction of labor saving equipment because of the advent of the union. Lahm denied making the statement, and the Examiner credited Young because he was a reluctant witness for the Board under subpoena. This seems to be a thin ground since all of the Board’s witnesses were under subpoenas. Following this to its logical conclusion, all of the subpoenaed witnesses should be credited irrespective of their testimony. The General Counsel did not ask to cross-examine Young as a hostile witness. In any event, this statement, if true, is not entitled to much weight because where an employer makes a change which results in displacing employees for sound economic reasons, that action is not wrongful even though accelerated by union activity. N. L. R. B. v. Rapid Bindery, Inc., 293 F.2d 170, 174 (2nd Cir. 1961).
The Board found that respondent had no business motives for demoting and laying off Sanford. Rather, it concluded that respondent’s action was wrongfully motivated by Sanford’s union activity. Its decision is based entirely on inferences. However, the entire record must be reviewed and overbearing evidence calling for contrary inferences, must be considered. Universal Camera Corp. v. N. L. R. B., 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951).
There is substantial evidence to support respondent’s position that the fourth man was not needed in the switch-room, and that operations were effectively carried on with only three men. With four men in the switchroom they were idle at times. Sanford’s job was never refilled since his transfer to cable helper on July 25,1962. This is strong evidence of the economic justification for his transfer. In addition, less overtime was worked in the switchroom with three employees following Sanford’s demotion, than with four employees prior to the reduction. The equipment in the switch-room was almost free of fault after the reduction as shown by a testing device. This would tend to show the absence of need for an additional man.
The absence of this need is further shown by the amount of time a traveling maintenance crew spent at respondent’s plant after the reduction. At best there was an increase of 3.6 hours per week. President Quatman came to the conclusion after about fourteen months of operating the switchroom with four men, that the operating cost was too high and that a fourth man was not needed. The initial decision to add a fourth man had come after four to five years of disagreement between Quatman and the local Manager over the necessity of adding a fourth man. President Quatman had a right to revaluate his decision and to retract it in the absence of improper motivation. The fact that Local Manager Lahm urged President Quatman to add additional help in the switchroom, was merely a continuation of the long disagreement over a fourth man.
Although the three remaining men in the switchroom worked harder after the reduction, in part due to the installation of new long distance dialing equipment, the record does not show that the extra work could not be handled effectively by three men and that a fourth was needed.
As pointed out before, the Trial Examiner did not question the layoff' of the cable helpers. He complained about the transfer of Sanford from switchman to cable helper in contemplation of the layoffs. But Sanford had previously been a cable helper for about five and one-half years. He held the job as switchman for slightly less than fifteen months, and then only because President Quatman gave in, against his better judgment, to the arguments of Manager Lahm. Under these circumstances it can hardly be said that Sanford’s job as switchman was permanent. The respondent was not required to keep him in that position when his services were no longer needed.
The Board cited the fact that District Manager Tanner in a letter recommended a “good company man” for a position over another person whose brother in another plant was pro-union. Although this letter does provide a basis for an inference of respondent’s general hostility toward unions, it does not provide a basis for an inference of wrongful motive as to a specific discharge. N. L. R. B. v. Atlanta Coca-Cola Bottling Co., 293 F.2d 300 (5th Cir. 1961), rehearing denied, 296 F.2d 896 (1961). The letter here did not relate to Sanford.
The Trial Examiner found that respondent was considering keeping Sanford as a fourth switchman beyond the vacation period when Sanford was recalled on July 15, 1963, but that this plan was abandoned when respondent learned of Sanford’s renewed union activity and his nomination for president of the union on August 8, 1963. This was based on “the August 15 action in relation to Sanford’s nomination and * * * the prior discrimination. * * * ”
In our opinion, the evidence does not establish that respondent intended to retain Sanford beyond the vacation period. The inference which the Trial Examiner drew in this respect was not justified. It is admitted that Sanford was specifically recalled for the vacation period and his tenure after that time was uncertain.
The Board’s determination of a violation of the Act must be based on substantial evidence, not on speculation. Here speculation was the only basis for a decision that Sanford was to be recalled for longer than the vacation period.
Enforcement denied.
. The union had filed charges with the Board, alleging numerous other employees had been wrongfully laid off, but the General Counsel filed a complaint relating only tv) Sanford. | 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"
] | [
1
] | songer_casetyp1_6-3 |
In re PRESS PRINTERS & PUBLISHERS, Inc. Petition of BABCOCK PRINTING PRESS MFG. CO.
Circuit Court of Appeals, Third Circuit.
December 22, 1927.
No. 3630.
Bankruptcy <§=>184(23,4) — Conditional sales contract, not filed as required by state statute at time of bankruptcy, held void as against trustee (Conditional Sales Act N. J.; Bankr, Act, § 47a, cl. 2 [I I USCA § 75]).
Conditional sales contract which was void under Conditional Sales Act N. J. (P. L. 1919, p. 461), as against a lien creditor because not filed as required by such Act, held, under Bankruptcy Act, § 47a, cl. 2 (11 USCÁ § 75), void as against trustee in bankruptcy where bankruptcy of buyer and intervention of trustee occurred before contract was filed.
Appeal from the District Court of the United States for the District of New Jersey; William Clark, Judge.
In the matter of the Press Printers & Publishers, Inc.; bankrupt, in which the Babcock Printing Press Manufacturing Company filed a claim. From a decree affirming an order denying allowance of elaim, petitioner appeals.
Affirmed.
See, also, 4 F.(2d) 159.
A. P. Bachman, of New York City, for appellant.
Leon E. Cone, of Morristown, N. J. (Harry Silverstein, of Newark, N. J., of counsel), for appellee.
Before BUFFINGTON, WOOLLEY, and DAVIS, Circuit Judges.
WOOLLEY, Circuit Judge.
The Babcock Printing Press Manufacturing Company claims a sum of «money received from the sale of a printing press and held by the trustee of the Press Printers & Publishers, Inc., Bankrupt. It first endeavored to collect its claim by mandamus, In re Press Printers & Publishers, Inc. (C. C. A.) 12 F.(2d) 660. Failing in that, it tried the claim before a referee in bankruptcy whose order denying its allowance was affirmed by the District Court on review. This appeal is from that decree.
The claimant entered into a contract with the bankrupt for the sale of a printing press at a stated sum, part cash and balance in periodical payments, title reserved in the seller and to pass by bill of sale to the buyer after full payment of the stipulated price. and payment of an additional sum of two dollars.
The instrument, by its terms, is called a lease — manifestly drafted so that it should fall within the laws of those states that recognize such contracts — and as a lease the claimant persists in describing it. Yet the referee an,d the District Court were satisfied, as are we, that the writing is a contract of conditional sale within the definition of the Conditional Sales Act of New Jersey, Act of 1919, chapter 210, par. 2 (P. L. p. 462); Lauter Co. v. Isenreath, 77 N. J. Law, 323, 72 A. 56; National Cash Register Co. v. Daly, 80 N. J. Law, 39, 76 A. 325; Rapoport v. Rapoport Exp. Co., 90 N. J. Eq. 519, 107 A. 822.
A conditional sale is valid or void under this New Jersey statute (by which this case is controlled) according as the parties conform or fail to conform to its requirements. Paragraphs 5, 6 and 10 provide that every provision in a conditional sale shall be void as to a creditor of the buyer, who, without notice, acquires by attachment or levy a lien upon the goods sold before the contract shall be filed as required, unless the contract is so filed within ten days after the sale is made; that the contract shall be filed in the office of the clerk of the county in which the goods are kept for use by the buyer; and that the filing officer shall mark upon the contract the day and hour of filing, and enter the names of the seller and buyer, the date of the contract, and the day and hour of filing, together with a description of the goods and the price, in a separate book properly indexed, and kept for that purpose. What happened was this:
About five months after its execution, the seller presented the contract in suit at the Morris County Clerk’s office where it was recorded as a chattel mortgage in the chattel mortgage records of that office and then returned to the claimant. Whatever may have been the claimant’s purpose in handing the contract to the clerk, the fact is it was not, then or later, marked filed, entered and indexed pursuant to the requirements of the Conditional Sales Act. The buyer after making several payments went into bankruptcy. With no rights of a purchaser from or a lien creditor of the bankrupt buyer intervening, the trustee took possession of the press and sold it, and the original seller now claims the proceeds.
Two questions arise; one under the recording acts of New Jersey (see title “Conveyances,” 2 Comp. St. 1910, p. 1532) the other under the Bankruptcy Act (11 USCA). Courts of New Jersey have construed such acts strictly, holding, for instance, that as the statute declares a chattel mortgage void as to creditors of the mortgagor unless it be recorded according to its terms, a chattel mortgage is, in law, void as to such creditors unless it is, in fact, recorded as required. Knickerbocker Trust Co. v. Penn Cordage Co., 65 N. J. Eq. (20 Dick.) 181, 55 A. 231; Id., 66 N. J. Eq. (21 Dick.) 305, 58 A. 409, 105 Am. St. Rep. 640. It was by analogy with this ruling that the District Court affirmed the referee holding the unfiled conditional bill of sale in issue void. In this we are constrained to agree. But the claimant insists that, even if the contract was not filed as required, the filing act does not avoid the instrument as between the parties when, as here, there was no creditor who, before bankruptcy, actually obtained a lien on the chattel sold. That might be true had not bankruptcy of the buyer followed and had not its trustee intervened between seller and buyer. With the contract qf conditional sale not yet filed in compliance with the requirements of the Conditional Sales Act, the trustee came in with the rights of a lien creditor having an execution returned unsatisfied and with the right to enforce his claim against the chattel without showing that any particular creditor had in fact obtained a judgment against the bankrupt. Bankruptcy Act, § 47a (2). Interstate Banking & Trust Co. v. Brown (C. C. A.) 235 F. 32. The trustee was clothed with this right by section 47a (2) of the Bankruptcy Act as amended by the Act of 1910 (11 USCA § 75), the effect of which is to place the trustee, so far as his right to attack the validity of the instrument is concerned, in the same position as a creditor with a lien. Por tins purpose of attacking the conditional bill of sale, the trustee was a potential lien creditor. As the conditional bill of sale would, under the state law, be void against a lien creditor, it is likewise void against the trustee. In re O’Brien (D. C.) 215 F. 130.
The decree is affirmed. | 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"
] | [
3
] | songer_direct2 |
ASSOCIATED STATIONS, INC., a Virginia corporation, and USCO, Inc., a Virginia corporation, Appellees, v. CEDARS REALTY AND DEVELOPMENT CORPORATION, a Mississippi corporation, and Magnolia Homes Manufacturing Corporation, a Mississippi corporation, Appellants.
No. 71-1476.
United States Court of Appeals, Fourth Circuit.
Argued Nov. 2, 1971.
Decided Jan. 17, 1972.
Thomas H. Atkins, Richmond, Va. (G. Kenneth Miller, and May, Garrett & Miller, Richmond, Va., on brief), for appellants.
George C. Rawlings, Jr., Fredericks-burg, Va., for appellees.
Before HAYNSWORTH, Chief Judge, and WINTER and RUSSELL, Circuit Judges.
WINTER, Circuit Judge:
Associated Stations, Inc. (Associated), a Virginia corporation, leased certain property to Cedars Realty and Development Corporation (Cedars), a Mississippi corporation engaged in the manufacturing of mobile homes. After the lease expired, Associated sued to recover for damages to its property. Finding Cedars liable, the district court gave judgment in the amount of $42,858.00. We agree with the district court’s conclusion that Cedars was liable to Associated for damages to the leasehold; however, we conclude that the district court erred in using the “cost of restoration” standard in assessing damages. Therefore, we vacate the judgment and remand the case to the district court for a redetermination of damages.
I
In the fall of 1964, Associated leased to Cedars 32.46 acres, improved by two large quonset type buildings suitable for manufacturing as well as offices and storage areas, located at Doswell, Virginia. The term of the lease was from November 30, 1964 to November 30, 1967, with rent payable in monthly installments of $1,150.00. The lease provided, inter alia, that Cedars was to maintain the premises in good repair and upon termination of the lease to leave the premises in good repair, to remove all rubbish, and to return the keys to Associated.
In the latter months of 1966, Cedars decided to move its operations to Georgia and to discontinue all business at the Doswell site. This fact was known in the community because of its effect on jobs and because of two auctions held by Cedars to sell certain property. Although Cedars never formally communicated to Associated its intention to vacate the premises, Associated was aware of Cedars’ plans to discontinue its operations in Virginia.
Cedars’ closing operations occurred over a number of months. Regular production personnel were still on the site two days before Christmas, in 1966, and various supplies and materials, including a forklift truck, were still on the property in the early months of 1967. Despite the fact that Cedars claims that it intended to cease all operations, no effort was made to clear the property of rubbish, return the keys to Associated, or to restore the buildings which had been modified for Cedars’ operations to their former condition. Additionally, Cedars continued to pay the monthly rent, the checks being sent to Associated from Cedars’ office in Georgia.
Sometime around the end of January or the beginning of February, 1967, an employee of Cedars returned to the Dos-well property to retrieve the forklift truck. He noticed that an air-conditioning unit was missing from one of the buildings. He reported this fact to his superior, but this information was never conveyed to Associated. In March, of 1967, Mr. George Thomas, the president of Associated, visited the property and found that a considerable amount of vandalism had occurred. Windows, doors, and wiring, as well as plumbing and electrical fixtures, had been damaged. Holes were found in the roof and several of the heating motors and electrical switches required replacement. In addition, the special heavy-duty wiring which had been used by a previous tenant in the midfifties had been torn out and removed. Mr. Thomas made several more visits to the property and on each successive occasion he found more damage, but this damage was minor in comparison to what was originally found. The district court found that the bulk of the damage had occurred prior to Thomas’ March, 1967 visit.
After Associated regained possession of the property, it repaired some of the damage and made certain modifications of the facilities to accommodate a new tenant, Fiberlay Corporation, to which the property was let in May, 1968. Thereafter, Associated instituted this suit in the district court to recover $47,620.00 which it alleged would be the aggregate cost of restoring the property to its former condition. Of this sum, $11,900.00 was actually expended by Associated, including $2,800.00 for modifications for the new tenant. The remaining $35,720.00 was never spent. This figure included $27,500.00 to replace and repair the special heavy-duty electrical wiring required by Cedars’ predecessor. In 1970, Fiberlay Corporation purchased the property for $152,-000.00.
The district court found that Cedars was liable for the damage caused by the vandalism and awarded Associated '$43,858.00. It arrived at this sum by taking Associated’s estimated cost of repairs ($47,620.00) and reducing it by 10%. Cedars thereupon appealed.
II
Cedars contends that Associated, knowing that the property had been vacated and that vandalism was occurring, had a duty to protect the property from further damage and that having failed to do so, is barred from holding Cedars responsible for damages. Cedars’ argument need not detain us long. The district court found that Associated had not accepted a surrender of the property and that the property had not been abandoned. Even after all manufacturing had ceased, Cedars continued to use the property for storage in the early part of 1967. Cedars made no effort to comply with the provisions in the lease with respect to surrender and, throughout the period in question, it continued to pay the monthly rental. Manifestly, the district court was not clearly erroneous in finding neither an abandonment nor a surrender. It follows that Cedars was not relieved of its responsibility to protect the property.
Nor do we think that under the facts of this case Associated was required to reenter the property in order to prevent further vandalism. Where an injured party is in a position to prevent further loss to himself by a reasonable expenditure of money or effort, he is required to do so. Haywood v. Massie, 188 Va. 176, 49 S.E.2d 281 (1948); Stonega Coke & Coal Co. v. Addington, 112 Va. 807, 73 S.E. 257 (1912). But, in determining what is reasonable, regard must be had for all the circumstances. In the present case, Cedars concedes that the property was difficult to secure. Presumably, this difficulty was as great for Associated as Cedars. In any event, there is nothing to suggest that by a “trifling inconvenience,” or even a reasonable effort, Associated could have prevented the damages. See Haywood v. Massie, supra, 49 S.E.2d at 284. Moreover, it was not until the great majority of the damage had been done that Associated was aware of the situation. We agree with the district court that Cedars has failed to demonstrate that by a reasonable effort Associated could have prevented the loss.
Ill
In assessing damages, the district court used the “cost of restoration” standard. Damages were based on the amount it would have cost to restore the property to the condition it had been in when the property was leased to Cedars. This is the general rule for determining damages to leasehold property in Virginia. See Sharlin v. Neighborhood Theatre, Inc., 209 Va. 718, 167 S.E.2d 334 (1969); Vaughan v. Mayo Milling Co., 127 Va. 148, 102 S.E. 597 (1920); Moses v. Old Dominion Iron and Nail Works Co., 75 Va. 95 (1880). In none of these cases, however, was there any contention that the cost of restoring the property to its former condition greatly exceeded any benefit to the market value of the property. Cedars has made this very assertion — that the cost of repair does exceed any benefit to the value of the property — and thus we have no controlling Virginia ruling on this point.®
The object of damages in a contract case is to restore the plaintiff to the position he would have been in had the contract not been breached. The “cost of restoration” method is one convenient way of determining the amount of damages to be awarded the plaintiff where a breach had occurred. There are, however, certain situations where this method of computing damages does not restore the plaintiff to the position he would have been in had the contract not been breached, but rather places him in a better position, thus providing him with a windfall. In those cases, courts have resorted to alternative methods of computing damages in order to insure that, as far as possible, the plaintiff neither loses nor benefits from the breach. As the court in Crystal Concrete Corp. v. Town of Braintree, 309 Mass. 463, 35 N.E.2d 672 (1941), stated:
[T]he plaintiff is not to be put in a better position than it would have been if the defendant had performed the terms of the lease. The location and character of the demised premises must be considered; and the reasonable cost of repairs, in some instances, would furnish the proper measure of damages while, in other instances, the value of the premises may be such that the incurrence of the expense for repairs would not be a reasonable, practical or economical method of dealing with the property. Such expense might greatly exceed any diminution of the fair market value of the land that was caused by the defendant’s nonperformance of the provisions of the lease.
Id. at 675.
We think the present case is similar to Bowes v. Saks & Company, 397 F.2d 113 (7 Cir. 1968). In Bowes, the lease provided that on its termination the property was to be returned to the landlords in the same condition that it had been when it was let to the lessees. The tenants in that case altered the property by building a bridge across an alley; and, at the expiration of the lease, the landlords sought to recover $115,000.00, which they claimed was the cost of removing the bridge and restoring the wall in the building where the bridge had been connected. During the term of the lease, the landlords sold the property, with settlement to be made two days after the expiration of the lease. Prior to the expiration of the lease, the tenant entered into a three-year lease with the new purchaser and thus its interest in the building continued. No effort was made by the new purchaser either to have the building restored or to recover part of the purchase price from the original landlords because of the lack of restoration. In a suit by the original landlords to recover damages for breach of the covenant to restore the premises, the court declined to permit the landlord to recover the cost of restoration because the value of the building was not diminished by the tenant’s failure to restore it, and, therefore, the landlords suffered no loss from the breach. Bowes v. Saks & Company, supra, 397 F.2d at 117; accord Dodge Street Building Corp. v. United States, 341 F.2d 641, 169 Ct.Cl. 496 (1965); Crystal Concrete Corp. v. Town of Braintree, supra.
In the absence of any controlling Virginia precedent, we think that the rule set forth in Bowes and the cases cited therein is the most appropriate for application in the present case. Included in Associated’s estimate for the cost of repairing the property was $27,500.00 to replace special heavy-duty electrical wiring which had been used last by a former tenant in the fifties. Expert testimony was to the effect that the value of the property at the expiration of the lease in 1967, assuming no vandalism, was $116,945.00, and that in 1970 when the property was sold it was valued at $134,700.00. The expert testimony was also that had the special heavy-duty wiring been replaced, its replacement would not have affected the market value of the property either in 1967 or in 1970. Thus, Associated expended $9,665.00 and was successful in selling property worth $134,700.00 for $152,-000.00, realizing thereby a profit of $7,635.00. If Associated were to recover also $27,500.00 as the estimated cost of replacement of the electrical wiring which Associated has no intention of replacing and which would have no effect on the market value of the property, Associated would realize a windfall of $27,500.00. Since, in this case, the use of the “cost of restoration” method of determining damages would probably do more than place Associated in the position it would have been in had Cedars not breached its agreement, we think the use of this method inappropriate. Rather, Associated should be permitted to recover the cost of restoration or the diminution in market value, whichever is less. In the event that diminution in market value is less, and so becomes the measure of recovery, Associated should also be permitted to recover the salvage value, if any, of the property removed by Cedars or others and not replaced by Cedars. Under this formula, Associated will not realize unjust enrichment, but it will be fully protected from any actual loss.
We have referred to the expert testimony with regard to the market value of the subject property in 1967 and in 1970. And, at one stage of the proceedings, the district court purportedly found the market value to be $131,950.00 as of an undisclosed date. But our study of the record discloses that the case was tried as to damages on the basis that Virginia law required damages to be assessed by the “cost of restoration” standard in all events without recognition of the exceptional case in which slavish devotion to the doctrine will result in unjust enrichment. Although we have concluded this case is in the latter category, we recognize that the evidence as to market value may not have been as fully developed, nor the finding of the district court as fully considered, had the relevance of market value been recognized at the outset. In remanding to the district court for reassessment of damages in the light of this opinion, we direct that the parties be given a reasonable opportunity to present additional evidence of market value, the district court being free to make findings in this regard anew.
Vacated and remanded.
. The original lessors were USCO, Inc. and Dixie Trailer Equipment Manufacturing. The name of USCO, Inc. has been changed to Usry Investment Corporation and Associated Stations, Ine. has succeeded to Dixie’s interest. Magnolia Homes Manufacturing Corporation, the parent of Cedars, was also joined as a defendant.
. The term was later amended to run from January 1, 1965 to December 30, 1967.
. Paragraphs 5 and 6 of the lease provide as follows:
5. Lessee will comply with all lawful requirements of local and state health boards, police and fire departments, County, Municipal, State and Federal authorities, and the Board of Fire Underwriters respecting the use of the premises and will make any improvements not of a structural nature required by said authorities.
Lessee will keep and maintain the premises in good condition and repair; keej) in good running order all heating and air conditioning systems, electric wiring, toilets, water pipes, water, gas and electric fixtures; replace all locks, trimmings, glass and plate glass broken during the term of this lease; unstop all water fixtures that may become choked and repair all water pipes and plumbing that may burst. Lessee will not make any alterations of, additions to or changes in the premises, except after first obtaining the written consent of Lessors, and all alterations of, additions to or changes in the premises, except after first obtaining the written consent of Lessors, and all alterations, changes and improvements, by whomsoever made, shall be the property of Lessors. The foregoing shall not apply to any equipment used in Lessee’s business which may be attached to the premises and Lessee may remove such equipment at the termination of this lease. It shall, however, repair and replace any and all damage done to the premises by such removal.
6. Lessee covenants to leave the premises in good repair, damages by fire, act of God, or other casualty excepted, and upon surrender of possession will have all rubbish removed, the premises thoroughly cleaned, and will deliver to Lessors all keys to the premises.
. The president had made an earlier visit to the property. On that occasion lie found that all operations had ceased, but that Cedars’ materials -were still on the property,
. Under Virginia law, mitigation of damages is an affirmative defense, and the burden of proof rests entirely on the party breaching the contract. See Foreman v. E. Caligari and Company, Inc., 204 Va. 284, 130 S.E.2d 447 (1903).
6. Green v. Burkholder, 208 Va. 708, 160 S.E.2d 765 (1968), cited by Associated for the proposition that the “cost of restoration” standard still applies, is distinguishable.
In Green, the parties assumed that damages were to be determined by the cost of restoration method and thus all the evidence went to the issue of how much it would cost the plaintiff to perform the breached contract. No evidence was submitted to show the present market value of the property or the effect the restoration might have on that market value. Nevertheless, the trial judge refused to permit the issue of damages to go to the jury because the plaintiff had not demonstrated that defendant’s breach adversely affected the value of his property.
The Supreme Court of Appeals reversed the trial court, holding that since the case was tried on the cost of repair theory and not the market value theory, “it [was too] late for the defendants to say that the proper measure of damages was the difference between the before and after value of the property.” Id. at 767. Although the court did apply the cost of restoration rule, nothing in the opinion suggests that this rule should be applied exclusively in all situations. Indeed, the court indicated that its application in that case was proper because the damages to be awarded under the rule would not be grossly disproportionate to the harm suffered and would not involve economic waste. The view we take of the instant case is consistent with the latter statement.
. Although the instrument in this case is a lease, the lease itself contains mutual covenants which are subject to contract principles. See generally, 3A Corbin, Corbin on Contracts, § 686 (1960).
. This sum was part of a larger sum of $35,720.00 which Associated never spent. By referring only to the $27,500.00 we do not mean to imply that Associated can recover the balance of the larger sum. Indeed, we do not decide what damages are to be recovered. We refer to the electrical wiring and its costs only by way of example since it was an item of considerable cost but having little or no relation to market value of the property. | 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"
] | [
0
] | songer_genresp1 |
UNITED STATES v. SIX DOZEN BOTTLES, MORE OR LESS, OF "DR. PETER'S KURIKO" etc. DR. PETER FAHRNEY & SONS CO. v. UNITED STATES.
No. 9047.
Circuit Court of Appeals, Seventh Circuit.
Jan. 2, 1947.
See, also, 55 F.Supp. 458.
Joseph V. Quarles and Arthur Wickham, both of Milwaukee, Wis., John Lyle Vette and Henry Junge, both of Chicago, Ill., for appellant.
Timothy T. Cronin, U. S. Atty., of Milwaukee, Wis., Theron L. Caudle, Asst. Atty. Gen. (John T. Grigsby, Atty., Department of Justice, of Washington, D. C., and Bernard D. Levinson, Atty., Federal Security Agency, of Boston, Mass., of counsel), for appellee.
Before MAJOR, KERNER, and MIN-TON, Circuit Judges.
MAJOR, Circuit Judge.
This is an appeal from a decree entered January 22, 1946, in a proceeding commenced by the filing of a Libel Information under the Federal Food, Drug, and Cosmetic Act, 21 U.S.C.A. § 301 et seq., which prayed the condemnation of an article called Dr. Peter’s Kuriko, on the ground that it was misbranded when in interstate commerce. The res involved is a medicine manufactured by Dr. Peter Fahrney & Sons Company, referred to as the claimant which intervened and defended the action. The cause was tried to a jury and a special verdict was returned which constitutes the-basis for the decree in controversy.
The libel as filed charged misbranding-in a number of ways, all of which charges, have been eliminated in one way or another except that contained in paragraph Ilia,, which alleged that the article was mis-branded within the meaning of 21 U.S.C.A.. § 352(a) in that certain representations in the labeling were false and misleading-since the product, when taken as directed,, will not fulfill the promises of benefit stated and implied therein.
The special verdict of the jury, on questions framed by the court, was as follows::
“1. Is the labeling of Kuriko false or misleading in that the product, when taken as directed, will not fulfill the promises of benefit, stated or implied?
“Answer: Yes.
“2. Does the labeling of Kuriko, including the directions thereon, provide for the continuous use of Kuriko?
“Answer: No.
“3. If you answer Question 2 ‘Yes,’ then answer this question. Is the continuous use-of Kuriko capable of causing a dependency upon laxatives to move the bowels ?
“Answer:
“4. Is Kuriko misbranded in that the-labeling fails to bear adequate directions, for use in any respect?
“Answer: Yes.”
The primary issue raised before this-court arises from the contention that there was no substantial evidence which would! justify the submission of the case to the-jury and that there should have been a. directed verdict in favor of the claimant. It is also contended that the submission, to the jury of question 4 was prejudicial error because there was no charge in the-libel to which it was responsive. In connection with this contention, it is also asserted that the court improperly admitted' the opinion testimony of a witness who-was not qualified.
Kuriko is a medicine which has long-been manufactured and sold to the public-Admittedly, it is a laxative and relieves functional constipation. That is the limit, however, of its remedial qualities. In fact, we do not understand that anything further is claimed for it. Notwithstanding this, claimant in a pamphlet wrapped around each bottle of its product devoted four pages extolling benefits to be derived from its use. We think no good purpose could be served in setting forth the contents of this pamphlet. It is sufficient to state that we have studied it and we are of the view that the representations contained therein were such as to present a proper question for the jury as to whether they were misleading. It may be, as claimant insists, that there were no statements contained in the pamphlet which were literally false, but even so it does not follow that it was not misleading when considered in its entirety.
We shall mention only a few of the statements contained in this pamphlet, from which we think a jury might have reasonably inferred that the product was represented either as a remedy or a cure for something other than constipation. On the first page, under the heading in large black type, “What it is,” appears the following in small type, “The family medicine of 5 generations designed for relief from functional constipation and, when these troubles are due to constipation, for relief from nervousness, indigestion, upset stomach, headaches, loss of sleep and appetite, flatulence, foul breath and coated tongue.” In other words, by this statement the reader is informed that the remedy is only a relief from the ailments mentioned when they are due to constipation. It appears there could be nothing misleading in this statement. On the same page, however, under another heading in large black-type, “What it does,” is the following statement, also in heavy type, “Kuriko fights functional constipation.” The government contends that the buying public may infer from this statement that it is a remedy or cure for constipation rather than a mere relief. We are not greatly impressed with the government’s contention in this respect but this representation, as others, was submitted to the jury and we cannot say that the jury was not justified in inferring that the statement was misleading.
In our judgment, the more important statements in the pamphlet calculated to mislead are found on the second page, printed in large black type, “Here’s what may happen when you are constipated,” followed by five paragraphs, entitled “Functional constipation,” “Nervousness,” “Flatulence,” “Headaches,” and “Common colds.” The title of each paragraph is also in heavy black type, and opposite each is a picture of a person shown to be in misery and distress. It is true that the fine print in each of these paragraphs gives the information that Kuriko will bring relief only when the ailment is caused by constipation. We are of the view, however, that this page of the pamphlet alone, considering the form of its arrangement, the ailments which are listed in large type and the limitation with reference thereto in small type, in connection with the pictures of persons evidently in misery and distress, furnishes the basis for a finding that the representations were misleading.
A great deal of medical testimony was offered by both sides which it is argued supports the contentions of the respective parties. Again we think no useful purpose could be served in an attempt to analyze or dissect this expert testimony as it pertains to the issues in controversy. In fact, to do so would involve a weighing of the testimony, which is not our function but was that of the jury. The only contention made here which might be regarded as-serious is that which arises from the submission to the jury of question 4, and its finding that Kuriko is misbranded because the labeling “fails to bear adequate directions for use in any respect.” Concededly there was no charge in the information to which this question and answer was responsive. The only reason we find for its submission is a statement by the court that it desired an answer to the question for its own information. We are of the view that this question should not have been submitted but, even so, we are also-of the view that it was not prejudicial. As this court has held, proof of any one of the claims contained in the information is sufficient. United States v. Dr. David Roberts Veterinary Co., 7 Cir., 104 F.2d 785, 789.
The jury’s answer to this question neither adds nor detracts from its answer to the first question, which was responsive to the charge contained in paragraph • Ilia. The answer to question 1 forms the basis for a decree and this irrespective of the answer to question 4.- This would still be the situation if the jury’s answer to question 4 had been “No.” There is nothing to indicate and no reason to think that the jury’s answer to question 4 bore any relation to its answer to question 1. In other words, as far as we are able to discern, the jury’s answer to question 1 was not dependent in any manner or to any extent upon its answer to question 4. We therefore are of the view that the submission of question 4 could have had no prejudicial •effect.
The decree 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.
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"
] | [
8
] | songer_genresp2 |
Allen L. GRIFFIN, Appellee, v. INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, UAW, Appellant.
No. 72-1126.
United States Court of Appeals, Fourth Circuit.
Argued Sept. 11, 1972.
Decided Oct. 24, 1972.
Bernard G. Link, Baltimore, Md. (Stephen I. Schlossberg, John A. Fillion, and Jordan Rossen, Detroit, Mich., on brief), for appellants.
Hugh G. Casey, Jr., Charlotte, N. C. (George S. Daly, Jr., and Casey & Daly, P. A., Charlotte, N. C., on brief), for ap-pellee.
Before SOBELOFF, Senior Circuit Judge, and WINTER and BUTZNER, Circuit Judges.
SOBELOFF, Senior Circuit Judge:
Allen Griffin, the appellee, brought a civil action for damages against the International Union, United Automobile, Aerospace and Agricultural Implement Workers of America. He claimed that the UAW had breached its duty of fair representation in handling the grievance based on his discharge by the Ford Motor Company. The case was tried before Judge McMillan and a jury and resulted in a verdict in favor of Griffin in the amount of $12,000. From this judgment, the UAW appeals.
In its brief the appellant raised several issues which were not pursued at oral argument. After a careful examination of the record, the briefs of the parties and the pertinent authorities, we conclude that these contentions are without merit. The only issue deserving discussion is whether there was sufficient evidence to support the jury’s finding that the Union breached its duty of fair representation.
I
The phrase “duty of fair representation” is a legal term of art, incapable of precise definition. St. Clair v. Local 515, Int’l Bhd. of Teamsters, etc., 422 F.2d 128, 130 (6 Cir. 1969). There is no code that explicitly prescribes the standards that govern unions in representing their members in processing grievances. Whether a union breached its duty of fair representation depends upon the facts of each case. Thompson v. Brotherhood of Sleeping Car Porters, 316 F.2d 191 (4 Cir. 1963); Trotter v. Amalgamated Ass’n of Street Railway Employees, 309 F.2d 584 (6 Cir. 1962), cert. den., 372 U.S. 943 (1963). But pronouncements made from time to time by the Supreme Court, articulating the somewhat hazy contours of the union’s obligations, do furnish a measure of guidance.
The doctrine of the “duty of fair representation” was first given currency by the Supreme Court in Steele v. Louisville & N. R. Co., 323 U.S. 192, 65 S.Ct. 226, 89 L.Ed. 173 (1944). Although first propounded in the context of racial discrimination under the Railway Labor Act, the Court extended this duty to cases under Section 301 of the National Labor Relations Act. Ford Motor Co. v. Huffman, 345 U.S. 330, 73 S.Ct. 681, 97 L.Ed. 1048 (1953). In representing its members, declared the Court, a union is permitted “a wide range of reasonableness,” but this latitude is “subject always to complete good faith and honesty of purpose in the exercise of its discretion.” Id. at 337-338, 73 S.Ct. at 686.
The outline of the duty of fair representation cognizable under Section 301 was further clarified in Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967). That case declared that a union is accorded considerable discretion in the handling and settling of grievances. The individual employee has no absolute right to insist that his grievance be pressed through any particular stage of the contractual grievance procedure. A union may screen grievances and press only those that it concludes will justify the expense and time involved in terms of benefiting the membership at large. Encina v. Tony Lama Boot Co., 448 F.2d 1264 (5 Cir. 1971). In the Vaca decision itself, the Court held that a union did not necessarily breach its duty of fair representation when it refused to take a member’s grievance to arbitration.
Nonetheless, the Supreme Court did not invest the union with a carte blanche. It sought to fashion an appropriate standard by which to measure union conduct. “[The doctrine of fair representation] includes a statutory obligation to serve the interests of all members without hostility or discrimination toward any, to exercise its discretion with complete good faith and honesty, and to avoid arbitrary conduct.” Vaca v. Sipes, supra, 386 U.S. at 177, 87 S.Ct. at 910. A union must conform its behavior to each of these three separate standards. First, it must treat all factions and segments of its membership without hostility or discrimination. Next, the broad discretion of the union in asserting the rights of its individual members must be exercised in complete good faith and honesty. Finally, the union must avoid arbitrary conduct. Each of these requirements represents a distinct and separate obligation, the breach of which may constitute the basis for civil action.
The repeated references in Vaca to “arbitrary” union conduct reflected a calculated broadening of the fair representation standard. Retana v. Apartment, Motel, Hotel & El. Op. U., Local 14, 453 F.2d 1018, 1023 n. 8 (9 Cir. 1972); Feller, “Vaca v. Sipes, One Year Later” in N.Y.U. Twenty-First Annual Conference on Labor 141, 167 (1969). While negligence in handling grievances has not been identified as breaching the union’s duty of fair representation, Bazarte v. United Transportation Union, 429 F.2d 868, 872 (3 Cir. 1970), the courts have adopted the position that a union may not arbitrarily ignore a meritorious grievance or handle it in a perfunctory manner. Vaca v. Sipes, supra 386 U.S. at 191, 194, 87 S. Ct. 903; Retana v. Apartment, Motel, Hotel & El. Op. U., Local 14, supra, 453 F.2d at 1024 n. 10; De Arroyo v. Sindi-cato de Trabajadores Packinghouse, 425 F.2d 281, 284 (1 Cir. 1970); St. Clair v. Local 515, Int’l Bhd. of Teamsters, etc., 422 F.2d 128, at 130. Without any hostile motive of discrimination and in complete good faith, a union may nevertheless pursue a course of action or inaction that is so unreasonable and arbitrary as to constitute a violation of the duty of fair representation. A union may refuse to process a grievance or handle the grievance in a particular manner for a multitude of reasons, but it may not do so without reason, merely at the whim of someone exercising union authority. A union must especially avoid capricious and arbitrary behavior in the handling of a grievance based on a discharge — the industrial equivalent of capital punishment.
For a successful suit against a union for breach of its duty of fair representation, the employee “must also have proved arbitrary or bad-faith conduct on the part of the union in processing his grievance.” Vaca v. Sipes, supra, 386 U.S. at 193, 87 S.Ct. at 918 (emphasis added). We believe that looking at the evidence in the light most favorable to Griffin — as we are bound to do at this stage — there is sufficient evidence to support a conclusion of arbitrary or bad-faith conduct.
II
For seven years Allen Griffin worked for the Ford Motor Company at its parts depot in Charlotte, North Carolina. His problems apparently began in July, 1965, when he was disciplined by the Warehouse Operations Manager, D. J. Cashion, management’s second ranking member at the forty men depot, for allegedly reading a newspaper that lined the handtruck used by Griffin in his work. Cashion’s disciplinary action was successfully appealed by the Union. Subsequently, the relationship between the two men further deteriorated until they became embroiled in a fight at a local hockey game, with Cashion sustaining facial lacerations and cracked ribs. As a result of these fisticuffs, Griffin was discharged by Depot Manager Meares upon his return to work. In addition, a local court fined Griffin $50 for the assault.
J. W. Brown, who worked immediately under Cashion, was the chairman of the Union’s Local House Committee. His responsibilities included handling the preliminary stages of the grievance procedure. He filed with Cashion, the very man with whom Griffin had the fight, the grievance seeking Griffin’s reinstatement. Not surprisingly, Cashion, representing Ford, refused reinstatement. After Griffin’s assault conviction, Brown recommended to his fellow committee members that Griffin’s grievance be withdrawn. When one of the committee members objected, Brown threatened to resign. The grievance was withdrawn by a 2-1 vote.
Griffin then appealed to the membership of his Local to reverse the decision to withdraw his grievance. A vote was taken and it was decided that Griffin’s grievance be pursued. In protest of the members’ action, House Committee Chairman Brown resigned his position as House Chairman. But the action of the House Committee in withdrawing Griffin’s grievance was upheld by an appeals committee of the International; although the committee recommended that efforts to secure Griffin’s reinstatement continue. Finally, Ford agreed to reinstate Griffin’s grievance and allow it to be processed through normal channels on the condition that Griffin waive any claim for back pay prior to the time the grievance was reinstated. Griffin accepted this proposal. The revived grievance, “frozen dead” after the two-year hiatus, was eventually heard by the Ford Umpire, who on March 22, 1968, upheld the discharge.
Ill
The Union’s insistence on filing the discharge grievance with Cashion, the man with whom Griffin had fought, cannot be justified. It represents a stubborn refusal to recognize the inequity of placing the matter in the hands of a hostile person — Griffin’s antagonist. Although the Union may have acted in good faith, grieving the discharge in this manner can be viewed — as the jury apparently viewed it — as the equivalent of arbitrarily ignoring the grievance or handling it in a perfunctory manner. Vaca v. Sipes, supra, 386 U.S. at 191, 194, 87 S.Ct. 903. The “arbitrary” standard elucidated in Vaca was thus breached.
The Union attempts to justify submitting the grievance to Cashion by pointing out that the only other person with whom the grievance could have been filed was Meares, the Depot Manager. This, the UAW maintains, “was at best a Hobson’s choice: Cashion, the man Griffin assaulted on the one hand, and Meares, the man who discharged Griffin, the very act that was being protested, on the other hand.”
The Union’s contention overstates the case. Cashion had a history of difficulties in supervising the men under him. There was evidence that he was “very high tempered” and that he was willing to use his position of authority to punish those “who crossed him.” Meares, at the time of the discharge, had heard only Cashion’s version of the fight and the incidents that led np to it. It is quite possible that if the grievance had been immediately filed with Meares and Cashion’s history of pugnacity with workers in general, and his goading of Griffin in particular, had been adequately presented, Meares would have mitigated his disciplinary action. The fact that Meares refused the grievance after it was reinstated nearly one and one-half years later has no relevance. The passage of time and the hardening of positions had taken their effect.
There was also evidence presented to the jury from which it might have found the Union’s handling of the grievance to have been motivated by bad faith. After the membership of the Local voted to pursue Griffin’s grievance, House Committee Chairman J. W. Brown resigned his position to protest the members’ action. He was replaced by George R. Kennedy. On April 8, 1966, Kennedy wrote Walter P. Reuther, the late president of the UAW, to express his opinion that the action of the Local in dropping Griffin’s grievance was the result of the friendship between Cashion and J. W. Brown. In the course of the letter Kennedy stated poignantly:
Mr. Cashion, having been a personal friend of the former Chairman [Brown] for many years, as well as a very good friend with one of the committeemen and a close friend of the union member who testified against Mr. Griffin, used these friendships to influence the committee’s decision to drop the case as far as the committee was concerned. Therefore, when the membership overruled the committee, the Chairman, Mr. J. W. Brown resigned.
In my opinion those officers who were in a position to help Mr. Griffin, were trying to find as many reasons as they could not to help him. This is illustrated by the very fact that I am writing this letter because Mr. T. C. Brown, our Recording Secretary, and the brother of Mr. J. W. Brown, the resigned Chairman, refused to answer your letter of March 80, 1966. (Emphasis added.)
There is sufficient evidence in the record to support the jury’s finding that the Union breached its duty of fair representation in handling Griffin’s discharge grievance. Therefore, the judgment of the District Court is hereby
Affirmed.
. Earlier in the summer, the two men almost became involved in a fight when Cashion invited Griffin outside the plant behind the railroad tracks to settle their difference and to “whip his blank” — an invitation declined by Griffin.
. This characterization was given the reinstated grievance by Judge McMillan. (Tr. 403.)
. Appellant’s Reply Brief at 2-3. | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
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_r_fed |
Fred GILLIGAN; Van Hardesty, Plaintiffs-Appellants, v. CITY OF EMPORIA, KANSAS, Defendant-Appellee. League of Kansas Municipalities, Amicus Curiae.
No. 92-3217.
United States Court of Appeals, Tenth Circuit.
Feb. 19, 1993.
Daniel J. Markowitz and Michele I. Carroll of McDowell, Rice & Smith, Kansas City, MO, for plaintiffs-appellants.
Stanley E. Craven of Spencer Fane Britt & Browne, Kansas City, MO and Dale W. Bell of Helbert, Bell & Smith, Chartered, Emporia, KS, for defendant-appellee.
James M. Kaup of Gilmore & Bell, Topeka, KS, for amicus curiae League of Kansas Municipalities.
Before ANDERSON and EBEL, Circuit Judges, and BRIMMER, District Judge.
Honorable Clarence A. Brimmer, District Judge, United States District Court for the District of Wyoming, sitting by designation.
EBEL, Circuit Judge.
Plaintiffs Gilligan and Hardesty brought a declaratory judgment action in the district court, seeking a ruling that mandatory “on-call” time which they spent in their employment with the City of Emporia, Kansas (the City), constituted compensable work hours under the Fair Labor Standards Act (FLSA) and that they were therefore entitled to overtime compensation pursuant to 29 U.S.C. § 207 (section 7 of the FLSA). The parties filed cross motions for summary judgment, and the district court granted the City’s motion, finding that plaintiffs were not entitled to overtime compensation for mandatory on-call hours. Plaintiffs appeal the district court’s grant of the City’s motion and the denial of their own motion.
Plaintiffs Gilligan and Hardesty are employed by the City in the water and sewer departments, respectively. In addition to their regular work hours and as a condition of their employment, plaintiffs are both required to be available to work on-call for certain time periods. Gilligan is claiming entitlement to overtime compensation for his on-call time from February 14, 1988, through February 5, 1989. During that period, Gilligan’s city job required that he perform on-call duty, with risk of discipline and legal action for failure to comply. The City supplied him with a pocket-size belt pager, and he was required to be accessible through the pager at all times while on call. Further on-call conditions imposed on Gilligan were that he was required to respond to a call within one hour and consumption of alcohol was prohibited. The requirement of accessibility through the pager dictated that Gilligan stay within the geographical limits of the pager, or leave a telephone number where he could be reached. Gilligan testified that he believed he was restricted to staying within the Emporia city limits. Aside from these literal requirements and prohibitions, Gilligan was prohibited from participating in certain activities which would keep him from hearing his beeper, and he avoided paid-entrance activities from which he could be called away, as well as certain other activities from which the risk of being called away made him uncomfortable or fearful. Gilligan also believed that he was required to use a city vehicle to respond to calls, but could not use the vehicle for personal reasons, which further inhibited his on-call time. He was allowed to trade on-call time with other employees, with prior supervisor approval.
Hardesty, like Gilligan, was given a small pager, so that he was not required to be by a telephone at all times. The conditions placed upon Hardesty were as follows: (1) he must respond to a call within thirty minutes; (2) he could not consume alcoholic beverages; (3) he was subject to discipline for failure to respond to a call; and (4) he was required to stay within the limits of his pager, or leave a telephone number where he could be reached but, like Gilligan, Hardesty believed he was restricted to the city limits. Aside from these express conditions, Hardesty was prohibited from pursuing activities which would prevent him from hearing his pager. He also had reservations similar to Gilligan’s about participating in certain activities from which he could be called away.
We review the district court’s grant or denial of summary judgment de novo. Thomas v. Wichita Coca-Cola Bottling Co., 968 F.2d 1022, 1024 (10th Cir.), cert. denied, — U.S. —, 113 S.Ct. 635, 121 L.Ed.2d 566 (1992). We apply the same legal standard as the district court, and we view the evidence in the light most favorable to the party opposing the motion. If there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law, summary judgment is appropriate. Id.; Fed.R.Civ.P. 56(c).
This court has followed the Supreme Court’s lead in stating that
the test for whether an employee’s time constitutes working time is whether the ‘time is spent predominantly for the employer’s benefit or for the employee’s.’ Armour & Co. v. Wantock, 323 U.S. 126, 133, 65 S.Ct. 165, 168, 89 L.Ed. 118 (1944). That test requires consideration of the agreement between the parties, the nature and extent of the restrictions, the relationship between the services rendered and the on-call time, and all surrounding circumstances. Skidmore v. Swift & Co., 323 U.S. 134, 137, 65 S.Ct. 161, 163, 89 L.Ed. 124 (1944).
Boehm v. Kansas City Power & Light Co., 868 F.2d 1182, 1185 (10th Cir.1989). In addition, regulations promulgated by the Department of Labor lend insight into the determination of what constitutes compensable time. The regulations provide that on-call time is compensable if the employee is required to remain on the employer’s premises, 29 C.F.R. § 785.17, and if on-call time spent off the premises is so restricted that the employee cannot use the time effectively for personal pursuits, 29 C.F.R. § 553.221(d). “ ‘[Resolution of the matter involve[s] determining the degree to which the employee could engage in personal activity while subject to being called.’ ” Renfro v. City of Emporia, 948 F.2d 1529, 1537 (10th Cir.1991) (quoting Norton v. Worthen Van Serv., Inc., 839 F.2d 653, 655 (10th Cir.1988)), cert. dismissed, — U.S. —, 112 S.Ct. 1310, 117 L.Ed.2d 510 (1992). “Facts may show that the employee was engaged to wait, or they may show that he waited to be engaged.” Skidmore, 323 U.S. at 137, 65 S.Ct. at 163.
Plaintiffs argue that this case is controlled by our decision in Renfro. We disagree. In Renfro, we held that the district court did not err in determining that the plaintiff firefighters were entitled to compensation under the FLSA while on call. Renfro, 948 F.2d at 1538. The firefighters, although not required to remain on the premises while on call, were required to report within twenty minutes of being called back and were called back an average of three to five times a day. Id. at 1537. The frequency of the call backs in that case was a pivotal factor in our determination that the firefighters’ on-call time was compensable. Id. at 1537-38. Likewise, we noted in Renfro that the frequency of call backs was the factor which the Renfro district court cited as distinguishing that case from other cases which had previously held that on-call time was not compensable. Id. at 1532-33. In contrast, plaintiffs in this case were called back to duty on average less than one time per day. Obviously, these plaintiffs have significantly less interference with personal pursuits than did the firefighters in Renfro, simply by virtue of the lower frequency at which they were called back. Further, Gilligan was given one hour to respond to a call, and Hardesty was required to respond within thirty minutes. The longer response time given these plaintiffs means that their personal time is less restricted while on call, yet another distinction from Renfro.
This court has held in three prior cases that time spent on-call is not compensable as overtime. See Armitage v. City of Emporia, 982 F.2d 430 at 432 (10th Cir.1992); Boehm, 868 F.2d at 1185; Norton v. Worthen Van Serv., Inc., 839 F.2d 653, 656 (10th Cir.1988). In each of those cases, as in the case before us, restrictions on the employee’s on-call time were not so burdensome as to render it time predominantly spent for the benefit of the employer.
In Armitage, police detectives “were allowed to do as they pleased while on call, as long as they remained sober, could be reached by beeper and were able to report to duty within twenty minutes of responding to the page.” Armitage, 982 F.2d at 432. In addition, the detectives were called in on average less than two times a week. Id. Given those facts, we held that the on-call time did not prohibit the detectives from personal pursuits and that, “to require compensation under these facts would require that all on call employees be paid for standby time,” which would be a major change in the FLSA law. Id. We declined to make such a requirement in that case, and we decline to do so in this factually similar case.
In Boehm, the plaintiffs were free to leave the company premises and to use their on-call time as they pleased, so long as they could be reached and report for work one-third of the time they were called. Boehm, 868 F.2d at 1185. We held in that case that “although plaintiffs spent some time at home that they otherwise would not have spent because of the company’s on-call policy,” the time was not spent predominantly for the employer’s benefit. Id. Similarly, the employees in Norton were not required to remain on the employer’s premises, but were allowed to pursue personal activities, with the restriction that they be accessible by phone or pager. Norton, 839 F.2d at 655-66. We acknowledged in Norton that even though on-call time required restrictions on the employees’ personal time, the restrictions were not so great as to constitute working time. Id. at 656.
The case before us is factually similar to Armitage, Boehm, and Norton, and we believe that those cases control our decision in this case. Even though plaintiffs’ activities may be somewhat restricted while they are on call, the restrictions are not so prohibitive that it can be said that their on-call time is spent predominantly for the employer’s benefit. In addition, plaintiffs are free to pursue personal activities with little interference while waiting to be called. Consequently, we hold that, under the facts of this case, plaintiffs’ personal pursuits are not restricted to such a degree as to require that plaintiffs’ on-call time be compensated as overtime under the FLSA.
As an alternative holding, the district court concluded that Gilligan’s claim for overtime compensation was barred by the statute of limitations. “Ordinary violations of the FLSA are subject to the general 2-year statute of limitations. To obtain the benefit of the 3-year exception, the [employee] must prove that the employer’s conduct was willful....” McLaughlin v. Richland Shoe Co., 486 U.S. 128, 135, 108 S.Ct. 1677, 1682, 100 L.Ed.2d 115 (1988). To constitute willful conduct, the employer must either know or show reckless disregard for whether its conduct was prohibited by the statute. Id. at 133, 108 S.Ct. at 1681. Gilligan has not met his burden of showing that the City’s conduct in refusing overtime compensation for on-call time was willful. In fact, we have reviewed the record and he did not present any evidence whatsoever to the district court of the City’s willfulness. Therefore, Gilligan’s claims for overtime compensation are governed by the two-year limitations period; the district court was correct in its determination that his claim is barred.
The judgment of the United States District Court for the District of Kansas is, therefore, AFFIRMED.
. After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R.App.P. 34(a); 10th Cir.R. 34.1.9. The case is therefore ordered submitted without oral argument. | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "sub-state government (e.g., county, local, special district)". Your task is to determine which category of substate government best describes this litigant. | This question concerns the first listed respondent. The nature of this litigant falls into the category "sub-state government (e.g., county, local, special district)". Which category of substate government best describes this litigant? | [
"legislative",
"executive/administrative",
"bureaucracy providing services",
"bureaucracy in charge of regulation",
"bureaucracy in charge of general administration",
"judicial",
"other"
] | [
6
] | songer_respond1_4_2 |
FEDERAL PUBLIC HOUSING AUTHORITY et al. v. MOBILE HOUSING BOARD et al.
No. 11810.
Circuit Court of Appeals, Fifth Circuit.
Nov. 7, 1947.
Joseph Burstein, Atty., Public Housing Adm., of Washington, D. C., and Percy G Fountain, Asst. U. S. Atty., of Mobile, Ala., for appellants.
Alexander Foreman, Jr., of Mobile, Ala., for appellees.
Before McCORD, WALLER, and LEE, Circuit Judges.
WALLER, Circuit Judge.
By the complaint and bill of particulars it was shown that appellant, Federal Public Housing Authority [hereinafter sometimes referred to as “Federal”], had made a loan to the Mobile Housing Board [hereinafter sometimes referred to as “Mobile”], of in excess of $1,500,000 to aid in construction of low-rent housing projects and as security for said loan had taken the bonds issued by the Board of Directors of the Mobile unit. In the contract Federal was obligated to pay to Mobile an annual contribution of 3%% of the development costs of the units. All net earnings of Mobile Housing Project were required to be used for the payment of principal and interest on the bonds, and any excess of earnings over operation costs and debt service would go in reduction of the contribution which Federal had agreed to make annually.
Appellant alleged that the defendants willfully, wrongfully, and arbitrarily violated the provisions of the contract in purchasing insurance at a cost greater than the lowest available rate in financially sound and responsible companies and thereby had increased the cost of operation of the housing project and that this had adversely deprived appellant of the advantage of having the sum represented by said excess insurance costs applied to the reduction of Federal’s annual contribution.
Appellee had theretofore secured its insurance from fixed-premium stock companies. Appellant insisted in its complaint that insurance could be obtained in certain mutual companies which were financially sound and responsible, at a considerable annual saving by reason of the fact that those mutual insurance companies regularly return a dividend to the policyholder and without ever having exercised the reserved right and privilege of said mutual companies to require an assessment against the policyholder when necessary to pay losses.
Appellant exhibited a binder from Firemen’s Mutual Insurance Company covering the insurance in question, and it alleged that the insurance could be purchased from said Firemen’s Mutual Insurance Company for a deposit premium of 330 per hundred dollars for a three-year policy, and that said company had for many years past re-returned to the policyholder a dividend of at least 70% of the deposit premium, but it further alleges that assessments could be made by said company equal to five times the annual deposit premium. Although the appellant obtained a binder from the Firemen’s Mutual Insurance Company, which is a company that may make assessments equal to five times its annual deposit premium, it nevertheless gave the names of five mutual companies, which it states were non-assessable companies, from which it asserted the insurance could be purchased for 300 per hundred dollars. Appellant tendered no binder from those companies.
After it learned, subsequent to the bringing of the suit, that Federal proposed to procure insurance on a three-year, instead of a one-year basis, appellee secured insurance on a three-year basis at the rate of 300 per hundred from stock companies without the provision for either assessments or dividends. The initial rate for which appellant secured a binder from Firemen’s Mutual Insurance Company was 330 per hundred and was in excess of the rate of 300 per hundred for the three-year policies issued by the stock companies. Appellant asserts that the history of the mutual companies from which it proposed to secure the insurance revealed a regularity of annual dividends and a total absence of assessments, and, therefore, it argues that the mutual insurance which it sought to have issued was lower than the rate of stock companies by virtue of the dividend provisions in the mutual policies, even though the tendered policy obligated the policyholders to pay an assessment of not to exceed five times the initial premium deposit in the event same became necessary to meet losses.
Thus the complaint sought to convert the age-old economic controversy as to the advantage or disadvantage of mutual fire insurance over fixed-premium stock company insurance into a judicial controversy.
From time immemorial business men and economists have differed on this question. Neither Congress nor the legislatures of the states have settled the issue, and the type of fire insurance that a business man selects has long been considered a matter of economic choice.
It cannot be gainsaid that if the rate charged by the stock companies and the mutuals were each 30^ per hundred, and if the premium charged by the mutual were actually reduced by an excess of premiums collected over cost, then the cost of mutual insurance would be less than the cost of stock company insurance. The test set out in the contract between Federal and Mobile is not the ultimate cost of the insurance, but the test is the rate. If the rates here were the same, the ultimate cost of the insurance to the policyholder would be less to the holder of the mutual policy, provided there is a dividend paid and provided there are no assessments. Notwithstanding the history of the mutual company that executed the binder in regularly paying dividends and in not making assessments, nevertheless both are contingent. Either may or may not happen. The fact that a company has regularly paid dividends and has never called upon its policyholders for an assessment does not prove that a great catastrophe, such as a hurricane that devastates great areas or a fire that destroys a great city, could not occur and thereby prevent the paying of dividends or demand the collection of assessments. Whether these things will happen cannot be settled by-court decree. Whether it is a part of economic wisdom for the policyholder to acquire insurance at a fixed sum with no further liability to him, or whether he should take out insurance with the possibility of reduced cost but with the attendant possibility of being called upon to assist in paying the loss of others, is an economic issue that involves business discretion. It is not a judicial question in the absence of a definite and positive agreement to take out one type of insurance as distinguished from some other kind.
The Mobile Housing Board is a public body organized under the law of Alabama, having a Board of Directors clothed with the power to exercise its discretion in the management of the business of the housing unit, and as such it did not contract away to the Federal Public Housing Authority its discretion to settle the economic question presented in this case. In the absence of an abuse of that discretion the federal courts cannot, and should not, interfere. Van Antwerp et al. v. Board of Commissioners, City of Mobile, 217 Ala. 201, 115 So. 239; Pilcher v. City of Dothan, 207 Ala. 421, 93 So. 16; Henderson v. City of Enterprise, 202 Ala. 277, 80 So. 115. The jurisdiction of the federal courts is limited to judicial cases and controversies. Whether, for instance, the mutual insurance companies involved in this case actually carried large risks in the areas of Florida, Alabama, Mississippi, and’Louisiana, where the recent great hurricane destroyed insured property of the value of many millions of dollars, such as might necessitate calling upon the policyholders to respond to assessments would not now be an appropriate question. But whether or not the consideration of such a possibility might be such as would influence a reasonable person in procuring insurance of a particular type is a question that calls for an answer over which the minds of reasonable men might differ, and the possession of the correct answer to which is not an exclusive attribute of-judicial wisdom. The amount, type, and spread of the risks of insurance companies, mutual or otherwise, as well as the reputation and character of service rendered by the companies, their agents, engineers, adjusters, etc., are economic factors that address themselves to sound business discretion. The power to prophesy as to the time and extent of catastrophes might have been an attribute of the judges of ancient Israel, but that attribute does not adhere in judges of the federal cqurts of the present day.
The plaintiff alleges that: “The purchase of the insurance risks hereinbefore referred to, in violation of said contract, at a higher rate than available from financially sound and responsible insurance companies, will directly affect such excess earnings and require a greater amount of annual contribution from the plaintiff.”
Moreover, the complaint fails to allege either: (a) that the Mobile Housing Board is insolvent and could not be made to respond to any judgment recoverable by virtue of such an alleged breach of its contract ; (b) that the defendant had defaulted in the payment of the principle or interest on its bonds; (c) that its cost of operation had exceeded its earnings, and that in consequence appellant had been compelled to make expenditures; (d) that the alleged savings on insurance would have been sufficient to prevent appellant from annually making the contribution of 3%% according to its contract. It, therefore, seems that its allegation of immediate and irreparable injury is a mere legal conclusion. But be that as it may, we believe that the judgment of the lower Court was correct for the reason that the Board of Directors of the Mobile Housing Board had a discretion in the matter which is not shown to have been abused, and the exercise of which was unattended by fraud, without which there existed no justiciable issue.
The judgment of the Court below 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.
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_numappel |
The GEIS CONSTRUCTION CO., and United States Guarantee Company, Appellants, v. The UNITED STATES of America, for the Use of TOM IGEL COMPANY, Appellee.
No. 13021.
United States Court of Appeals Sixth Circuit.
April 24, 1957.
William J. Lohr, Columbus, Ohio (Robert Dow Hamilton, Columbus, Ohio, on the brief), for appellants.
Joe F. Asher, Columbus, Ohio (Vernon L. Stouffer, Calland, Stouffer & Asher, Columbus, Ohio, on the brief), for ap-pellee.
Before ALLEN, McALLISTER and STEWART, Circuit Judges.
PER CURIAM.
Appellee furnished materials and labor to a subcontractor employed on a government project. The appellant was the prime contractor. The subcontractor went into receivership, and the appel-lee thereafter filed the present action under the Miller Act, 40 U.S.C.A. § 270b to recover the balance owing for labor and materials. This appeal is from the district court’s judgment against the appellant general contractor for the amount owed appellee under its contract with the subcontractor.
Appellant contends (1) that the ap-pellee failed to file his claim with appellant within ninety days after performing the last work under the contract, thus losing the right to recover under the statute, and (2) that the district court erred in refusing to admit evidence to show that the contract price exceeded the reasonable value of the materials furnished and services performed by the ap-pellee.
Whether the appellee performed work under its subcontract within ninety days before it filed its claim was a question answered in the affirmative by a jury, upon a special interrogatory framed by the appellant. The jury’s finding was supported by substantial evidence.
It was not error for the district court to exclude evidence of the actual value of the services performed and to enter judgment for the amount due under the contract, in the absence of any showing of fraud or collusion between the appellee and the subcontractor.
The judgment is affirmed. | 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_constit |
Oswald ROBINSON, Appellant, v. UNITED STATES of America, Appellee.
No. 22151.
United States Court of Appeals Ninth Circuit.
Sept. 26, 1968.
Frederick J. Titcomb (argued), Honolulu, Hawaii, for appellant.
Michael Hong (argued), Asst. U. S. Atty., Herman T. F. Lum, U. S. Atty., Honolulu, Hawaii, for appellee.
Before MADDEN, Judge of the United States Court of Claims, and HAMLEY and MERRILL, Circuit Judges.
Senior Judge, The United States Court of Claims, sitting by designation.
J. WARREN MADDEN, Judge:
In this appellate proceeding no question is involved with respect to the jurisdiction of the district court or of this court.
The appellant Robinson, hereinafter designated as the defendant was convicted in the district court of perjury, in violation of § 1621 of Title 18, United States Code.
On August 23, 1966, the defendant, pursuant to a subpoena, appeared before a federal grand jury and gave testimony. His testimony was false. On December 13, 1966, the same grand jury indicted him for perjury committed on August 23, 1966. He was tried on that indictment, found guilty by a petit jury, and sentenced. He appeals from that conviction.
The defendant claims that the testimony which he gave before the grand jury on August 23, and which was taken down by a court reporter was not admissible but was erroneously admitted in evidence at his perjury trial. He says it was not admissible in' the perjury trial because his constitutional rights were violated at the grand jury hearing on August 23 at which he gave the false testimony. He says that before he was required to take the witness stand in the grand jury proceeding the Assistant United States Attorney who was acting for the Government in the proceeding, should have advised him that he had a right to have a lawyer, and a right to consult with a lawyer before testifying; that he had a privilege not to incriminate himself in testifying; that he had the privilege not to testify; that if he did testify before the grand jury, that testimony could be used against him.
The giving of these warnings, of the lack of which the appellant complains, would be an extraordinary way in which to introduce an ordinary witness who has been subpoenaed to appear in court, to do his civic and legal duty. What the court and his government requires of him is that he take an oath to tell the truth, and then proceed to tell the truth. In the usual case he will have no need to consult a lawyer before testifying, or to have a lawyer present when he testifies, or to' claim the privilege against self-incrimination, or to worry about whether his testimony could be used against him in another proceeding. In the usual case then, the warnings would be a waste of time and a somewhat humiliating experience for the prospective witness. But if the warnings are required for the occasional witness who, having taken the stand, gives false testimony, must they not be required for all witnesses since no one can know which witness will perjure himself, and the one who, as did the defendant, perjures himself, may claim, as does the defendant, immunity from prosecution for the perjury because he was not given the constitutionally required warnings?
The appellant does not urge that the warnings described above are constitutionally required for all witnesses. He says that his situation was not that of an ordinary witness. The grand jury investigation to which he was subpoenaed concerned burglaries in which quantities of beer, cigarettes, and watches were stolen from a Navy Exchange warehouse. Two men, Davis and Ferge were suspected of committing the-burglaries and were the prime subjects of the investigation. The stolen beer had been stored under Davis’ house next door to the house of a friend of the defendant, whom the defendant frequently visited. An F.B.I. Special Agent, one Hoy was told that the defendant had purchased some of the stolen merchandise from Davis and Ferge. Hoy called on the defendant and questioned him. The defendant said that he knew Davis and Ferge, but knew nothing about the thefts and had made no purchases from the two men. This interview was on July 28, 1966. On August 23, 1966, as we have seen, the defendant appeared before the grand jury. He there made the same statements that he made to Hoy. He was questioned by two members of the grand jury, and by the Assistant United States Attorney, but he persisted in his denials. At his perjury trial, some months later, those denials were proved to be false.
The appellant says that, in the circumstances in which the government had reason to believe that truthful answers by the defendant to the grand jury inquiries would incriminate him as a receiver of stolen goods, the defendant was entitled to the same warnings about his right to consult a lawyer, and his privilege not to incriminate himself, as if he had been in the custody of police in the accusatory stage of an investigation, i. e., to the warnings required by Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
The evidence does not indicate that the defendant was called before the grand jury for the purpose, on the part of the Government, of making a criminal case against him. From all that appears, the Government was aware that the defendant had information which would be useful in making a case against Davis and Ferge for burglary. Although the defendant, when questioned by the F.B.I. had denied any knowledge of the activities of Davis and Ferge, the Government had a right to hope, as any litigant does with regard to any witness, that on the witness stand, under oath, he will tell the truth. Undoubtedly, the defendant, when questioned by the grand jury as to whether he had bought beer from Davis, had the right to claim his privilege against self-incrimination and refuse to answer. But he did not claim the privilege, and the Government was under no duty to suggest to him that he claim the privilege. As we have said above, there is no indication that the Government then, or ever, entertained an idea of bringing criminal charges against the defendant concerning burglaries, or the receipt of stolen goods. In the case of United States v. Scully, 225 F.2d 113, 116 C.A. 2 (1955) Judge Medina wrote:
“ * * * the mere possibility that the witness may later be indicted furnishes no basis for requiring that he be advised of his rights under the Fifth Amendment, when summoned to give testimony before a grand jury.”
We agree with the quoted statement. It was cited with approval in United States v. Parker, 244 F.2d 943, C.A. 7 (1957), cert. den. 355 U.S. 836, 78 S.Ct. 61, 2 L.Ed.2d 48.
We do not agree with the defendant’s contention that a witness, in court pursuant to a subpoena, is under compulsion similar in all respects to the compulsion of being in the custody of police as a suspect upon whom the investigation has focused. True, there is an important dictum to the effect that in certain circumstances such as that of an illiterate or ignorant witness who gives self-incriminating testimony, that testimony may not later be used to convict him of the crime to which his self-incriminating testimony related. See United States v. Orta, 253 F.2d 312, C.A. 5 (1958) and see Rogers v. United States, 340 U.S. 367, 71 S.Ct. 438, 95 L.Ed. 344 (1951) for the usually applicable rule that the privilege of a witness not to incriminate himself is waived if not claimed.
In the instant case the defendant, in his testimony did not incriminate himself by making any confession or admission as to any crime which he, or anyone, had committed in the past. Our problem, therefore, is not the problem adverted to in the dictum in Orta, supra. We have held, above, that in the circumstances, there was no duty to give the Miranda warnings to the defendant, and therefore no violation of his constitutional rights. If our conclusion on that point is wrong, further consideration of other problems is necessary. If we assume that the defendant was entitled to the Miranda warnings and did not receive them, but did not give any self-incriminating testimony, the absence of the warnings would seem to be irrelevant. That brings us to the defendant’s contention that the absence of the warnings was a violation of constitutional rights, which violation tainted his entire grand jury testimony and made it inadmissible for the purpose of proving, in his instant trial for perjury, that the testimony was false. The theory of the defendant’s contention is so elusive that it is difficult to write about it. It is really a tour de force, rather than a reasoned conclusion. It requires, sub silentio, an assumption that there is a duty upon the government to have an observer present at all trials to give a specific warning to any witness who, it is thought, may perjure himself, that if he does perjure himself, he may be prosecuted.
The contention made by the defendant has been urged upon other courts, and rejected by them. Glickstein v. United States, 222 U.S. 139, 32 S.Ct. 71, 56 L.Ed. 128 (1911); United States v. Winter, 348 F.2d 204, C.A. 2 (1965), cert. den. 382 U.S. 955, 86 S.Ct. 429, 15 L.Ed. 360; United States v. Orta, supra, 253 F.2d 312, C.A. 5 (1958); United States v. Parker, supra, 244 F.2d 943, C.A. 7 (1957); United States v. Ponti, 257 F.Supp. 925, E.D.Pa. (1966). The Ponti case reviews the authorities, and discusses the doctrine that the privilege against self incrimination relates to past criminal acts and not to future acts such as perjury which the witness commits in the testimony which he proceeds to give. See Glickstein v. United States, supra, where the court said at 222 U.S. p. 142, 32 S.Ct. p. 73:
“ * * * The immunity afforded by the Constitutional guaranty relates to the past, and does not endow the person who testifies with a license to commit perjury.”
It may be worth noting that statutes which grant or permit the court to grant immunity in exchange for testimony which may incriminate a witness, provide that the immunity does not cover perjury committed in the giving of the testimony for the giving of which immunity was granted.
The defendant relies on a group of New York State Court decisions, including People v. Steuding, 6 N.Y.2d 214, 189 N.Y.S.2d 166, 160 N.E.2d 468 (1959). In Steuding the court said:
By virtue of the Constitution of this State, (Art. I, § 6) — and it is solely the Constitution of New York with which we are now concerned, — * * *.
The New York cases, being so expressly limited in their scope, are not relevant to the instant case.
The defendant introduces the second branch of his argument for reversal with the following statement:
The trial judge erred in its extensive participation in the examination of witnesses called by the United States to the prejudice of appellant and in violation of the due process clause of the Fifth Amendment to the Constitution of the United States.
Counsel quote verbatim several instances of participation by the judge in the questioning of witnesses. The instances do not seem to us to show any lack, or appearance of a lack of impartiality on the part of the judge. In some of the instances it might have been just as well, or better, if the judge had refrained from interposing with questions, or had interposed later or had terminated his participation earlier. But the trial judge has a wide discretion in his management of the trial. Trial judges are human beings who are unique in their temperaments and intellectual qualities, and it is, of course impossible to man the benches with judges each of whom would fit into a common mold. We can only say, with regard to the judge’s conduct of the trial, that we have discovered nothing whatsoever in that conduct which, either by design or by inadvertence, could have impaired the defendant’s right to a fair trial. Having said that, we have disposed of the defendant’s claim that he was, by the conduct of the judge, denied due process of law.
This court, in Smith v. United States, 305 F.2d 197, 205, C.A. 9 (1962) said:
“A federal trial judge, as has many times been said, is more than a moderator or umpire. He has the responsibility to preside in such a way as to promote a fair and expeditious development of the facts unincumbered by irrelevancies. He may assist the jury by commenting upon the evidence and this may include an appraisal of the credibility of witnesses, providing the comment is fair and the jury is clearly instructed that they are to find the facts and may disregard such comments.
“In fulfilling this responsibility during the stress of a criminal trial, few, if any judges can altogether avoid words or actions, inadvertent or otherwise, which seems inappropriate when later examined in the calm cloisters of the appellate court. But unless such misadventures so persistently pervade the trial or, considered individually or together, are of such magnitude that a courtroom climate unfair to the defendant is discernible from the cold record, the defendant is not sufficiently aggrieved to warrant a new trial.”
The trial judge in the instant case did not even approach the outer limits of the discretion permissible under the language just quoted.
We find no error and we affirm the judgment.
. Judge Rives said: “Perjury is one of tlie most elemental of all crimes. Every person from the beginning of time has recognized its moral iniquity. No one can fail to know that any civilized system of laws must denounce prejury because it pollutes the very fountain head of justice.” p. 315. Earlier in his opinion Judge Rives said: “Under no circumstances, however, can he commit perjury and successfully claim that the Constitution afforded him protection from prosecution for that crime.” p. 314. | 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"
] | [
11
] | songer_state |
JOSEPH SCHACHTER & COMPANY, Plaintiff-Appellant, v. JOHN HANCOCK MUTUAL LIFE INSURANCE COMPANY, Defendant-Appellee.
No. 86-7295.
United States Court of Appeals, Second Circuit.
Argued Aug. 11, 1986.
Decided Aug. 20, 1986.
Thomas H. Sear, New York City (Spengler, Carlson, Gubar, Brodsky & Frischl-ing, of counsel), for plaintiff-appellant.
Richard Lutz, New York City (Townley & Updike, of counsel), for defendant-appel-lee.
Before PRATT and MINER, Circuit Judges, and RE, Chief Judge of the United States Court of International Trade, sitting by designation.
PER CURIAM:
Our decision in this case was originally rendered as a summary order pursuant to § 0.23 of the rules of this court. Counsel for the John Hancock Mutual Life Insurance Company (“John Hancock”) subsequently requested that the summary order be converted to an opinion of the court, suggesting that it would serve a jurisprudential purpose in similar cases arising in the future. Accepting counsel’s representation, the panel has agreed to re-issue this decision as an opinion of the court.
BACKGROUND
Appellant, Joseph Schachter & Co., seeks to collect as beneficiary under a life insurance policy issued by John Hancock in the amount of $500,000 on the life of Jay Frankel. Frankel, a business associate of Schachter’s, was found dead on November 3, 1982. John Hancock refused to pay, claiming that Frankel’s death was a suicide committed within the two year incontestability clause of the policy.
Appellant made its prima facie case by establishing the existence of the insurance policy and John Hancock’s nonpayment. John Hancock adduced evidence of extreme financial setbacks recently suffered by Frankel, and placed in evidence the facts surrounding Frankel’s death, which were highly suggestive of suicide. For its part, appellant attempted to demonstrate that Frankel’s death was the result of either homicide or an accident. The United States District Court for the Southern District of New York, Richard Owen, Judge, entered judgment on the jury’s verdict for John Hancock. On this appeal, appellant challenges several of the district court’s charges and evidentiary rulings. Finding no merit to any of its contentions, we affirm.
DISCUSSION
Appellant argues that the New York Court of Appeals intended for it to be “practically impossible” for an insurance company to succeed when invoking the suicide clause of a life insurance policy. See Schelberger v. Eastern Savings Bank, 60 N.Y.2d 506, 509, 470 N.Y.S.2d 548, 549, 458 N.E.2d 1225, 1226 (1983) (citing Schelberger v. Eastern Savings Bank, 93 A.D.2d 188, 197, 461 N.Y.S.2d 785, 790 (1st Dep’t 1983)). Therefore, it contends that Judge Owen improperly charged the jury on New York’s presumption against suicide by altering the language from the New York Pattern Jury Instructions approved by the court of appeals in Schelberger. That language provides, in pertinent part: “You may make a finding of suicide only if you are satisfied from the evidence, and taking into consideration the presumption against suicide, that no conclusion other than suicide may reasonably be drawn.” 60 N.Y.2d at 509, 470 N.Y.S.2d at 549, 458 N.E.2d at 1226. Judge Owen used the same language except for the final clause, for which he substituted “that it was suicide and that no conclusion of accidental death may reasonably be drawn.”
According to appellant, the district judge’s alteration mandated a verdict for John Hancock unless the jury believed the death to be accidental, whereas the Schelberger language would allow the jury to consider the additional possibilities of homicide and death by either natural or unknown causes. Although the Schelberger language did encompass these other possibilities, it does not follow that Judge Owen’s change in the language of the charge was improper. There being no admissible evidence either of homicide or of death by natural or unknown causes in this case, there was no reason to allow the jury to speculate on those points. In fact, the district judge’s redaction of the language was needed to avoid confusing the jury after he had earlier charged that there was no issue of homicide in the case.
In a related vein, appellant maintains that it was improper to charge the jury that it could not consider homicide. However, while appellant raised the spectre of homicide in its opening statement, it presented no competent evidence to suggest that Frankel had in fact been killed. The only evidence appellant offered on this point, which suggested that Frankel had been involved with organized crime, was excluded on hearsay grounds. On the other hand, John Hancock presented testimony by the investigating detective that he had found no evidence of foul play.
The mere fact that John Hancock bore the burden of proof of establishing that Frankel’s death was a suicide does not mean that the jury should have been allowed to speculate on all other possible causes of death. In these circumstances, the district judge correctly charged the jury that there was no issue of homicide in the case.
Appellant next contends that language in the appellate division’s opinion in Schelberger recognizes an incompatibility between the preponderance of the evidence standard and the presumption against suicide. Appellant claims that the district judge therefore erred by placing the burden of proof on John Hancock to establish suicide by a preponderance of the credible evidence. This argument, however, overlooks the fact that both the appellate division and the court of appeals in Schelberger affirmed a trial court judgment entered after a jury charge that placed the burden on the insurance company to establish suicide by a preponderance of the credible evidence, rather than by clear and convincing evidence. Appellee’s brief at 37 (quoting the trial court’s jury charge). Moreover, the charge upheld in Schelberger was in keeping with similar charges previously upheld by the court of appeals. See, e.g., Wellisch v. John Hancock Mutual Life Insurance Co., 293 N.Y. 178, 183, 56 N.E.2d 540, 542 (1944).
Appellant also attacks the district judge’s decision to exclude a portion of the report by the police expert who investigated Frankel’s death. Judge Owen allowed detective Lienau, a veteran New York City detective, to testify as an expert that there was “no foul play” involved in Frankel’s death; however, on appellant’s cross-examination of Lienau, the court excluded his conclusion that “the subject either jumped or fell to his death.” Appellant’s contention that this ruling was error is without merit.
Judge Owen admitted Lienau’s testimony on the question of a possible homicide, believing it would assist the jury. See Fed.R.Evid. 702. Lienau testified outside the presence of the jury, however, that the “jumped or fell” language was meant to convey only that no foul play was involved. Lienau stated that he could express no opinion on whether the death was an accident or a suicide, since all he had concerned himself with was whether it was a homicide. Hence, he was not an expert on the question of whether the death was an accident or a suicide, and the conclusion of his report was properly excluded.
Finally, maintaining that John Hancock failed to introduce sufficient evidence of suicide, appellant urges that a verdict should have been directed in its favor. In light of the circumstantial evidence of suicide adduced below, this argument borders on the frivolous, and the district court properly allowed the question of whether John Hancock had established Frankel’s suicide by a fair preponderance of the credible evidence to go to the jury.
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 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"
] | [
1
] | songer_circuit |
UNITED STATES of America, ex rel. Golden FRINKS, Appellant, v. J. G. BARWICK, Superintendent of Gates County Prison Unit 014, Gatesville, North Carolina, Appellee.
No. 9334.
United States Court of Appeals Fourth Circuit.
Argued April 23, 1964.
Decided April 27, 1964.
Arthur Kinoy, New York City (Earl Whitted, Jr., Goldsboro, N. C., J. Robert Lunney, New York City, Samuel S. Mitchell, Raleigh, N. C., Charles T. McKinney, New York City, Floyd B. McKissick, Durham, N. C., William M. Kunstler, Michael J. Kunstler, and Kunstler, Kunstler & Kinoy, New York City, on brief), for appellant.
Theodore C. Brown, Jr., Staff Attorney for State of North Carolina (T. W. Bruton, Atty. Gen. of North Carolina, on brief), for appellee.
Before SOBELOFF, Chief Judge, and BRYAN and J. SPENCER BELL, Circuit Judges.
PER CURIAM.
This matter is before the court on an appeal from an order of the district court for the Eastern District of North Carolina discharging a writ of habeas corpus. The district court also declined to admit the petitioner to bail pending this appeal. The effect of such denial was to compel the petitioner to serve out the jail sen-fence before he could have a review of its legality.
His principal claim was that he had been denied assistance of counsel in a state proceeding in which the court invoked a six months suspended sentence against him and ordered that the term be served. The district court based its action on the ground that the petitioner had failed to exhaust available state rem-e(jies_
We hold that the petitioner, having theretofore squarely presented to the Supreme Court of North Carolina his contention that he was denied counsel in the revocation proceeding, and having been denied relief in that court, he is not further obliged to pursue alternate procedures for relief in the state courts, Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963); Grundler v. North Carolina, 283 F.2d 798 (4 Cir. 1960).
The case will, therefore, be remanded' to the district court to hear the petition for habeas corpus on its merits. The-order heretofore entered by Judge Bell, a member of this court, admitting the petitioner to bail pending the final outcome' of this case, is hereby continued in effect.
Remanded. | 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)"
] | [
4
] | songer_applfrom |
Alfredo ESTEBAN and Steve Craig Roberds, Appellants, v. CENTRAL MISSOURI STATE COLLEGE, Warren C. Lovinger; W. Lester Simpson; Joe Herndon; Leland J. Culp; Virginia Cottlieb; Byron Constance and J. N. Cunningham, Appellees.
No. 19565.
United States Court of Appeals Eighth Circuit.
Aug. 28, 1969.
Rehearing Denied Oct. 3, 1969.
Irving Achtenberg, Kansas City, Mo., for appellants.
Robert L. Wesner, Sedalia, Mo., for appellees.
Brief of Amicus Curiae (The Curators of the University of Missouri) was filed by Jackson A. Wright, T. Richard Mager and Marvin E. Wright, Columbia, Mo.
Before BLACKMUN, MEHAFFY and LAY, Circuit Judges.
BLACKMUN, Circuit Judge.
Alfredo Esteban and Steve Craig Roberds, students at Central Missouri State College, a tax-supported institution at Warrensburg, Missouri, were suspended on March 31, 1967, for two semesters but with the right thereafter to apply for readmission. The two, by their next friends, instituted the present action for declaratory and injunctive relief. The named defendants are the College, its President, and its Board of Regents. The plaintiffs allege, primarily, first, fifth, and fourteenth amendment violations. Judge Hunter, with a detailed memorandum, denied them relief and dismissed their complaint. Esteban v. Central Missouri State College, 290 F.Supp. 622 (W.D.Mo.1968). The plaintiffs appeal.
Jurisdiction is asserted under 28 U.S.C. § 1331 and § 1343 and 42 U.S.C. § 1981 and § 1983. We are satisfied as to federal jurisdiction under 28 U.S.C. § 1343(3) and 42 U.S.C. § 1983.
We note initially that, although the two semester suspension period has long since expired, neither plaintiff, up to the time of the oral argument on May 16, 1969, has taken the trouble to apply for readmission.
The disciplinary action against the plaintiffs arose out of events which took place on or adjacent to the college campus on the nights of March 29 and 30, 1967. At that time Esteban was on scholastic probation and Roberds was on disciplinary probation. Esteban also had been on disciplinary probation over a knifing incident with a fellow student, but his disciplinary probation had expired a short time before.
Both sides in their appellate briefs specifically adopt findings of fact made by Judge Hunter with respect to these March 1967 events. Accordingly, we set forth certain of those findings here:
“* -x- * These demonstrations took place at the intersection of the public street adjacent to the school campus and State Highway 13 and overflowed onto the sidewalks and campus. On the evening of March 29, some 350 students were present in the mass and on March 30, there were some 600 students included. As a partial result of these two mass demonstrations there was in excess of $600 damages and destruction of college property, including broken school building windows and destroyed shrubbery ; eggs were thrown; the Dean of Men, Dr. Chalquist, was hanged in effigy, his ‘dummy’ torn up and set on fire; traffic was halted and blocked, cars were rocked, and their occupants ordered out into the street. The college president directed a number of his personnel, including Dr. Meverden, to go to the scene to restore order.
“ESTEBAN EVENT:
“* * * evening of March 29, 1967, around 11:30 p. m., he left his dormitory about the time the ‘disturbance’ had subsided. Some of the students were proceeding along the street from the mass demonstration to their dormitories. Esteban proceeded down the sidewalk to within about 100 feet of the intersection of the scene of the mass demonstration and stayed there awhile. Dr. Meverden, a faculty member, who was seeking to disperse students standing outside their dorms, approached Esteban and asked him to go inside the dormitory. Instead of complying, Esteban asked why, and on again being requested to go in, again asked why. He told Dr. Meverden that he was not in violation of any state, county, or federal law and that he had a right to be out there. Dr. Meverden asked for his student identification card which by college regulation he was required to have in his possession at all times. Esteban said (‘in rough words’ according to one witness) he did not have it. Nor did he give his name. Dr. Meverden again requested him to go in the dormitory and get off the street. Esteban argued with Dr. Meverden and questioned his authority, saying there were no rules limiting the time men could stay outside the dorms. Shortly, and with the encouragement of other students present, he went into the dormitory. Dr. Meverden also went in and asked Gerald Haddock, the resident assistant of Esteban’s dormitory, who Esteban was. Haddock was overheard by Esteban telling Dr. Meverden Esteban’s name. Esteban, as Dr. Meverden was leaving, called Haddock a prick and a bastard and told him he ‘would not be around very long.’ According to Esteban’s roommate, Esteban then angrily picked up a waste can and emptied the contents on the floor at the feet of Haddock.
“ROBERDS EVENT:
* * * * * *
“Throughout both evenings of the mass demonstrations Roberds was present as a part of the crowd. On March 29, 1967, he arrived at the scene of the demonstration about 10:15 p. m. and returned to his dormitory about 10:45 p. m. On March 30, 1967, he arrived at the scene about 9:30 p. m. and remained until about 10:30 p. m. During the first night, while a part of the gathered crowd, he talked to students who were present in it. Roberds testified that the second evening, also while a part of the crowd at the demonstration, that T discussed some of the things that were going on, the rocking of the cars and the dummy. At that time I mentioned my disgust with the college, and we talked, as the people I had talked to had the same feeling.’ He saw the dummy brought to the scene of the demonstration; saw it hung, torn up and burned by students in the crowd. He saw the cars approached by the students, saw the cars rocked, saw the attempts to take the occupants out of the cars. He returned to his dormitory after the dispersal of the gathering. He stated he was at the demonstrations each evening simply as a ‘spectator’, not par-tieipating in any of the acts of violence or destruction.” [Footnote omitted]
Both sides also adopt Judge Hunter’s findings as to Roberds’ situation prior to the March events:
“Prior to the mass demonstrations, Roberds had been placed on disciplinary probation and furnished a written statement of the terms of that probation. Dean Chalquist also orally explained those terms to him. He and Dean Chalquist conversed relative to his intention to participate in a demonstration. Roberds asked about the possible repercussions of his involvement in (future) demonstrations or disturbances. He was advised ‘that any action on your part which may reflect unfavorably upon either you or the institution can be considered grounds for suspension.’ Roberds, under date of February 5, 1967, wrote E. J. Cantrell, a Representative from his county in the Missouri Legislature, the following letter:
‘ * * * I assure you, I do not stand alone in my disgust with this institution. From suppression of speech and expression to ridiculous, trivial regulations this college has done more to discourage democratic belief than any of the world’s tyrants. * * * My comrades and I plan on turning this school into a Berkeley if something isn’t done.’ ”
[Footnotes omitted]
The procedural history of the case. These plaintiffs, after their suspensions, had filed earlier complaints (277 F.Supp. 649) in the Western District of Missouri against the same defendants. Those suits also had come before Judge Hunter. The court concluded that procedural due process had not been afforded the students and that “the critical defect in the hearing procedure used by the college was the fact that the person to whom the students were permitted to make their explanation or showing, Dr. Chal-quist, was only one of a number of persons on the board which made the recommendation of suspension.” Accordingly, the court directed the defendants to grant each of the plaintiffs a new hearing on such charges as the defendants desired to press. The court prescribed the procedure to be followed. This included a written statement of the charge to be furnished the student on at least 10 days’ notice; a hearing before the college’s president, as the one person possessing authority to expel or suspend; advance inspection by the student of any affidavits or exhibits which the College intended to submit at the hearing; the student’s right to have counsel present with him at the hearing; the right to present his version as to the charge and to make such showing by way of affidavits, exhibits, and witnesses as he desired; the right to hear the evidence against him and to question any witness giving adverse evidence; the president’s determination of the facts solely on the evidence presented at the hearing and a statement by him in writing of his findings as to guilt or innocence of the conduct charged and the disposition, if any, to be made by way of disciplinary action; and permission to each side at its own expense to make a record of the events at the hearing. However, the students’ request to be reinstated subject to the outcome of the hearing was denied. Esteban v. Central Missouri State College, 277 F.Supp. 649 (W.D.Mo.1967).
Thereafter, and in line with the court’s directions, written charges and notice of hearing were served on Esteban and Roberds. The charge against Esteban read:
“You are hereby notified that you are charged with contributing to and participating in an unruly and unlawful mass gathering occurring on the 30th day of March, 1967, at and near Central Missouri State College in that you, the said, Alfredo Esteban, did resist efforts of one Dr. M. L. Meverden in dispersing said mass gathering, failed and refused to identify yourself to Dr. Meverden as requested and used vile and obscene language towards and threatened a resident assistant of the College at Foster-Knox Hall.”
That against Roberds read:
“You are hereby notified that you are charged with contributing to and participating in an unruly and unlawful mass gathering occurring on or about the 29th and 30th days of March, 1967 at and near Central Missouri State College in that you, the said Stephen Craig Roberds, on the 5th day of February, 1967 directed correspondence to Mr. E. J. Cantrell of the Missouri Legislature evidencing your intention to participate in such mass gathering, did thereafter advise Dean Hollis Chalquist, Dean of Men, of your intention to participate in such demonstration at which time you were specifically advised that such participation would result in immediate suspension from Central Missouri State College and that you did' thereafter continue to contribute to and participate in said mass gathering all of which actions were in violation of the terms and provisions of your disciplinary probation.”
The college regulations in effect- at the time, and to the extent pertinent, provided :
“The conduct of the individual student is an important indication of character and future usefulness in life. It is therefore important that each student maintain the highest standards of integrity, honesty and morality. All students are expected to conform to ordinary and accepted' social • customs and to conduct themselves at all times and in all places in a manner befitting a student of Central Missouri State College.
“All students that enroll at C.M.S.C. assume an obligation to abide by the rules and regulations of the college as well as all local, state and federal laws.
“When a breach of regulations involves a mixed group, ALL MEMBERS ARE HELD EQUALLY RESPONSIBLE.
“Conduct unbefitting a student which reflects adversely upon himself or the institution will result in disciplinary action.”
“Mass Gatherings — Participation in mass gatherings which might be considered as unruly or unlawful will subject a student to possible immediate dismissal from the College. Only a few students intentionally get involved in mob misconduct, but many so-called ‘spectators’ get drawn into a fracas and by their very presence contribute to the dimensions of the problems. It should be understood that the College considers no student to be immune from due process of law enforcement when he is in violation as an individual or as a member of a crowd.”
The hearing required by Judge Hunter’s determination as to procedural due process took place on November 3, 1967. The president made findings generally along the lines of those made by Judge Hunter and which now have been adopted by the parties to this appeal, and reaffirmed the previous suspensions. As to Esteban:
“I am of the further opinion that this student’s resistance to Dr. Mev-erden’s efforts directed towards dispersing the demonstration contributed to the unruly and disorderly situation resulting from the demonstration and unquestionably constituted participation in the mass gatherings even though at the specific time of the occurrence the gathering was in the process of being dispersed.”
As to Roberds:
“ * * * Mr. Roberds has repeatedly admitted attending the demonstrations on both nights but qualifies his attendance as being that of a spectator and the evidence does not show otherwise. It is apparently the former student’s position that his presence at the disturbances as a spectator does not constitute a violation of the College regulations relative to mass gatherings. I am of the opinion that it does. At the outset it should be made clear that the very purpose of the regulation is to prevent an unauthorized mass gathering of students which gatherings are by their very nature made up of a great number of spectators. It is the spectators that create the mass which in turn leads, as in this case, to incidents of unruly and violent action. If there were no so called spectators there would be no mass gathering.
“Furthermore, the regulation in this instance makes it clear that spectators will be considered to be contributing to the mass gathering and will be subject to similar disciplinary action.”
When the suspensions were thus affirmed, the present action was instituted by the plaintiffs.
We accept the statement, made by plaintiffs’ counsel at oral argument, that the record is devoid of anything which indicates a connection between the two plaintiffs. Actually, so far as the record discloses, they may not even have known each other. We therefore treat their situations as separate and distinct.
The plaintiffs’ argument appears to be (1) that the trial court’s findings of fact are clearly erroneous; (2) that the college’s regulation and action violated rights of freedom of speech and of peaceful assembly and to petition; and (3) that the regulation is so vague as to deny substantive due process.
1. The findings and the supportive evidence. Both sides, of course, acknowledge that the governing standard as to clear error, under Rule 52(a), Fed.R.Civ.P., is the usual one whether, on the entire evidence, one is left with the definite and firm conviction that a mistake has been committed. United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1948); Commissioner of Internal Revenue v. Duberstein, 363 U.S. 278, 291, 80 S.Ct. 1190, 1200, 4 L.Ed.2d 1218 (1960); O’Rieley v. Endicott-Johnson Corp., 297 F.2d 1, 6 (8 Cir. 1961). The Supreme Court, in Duberstein, emphasized that this rule “itself applies also to factual inferences from undisputed basic facts.”
With this standard in mind we are drawn inevitably to the conclusion that Judge Hunter’s findings were not clearlyl erroneous. *
a. Esteban. This plaintiff, by the adoption of the trial court’s findings of fact, now concedes that he left his dormitory as other students were proceeding along the street from the mass demonstration; that he proceeded toward the scene of the demonstration and within 100 feet thereof and “stayed there awhile”; that he was requested by Doctor Meverden, a member of the college staff, to go into his dormitory; that Doctor Meverden was seeking to disperse the students; that he, Esteban, did not comply with these directions but asked more than once why he was being told to go in; that he insisted on his right to be out there; that in response to Meverden’s request to produce his identification card he used rough language in his negative reply and refused to give his name; that he questioned Meverden’s authority; that only with the encouragement of other students did he go in the dormitory; that Meverden then asked the dormitory resident who Esteban was; and that, when this information was given, Esteban responded with gutter language and with a threat and dumped a waste can’s contents at the resident’s feet.
Esteban’s argument is that conduct not included within the charge is not relevant; that-the charge of participation in an unlawful mass gathering was supported only by the specification of resisting Meverden’s efforts to disperse and not at all by his refusal to identify himself or by the language he used toward the resident; that the evidence shows that Esteban was not involved in the demonstration or at its scene; that he was studying while it took place; that he was standing a half block away peacefully talking with other students when “accosted” by Meverden; and that there was no college rule which gave Meverden the authority to order him into the dormitory.
We are not at all convinced by this attempted dissection of the aggregate • facts. Moments before Esteban’s purposeful entrance on the scene an unruly mass gathering had been in control at the intersection. The mob extended to the college premises. Destruction of college property had taken place. Innocent and unsuspecting members of the public had been stopped in their automobiles, had had their cars rocked, and had been ordered out by the mob. It was an explosive situation participated in by college students and affecting college property. Meverden was dispatched there in his capacity as a staff member and at the order of the college president in an attempt to restore order and thus to protect the students from further serious trouble. His assignment, obviously, was not the most enviable one. Just as obviously, the dispersal of the students and their return to the dormitories were effective remedies for a situation which had already erupted and which remained eruptive. Meverden’s inquiry of Esteban was made with authority and with reason. He was met with the very attributes of the mob: I defiance, challenge to his authority to ask people to move on, a refusal to reveal one’s name, the language of a bully, and insults. This, it will be remembered, although perhaps not at that moment known to Meverden, was a student then on scholastic probation and only shortly before on disciplinary probation because of a knifing incident. We fail to see, understand, or comprehend Esteban’s argument that there was no substantial evidence of misconduct encompassed within the charge against him. His actions, obviously, were in resistance to Meverden’s reasonable efforts to disperse the students and to prevent the recurrence or continuance of mob ac-Ition. In our view, Esteban by his resistance was a participant in the affair leven though he may not have been one ‘of those who actually interfered with |the travel rights of others and who | destroyed college property.
b. Roberds. This plaintiff’s case differs factually from Esteban’s. But, by the adopted findings, Roberds concedes that he had asked the dean about the result which would flow from his involvement in future demonstrations or disturbances; that he was informed, in response to that inquiry on his part, that any action which would reflect unfavorably upon him or the College, could be considered grounds for suspension; that he was “present as a part of the crowd” on both evenings; that he was so present for a half hour on the first night and for an hour on the second night; that he discussed with others some of the things which were going on and expressed his “disgust with the college”; that he returned to his dormitory only after the gathering was dispersed; and that he wrote the letter to the legislator.
Roberds’ argument follows Esteban’s to the point where it says that two of the three specifications of a charge failed to support that charge. Roberds then urges that his letter to the legislator is a first amendment petition “for a redress of grievances”; that it does not at all support a finding of intent to participate in any unruly demonstration; that, anyway, intent alone is not participation; that he did not tell the dean he intended to participate; that he was not a ringleader and did not participate; that, instead, he was a mere spectator, standing and sitting “on the sidewalk, watching the events”; that observing is not participating; and that observation is not enough.
We observe in this connection that we do not read Roberds’ letter to his legislator as a mere petition for redress of grievances which he would have every right to compose and present. The letter specifies no grievance which we can ascertain. It speaks only of disgust and, as we have noted, it contains a flat threat. His right to write is not an issue. His intent and his participation are in issue.
Mere presence, under certain circumstances, has been held insufficiently representative of criminal involvement. See Barr v. City of Columbia, 378 U.S. 146, 150, 84 S.Ct. 1734, 12 L.Ed.2d 766 (1964) ; United States v. Romano, 382 U.S. 136, 86 S.Ct. 279, 15 L.Ed.2d 210 (1965) ; Bozza v. United States, 330 U.S. 160, 162-164, 67 S.Ct. 645, 91 L.Ed. 818; (1947); Rollins v. Shannon, 292 F.Supp. 580, 590 (E.D.Mo.1968). Assuming, without deciding, that such criminal cases would afford precedent for a civil situation of the kind which confronts us, we note that the test as to the propriety of the inference to be drawn from presence is that of rational connection between the facts proved and the ultimate fact presumed. United States v. Romano, supra, 382 U.S. at 139, 86 S.Ct. 279; United States v. Gainey, 380 U.S. 63, 85 S.Ct. 754, 13 L.Ed.2d 658 (1965). That rational connection, we hold, is definitely present here.
Here, again, we are not persuaded as to Roberds’ peaceful spectator status or that the court’s findings as to him have no substantial support in the record. Roberds was present at, and as a part of, the milling mass on both nights. He was there as “a part of the gathered crowd.” He, too, may not have stopped any automobile or rocked it or forced out its occupants or damaged property, but these incidents took place and were caused by the mob and he was a part of that mob. Mob action or, for that matter, the old style lynching action, always presents to the self-proclaimed “spectator” the opportunity to claim that he was merely watching, that he did not participate, and that someone else did the job. But one may participate by being present and “talking it up” as Roberds concededly did. And when this is buttressed by the intent evidenced from his letter’s expressions of disgust and tyranny and his “plan on turning this school into a Berkeley if * * * ”, we have, in our view, substantial and certainly adequate support for the inferences the trial court drew and for its findings.
2. The First Amendment rights. Having resolved the issue as to the sufficiency of the evidence against the plaintiffs, we then encounter the constitutional argument. Were their rights of free speech and of free assembly and to petition denied to them?
Obviously, one does not lose his first amendment rights by matriculation at a college. Those rights follow one through the classroom door and, as we have had occasion recently to observe, even, to a great extent, through a penitentiary’s doors. Sharp v. Sigler, 408 F.2d 966, 970 (8 Cir. 1969); Jackson v. Bishop, 404 F.2d 571, 576 (8 Cir. 1968). And what better or more ideal place is there for free discussion and for the exchange of ideas than academic halls? See Epperson v. Arkansas, 393 U.S. 97, 89 S.Ct. 266, 21 L.Ed.2d 228 (1968).
Long settled, too, is the principle that the first amendment freedoms of speech and of association are applicable to the states, either by the due process route of the fourteenth amendment or directly under the first amendment. See, for example, Gitlow v. New York, 268 U.S. 652, 666, 45 S.Ct. 625, 69 L.Ed. 1138 (1925); De Jonge v. Oregon, 299 U.S. 353, 364, 57 S.Ct. 255, 81 L.Ed. 278 (1937); Thornhill v. Alabama, 310 U.S. 88, 95, 60 S.Ct. 736, 84 L.Ed. 1093 (1940); NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 460, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958); Edwards v. South Carolina, 372 U.S. 229, 235, 83 S.Ct. 680, 9 L.Ed.2d 697 (1963); Cox v. Louisiana, 379 U.S. 536, 85 S.Ct. 453, 13 L.Ed.2d 471 (1965).
On this issue, however, we need look no further than a recent decision of the Supreme Court concerning the application of first amendment rights in the academic environment. In Tinker v. Des Moines Ind. School Dist., 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969), a case from this circuit, the Court first observed,
“First Amendment rights, applied in light of the special characteristics of the school environment, are available to teachers and students. It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate. This has been the unmistakable holding of this Court for almost 50 years.” 393 U.S. at 506, 89 S.Ct. at 736.
and then held that the quiet and passive wearing by students of black armbands to protest government policy in Vietnam was within the protection of the Free Speech and Due Process Clauses of the first and fourteenth amendments. But the emphasis in the majority opinion is evident from the following:
“ * * * As we shall discuss, the wearing of armbands in the circumstances of this case was entirely divorced from actually or potentially disruptive conduct by those participating in it.
* * * * * *
“ * * * On the other hand, the Court has repeatedly emphasized the need for affirming the comprehensive authority of the States and of school authorities, consistent with fundmental constitutional safeguards, to prescribe and control conduct in the schools. Our problem lies in the area where students in the exercise of First Amendment rights collide with the rules of the school authorities.
“ * * * It does not concern aggressive, disruptive action or even group demonstrations. Our problem involves direct, primary First Amendment rights akin to ‘pure speech.’
“The school officials banned and sought to punish petitioners for a silent, passive expression of opinion, unaccompanied by any disorder or disturbance on the part of petitioners. There is here no evidence whatever of petitioners’ interference, actual or nascent, with the schools’ work or of collision with the rights of other students to be secure and to be let alone. Accordingly, this case does not concern speech or action that intrudes upon the work of the schools or the rights of other students.
“ * * * Outside the classrooms, a few students made hostile remarks to the children wearing armbands, but there were no threats or acts of violence on school premises.
* * * * * *
“In order for the State in the person of school officials to justify prohibition of a particular expression of opinion, it must be able to show that its action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint. Certainly where there is no finding and no showing that engaging in the forbidden conduct would ‘materially and substantially interfere with the requirements of appropriate discipline in the operation of the school,’ the prohibition cannot be sustained.
* * * * * *
"* * * When he is in the cafeteria, or on the playing field, or on the campus during the authorized hours, he may express his opinions, even on controversial subjects like the conflict in Vietnam, if he does so without ‘materially and substantially interfer[ing] with the requirements of appropriate discipline in the operation of the school’ and without colliding with the rights of others. But conduct by the student, in class or out of it, which for any reason — whether it stems from time, place, or type of behavior — materially disrupts classwork or involves substantial disorder or invasion of the rights of others is, of course, not immunized by the constitutional guarantee of freedom of speech.
«-x- * * The Constitution says that Congress (and the States) may not abridge the right to free speech. This provision means what it says. We properly read it to permit reasonable regulation of speech-connected activities in carefully restricted circumstances.
***** *
“As we have discussed, the record does not demonstrate any facts which might reasonably have led school authorities to forecast substantial disruption of or material interference with school activities, and no disturbances or disorders on the school premises in fact occurred” (citations omitted). 393 U.S. 505, 507-509, 512-514, 89 S.Ct. 737-738, 740.
That emphasis is on the. absence of “actually or potentially disruptive conduct” by the participants; on the need of school officials, consistent with constitutional safeguards, “to prescribe and control conduct in the schools”; on “a silent, passive expression” unaccompanied by any disorder or disturbance; on the absence of evidence of interference with the school’s work or with “the rights of other students to be secure and to be let alone”; on the absence of threats or acts of violence on school premises; on the absence of a finding of material interference “with the requirements of appropriate discipline in the operation of the school”; and on the absence of material disruption of classwork or “substantial disorder or invasion of the rights of others.” J"It is obvious that where there is actual or potentially disruptive conduct, or disorder or disturbance by the petitioners, or interference with the work of the school or of the rights of other students, or threats or acts of violence on the school premises, or substantial disorder, then reasonable action by school authorities is constitutionally permitted. There must, however, be more than mere fear and apprehension of possible disturbance^
This emphasis, and the distinction between what is constitutionally permissible and what is not, is also apparent in the Court’s denial of certiorari, 394 U.S. 905, 89 S.Ct. 1009, 22 L.Ed.2d 217, in Barker v. Hardway, 399 F.2d 638 (4 Cir. 1968), a per curiam opinion which in turn had affirmed the dismissal of an action to enjoin enforcement of suspension of state college students. 283 F.Supp. 228 (S.D.W.Va.1968). Mr. Justice Fortas, who wrote the majority opinion in Tinker, concurred in the denial of certiorari in Barker with observations that the Barker petitioners were suspended “not for expressing their opinions on a matter of substance, but for violent and destructive interference with the rights of others”, and that the findings established that the petitioners were “engaged in an aggressive and violent demonstration, and not in peaceful, nondisruptive expression.” Their conduct, therefore, was “clearly not protected by the First and Fourteenth Amendments.”
So it is here. Judge Hunter’s findings have been quoted above. We have found them sufficiently supported by the record. They, too, concern an aggressive and violent demonstration and something quite apart from “peaceful, nondisruptive expression.” They, too, focus upon “destructive interference with the rights of others.” They disclose actual or potentially disruptive conduct, aggressive action, disorder and disturbance, and acts of violence and participation therein by these plaintiffs. Their conduct, therefore, was not protected by the first and fourteenth amendments.
3. The regulations. These are additionally attacked for vagueness and overbreadth and hence on substantive due process grounds. Some of the loyalty oath cases are cited and it is said that the regulations’ word “unlawful” is only a legal conclusion and that their references to “unruly” and “spectators” and “which might be considered” are undefined and possess no standards. The regulations are likened to city ordinances which have been struck down when they lack sufficiency of definition.. It is then argued that “young people; should be told clearly what is right and \ what is wrong, as well as the consequences of their- acts.” Pickering v. Board of Educ., 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968), and other cases are cited. Finally, it is said that the regulations impinge and have a chilling effect upon first and fourteenth amendment rights.
The answers to all this, we think, are several. First, the college’s regulations, per se, do not appear to us to constitute the fulcrum of the plaintiffs’ discomfiture. The charges against Esteban and Roberds did not even refer to the regulations. Roberds was disciplined because he had participated in the demonstrations in the face of specific warning delivered by personal interview with the dean. This was defiance of proper college authority. Esteban was disciplined because of his refusal to comply with an appropriate request by Doctor Meverden and because of his childish behavior and -obscenity toward college officials. This, too, was defiance of proper college authority. There was no confusion or unawareness in either case. The exercise of common sense was all that was required. Each plaintiff knew the situtation very well, knew what he was doing, and knew the consequences. Each, we might note, had had prior disciplinary experience, Their respective protestations of young and injured innocence have a hollow ring.
Secondly, we agree with Judge Hunter that it is not sound to draw an analogy between student discipline and criminal procedure, that the standard of conduct which a college seeks to impose must be one relevant to “a lawful mission, process or function of the educational institution”, and that,
“ * * * Certainly the regulation concerning mass demonstrations, reasonably interpreted, and as interpreted and applied by the college in the instant case to a participant in student mass demonstrations involving unlawful conduct such as the illegal blocking of a public highway and street, and the destruction of school property, is relevant to a lawful mission of the educational institution.” 290 F.Supp. at 629. [Footnote omitted]
Thirdly, we do not find the regulation at all difficult to understand and we are positive the college student, who is appropriately expected to possess some minimum intelligence, would not find it difficult. It asks for the adherence to standards of conduct which befit a student and it warns of the danger of mass involvement. We must assume Esteban and Roberds can read and that they possess some power of comprehension. Their difficulty was that they chose not to read or not to comprehend.
Fourthly, we see little basically or constitutionally wrong with flexibility and reasonable breadth, rather than meticulous specificity, in college regulations relating to conduct. Certainly these regu-J lations are not to be compared with the criminal statute. They are codes of general conduct which those qualified and experienced in the field have characterized not as punishment but as part of the educational process itself and as prefera-I bly to be expressed in general rather v than in specific terms. See E. Williamson and J. Foley, Counseling and Discipline, 79-83 (1949); E. Williamson, Student Personnel Services in Colleges and Universities, 166 (1961); Brady and Snoxell, Student Discipline in Higher Education 10 (Student Personnel Series No. 5, The American College Personnel Association (1965)).
We agree with those courts which have held that a school has inherent authority to maintain order and to discipline students. State ex rel. Sherman v. Hyman, 180 Tenn. 99, 171 S.W.2d 822, 827 (1942), cert. denied, 319 U.S. 748, 63 S.Ct. 1158, 87 L.Ed. 1703; Jones v. State Bd. of Educ., 279 F.Supp. 190, 202 (M.D.Tenn.1968), aff’d 407 F.2d 834 (6 Cir.1969); Buttny v. Smiley, 281 F.Supp. 280, 285, 286 (D.Colo.1968); Zanders v. Louisiana State Bd. of Educ., 281 F.Supp. 747, 757 (W.D.La.1968); Barker v. Hardway, supra, 283 F.Supp. at 235. We further agree that a school has latitude and discretion in its formulation of rules and regulations and of general standards of conduct. Goldberg v. Regents of University of Cal., 248 Cal.App.2d 867, 57 Cal.Rptr. 463, 472 (Ct.App.1967); Dickey v. Alabama State Bd. of Educ., 273 F.Supp. 613, 618 (M.D.Ala.1967); Jones v. State Bd. of Educ., supra; Buttny v. Smiley, supra; Cornette v. Aldridge, 408 S.W.2d 935, 941 (Tex.Civ.App.1966).
We regard as quite distinguishable cases such as Hammond v. South Carolina State College, 272 F.Supp. 947 (D.S.C.1967), and Dickey v. Alabama State Bd. of Educ., supra, where the focus was on an attempted restraint of peaceful assembly or speech. Our attention has been called to the fact that Judge Doyle, in his recent opinion in Soglin v. Kauffman, 295 F.Supp. 978, 990-991 (W.D.Wis.1968), expresses disagreement with the observations of Judge Hunter on this aspect of the case. To the extent that, in this area, Judge Doyle is in disagreement with Judge Hunter, we must respectfully disagree with Judge Doyle.
The appellants argue, to what exact purpose we are not sure, that attendance by a Missouri resident at a publicly supported educational institution of his state is an important right. We are not certain that it is significant whether attenance at such a college, or staying there once one has matriculated, is a right rather than a privilege. Education, of course, is vital and valuable, Brown v. Board of Educ., 347 U.S. 483, 493, 74 S.Ct. 686, 98 L.Ed. 873 (1954), and remaining in college in good standing, much like reputation, is also something of value. Dixon v. Alabama State Bd. of Educ., 294 F.2d 150, 157 (5 Cir.1961), cert. denied, 368 U.S. 930, 82 S.Ct. 368, 7 L.Ed.2d 193. So, too, is one’s personal freedom. But one may act so as constitutionally to lose that freedom. And one may act so as constitutionally to lose his right or privilege to attend a college.
College attendance, whether it be a right or a privilege, very definitely entails responsibility. This is fundamental. It rests upon the fact that the student is approaching maturity. His elementary and secondary education is behind him. He already knows, or should know, the basics of decent conduct, of nonviolence, and of respect for the rights of others. He already knows, or should know, that destruction of property, threats to others, frightening passersby, and intrusions upon their rights of travel are unacceptable, if not illegal, and are not worthy of one who would pursue knowledge at the college level.
These plaintiffs are no longer children. While they may have been minors, they were beyond the age of 18. Their days of accomplishing ends and status by force are at an end. It was time they assumed at least the outward appearance of adulthood and of manhood. The mass denial of rights of others is irresponsible and childish. So is the defiance of proper college administrative authority (“I have the right to be here”; “I refuse to identify myself”; gutter abuse of an official; the dumping of a trash can at a resident’s feet; “I plan on turning this school into a Berkeley if * * * ”; and being a part of the proscribed college peace-disturbing and property-destroying demonstration). One might expect this from the spoiled child of tender years. One rightly does not expect it from the college student who has had two decades of life and who, in theory, is close to being “grown up.”
Let there be no misunderstanding as to our precise holding. We do not hold that any college regulation, however loosely framed, is necessarily valid. We do not hold that a school has the authority to require a student to discard any constitutional right when he matriculates. We do hold that a college has the inherent power to promulgate rules and regulations; that it has the inherent power properly to discipline; that it has power appropriately to protect itself and its property; that it may expect that its students adhere to generally accepted standards of conduct; that, as to these, flexibility and elbow room are to be preferred over specificity; that procedural due process must be afforded (as Judge Hunter by his first opinion here specifically required) by way of adequate notice, definite charge, and a hearing with opportunity to present one’s own side of the case and with all necessary protective measures; that school regulations are not to be measured by the standards which prevail for the criminal law and for criminal procedure; and that the courts should interfere only where there is a clear case of constitutional infringement.
After all, the test, we feel, is that of reasonableness. Dickey v. Alabama State Bd. of Educ., supra, 273 F.Supp. at 618. On that standard we perceive here no denial of constitutional rights of Esteban or of Roberds. If these two plaintiffs are really serious in what is said to be their protestations of desire to complete their college education, we naturally assume that they will apply for readmission. We are mildly surprised that they have not done this as yet. We also assume, of course, that the College will view their applications, if and when they are ever submitted, with the respect and deferences to which they are entitled.
Affirmed.
. Counsel at oral argument advised us that Esteban was in VISTA and that he did not know the whereabouts of Roberds.
The defendants in their brief say the expiration date of the two semester. suspension was August 18, 1967. We readily conclude that the passage of the two semesters does not render the case moot. See Carafas v. La Vallee, 391 U.S. 234, 237-240, 88 S.Ct. 1556, 20 L.Ed.2d 554 (1968), and Sibron v. New York, 392 U.S. 40, 50-58, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968).
. This is an obvious error. The date is March 30 and was so stated in the charge and by the witnesses at the hearing before the president, hereinafter referred to. | 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"
] | [
1
] | songer_treat |
UNITED STATES of America v. Elroy F. CARTER, Appellant.
No. 22912.
United States Court of Appeals, District of Columbia Circuit.
Argued Jan. 16, 1970.
Decided June 5, 1970.
Mr. John A. Nevius, Washington, D.C. (appointed by this court), with whom Mr. William R. Stratton, Washington, D.C., was on the brief, for appellant.
Mr. James L. Lyons, Asst. U. S. Atty., with whom Messrs. Thomas A. Flannery, U. S. Atty., John A. Terry, and Richard A. Hibey, Asst. U. S. Attys., were on the brief, for appellee. Mr. Roger E. Zuckerman, Asst. U. S. Atty., also entered an appearance for appellee.
Before BAZELON, Chief Judge, TAMM, Circuit Judge, and JAMESON, Senior District Judge.
Sitting by designation pursuant to the provisions of Title 28, U.S.Code, Section 294(d).
PER CURIAM:
Found guilty after having waived his right to a jury trial on charges of both robbery (22 D.C.Code § 2901 (Supp. III 1970)) and assault with a dangerous weapon (22 D.C.Code § 502 (1967)), appellant contends before us that the trial court should have granted his motion for a judgment of acquittal upon the ground of mental illness. Without in any way challenging the allegations regarding his participation in the crimes charged, appellant, admittedly a narcotic addict, argues that the evidence of his narcotic addiction, when weighed with the testimony of two psychiatrists and a psychologist called by the appellant, should have compelled the trial judge to grant the motion for judgment of acquittal by reason of insanity.
I.
Prior to trial appellant was committed to St. Elizabeths Hospital, and in due course he was certified competent to stand trial. Three members of the staff at St. Elizabeths who had examined appellant during his confinement there testified at length regarding his mental condition, and he also called as a witness one of the police officers who had observed his condition shortly after his arrest. The trial judge, in ruling upon appellant’s motion for judgment of acquittal, first observed that had there been a jury in the case he would have been required to submit the question of appellant’s mental capacity to that body (Tr. 199) — obviously to determine as a matter of fact whether the evidence established appellant’s capacity beyond a reasonable doubt.
The trial judge thereafter summarized his findings and contusions as to the appellant’s guilt and mental condition. He found:
That the crime [s] charged were committed and that appellant participated in them. (Tr. 200.)
That appellant’s participation was to such an extent that he could be found guilty if there was no causal connection between the crime and the mental disease. (Tr. 200.)
That appellant is suffering from an anxiety reaction and was suffering from an anxiety reaction at the time the crime[s] were committed. (Tr. 199. )
That the anxiety reaction is recognized in psychiatric journals and bulletins as a mental disease. (Tr. 200.)
That the anxiety reaction from which appellant suffered was a “mild” or “moderate” one which permitted the appellant or any other person “in a like situation to exercise control over himself, to restrain himself, and otherwise to function in a normally acceptable way within society.” (Tr. 200. )
That appellant “is and was” a narcotic addict at the time the crime [s] were committed. (Tr. 200.)
That the record was unclear as to whether appellant used drugs to alleviate his anxiety reaction or for some other reason. (Tr. 201.)
That, whatever was the reason for appellant’s narcotic addition, the use of narcotics can under certain circumstances alleviate the anxiety which is the mental disease from which appellant suffered. (Tr. 201.)
That at the time of the perpetration of the crime [s] and although appellant was then suffering from “a mental disease * * * a moderate form of anxiety reaction,” he was nevertheless “a highly intelligent person, he was able to plan, he was able to execute” and he was “capable of refraining from doing the acts which constitute the crime[s].” (Tr. 201-202.)
That at the time appellant committed the crime [s] “he was not suffering any withdrawal symptoms so that there was no compulsive or impulsive situation which caused him to do the acts which constitute the crime [s],” and that “[h]e was able to plan and to execute it, and he was able to refrain [from doing it].” (Tr. 202.)
That the testimony indicated that appellant was at the time of the commission of the offense “high” on drugs, and that “a drug addict who is in such a condition is more capable of controlling his behavior than the average person since the anxiety reaction from which all of us suffer to some degree was completely blanketed by the effect of the drugs.” (Tr. 202.)
From these findings of fact the trial judge concluded that “the crime became one of convenience rather than a crime of necessity.” (Tr. 202.) He rejected, upon the basis of these findings and this conclusion, the theory of appellant that the crime was “tied” to the mental disease.
We have reviewed the entire record of the testimony offered upon the subject of appellant’s mental condition prior to and at the time of the commission of the offenses. With this testimony, as with almost all testimony, it is possible to select excerpts out of context and to argue forcefully in support of any conclusion which the advocate seeks; obviously the trial judge, acting also as the trier of facts in this case, is far more accurate in his appraisal of the credibility of the witnesses and the factual elements establishing truth than we, faced with a cold record, can possibly be. It is, of course, the sole responsibility of the trier of facts to evaluate the testimony of the witnesses and to determine what weight, if any, should be given to the testimony of each witness. This basic principle was forcefully stated by Chief Judge Bazelon in his recent opinion for this court in Adams v. United States, 134 U.S.App.D.C. 137, 142, 413 F.2d 411, 416 (1969) :
The decisions of this jurisdiction have made clear * * * our reluctance to require a directed acquittal for insanity. We have upon occasion refused to find that the Government has not borne its burden even when the evidence of mental illness was un-contradicted. * * * We have emphasized time and again that “in view of the complicated nature of the decision to be made — intertwining moral, legal and medical judgments — ” the insanity defense is peculiarly apt for resolution by the jury. As part of its task, “The jury is free to believe any reasonable ‘estimate’ even though different or contrary views may also be reasonable.”
The Adams decision also makes clear that the governing principles are identical when the court rather than the jury is the trier of fact. (Id.) We cannot say upon the basis of our review of the testimony that the above findings and conclusions are not reasonable or that they are not supported by substantial testimony. We therefore have no authority to ignore or overrule them.
II.
Appellant also challenges his sentence in this case upon the ground that the trial judge should have referred the ease to the Legal Psychiatric Service for presentence evaluation. We noted above that appellant was committed to St. Elizabeths Hospital for mental observation on November 21, 1967 and was reported competent to stand trial on February 20, 1968. These data were before the trial judge at the time of sentencing. During the trial, the presiding judge heard the testimony of several witnesses as to appellant’s mental condition. (Tr. 123-124, 129-154, 160-171, 179-196.) Some six weeks elapsed between the finding of guilt and the imposition of sentence, during which the probation office conducted an investigation and submitted a report which was before the trial judge when sentence was imposed, and which had been “gone over * * * rather carefully.” (Sent. Tr. 4.) In addition, the court considered a sentencing report prepared in appellant’s behalf by the Offender Rehabilitation Project (Sent. Tr. 4), and at the sentencing appellant made no request for further psychiatric examination. Upon the basis of this record we are unable and unwilling to conclude that the trial judge in any way abrogated or abused the discretion residing in him in the imposition of these sentences.
Affirmed. | What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court below err in not permitting an insanity defense? (or did the court err in its conclusion about whether the defendan was mentally competent to stand 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". 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 below err in not permitting an insanity defense? | [
"No",
"Yes",
"Yes, but error was harmless",
"Mixed answer",
"Issue not discussed"
] | [
0
] | songer_insane |
DOGGETT v. CHELSEA TRUST CO.
No. 2908.
Circuit Court of Appeals, First Circuit.
Nov. 10, 1934.
Harry Shapiro, of Boston, Mass. (Alexander C. Gould, of Boston, Mass., on the brief), for appellant.
Lafayette R. Chamberlin, of Boston, Mass. (Chamberlin, Stone & Bosson, of Boston, Mass., on the brief), for appellee.
Before BINGHAM, WILSON, and •MORTON, Circuit Judges.
WILSON, Circuit Judge.
This is an appeal from an order of the District Court of Massachusetts affirming the orders of a referee in bankruptcy.
From the pleadings set forth in the record, it appears that the H. T. West Company, which hereinafter will be referred to as the West Co., filed a voluntary petition in bankruptcy on August 23, 1932, and on the same day it was adjudicated a bankrupt, and the case was referred to a referee in bankruptcy. On September 20, 1932, the appellant was appointed trustee of the estate of the bankrupt.
On September 14 the appellee, which hereinafter will be referred to as the Trust Company, filed a petition with the referee setting forth that in the regular course of business it had loaned the bankrupt money and taken notes as evidence of said loan with an assignment of accounts receivable as collateral security; that the trustee since his appointment had collected said accounts receivable and had refused to turn over iho sums so collected to the Trust Company, and prayed that the trustee be ordered to turn over the proceeds thereof to the Trust Company.
To this petition the trustee answered, admitting Hint lie had collected certain of the accounts receivable, but with ihe approval of the court and consent of the Trust Company, and that he was holding the proceeds subject to the order of (lie court; but set forth that within four months of the filing of iho petition in bankruptcy the bankrupt had transferred property to the Trust Company under conditions which resulted in giving ihe Trust Company a preference over oilier creditors and prayed that such transfer be declared to be a voidable preference.
The trustee also filed a petition with the referee alleging that the Trust Company had in its possession approximately $1,700 represented by certificates of deposit, whieh had been improperly withhold by the Trust Company; that since the filing of the petition in bankruptcy it had collected the sum of $115.91 oil a certain trade acceptance, ihe proceeds of which it had improperly withheld from the trustee; and that the Trust Company had also improperly withheld deposits made by the bankrupt prior to the filing of its petition in bankruptcy in the amount of approximately $3,3ol.
The referee heard those petitions by agreement of the parties, who waived all questions as to pleadings and jurisdiction, and, in general, found that the Trust Company was entitled to apply in payment of a $5,000 note, though not yet due, the deposits of $3,361.91, and ihe $1,704.78 alleged to be held on certificates of deposit, and that it was entitled to have the trustee turn over to it the sum of $4,920.67, whieh it was agreed that the trustee had collected on the assigned accounts receivable, less the sum of $115.91 collected by the Trust Company on the trade acceptance, and ihat the Trust Company was entitled to collect the remainder of the accounts receivable assigned to it prior to bankruptcy and after liquidation of all the indebtedness of the bankrupt, pay any balance to the trustee.
On the petition of the trustee for a review of the referee’s order, the referee certified to the District Court his findings of fact, whieh, in substance, are as follows:
-//,/The Trust Company had been lending money to the West Co. for about twelve years. On April 7, 1932, two unsecured notes of $5,000 each fell due. Following a practice of long standing, the West Co. substituted two new notes, unsecured, for $5,000 each, and payable on July 7, 1932. Shortly after this, and before April 28, 1932, the West Co. asked for a new loan. By this time the bank had come under new management. A new president insisted upon an examination of the affairs of Iho West Co., and it was found that the West Co. was borrowing from a New York finance company on accounts receivable. The Trust Company refused to go on if thé West Co. continued to pledge its «accounts receivable to outside finance compiinies. The new president demanded that the West Co. must do all of its business with the Trust Company, or none. Accordingly, it was arranged for the Trust Company to advance about $4,500 with which the- West Co. paid off the New York finance company and got back the receivables previously pledged to that company. The Trust Company then insisted that the West Co. take up one of the $5,000 unsecured notes whieh was not due until July 7, 1932, and substitute therefor a collateral note for $5,000, secured by a second mortgage on some property in Winchester. This new note was dated April 28, 3932, and made payable July 28, 1932.
After this new arrangement the Trust Company made loans to the West Co. from time to time on accounts receivable to the extent of 65 per cent, of their face value, taking in each instance an assignment of such receivables to secure the advances made. The Trust Company, however, allowed the West Co. to collect the assigned receivables and to keep 35 per cent, of the amount so collected; the remaining 65 per cent, being paid to the Trust Company in reduction of its loans.
On «July 7, 1932, when the second $5,000 unsecured note fell due, the Trust Company demanded and received a note in collateral form, which became due October 7, 1932, and whieh provided that any moneys or other property of the maker in the possession of the Trust Company might at all times at the option of the Trust Company be held and treated as collateral for its payment. When the note of $5,000 secured by the Winchester mortgage came due on July 28, 1932, it was also renewed for three months in collateral form. Thereafter business between the Trust Company and the West Co. continued «as usual, and the Trust Company continued to advance substantial sums on receivables «assigned as security.
On August 13, 1932, the treasurer of the West Co. informed the Trust Company that the West Co. had to have about $5,000 more to pay a creditor who was pressing for payment. At this time the West Co., in addition to the $10,000 evidenced by the two collateral notes, owed the Trust Company $7,842 for new money advanced on assigned accounts receivable as security. The Trust Company refused to make further loans to the West Co. and proceeded to liquidate its loans.
On August 15 following, the Trust Company applied the entire amount which the West Co. had on deposit subject to cheek, viz., $3,361.91, in liquidation of the $5,000 collateral note due October 7,1932.
The Trust Company also proceeded to collect the receivables assigned to it. There was evidently an understanding between the parties that the 35 per cent, which had previously been retained by the West Co. should now be held by the Trust Company in a separate ' fund, against which the Trust Company would issue certificates of deposit. No certificates of deposit, however, were ever issued to the West Co. The 35 per cent, of the receivables collected by the Trust Company before a receiver- was appointed for the West Co. amounted to $1,704.78. The Trust Company at some time after the adjudication of bankruptcy, and before the appointment of the trustee, applied this sum to the liquidation of the collateral note due October 7, 1932, which sum, together with the amount of the checking account already applied by the Trust Company to this note, was sufficient to pay it in full.
Upon these facts the referee found there was no preference received by the Trust Company as a result of these transactions, and held that the terms of the collateral notes given on July 7 and July 28 were broad enough to permit the Trust Company to apply both the sum on deposit subject to check and all sums collected on the receivables in liquidation of the indebtedness of the bankrupt. The District Court by its order affirmed the •order of the referee, though in its memorandum of decision it inadvertently stated that the referee’s order permitted the Trust Company to retain also the sum of $115.91 collected on the trade acceptance after the filing of the petition in bankruptcy, although the referee expressly stated in his order that the trustee in bankruptcy was entitled to have turned over to him this sum. We think the District Court’s order must be understood as being modified to this extent,
The notes of July 7 and July 28 did not increase the indebtedness of the bankrupt. They were given for a valid consideration, viz., the discharge of a prior note for the same amount. No preference resulted in giving these notes. The application by the Trust Company of the deposits on hand on August 15 of $3,361.91 was warranted, we think, by the Trust Company’s right of set-off under the Bankruptcy Act (11 USCA).
No reasonable objection could be raised by a trustee in bankruptcy to the Trust Company availing itself of this right of set-off under the circumstances of this case, since, as trustee in bankruptcy, he would have been obliged to allow it after adjudication. While the authorities do not appear to be entirely in accord as to the right of set-oil in all eases against notes not due, there are authorities which sustain such right of set-off by a bank under sections 63 and 68 of the Bankruptcy Act (11 USCA §§ 103,108), especially where the insolvency of the debtor is apparent and bankruptcy later follows. Rupp v. Commerce Guardian Trust & Savings Bank (C. C. A.) 32 F.(2d) 234; Germania Savings Bank & Trust Co. v. Loeb (C. C. A.) 188 F. 285; American Bank & Trust Co. v. Morris (C. C. A.) 16 F.(2d) 845; Putnam v. United States Trust Co., 223 Mass. 199, 202, 111 N. E. 969; Carr v. Hamilton, 129 U. S. 252, 256, 9 S. Ct. 295, 32 L. Ed. 669; Federal Reserve Bank of Minneapolis v. First National Bank of Eureka, S. D. (D. C.) 277 F. 300, 302, 303.
There is no ground for a contention that the deposits amounting to $3,361.91 were made except in the usual course of business and were subject to cheek. From July 7 to August 13 the bankrupt did business as usual, making deposits and issuing cheeks against the deposit, which were honored by the Trust Company. There are no facts certified to by the referee that require the inference that it received them for the purpose of building up a deposit to set off against the depositor’s notes, or that the depositor had any intent to thereby give the Trust Company a preference over other creditors. Plymouth County Trust Co. v. MacDonald (C. C. A.) 60 F.(2d) 94, 95; Fourth National Bank of Wichita, Kan., v. Smith (C. C. A.) 240 F. 19.
As to the application of the $1,700 item, a different situation arises. The right to offset this sum against the indebtedness of the bankrupt must depend on the terms of the collateral notes and of the assignment of the accounts receivable, or an equitable right of set-off. Scott v. Armstrong, 146 U. S. 499, 13 S. Ct. 148, 36 L. Ed. 1059; Putnam v. United States Trust Co., supra; Schuler v. Israel, 120 U. S. 506, 510, 7 S. Ct. 648, 30 L. Ed. 707; 24 R. C. L. 843; Nashville Trust Co. v. Nashville Fourth National Bank, 91 Tenn. 336, 18 S. W. 822, 15 L. R. A. 710.
The collateral notes were general in form and were drafted to apply also to other situations than those present here, and contained the following provisions, which are applicable to the facts in this case:
“It is further agreed that any moneys or other property at any time in the possession of the Trust Company belonging to any of the parties liable hereon to the Trust Company, as maker or endorser or guarantor, and any deposits, balance of deposits, or other sums at any time credited by or due from the Trust Company to any of said parties, inay at all times at the option of the Trust Company, be held and treated as collateral security for the payment of this note or any other liability of the maker hereof to the Trust Company, whether due or not due, and the Trust Company may at any time at its option set off the amount due or to become due hereon against any claim of any of said parties against the Trust Company.” (Italics supplied.)
The assignment of the accounts receivable was given for a valid consideration, viz., a loan of 65 per cent, of their face, and under its terms the Trust Company was entitled to collect the entire amount and apply it on the loans to secure which they were assigned as collateral, at least until fully paid. The assignor was entitled to any balance, unless the collateral notes given July 7 and July 28 gave to the Trust Company the right to retain any such balance and apply it on the notes of July 7 and July 28.
Until August 13, 1932, there was no apparent change in the business relations between the Trust Company and the bankrupt. The Trust Company, no doubt, from the fact that it was requiring collateral on all its loans, had become satisfied in April, 1932, that the bankrupt’s credit w'as somewhat impaired, but it does not follow that it had become convinced that the West Co. was insolvent and would not eventually meet its obligations. Conservative banking alone required that it protect its future loans.
On August 13, however, it was faced with the proposition that the West Co. needed $5,-000 to meet the demands of a creditor who was pressing for payment. It already owed the Trust Company nearly $18,000. We think the Trust Company was then warranted in concluding that the West Co. was insolvent, as it was later conclusively shown to be by its voluntary petition in bankruptcy filed ten days thereafter.
What the actual status of the $1,700 item was at the time of the adjudication of bankruptcy, or when a receiver was appointed, is not clear from the record. The Trust Company on August 15 took over the collection of the accounts receivable, as it had a right to do under the assignments; there being nothing in the written assignment to the contrary, or permitting the West Co. to collect. While the referee found that some arrangement was made by which the Trust Company agreed to retain 35 per cent, in a special fund and issue certificates of deposit therefor, it was not required to do so by the terms of the assignment. No certificates of deposit against this fund were ever issued; but at some time, either upon the adjudication of bankruptcy, or the appointment of a receiver, the Trust Company applied this $1,700 item on the note of the bankrupt dated July 7, 1932. That it was not then due is no ground of objection to this procedure, since, if not a preference, they were a proper set-off under sections 63 and 68 of the act (11 USCA §§ 103, 108); an adjudication in bankruptcy having taken place. New York County National Bank v. Massey, 192 U. S. 138, 24 S. Ct. 199, 48 L. Ed. 380; Studloy v. Boylston National Bank, 229 U. S. 523, 33 S. Ct. 806, 57 L. Ed. 1313; Fourth National Bank v. Smith, supra. This procedure by the Trust Company was also warranted by the terms of its collateral notes.
The assignment of the accounts receivable in good faith as security for a present loan cannot be held to be a preference, even if made within four months of bankruptcy. The giving of a new note for an old matured note within four months of a petition in bankruptcy is not a preference, nor does the fact that it contained a provision that any collateral held by the payee, or any funds which came into its hands should be applied in payment, constitute a preference unless the debtor was insolvent, and the creditor had reasonable grounds to believe it would effect a preference. Sections 60a and 60b of the act (11 USCA § 96 (a,b); Peck & Co. v. Whitmer (C. C. A.) 231 F. 893; Essley Machinery Co. v. Belsley (C. C. A.) 235 F. 285. That the collateral notes were not given to prefer the Trust Company over other creditors, or that they were procured by the Trust Company for that purpose, is evidenced by the fact that up to August 15 the Trust Company permitted the bankrupt to collect the accounts receivable and retain 35 per cent, thereof, paying the balance only to the Trust Company. The burden of proving the facts constituting a voidable preference was on the trustee.
These facts the referee must have found in favor of the Trust Company. The evidence on which the referee based his findings of fact is not before this court, but we see nothing in the pleadings or the certificate of facts by the referee to require a contrary finding by the District Court, or this court.
If the accounts receivable were assigned for a valid consideration and no preference resulted from the giving of the collateral notes, then the Trust Company was entitled to collect the entire receivables and apply them to any indebtedness of the bankrupt. The order of the referee to that effect, therefore, was properly affirmed.
Except as to the item of the trade acceptance amounting to $115.91, the order of the District Court is affirmed, with costs, and the case is remanded to that court for further proceedings not inconsistent with this opinion. | 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_appfed |
Eugene E. LE MASTERS, Appellant, v. E. H. TUCKER, Warden, West Virginia State Penitentiary, Appellee.
No. 7512.
United States Court of Appeals Fourth Circuit.
Argued Nov. 7, 1957.
Decided Nov. 25, 1957.
Mathias J. DeVito, Baltimore, Md. (Court appointed counsel), for appellant.
Gene Hal Williams, Asst. Atty. Gen., of West Virginia (William Wallace Barron, Atty Gen., of West Virginia, on brief), for appellee.
Before PARKER, Chief Judge, and SOBELOFF and HAYNSWORTH, Circuit Judges.
PER CURIAM.
This is an appeal from an order denying a petition for a writ of habeas corpus by a prisoner serving sentences of imprisonment under judgments of state courts of West Virginia. The facts are fully set forth in the memorandum opinion and order of the District Judge and need not be repeated at length. The question raised by the petition is whether a court of one county of the state could impose a sentence to begin at the expiration of the sentence imposed by the court of another county. The point was presented in a petition for habeas corpus to the Supreme Court of Appeals of West Virginia, which refused the writ. The point is so lacking in merit that the court below would have been justified in denying the writ in the absence of the action taken by the state court; but, in the light of that action, there can be no question as to the correctness of the court’s ruling. Brown v. Allen 344 U.S. 443, 73 S.Ct. 397, 97 L.Ed. 469; Goodwin v. Smyth, 4 Cir., 181 F.2d 498. The District Judge properly denied appellant’s application for a certificate of probable cause required by 28 U.S.C. § 2253; and, in the absence of such certificate, there is nothing that we can do but dismiss the appeal.
Appeal dismissed. | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine the gender of this litigant. Use names to classify the party's sex only if there is little ambiguity (e.g., the sex of "Chris" should be coded as "not ascertained"). | This question concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". What is the gender of this litigant?Use names to classify the party's sex only if there is little ambiguity. | [
"not ascertained",
"male - indication in opinion (e.g., use of masculine pronoun)",
"male - assumed because of name",
"female - indication in opinion of gender",
"female - assumed because of name"
] | [
2
] | songer_appel1_7_2 |
ASSOCIATED STATIONS, INC., a Virginia corporation, and USCO, Inc., a Virginia corporation, Appellees, v. CEDARS REALTY AND DEVELOPMENT CORPORATION, a Mississippi corporation, and Magnolia Homes Manufacturing Corporation, a Mississippi corporation, Appellants.
No. 71-1476.
United States Court of Appeals, Fourth Circuit.
Argued Nov. 2, 1971.
Decided Jan. 17, 1972.
Thomas H. Atkins, Richmond, Va. (G. Kenneth Miller, and May, Garrett & Miller, Richmond, Va., on brief), for appellants.
George C. Rawlings, Jr., Fredericks-burg, Va., for appellees.
Before HAYNSWORTH, Chief Judge, and WINTER and RUSSELL, Circuit Judges.
WINTER, Circuit Judge:
Associated Stations, Inc. (Associated), a Virginia corporation, leased certain property to Cedars Realty and Development Corporation (Cedars), a Mississippi corporation engaged in the manufacturing of mobile homes. After the lease expired, Associated sued to recover for damages to its property. Finding Cedars liable, the district court gave judgment in the amount of $42,858.00. We agree with the district court’s conclusion that Cedars was liable to Associated for damages to the leasehold; however, we conclude that the district court erred in using the “cost of restoration” standard in assessing damages. Therefore, we vacate the judgment and remand the case to the district court for a redetermination of damages.
I
In the fall of 1964, Associated leased to Cedars 32.46 acres, improved by two large quonset type buildings suitable for manufacturing as well as offices and storage areas, located at Doswell, Virginia. The term of the lease was from November 30, 1964 to November 30, 1967, with rent payable in monthly installments of $1,150.00. The lease provided, inter alia, that Cedars was to maintain the premises in good repair and upon termination of the lease to leave the premises in good repair, to remove all rubbish, and to return the keys to Associated.
In the latter months of 1966, Cedars decided to move its operations to Georgia and to discontinue all business at the Doswell site. This fact was known in the community because of its effect on jobs and because of two auctions held by Cedars to sell certain property. Although Cedars never formally communicated to Associated its intention to vacate the premises, Associated was aware of Cedars’ plans to discontinue its operations in Virginia.
Cedars’ closing operations occurred over a number of months. Regular production personnel were still on the site two days before Christmas, in 1966, and various supplies and materials, including a forklift truck, were still on the property in the early months of 1967. Despite the fact that Cedars claims that it intended to cease all operations, no effort was made to clear the property of rubbish, return the keys to Associated, or to restore the buildings which had been modified for Cedars’ operations to their former condition. Additionally, Cedars continued to pay the monthly rent, the checks being sent to Associated from Cedars’ office in Georgia.
Sometime around the end of January or the beginning of February, 1967, an employee of Cedars returned to the Dos-well property to retrieve the forklift truck. He noticed that an air-conditioning unit was missing from one of the buildings. He reported this fact to his superior, but this information was never conveyed to Associated. In March, of 1967, Mr. George Thomas, the president of Associated, visited the property and found that a considerable amount of vandalism had occurred. Windows, doors, and wiring, as well as plumbing and electrical fixtures, had been damaged. Holes were found in the roof and several of the heating motors and electrical switches required replacement. In addition, the special heavy-duty wiring which had been used by a previous tenant in the midfifties had been torn out and removed. Mr. Thomas made several more visits to the property and on each successive occasion he found more damage, but this damage was minor in comparison to what was originally found. The district court found that the bulk of the damage had occurred prior to Thomas’ March, 1967 visit.
After Associated regained possession of the property, it repaired some of the damage and made certain modifications of the facilities to accommodate a new tenant, Fiberlay Corporation, to which the property was let in May, 1968. Thereafter, Associated instituted this suit in the district court to recover $47,620.00 which it alleged would be the aggregate cost of restoring the property to its former condition. Of this sum, $11,900.00 was actually expended by Associated, including $2,800.00 for modifications for the new tenant. The remaining $35,720.00 was never spent. This figure included $27,500.00 to replace and repair the special heavy-duty electrical wiring required by Cedars’ predecessor. In 1970, Fiberlay Corporation purchased the property for $152,-000.00.
The district court found that Cedars was liable for the damage caused by the vandalism and awarded Associated '$43,858.00. It arrived at this sum by taking Associated’s estimated cost of repairs ($47,620.00) and reducing it by 10%. Cedars thereupon appealed.
II
Cedars contends that Associated, knowing that the property had been vacated and that vandalism was occurring, had a duty to protect the property from further damage and that having failed to do so, is barred from holding Cedars responsible for damages. Cedars’ argument need not detain us long. The district court found that Associated had not accepted a surrender of the property and that the property had not been abandoned. Even after all manufacturing had ceased, Cedars continued to use the property for storage in the early part of 1967. Cedars made no effort to comply with the provisions in the lease with respect to surrender and, throughout the period in question, it continued to pay the monthly rental. Manifestly, the district court was not clearly erroneous in finding neither an abandonment nor a surrender. It follows that Cedars was not relieved of its responsibility to protect the property.
Nor do we think that under the facts of this case Associated was required to reenter the property in order to prevent further vandalism. Where an injured party is in a position to prevent further loss to himself by a reasonable expenditure of money or effort, he is required to do so. Haywood v. Massie, 188 Va. 176, 49 S.E.2d 281 (1948); Stonega Coke & Coal Co. v. Addington, 112 Va. 807, 73 S.E. 257 (1912). But, in determining what is reasonable, regard must be had for all the circumstances. In the present case, Cedars concedes that the property was difficult to secure. Presumably, this difficulty was as great for Associated as Cedars. In any event, there is nothing to suggest that by a “trifling inconvenience,” or even a reasonable effort, Associated could have prevented the damages. See Haywood v. Massie, supra, 49 S.E.2d at 284. Moreover, it was not until the great majority of the damage had been done that Associated was aware of the situation. We agree with the district court that Cedars has failed to demonstrate that by a reasonable effort Associated could have prevented the loss.
Ill
In assessing damages, the district court used the “cost of restoration” standard. Damages were based on the amount it would have cost to restore the property to the condition it had been in when the property was leased to Cedars. This is the general rule for determining damages to leasehold property in Virginia. See Sharlin v. Neighborhood Theatre, Inc., 209 Va. 718, 167 S.E.2d 334 (1969); Vaughan v. Mayo Milling Co., 127 Va. 148, 102 S.E. 597 (1920); Moses v. Old Dominion Iron and Nail Works Co., 75 Va. 95 (1880). In none of these cases, however, was there any contention that the cost of restoring the property to its former condition greatly exceeded any benefit to the market value of the property. Cedars has made this very assertion — that the cost of repair does exceed any benefit to the value of the property — and thus we have no controlling Virginia ruling on this point.®
The object of damages in a contract case is to restore the plaintiff to the position he would have been in had the contract not been breached. The “cost of restoration” method is one convenient way of determining the amount of damages to be awarded the plaintiff where a breach had occurred. There are, however, certain situations where this method of computing damages does not restore the plaintiff to the position he would have been in had the contract not been breached, but rather places him in a better position, thus providing him with a windfall. In those cases, courts have resorted to alternative methods of computing damages in order to insure that, as far as possible, the plaintiff neither loses nor benefits from the breach. As the court in Crystal Concrete Corp. v. Town of Braintree, 309 Mass. 463, 35 N.E.2d 672 (1941), stated:
[T]he plaintiff is not to be put in a better position than it would have been if the defendant had performed the terms of the lease. The location and character of the demised premises must be considered; and the reasonable cost of repairs, in some instances, would furnish the proper measure of damages while, in other instances, the value of the premises may be such that the incurrence of the expense for repairs would not be a reasonable, practical or economical method of dealing with the property. Such expense might greatly exceed any diminution of the fair market value of the land that was caused by the defendant’s nonperformance of the provisions of the lease.
Id. at 675.
We think the present case is similar to Bowes v. Saks & Company, 397 F.2d 113 (7 Cir. 1968). In Bowes, the lease provided that on its termination the property was to be returned to the landlords in the same condition that it had been when it was let to the lessees. The tenants in that case altered the property by building a bridge across an alley; and, at the expiration of the lease, the landlords sought to recover $115,000.00, which they claimed was the cost of removing the bridge and restoring the wall in the building where the bridge had been connected. During the term of the lease, the landlords sold the property, with settlement to be made two days after the expiration of the lease. Prior to the expiration of the lease, the tenant entered into a three-year lease with the new purchaser and thus its interest in the building continued. No effort was made by the new purchaser either to have the building restored or to recover part of the purchase price from the original landlords because of the lack of restoration. In a suit by the original landlords to recover damages for breach of the covenant to restore the premises, the court declined to permit the landlord to recover the cost of restoration because the value of the building was not diminished by the tenant’s failure to restore it, and, therefore, the landlords suffered no loss from the breach. Bowes v. Saks & Company, supra, 397 F.2d at 117; accord Dodge Street Building Corp. v. United States, 341 F.2d 641, 169 Ct.Cl. 496 (1965); Crystal Concrete Corp. v. Town of Braintree, supra.
In the absence of any controlling Virginia precedent, we think that the rule set forth in Bowes and the cases cited therein is the most appropriate for application in the present case. Included in Associated’s estimate for the cost of repairing the property was $27,500.00 to replace special heavy-duty electrical wiring which had been used last by a former tenant in the fifties. Expert testimony was to the effect that the value of the property at the expiration of the lease in 1967, assuming no vandalism, was $116,945.00, and that in 1970 when the property was sold it was valued at $134,700.00. The expert testimony was also that had the special heavy-duty wiring been replaced, its replacement would not have affected the market value of the property either in 1967 or in 1970. Thus, Associated expended $9,665.00 and was successful in selling property worth $134,700.00 for $152,-000.00, realizing thereby a profit of $7,635.00. If Associated were to recover also $27,500.00 as the estimated cost of replacement of the electrical wiring which Associated has no intention of replacing and which would have no effect on the market value of the property, Associated would realize a windfall of $27,500.00. Since, in this case, the use of the “cost of restoration” method of determining damages would probably do more than place Associated in the position it would have been in had Cedars not breached its agreement, we think the use of this method inappropriate. Rather, Associated should be permitted to recover the cost of restoration or the diminution in market value, whichever is less. In the event that diminution in market value is less, and so becomes the measure of recovery, Associated should also be permitted to recover the salvage value, if any, of the property removed by Cedars or others and not replaced by Cedars. Under this formula, Associated will not realize unjust enrichment, but it will be fully protected from any actual loss.
We have referred to the expert testimony with regard to the market value of the subject property in 1967 and in 1970. And, at one stage of the proceedings, the district court purportedly found the market value to be $131,950.00 as of an undisclosed date. But our study of the record discloses that the case was tried as to damages on the basis that Virginia law required damages to be assessed by the “cost of restoration” standard in all events without recognition of the exceptional case in which slavish devotion to the doctrine will result in unjust enrichment. Although we have concluded this case is in the latter category, we recognize that the evidence as to market value may not have been as fully developed, nor the finding of the district court as fully considered, had the relevance of market value been recognized at the outset. In remanding to the district court for reassessment of damages in the light of this opinion, we direct that the parties be given a reasonable opportunity to present additional evidence of market value, the district court being free to make findings in this regard anew.
Vacated and remanded.
. The original lessors were USCO, Inc. and Dixie Trailer Equipment Manufacturing. The name of USCO, Inc. has been changed to Usry Investment Corporation and Associated Stations, Ine. has succeeded to Dixie’s interest. Magnolia Homes Manufacturing Corporation, the parent of Cedars, was also joined as a defendant.
. The term was later amended to run from January 1, 1965 to December 30, 1967.
. Paragraphs 5 and 6 of the lease provide as follows:
5. Lessee will comply with all lawful requirements of local and state health boards, police and fire departments, County, Municipal, State and Federal authorities, and the Board of Fire Underwriters respecting the use of the premises and will make any improvements not of a structural nature required by said authorities.
Lessee will keep and maintain the premises in good condition and repair; keej) in good running order all heating and air conditioning systems, electric wiring, toilets, water pipes, water, gas and electric fixtures; replace all locks, trimmings, glass and plate glass broken during the term of this lease; unstop all water fixtures that may become choked and repair all water pipes and plumbing that may burst. Lessee will not make any alterations of, additions to or changes in the premises, except after first obtaining the written consent of Lessors, and all alterations of, additions to or changes in the premises, except after first obtaining the written consent of Lessors, and all alterations, changes and improvements, by whomsoever made, shall be the property of Lessors. The foregoing shall not apply to any equipment used in Lessee’s business which may be attached to the premises and Lessee may remove such equipment at the termination of this lease. It shall, however, repair and replace any and all damage done to the premises by such removal.
6. Lessee covenants to leave the premises in good repair, damages by fire, act of God, or other casualty excepted, and upon surrender of possession will have all rubbish removed, the premises thoroughly cleaned, and will deliver to Lessors all keys to the premises.
. The president had made an earlier visit to the property. On that occasion lie found that all operations had ceased, but that Cedars’ materials -were still on the property,
. Under Virginia law, mitigation of damages is an affirmative defense, and the burden of proof rests entirely on the party breaching the contract. See Foreman v. E. Caligari and Company, Inc., 204 Va. 284, 130 S.E.2d 447 (1903).
6. Green v. Burkholder, 208 Va. 708, 160 S.E.2d 765 (1968), cited by Associated for the proposition that the “cost of restoration” standard still applies, is distinguishable.
In Green, the parties assumed that damages were to be determined by the cost of restoration method and thus all the evidence went to the issue of how much it would cost the plaintiff to perform the breached contract. No evidence was submitted to show the present market value of the property or the effect the restoration might have on that market value. Nevertheless, the trial judge refused to permit the issue of damages to go to the jury because the plaintiff had not demonstrated that defendant’s breach adversely affected the value of his property.
The Supreme Court of Appeals reversed the trial court, holding that since the case was tried on the cost of repair theory and not the market value theory, “it [was too] late for the defendants to say that the proper measure of damages was the difference between the before and after value of the property.” Id. at 767. Although the court did apply the cost of restoration rule, nothing in the opinion suggests that this rule should be applied exclusively in all situations. Indeed, the court indicated that its application in that case was proper because the damages to be awarded under the rule would not be grossly disproportionate to the harm suffered and would not involve economic waste. The view we take of the instant case is consistent with the latter statement.
. Although the instrument in this case is a lease, the lease itself contains mutual covenants which are subject to contract principles. See generally, 3A Corbin, Corbin on Contracts, § 686 (1960).
. This sum was part of a larger sum of $35,720.00 which Associated never spent. By referring only to the $27,500.00 we do not mean to imply that Associated can recover the balance of the larger sum. Indeed, we do not decide what damages are to be recovered. We refer to the electrical wiring and its costs only by way of example since it was an item of considerable cost but having little or no relation to market value of the property. | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the second listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to classify the scope of this business into one of the following categories: "local" (individual or family owned business, scope limited to single community; generally proprietors, who are not incorporated); "neither local nor national" (e.g., an electrical power company whose operations cover one-third of the state); "national or multi-national" (assume that insurance companies and railroads are national in scope); and "not ascertained". | This question concerns the second listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". What is the scope of this business? | [
"local",
"neither local nor national",
"national or multi-national",
"not ascertained"
] | [
3
] | songer_respond2_1_2 |
NATURAL RESOURCES DEFENSE COUNCIL, INC.; Delaware Audubon Society v. TEXACO REFINING AND MARKETING, INC., Appellant.
No. 89-3684.
United States Court of Appeals, Third Circuit.
Argued April 4, 1990.
Decided June 20, 1990.
Richard D. Allen (argued), Palmer L. Whisenant, Morris, Nichols, Arsht & Tun-nell, Wilmington, Del., for appellant.
James F. Simon (argued), Nancy S. Marks, Nora J. Chorover, Natural Resources Defense Council, Inc., New York City, Richard R. Cooch, Cooch and Taylor, Wilmington, Del., for appellees.
Bruce J. Terris, Karen H. Edgecombe, Terris, Edgecombe, Hecker & Wayne, Washington, D.C., for amici curiae Public Interest Research Group of New Jersey, Inc., and Friends of the Earth.
Roger J. Marzulla, Hillary J. Salans, Powell, Goldstein, Frazer & Murphy, Washington, D.C., Ann Powers, Chesapeake Bay Foundation, Inc., Annapolis, Md., for ami-cus curiae Chesapeake Bay Foundation, Inc.
Before HIGGINBOTHAM, Chief Judge, COWEN and NYGAARD, Circuit Judges.
OPINION OF THE COURT
COWEN, Circuit Judge.
This appeal arises out of a citizen suit filed by the Natural Resources Defense Council, Inc. and the Delaware Audubon Society (collectively referred to hereafter as “the NRDC”) under § 505 of the Clean Water Act (“the Act”), 33 U.S.C. § 1365 (1982 and Supp. Ill), alleging that Texaco Refining and Marketing, Inc. (“Texaco”) illegally discharged effluent into the Delaware River at its Delaware City refinery. After considering motions for summary judgment by both parties, the district court granted the NRDC’s motion on the issue of liability and issued an order permanently enjoining Texaco from further illegal discharges. Because we find that the district court failed to apply the proper standard in deciding whether to issue an injunction under the Act, we will vacate the district court’s order and remand the case for a new determination as to the appropriateness of injunctive relief.
I.
In order “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters,” 33 U.S.C. § 1251(a), the Act makes unlawful the discharge of any pollutant into navigable waters except as authorized under specific sections of the Act. See generally Gwaltney of Smithfield v. Chesapeake Bay Found., Inc., 484 U.S. 49, 52-53, 108 S.Ct. 376, 379, 98 L.Ed.2d 306 (1987). One of these is § 402 which establishes the National Pollutant Discharge Elimination System (“NPDES”). 33 U.S.C. § 1342. Under § 402 either the Administrator of the Environmental Protection Agency (“EPA”), or a state which has established its own EPA-approved permit program, may issue a permit allowing effluent discharges in accordance with specified conditions. 33 U.S.C. § 1342(b), (c).
The holder of a state permit is subject to enforcement action by both the EPA and the state for failure to comply with the permit’s conditions. 33 U.S.C. § 1319, 1342(b)(7). In addition, private citizens may bring civil actions against any person alleged to be in violation of a state permit if the federal or state agencies have not acted. 33 U.S.C. § 1365(a)(1). The Act allows the court in a citizen suit to order injunctive relief and/or impose monetary penalties. 33 U.S.C. § 1365(a).
The State of Delaware received its NPDES permit delegation from the EPA on April 1, 1974, and issued a permit to Texaco in 1977 allowing it to discharge limited quantities of 19 categories of industrial waste from its Delaware City refinery into the Delaware River. The permit imposes on Texaco both limitations on the amount of pollutants that can be discharged and monitoring requirements. Specifically, the permit establishes seven monitoring points inside the refinery — referred to as “outfalls” — and specifies the amount of each effluent category — referred to as “parameters” — that can be discharged at that point. Texaco must periodically conduct certain specified tests at each of the outfalls and publicly report the results in monthly Discharge Monitoring Reports (“DMRs”).
As required by the Act, the NRDC notified Texaco in March 1988 that they intended to file a citizen suit against the company for 342 permit violations occurring at the Delaware City refinery between January 1983 and October 1987. Subsequently, on May 17, 1988, the NRDC filed a complaint charging Texaco with 354 violations, including some violations that had occurred since October 1987. The NRDC later dropped 11 alleged violations apparently in response to a statute of limitations argument raised by Texaco.
On December 9, 1989, Texaco filed a motion for partial summary judgment based on several grounds: the court’s lack of subject matter jurisdiction over some of the alleged permit violations occurring pri- or to the filing of the complaint and which were not either ongoing or likely to recur; the claims were moot under the principles of Gwaltney of Smithfield v. Chesapeake Bay Foundation Inc., 484 U.S. 49, 108 S.Ct. 376, 98 L.Ed.2d 306 (1987); and that the claims were barred by the applicable statute of limitations. One week later the NRDC filed their own motion for summary judgment on the issue of liability based on the reported parameter exceedances in Texaco’s DMRs. In their motion, the NRDC sought declaratory and injunctive relief, and requested a hearing to determine the appropriate amount of damages. On April 7, 1989, Texaco filed a supplemental motion for summary judgment alleging that a recent ownership transfer of the Delaware City refinery and the issuance of a new NPDES permit to the new owner rendered the NRDC’s claims moot.
The district court denied Texaco’s motion for partial summary judgment reasoning that even if some of the parameter violations alleged by the NRDC were wholly past violations, i.e., not ongoing or likely to recur, the fact that other parameter violations were ongoing at the time the complaint was filed gave the court jurisdiction over all permit violations. Natural Resources Defense Council, Inc. v. Texaco Refining and Marketing, Inc., 719 F.Supp. 281, 287 (D.Del.1989). In addition, the court rejected Texaco’s supplemental motion for summary judgment concluding that it could enjoin Texaco from violating the new permit, based on its violations of the old one, at least as to the old parameter limitations which are either incorporated into, or are less strict than, the parameter limitations listed in the new permit. Id. at 289-90. The district court also found that since Texaco is a 50% partner in Star Enterprise, the Act should not be narrowly construed to forbid enforcement against Texaco simply because it is not the currently named permit holder. Id. at 290-91.
The district court granted the NRDC’s motion for summary judgment based on the submitted DMRs. The court rejected Texaco’s argument that the prima facie violations contained in the DMRs were due to sampling errors, system upsets, or statistical outliers. Instead, the court held that as a matter of law the reported parameter exceedances in Texaco’s DMRs were conclusive proof of permit violations and could not be impeached by either a claim of sampling error or that some of the alleged violations were statistical outliers. Id. at 288-89. Moreover, the court found that the upset defense was not incorporated into Texaco’s permit, either expressly or by reference to the relevant sections of the EPA’s regulations, and thus could not be raised by the company. Id. at 289. Thus, the court concluded that Texaco had raised no genuine issue of material fact as to its liability.
Having established that Texaco violated the Act, the court enjoined the company, its officers, agents, servants, employees, and those persons in active concert or participation with Texaco, and who receive actual notice of the court’s order, from violating terms of the new permit which were either carried over from the old permit or were made stricter in the new version. Id. at 292; App. 462-64 (Order). The penalty phase of the case has not yet proceeded to trial.
Texaco now appeals the district court’s order denying both its motion for summary judgment and its supplemental motion for summary judgment. In addition, Texaco appeals the district court’s order granting the NRDC’s motion for summary judgment and the issuance of a permanent injunction against the company. We have jurisdiction over that part of the district court’s order granting injunctive relief pursuant to 28 U.S.C. § 1292(a)(1) (1982).
II.
Texaco argues on appeal that the district court erred by applying the wrong standard in determining whether to grant the NRDC’s request for a permanent injunction. More specifically, Texaco argues that the court failed to apply traditional equitable principles in reaching its decision to enjoin the company, including placing the burden on the NRDC to prove that irreparable harm would ensue if the injunction was not granted. We review a trial court’s grant of a motion for a permanent injunction for an abuse of discretion. International Union, UAW v. Mack Trucks, Inc., 820 F.2d 91, 94 (3d Cir.1987). An abuse of discretion exists where the district court’s decision rests upon a clearly erroneous finding of fact, an errant conclusion of law, or an improper application of law to fact. Id. at 95.
Although somewhat unclear, from our reading of the opinion it does appear that the district court presumed irreparable harm from the mere fact that the Act had been violated:
Finally, [Texaco] contends that even if the Court were empowered to grant in-junctive relief in the present case, such relief would be improper because [the NRDC] have failed to make the necessary showing of imminent irreparable harm. [The NRDC], on the other hand, take the position that traditional equitable principles need not be applied in this case because the [Act] authorizes the Court to enjoin NPDES permit violations on the basis of defendant’s six-year pattern of non-compliance. [The NRDC’s] position has ample support in this Circuit. For example, in United States Postal Service v. Beamish, 466 F.2d 804, 806 (3d Cir.1972), the Third Circuit held that a statute authorizing preliminary in-junctive relief upon a showing of probable cause to believe that the statute is being violated can be considered a substitute for a finding of irreparable harm normally required for a preliminary injunction to issue. See also Gov’t of the Virgin Islands, Dep’t of Conservation and Cultural Affairs v. Virgin Islands Paving, Inc., 714 F.2d 283, 286 (3d Cir.1983). Consequently, based on the enabling language in the Act and the multiple violations contained in [Texaco’s] DMR’s [sic], injunctive relief is appropriate in this case.
Texaco, 719 F.Supp. at 291-92.
We agree with Texaco that the district court abused its discretion in this case by presuming irreparable harm and not explicitly applying the traditional equitable standard in determining whether an injunction was appropriate for remedying Texaco’s violations of the Act. We believe that the United States Supreme Court’s decisions in Weinberger v. Romero-Barcelo, 456 U.S. 305, 102 S.Ct. 1798, 72 L.Ed.2d 91 (1982), and Amoco Prod. Co. v. Village of Gambell, 480 U.S. 531, 107 S.Ct. 1396, 94 L.Ed.2d 542 (1987), establish that equitable principles are not displaced by the Act. Furthermore, every circuit court that has interpreted Romero-Barcelo in this context is in accord with our view, as well as numerous district court opinions in this circuit and elsewhere. Finally, we find that the cases relied upon by the district court for its apparently contrary view that an injunction should automatically follow upon a finding of statutory violation are distinguishable from this case.
In Romero-Barcelo, the district court found that the Navy had violated the Act by discharging ordnance into the Atlantic Ocean during training operations without first obtaining an NPDES permit from the EPA. Romero-Barcelo, 456 U.S. at 307-08, 102 S.Ct. at 1800-01. The court declined to enjoin the training operations, however, and simply ordered the Navy to apply for a permit from the Administrator of the EPA. Id. at 310, 102 S.Ct. at 1802. Emphasizing in its opinion the broad discretion a court in equity possesses in deciding appropriate relief, the district court reasoned that the Navy’s activities were not causing any appreciable harm to the environment, while injunctive relief would cause grievous, and perhaps irreparable, harm to the Navy and the general welfare. Id. The Court of Appeals for the First Circuit reversed and directed the district court to enjoin all Naval training activities until the Navy obtained a permit. The Court of Appeals held that the traditional equitable balancing of interests was inappropriate where there was an absolute statutory duty to refrain from any pollutant discharge until the permit procedure is followed. Id. at 310-11, 102 S.Ct. at 1802.
The Supreme Court reversed the Court of Appeals and remanded the case to the appellate court to review the district court’s decision under an abuse of discretion standard. The Court noted that it had “repeatedly held that the basis for injunc-tive relief in the federal courts has always been irreparable injury and the inadequacy of legal remedies.” Id. at 312, 102 S.Ct. at 1803. The Court explained that in each case the court must balance the competing claims of injury and must consider the consequences to each party, and the public, of the granting or withholding of the requested relief. Id. Thus, “[t]he grant of jurisdiction to ensure compliance with a statute hardly suggests an absolute duty to do so under any and all circumstances, and a federal judge sitting as chancellor is not mechanically obligated to grant an injunction for every violation of law.” Id. at 313, 102 S.Ct. at 1803.
The Court cautioned that:
Of course, Congress may intervene and guide or control the exercise of the courts’ discretion, but we do not lightly assume that Congress has intended to depart from established principles. As the Court said in Porter v. Warner Holding Co., 328 U.S. 395, 398, 66 S.Ct. 1086, 1089, 90 L.Ed. 1332 (1946):
Moreover, the comprehensiveness of this equitable jurisdiction is not to be denied or limited in the absence of a clear and valid legislative command. 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.
Romero-Barcelo, 456 U.S. at 313, 102 S.Ct. at 1804 (citations omitted). However, the Court found nothing in the Clean Water Act’s language, structure or legislative history evidencing Congress’ intent to deny courts their traditional equitable discretion. Id. at 316-18, 319, 102 S.Ct. at 1805-06, 1807. The Court of Appeals had erroneously focused on the integrity of the permit process rather than on the integrity of the Nation's water, the real purpose of the Act. Id. at 314, 102 S.Ct. at 1804.
Similarly in Amoco Prod. Co. v. Village of Gambell, 480 U.S. 531, 107 S.Ct. 1396, 94 L.Ed.2d 542 (1987), the Court of Appeals for the Ninth Circuit found that the Secretary of the Interior had likely failed to comply with provisions of the Alaska National Interest Lands Conservation Act (“ANILCA”) and directed the district court to grant a preliminary injunction preventing certain oil and gas lease activity. Id. at 540-41, 107 S.Ct. at 1401-02. The Ninth Circuit ruled that “injunctive relief is the appropriate remedy for a violation of an environmental statute absent rare or unusual circumstances.” Id. at 541, 107 S.Ct. at 1402.
The Supreme Court again reversed, “see[ing] nothing which distinguishes Romero-Barcelo from the instant case” and finding “no clear indication in [ANIL-CA] that Congress intended to deny federal district courts their traditional equitable discretion in enforcing the [statute].... ” Amoco, 480 U.S. at 544, 107 S.Ct. at 1403. The Court stated:
Like the First Circuit in Romero-Barce-lo, the Ninth Circuit erroneously focused on the statutory procedure rather than on the underlying substantive policy the process was designed to effect — preservation of subsistence resources. The District Court’s refusal to issue a preliminary injunction against all exploration activities did not undermine this policy. The District Court ... expressly found that exploration activities would not significantly restrict subsistence uses. The Court of Appeals did not conclude that this factual finding was clearly erroneous .... Instead, the court stated that “irreparable damage is presumed when an agency fails to evaluate thoroughly the environmental impact of a proposed action.” ... This presumption is contrary to traditional equitable principles and has no basis in ANILCA. Moreover, the environment can be fully protected without this presumption.
Id. at 544-45, 107 S.Ct. at 1403-04.
Every Court of Appeals, which has considered the question, has interpreted Romero-Barcelo and Amoco to require a district court to apply the traditional equitable standard before granting an injunction in eases such as this. For example, the Court of Appeals for the Second Circuit, in Town of Huntington v. Marsh, 884 F.2d 648 (2d Cir.1989), cert. denied, — U.S. -, 110 S.Ct. 1296, 108 L.Ed.2d 473 (1990), found that the “teaching of these [Supreme Court] cases seems clear.” Id. at 652. “[I]n the area of environmental statutes, the Supreme Court has explicitly rejected the notion that an injunction follows as a matter of course upon a finding of statutory violation.” Id. at 651. Thus, the Court of Appeals reversed the district court which had permanently enjoined the Army Corps of Engineers from dumping, or issuing permits to dump, dredged materials at a disposal site because the environmental impact statement filed by the Corps had violated the Ocean Dumping Act and the National Environmental Policy Act. Id. at 649. The Court of Appeals explained that the district court erred in not specifically finding that irreparable damage would ensue if the injunction was not issued:
the district court appears to have ruled that the establishment of a statutory violation, without more, warranted an injunction. The court determined that the public interest “in maintaining the physical, chemical and biological balance at the dumpsite” outweighed the competing private interest, defined as “inconvenience and additional cost to owners of docks and piers,” resulting in a determination that “plaintiffs have established irreparable damage.” No consideration was given, however, to the question whether plaintiff had met its burden to establish some actual or threatened injury to “the physical, chemical and biological balance at the dump site [sic],” as distinguished from the Corps’ conceded failure to generate a proper EIS before its initial designation of [the dumpsite].
Id. at 654. See also Northern Cheyenne Tribe v. Hodel, 851 F.2d 1152, 1155-56, 1157-58 (9th Cir.1988); National Wildlife Fed’n v. Burford, 835 F.2d 305, 318, 323-24 (D.C.Cir.1987); Commonwealth of Mass. v. Watt, 716 F.2d 946, 951-53 (1st Cir.1983). Cf. United States v. Lambert, 695 F.2d 536, 540 (11th Cir.1983) (without citing Romero-Barcelo, the court held that: “Environmental litigation is not exempt from [the] requirement” that the plaintiff must prove “irreparable harm is likely if an injunction is not granted [for a violation of the Act]”). Indeed, district courts both in this circuit, see, e.g., Public Interest Research Group of N.J., Inc. v. CP Chemicals, Inc., 26 E.R.C. 2017 (D.N.J.1987), and in other circuits, see, e.g., Natural Resources Defense Council, Inc. v. Outboard Marine Corp., 692 F.Supp. 801, 821-23 (N.D.Ill.1988), have applied the traditional equitable standard in determining whether to grant preliminary and permanent injunctions for violations of the Act.
The two cases cited by the district court in support of its apparently contrary position are inapposite. In United States Postal Service v. Beamish, 466 F.2d 804 (3d Cir.1972), this Court affirmed an injunction by the district court even though the district court had not applied the traditional equitable standard. And, in Government of Virgin Islands, Dep’t of Conservation and Cultural Affairs v. Virgin Islands Paving, Inc., 714 F.2d 283 (3d Cir.1983), the NRDC apparently contends — and the district court appears to assume — that this Court reversed the district court’s denial of a preliminary injunction because the district court should not have applied the traditional equitable standard in deciding the question. However, both of these cases are distinguishable from the case sub judi-ce because the statutes under which the injunctions were sought in Beamish and Virgin Islands clearly circumscribed the traditional equitable discretion courts possess in granting injunctive relief. In Beamish, the postal service provision in question provided that: “the United States district court ... shall ... upon a showing of probable cause to believe ... [that 39 U.S.C. § 3005] is being violated, enter a temporary restraining order and preliminary injunction_” Beamish, 466 F.2d at 806 (quoting from 39 U.S.C. § 3007) (emphasis added). Likewise, in Virgin Islands, the statute in question, the Virgin Islands Coastal Zone Management Act of 1978, provided for preliminary injunctive relief upon a “prima facie showing of a violation.” Virgin Islands, 714 F.2d at 284 (quoting from 12 V.I.C. § 913(b)(1)) (emphasis added). In both of these cases, the legislature had effectively intervened through the statute and guided or controlled the exercise of the'courts’ traditional discretion. Thus, both of these statutes are the type that the Supreme Court distinguished from the Clean Water Act in Romero-Barcelo. See Romero-Barcelo, 456 U.S. at 313-14, 102 S.Ct. at 1804-05.
Thus, it is clear to us that a district court may issue a permanent injunction under the Act only after a showing both of irreparable injury and inadequacy of legal remedies, and a balancing of competing claims of injury and the public interest. Amoco, 480 U.S. at 544-47, 107 S.Ct. at 1403-05. From our reading of the district court’s opinion in this case it is far from certain that such issues were considered and decided upon by the court. Rather, the district court — especially in light, of its finding that no violation of the new permit has occurred — appears to have erroneously presumed irreparable harm from the mere fact of statutory violation, thus improperly focusing on the integrity of the permit process rather than the integrity of the Nation’s waters. We will remand the case to the district court, therefore, for a proper determination of whether an injunction should issue. However, we do recognize, and so advise the district court on remand, that in applying the traditional equitable standard: “Environmental injury, by its nature, can seldom be adequately remedied by money damages and is often permanent or at least of long duration, i.e. irreparable. If such injury is sufficiently likely, therefore, the balance of harms will usually favor the issuance of an injunction to protect the environment.” Amoco, 480 U.S. at 545, 107 S.Ct. at 1404.
III.
As previously noted, Texaco raises numerous issues on appeal relating to the district court’s denial of its motion for summary judgment, supplemental motion for summary judgment, and the court’s grant of summary judgment to the NRDC. At oral argument, however, Texaco urged this Court not to reach any other issues it has raised if we decided the standard for in-junctive relief issue in its favor. Since we do decide this issue in Texaco’s favor, we believe that no other issue need be reached in order to effectively resolve this interlocutory dispute between the parties. Sethy v. Alameda County Water Dist., 545 F.2d 1157, 1163 (9th Cir.1976).
IV.
In summary, we find that the district court erred in issuing a permanent injunction against Texaco without first applying the traditional equitable standard as to when such an order is appropriate. Thus, we will vacate the portion of the district court’s order enjoining Texaco not to violate its new NPDES permit and remand this case to the district court to apply the proper standard. Each party to bear its own costs.
. In November 1988, Texaco and the Saudi Arabian Oil Company formed a joint venture partnership called Star Enterprise. Star Enterprise acquired ownership of many of Texaco’s assets, including the Delaware City facility. Each partner owns a 50% interest in the joint venture's assets.
. On January 31, 1989, Delaware issued a new permit for the Delaware City refinery naming Star Enterprise as the permittee. This new permit differed from the old permit in several respects, including some changes in permissible effluent limits, the locations of certain outfalls, and the manner in which some effluent discharges are to be calculated. After the competing summary judgments were fully briefed to the district court, the NRDC submitted an additional letter to the court alleging three violations of the new permit and offering DMRs to substantiate the claim. Texaco denied that the DMRs reflected actual permit violations. Believing that this information did not materially affect the parties' positions in the litigation, the district court did not rely on this new information in reaching its decision. Instead, the court specifically found that: ‘‘There have been no reported violations of any of the terms of the reissued permit.” Natural Resources Defense Council, Inc. v. Texaco Refining and Marketing, Inc., 719 F.Supp. 281, 283-84 (D.Del.1989).
.The court noted that Texaco had admitted that some parameter violations were ongoing. Natural Resources Defense Council, Inc. v. Texaco Refining and Marketing, Inc., 719 F.Supp. 281, 285 (D.Del.1989).
. Texaco contends that this Court also has jurisdiction over the balance of the district court’s order, i.e., denying both of Texaco’s motions for summary judgment and granting the NRDC’s motion, under the principles of Kershner v. Mazurkiewicz, 670 F.2d 440, 449 (3d Cir.1982) (in banc). Because of our disposition of this case, we need not decide this question.
. As an example of-legislative intervention, the Court cited TVA v. Hill, 437 U.S. 153, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978). In that case, the Court held that Congress had foreclosed the traditional discretion exercised by a court in equity:
The statute involved, the Endangered Species Act, 87 Stat. 884, 16 U.S.C. 1531 et seq., required the District Court to enjoin completion of the Tellico Dam in order to preserve the snail darter, a species of perch. The purpose and language of the statute under consideration in Hill, not the bare fact of a statutory violation, compelled that conclusion. Section 7 of the Act, 16 U.S.C. § 1536, requires federal agencies to "insure that actions authorized, funded, or carried out by them do not jeopardize the continued existence of [any] endangered species ... or result in the destruction or modification of habitat of such species which is determined ... to be critical.” The statute thus contains a flat ban on the destruction of critical habitats.
Weinberger v. Romero-Barcelo, 456 U.S. 305, 313-14, 102 S.Ct. 1798, 1804, 72 L.Ed.2d 91 (1982). Since it was conceded that the Tellico Dam would destroy the snail darters’ habitat, an injunction had to be issued because "Congress, it appeared to us, had chosen the snail darter over the dam.” Id. at 314, 102 S.Ct. at 1804. Turning to the Clean Water Act, the Court noted: "That is not the case here. An injunction is not the only means of ensuring compliance [with the Act].” Id.
. Moreover, in a different context this Court has cited Weinberger v. Romero-Barcelo, 456 U.S. 305, 102 S.Ct. 1798, 72 L.Ed.2d 91 (1982), for the proposition that, absent a clear Congressional statement, courts should not infer that Congress intended to alter equity practices. Flynn v. United States By and Through Eggers, 786 F.2d 586, 591 (3d Cir.1986). In Flynn, we were construing § 6213(a) of the Internal Revenue Code which states that a court “may” grant injunctive relief under specified conditions. Id. Combining Congress' use of the conditional with Romero-Barcelo, we held that relief was not mandatory simply because the statutory conditions were met, but instead lies within the discretion of the court. Id. Therefore, we found "no reason to cast off those principles that traditionally have informed the exercise of a court's broad equity powers,” and required the plaintiff to prove inadequacy of a legal remedy to prevent an irreparable injury before an injunction should issue under this statutory provision. Id.
. Whether this Court actually held that the district court should not have applied traditional equitable principles in Government of Virgin Islands, Dep't of Conservation and Cultural Affairs v. Virgin Islands Paving, Inc., 714 F.2d 283 (3d Cir.1983), is not clear. At one point we said that there is no reason for the district court not to apply the same approach as in United States Postal Service v. Beamish, 466 F.2d 804 (3d Cir.1972), when ruling on a motion for a preliminary injunction, i.e., “a statutory provision authorizing preliminary injunctive relief upon a showing of probable cause to believe that the statute is being violated may be considered a substitute for a finding of irreparable harm_” Virgin Islands, 714 F.2d at 286. However, we ended the opinion by explaining:
We do not suggest that the district court does not retain discretion as to whether a preliminary injunction should issue. However, such discretion can be prudently exercised only after the relevant factors have been evaluated. In this case, one of the most significant factors to be considered is the public interest which underlies the Air Pollution Control and Coastal Zone Management Acts.
Id. at 286. Thus, the actual import of Virgin Islands is probably that a court may use its equitable discretion in not issuing an injunction even if the statutory standard is satisfied. At any rate, for purposes of this discussion, even if we adopt the view of Virgin Islands most favorable to the district court, we still find the court’s reliance on the case unavailing.
. See also the discussion in note 5 supra.
The NRDC relies on another opinion of this Court for its position that an injunction may issue after a violation of the Act without a determination of the balance of harms. Instant Air Freight Co. v. C.F. Air Freight, Inc., 882 F.2d 797 (3d Cir.1989). However, this case also gives the NRDC no comfort. First, the discussion in Air Freight as to the proper standard to apply in statutory injunction situations is dictum. And, second, in our view the discussion in Air Freight does not differ materially from our discussion of Government of Virgin Islands, Dep’t of Conservation and Cultural Affairs v. Virgin Islands Paving, Inc., 714 F.2d 283, 286 (3d Cir.1983), and, therefore, does not support the position advanced by the NRDC. | 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_district |
EDWARD J. GAY PLANTING & MANUFACTURING CO., Limited, v. COMMISSIONER OF INTERNAL REVENUE.
No. 10965.
Circuit Court of Appeals, Fifth Circuit.
June 23, 1944.
Carl J. Batter, of Washington, D. C., for petitioner.
John F. Costelloe, Sewall Key, and J. Louis Monarch, Sp. Assts. to the Atty. Gen., Samuel O. Clark, Jr., Asst. Atty. Gen., J. P. Wenchel, Chief Counsel, Bureau of Internal Revenue, and Raymond F. Brown and R. E. Maiden, Jr., Sp. Attys., Bureau of Internal Revenue, all of Washington, D. C. for respondent.
Before SIBLEY, HOLMES, and McCORD, Circuit Judges.
McCORD, Circuit Judge.
The petitioner seeks a refund of processing taxes which were imposed and which it alleges it paid and did not pass on to consumers. The claim was. for $27,419.-30. The parties filed- a joint stipulation of facts. The Tax Court made its findings of facts on the basis of the stipulation and held that the taxpayer had failed to prove that it was entitled to a refund of any part of the amount involved. The proceeding is here for a review of the decision of the Tax Court.
The taxpayer was a grower and purchaser of sugar cane and was also a producer of direct consumption sugar. The claim for refund, as filed and disallowed, disclosed a tax period margin of $0.01626685 per unit of commodity processed and a margin for the period before and after the tax of $0.00939057 per unit of commodity processed, or an excess margin during the tax period of $0.0068^628 per unit.
The taxpayer produded plantation granulated sugar and first molasses for direct consumption. It also produced blackstrap molasses as a by-product. The taxpayer at all times sold its granulated sugar at aj fixed differential of 35^ under the prices of the large sugar refineries, all of whom increased their prices by 55¡é per hundred pounds ol refined sugar on June 8, 1934, the effective date of the imposition of the processing tax on sugar at the rate of 5’Sí/¿$ per hundred pounds.
The gross sales value of articles derived from the commodity processed computed in accordance with Sec. 907(b) (6) of the Revenue Act of 1936, 7 U.S.C.A. § 649(b) (6), and the regulations applicable thereto, was $266,857.50 for the tax period and $388,727.92 for the period before and after the tax.
The units of commodity processed, expressed in terms of 96 degrees sugar, raw value, were 7,260,357 pounds during the tax period and 12,241,586 pounds during the period before and after the tax.
The taxpayer processed sugar cane which it grew on its own plantations and sugar cane which it purchased in the open market from other planters.
The taxpayer contends that the “actual cost” measure should have been used in respect to sugar cane grown upon its own plantations and that if such method had been used, then such computation would have removed it from the burden of proof imposed by the “before and after tax period” measure used by the Tax Court.
Section 907(b) (5) of the Refund Act of 1936 provides alternative methods of computing cost — actual cost or current prices at the time of processing. The Tax Court computed margins based on current prices, and we are of opinion and so hold that such method, under the stipulation of this case, was correct. It is true that we held in the case of Commissioner v. Bain Peanut Co., 5 Cir., 134 F.2d 853, 856, that actual cost “is exclusive if available.” Such “actual cost” measure could be applied here if petitioner had given us a correct premise upon which to move. This it has failed to do. It charged the entire cost of all planting and cultivation of sugar cane grown by it on its plantations to the first year after the sugar cane had been planted, whereas in fact three crops were grown and and gathered, one each year, from the first planting. This cost of planting and cultivation should have been allocated to the three years and not to the first year alone.
The Tax Court found that the evidence affirmatively showed the taxpayer had not borne the burden of the tax on sugar and molasses but had passed it on to its customers.
We agree with the Tax Court that the computation was properly made under Sec. 907(b) (5) (b), and in consequence, the petitioner’s margin during the tax period exceeded the margin during the before and after periods. It follows that the petitioner must be presumed, under 907(a) of the Revenue Act of 1936, to have borne none of the burden of the processing tax but to have shifted it to others. Commissioner v. Webre Steib Co., 5 Cir., 140 F.2d 768, 770; Commissioner v. Bain Peanut Co., 5 Cir., 134 F.2d 853; cf. Helvering v. Insular Sugar Refining Corp., App.D.C., 141 F.2d 713.
There is to be found in the stipulation of facts, which is the record evidence in this case, substantial evidence to support the decision of the Tax Court and the judgment 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.
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. | [] | [
1
] | songer_r_fed |
UNITED STATES of America, Appellee-Appellant, v. David KLAPHOLZ and Paula Klapholz, Defendants-Appellants-Appellees.
No. 113, Docket 23596.
United States Court of Appeals Second Circuit.
Argued Oct. 10, 1955.
Decided Feb. 21, 1956.
Cornelius W. Wickersham, Jr., Chief Asst. U. S. Atty., Brooklyn, N. Y. (Leonard P. Moore, U. S. Atty., and Peter E. DeBlasio, Asst. U. S. Atty., Brooklyn, N. Y., on the brief), for appellee-appellant.
Arthur Kaplan, New York, N. Y., for defendants-appellants-appellees.
Before FRANK, HINCKS and WATERMAN, Circuit Judges.
HINCKS, Circuit Judge.
These are cross appeals from an order of Judge Weinfeld in the Southern District of New York, granting in part and denying in part motions of the defendants to suppress evidence pursuant to Rule 41(e) of the Federal Rules of Criminal Procedure, 18 U.S.C.A. The opinion of the District Court is reported at 17 F.R.D. 18.
The defendants, who had been arrested in the Eastern District of New York at 4:00 p. m., on August 2, 1954, but whose arraignment had been deferred until August 4,1954 at 1:00 p. m., moved to suppress all evidence obtained during and by reason of the presence of government agents in the defendants’ apartment in the Southern District of New York from about 8:00 p. m. on August 2, 1954 to 11:30 a. m. August 4, 1954, on the ground (1) that the presence of the agents in the apartment violated their rights under the Fourth and Fifth Amendments of the Constitution of the United States and (2) that the delay in arraigning them was in violation of Rule 5(a) of the Federal Rules of Criminal Procedure. The defendants also moved to suppress all evidence obtained as a result of the search made (1) of their apartment on August 4, 1954, and (2) of the defendant Paula Klapholz’s safe deposit box on August 4, 1954 pursuant to a warrant dated that date. These motions were filed by the defendants in the court below on September 13, 1954. Meanwhile, on August 23, 1954 indictments against the defendants had been returned to the United States Disr trict Court for the Eastern District of New York.
After a hearing in which all the defendants’ procedural rights were scrupulously and fully protected the District Court denied-the defendants’ motions to suppress the evidence obtained by execution of the search warrants. The denial was based on findings that the warrants were issued on probable cause; that they were sufficient on their faces in stating the grounds of probable cause for their issuance; that the warrants were seasonably executed within the ten-day period specified in Rule 41(d); and that failure'to give a receipt for items seized did not invalidate. an otherwise lawful search. From, the order giving effect to this ruling, the defendants appealed.
We affirm that order on Judge Wein-feld’s findings and opinion below.
As to the motion to suppress evidence in addition.to that obtained through the search warrants, i. e., evidence-- which had been obtained through the presence of the government officers in their apartment, the. court found that the officers were there by the defendants’ consent. That finding required a conclusion— which was implicit, if not expressly stated, in the opinion below—that the search and seizure was not in violation of the Fourth Amendment. However, the judge apparently thought that even though there had been no constitutional violation the evidence might be suppressed if there had been “unnecessary delay” in bringing the defendants before a United States Commissioner in violation of Rule 5(a). Apparently assuming that, on the authority of McNabb v. U. S., 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819, the court had jurisdiction to suppress for violation of Rule 5(a), he meticulously found that to defer the defendants’ presentation to a Commissioner until August 3 at 10:30 a. m. did not involve “unnecessary delay” within the meaning of Rule 5(a), but that the further deferment of the presentation was unreasonable and so did constitute “unnecessary delay.” Accordingly, it was ordered that, as to evidence obtained through the presence of the government agents in defendants’ apartment prior to that date and hour, the motion to suppress should be denied; and that, as to evidence so obtained thereafter, the motion be granted. From this order, both the defendants and the government appealed.
The sole express authority for a pre-trial suppression of evidence by any court other than a trial court is found in Rule 41(e). And the authority thus conferred goes no further than to permit a district court to suppress evidence obtained by unlawful searches and seizures within its district. Its operativeness thus depends on a violation of constitutional rights under the Fourth Amendment. The cases are clear that a breach of Rule 5(a) does not constitute such a constitutional violation. Brown v. Allen, 344 U.S. 443, 476, 73 S.Ct. 397, 97 L.Ed. 469; Stein v. New York, 346 U.S. 156, 187, 73 S.Ct. 1077, 97 L.Ed. 1522; Upshaw v. United States, 335 U. S. 410, 414, note 2, 69 S.Ct. 170, 93 L.Ed. 100. It follows that authority to enforce Rule 5(a) is not carried by Rule 41(e).
Until the recent decision in Rea v. United States, 350 U.S. 214, 76 S.Ct 292, we think the only judicial technique utilized for the enforcement of Rule 5 ,(a) was the rule of McNabb v. United States, supra, which was stated 318 U.S. at pages 340-341, 63 S.Ct. 608, as an evidentiary rule of exclusion, formulated by the Supreme Court as a deterrent to the violation of Rule 5(a). In that case, it was held that a trial court could and should in the trial exclude evidence of confessions obtained in violation of Rule 5(a). But neither McNabb nor (until Rea) any of the cases which have applied -and developed its doctrine have held that evidence not obtained ‘ by an unlawful •search and seizure may be suppressed by a court other than the trial court. Neither statute nor the Federal Rules of Criminal Procedure expressly sanction such assumption of authority.
However, in the Rea case, supra [350 U.S. 214, 76 S.Ct. 294], the Supreme Court said that the federal Rules “are designed as standards for federal agents” and that, since the Rules were prescribed by the Supreme Court after submission to Congress, it has “ ‘supervisory powers over federal law enforcement agencies’ ” and that “Federal courts sit to enforce federal law; and federal law extends to the process issuing from those courts.” Accordingly, it held that when “a federal agent has violated the federal Rules governing searches and seizures * * * [t]he power of the federal courts extends to policing these requirements and making certain that they are observed”; and that having such power it was erroneous for a federal court to refuse to enjoin the federal officer from using “the fruits of his unlawful act” as “the basis of testimony in the state court.” Under this doctrine, we think it plain that the court below had jurisdiction to entertain and determine motions for the suppression of evidence obtained within its territorial jurisdiction even though it was without jurisdiction to try the moving parties for violations of federal law committed in another district under an indictment therein pending. It is true that here we are concerned with a suppression based on violation of Rule 5(a) instead of one based on violation of the Fourth Amendment which is the subject-matter of Rule 41. But the language and rationale of the majority opinion in the Rea case permits no distinction on that account.
However, although we accept the Rea decision as decisive on the presence of jurisdiction in the court below to rule as it did, we think the Rea decision did not require that court to exercise that jurisdiction. In Rea, the exercise of the court’s injunctive powers was required because of the showing that a criminal prosecution was pending in a state court of New Mexico in which the evidence sought to be suppressed might have been admissible even though obtained in violation of the Fourth Amendment. That feature is absent here. Here, if the court below had declined jurisdiction, the District Court for the Eastern District of New York, in which the moving parties were awaiting trial on a smuggling charge not cognizable in the state courts, on their application would have been duty-bound to apply the McNabb rule giving them all relief to which they might be found entitled. If the motions had been there made and ruled on in advance of trial, that court would have been free to re-examine its preliminary ruling in the context of the trial record and the pre-trial ruling would not have been independently appealable under 28 U.S.C.A. § 1291. Cogen v. U. S., 278 U. S. 221, 49 S.Ct. 118, 73 L.Ed. 275; United States v. Stephenson, 96 U.S.App.D.C, 44, 223 F.2d 336.
In the setting of this case, in so far as it has been disclosed to us, we think that it would have been a proper and a wise exercise of discretion by the court below, after disposing of the attack on the search and seizure under Rule 41(e), to have declined jurisdiction over the other motions to suppress, leaving the defendants free to move for suppression in the trial court. Such a course would have avoided invasion of the trial court’s normal province to pass on the admissibility of evidence in the trial without jeopardy to the right of the defendants to the exclusion of evidence under the McNabb rule. But by ordering suppression in an independent proceeding, as in Dier v. Banton, 262 U.S. 147, 43 S.Ct. 533, 67 L.Ed. 915, it has made a ruling which is independently appealable and which may possibly be urged to have the effect of res judicata in the trial. Steele v. U. S., No. 2, 267 U.S. 505, 45 S.Ct. 417, 69 L.Ed. 761; Cf. Dowling v. Collins, 6 Cir., 10 F.2d 62. However, it does not appear that the government, which was represented below by the District Attorney for the Eastern District, requested that the court decline jurisdiction. In the absence of such a request we cannot say that the court abused its discretion by exercising power which the Supreme Court, in the Rea case, held it to have. Especially is this so since the court below might have reasonably concluded that the search and seizure and illegal detainer issues were so closely related as to make it desirable to consider them in one proceeding.
We come, therefore, to the merits of the rulings on the motions to suppress. We agree with Judge Weinfeld that no waiver by the defendants of compliance with Rule 5(a) may be implied from the bare consent of the defendants to the presence of the agents in their home. His findings as to the time reasonably required to accomplish the arraignments were made with painstaking care and were fully supported by the underlying facts. It only remains to consider whether the evidence suppressed was proper subject-matter for suppression under the McNabb rule. The order provided that “all evidence derived as a result of the presence of the government agents in the defendants’ apartment * * * ” subsequent to 10 a. m. on August 3, 1954 “is suppressed.” We think Judge Weinfeld rightly refused to suppress evidence obtained prior to that date and hour. United States v. Mitchell, 322 U.S. 65, 70, 64 S.Ct. 896, 88 L.Ed. 1140; United States v. Leviton, 2 Cir., 193 F.2d 848, 853, certiorari denied 343 U.S. 946, 72 S.Ct. 860, 96 L.Ed. 1350, rehearing denied 343 U.S. 988, 72 S.Ct. 1079, 96 L.Ed. 1375. We find no intimation to the contrary in the Rea opinion. But as to evidence obtained in the defendants’ home after that time, does the McNabb rule require the suppression of all such evidence or is the rule limited to the suppression of confessions? Since the rule was one formulated by the Supreme Court as a deterrent to detentions in violation of Rule 5(a), we think that it extends to all evidence obtained by federal agents through access to persons while detained in violation of Rule 5(a). It follows that in the setting of this case the order of suppression was within the scope of the McNabb rule.
Affirmed.
. In In re Fried, 2 Cir., 161 F.2d 453, wé held, that a district court in a district in which a defendant might he indicted and tried, in advance of indictment had power to suppress a confession obtained in violation of the Fifth Amendment, but, with Judge Frank dissenting, was without power to suppress the confession for violation of Rule 6(a). The latter holding was followed in United States v. Tuzzo, D.C.N.J., 9 F.R.D. 466, and in United States v. Quinn, D.C.S.D.N.Y., 17 F.R.D. 342.
. Wolf v. Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 3782.
. Until the announcement of the Rea decision we had supposed that except for suppression under Rule 41(e) it lay in the exclusive province of the trial court to control the admission of evidence on trial.
. Reading the order in the light of the judge’s opinion which was referred to therein, we construe the intended scope of the suppression order as prohibiting the use of the described evidence only against the moving parties. We have no need, therefore, now to determine whether the Rea decision may be invoked only by those whom federal agents have detained in violation of Rule 5(a) or whether in the exercise of its asserted power to discipline federal agents the Supreme Court intends that evidence obtained in violation of the Federal Rules shall be inadmissible even against those not otherwise injured by executive action. | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the second listed appellant. If there are more than two appellants and at least one of the additional appellants has a different general category from the first appellant, then consider the first appellant with a different general category to be the second appellant. | What is the nature of the second listed appellant whose detailed code is not identical to the code for 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_genapel2 |
FINE v. UNITED STATES.
No. 11952.
United States Court of Appeals Sixth Circuit.
Oct. 13, 1953.
Writ of Certiorari Denied Jan. 4, 1954.
See 74 S.Ct. 310.
W. E. Badgett, Knoxville, Tenn., for appellant. Taylor & Badgett, Knoxville, Tenn., on the brief.
John C. Crawford, Jr., U. S. Atty., Marysville, Tenn., for appellee. John F. Dugger, Elizabethton, Tenn., on the brief.
Before ALLEN, McALLISTER and MILLER, Circuit Judges.
PER CURIAM.
The appellant was convicted and sentenced under two counts of an indictment charging him with possession and concealment of liquor in unstamped containers in violation of the Internal Revenue Code, 26 U.S.C.A. § 1 et seq. The question presented is the validity of a search and seizure at appellant’s residence, and is raised by motion to suppress the evidence, which was denied by the District Court.
The warrant covered “the premises known as the Harve Fine residence and being a one story white frame dwelling with green shingle roof. Said house of about four rooms and located on the southeast corner of Mulberry Street and Cosby Cut-off Road in Newport, Tenn. * * The search warrant stated that “there is probable cause to believe that the property so described is being concealed on the premises above described” and commanded the officers “to search forthwith the place named * * The house searched was on premises belonging to Harve Fine, was white and was located on Mulberry Street in Newport, Tennessee. There was a conflict in the evidence as to whether it was situated at the intersection of Cosby Cut-off Road or of Prospect Avenue with Mulberry Street.
The house searched was the house described in the warrant and situated on the premises described. A description of the property is sufficient if the officer can with reasonable effort identify the intended place. Steele v. United States No. 1, 267 U.S. 498, 503, 45 S.Ct. 414, 69 L.Ed. 757; Sparks v. United States, 6 Cir., 90 F.2d 61, 63.
The affidavit upon which the search warrant was based stated that the affiant saw several cases of whiskey in one of the bedrooms of the Fine residence. The officers found no distilled spirits in the house and then went into the yard some 20 feet behind the house, broke the lock upon a shed, and found 5 half-gallon jars of whiskey, which are the basis of the prosecution. It was not improper to extend the search to this shed. The warrant authorized search of the “premises known as the Harve Fine residence” and of the “place named.” These terms are broader than a mere description of the house and certainly include the curtilage. While the shed is protected from unreasonable search and seizure, Roberson v. United States, 6 Cir., 165 F.2d 752; Baxter v. United States, 6 Cir., 188 F.2d 119, it is not protected from a valid search.
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 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"
] | [
10
] | songer_casetyp1_1-3-1 |
Benito CONCEPCION, Appellant, v. Menelio Cruz SOTO and Virgin Islands Water and Power Authority.
No. 75-1155.
United States Court of Appeals, Third Circuit.
Argued April 22, 1975.
Decided July 7, 1975.
Leroy A. Mercer, Christiansted, St. Croix, V. L, for appellant.
Verne A. Hodge, Atty. Gen. of the Virgin Islands, Emory W. Reisinger, Asst. Atty. Gen., Charlotte Amalie, St. Thomas, V. I., for appellee.
Before HASTIE, GIBBONS and HUNTER, Circuit Judges.
OPINION OF THE COURT
HASTIE, Senior Circuit Judge.
This is an appeal from a judgment that denied the petition of a judgment creditor for an order “commanding the [Virgin Islands Water and Power Authority] to make payment of” a $20,000 money judgment, plus costs and an attorney’s fee, entered against the Authority in a tort action for personal injury and property damage. Failure of the Authority to respond to the original complaint had resulted in imposition of liability by default. Thereafter, damages had been determined by a jury.
The Virgin Islands Water and Power Authority is an incorporated instrumentality of the Government of the Virgin Islands. In the Act of August 13, 1964, No. 1248, Sess.L.1964, 30 V.I.C. (1974 Supp.) § 103, the Legislature of the Virgin Islands created this corporate instrumentality, defined its functions and powers, authorized it to issue bonds and created and limited its amenability to judicial process. While the enumerated powers of the Authority included the capacity “to sue and be sued”, 30 V.I.C. § 105(4), its amenability to judicial process was restricted by the following provision:
“All property including funds of the Authority shall be exempt from levy and sale by virtue of an execution, and no execution or other judicial process shall issue against the same nor shall any judgment against the Authority be a charge or lien upon its property; Provided, however, That this subsection shall not apply to or limit the right of bondholders to pursue any remedies for the enforcement of any pledge or lien given by the Authority on its rates, fees, revenues, or other income or any other funds.” 30 V.I.C. (1974 Supp.) § 111(a).
We think that the relief sought here, a judicial order that would compel the Authority to surrender its assets in payment of a money judgment for tortious personal injury, is within the meaning of the quoted prohibitory language, since the order sought would be “judicial process” designed to reach the property of the Authority.
This does not make the right to sue the Authority or the obtaining of judgment against it meaningless. As a responsible agency the Authority can, and apparently does, carry liability insurance.
Separately, the appellant contends that the quoted provision of Section 111(a) was in effect repealed by a subsequent comprehensive waiver of governmental immunity from tort liability that was enacted in the 1971 Virgin Islands Tort Claims Act. 33 V.I.C. (1974 Supp.) § 3408.
Whether this is a tenable argument depends upon the following provision of the Authority creating 1964 statute:
“Insofar as the provisions of this chapter are inconsistent with the provisions of any other Act of the Legislature of the Virgin Islands, the provisions of this chapter shall be controlling and no law heretofore or hereafter passed governing the administration of the Government of the Virgin Islands or any parts, office, bureaus, departments, commissions, municipalities, branches, agents, officers, or employees thereof shall be construed to apply to the Authority unless so specifically provided . . . .” 30 V.I.C. (1974 Supp.) § 122.
The Tort Claims Act does not expressly overrule the particular exemption from judicial process granted in Section 111(a) of Title 30 and now relied upon by the Authority. Indeed, the Tort Claims Act makes no mention whatever of the Authority. But Section 122 of Title 30, in terms and in legal effect, has precluded repeal of Section 111(a) by implication. Therefore, the Tort Claims Act cannot properly be read as having that effect.
The judgment will be affirmed.
. The briefs indicate that the Authority carries liability insurance but that the insurer has refused to entertain a claim in this case unless the default shall be set aside and opportunity provided to defend the action on its merits.
. While we hold that the general waiver of governmental immunity in 33 V.I.C. § 3408 does not affect the special statutory provisions concerning the Water and Power Authority, we also observe that, even if the Tort Claims Act were applicable here, the plaintiff would be confronted with a statutory exclusion of default judgments from the benefits of the Tort Claims Act. 33 V.I.C. (1974 Supp.) § 3411. The time and method of asserting such a claim also are restrictively prescribed. 33 V.I.C. (1974 Supp.) § 3409. • | 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_civproc2 |
HIGLEY v. COMMISSIONER OF INTERNAL REVENUE.
No. 9720.
Circuit Court of Appeals, Eighth Circuit.
Feb. 16, 1934.
Park Chamberlain, of New York City (Don Barnes, of Cedar Rapids, Iowa, and Simpson, Thacher & Bartlett, of New York City, on the brief), for petitioner.
J. Louis Monarch, Sp. Asst. to Atty. Gen. (Sewall Key, Sp. Asst. to Atty. Gen., and E. Barrett Prettyman, Gen. Counsel, Bureau of Internal Revenue, and Lewis S. Pendleton, Sp. Atty., Bureau of Internal Revenue, both of Washington, D. C., on the brief), for respondent.
Before STONE, SANBORN, and VAN VALKENBURGH, Circuit Judges.
STONE, Circuit Judge.
This is a petition to review a redetermination of taxes on the estate of Elmer A. Higley by the Board of Tax Appeals.
Elmer A. Higley died in September, 1926, leaving a wife and three adult children. There was no will and no administration of the estate. In November, 1927, Fred M. Higley (one of tbe children) made a return for federal estate tax on the departmental form. In the “jurat” of the return, he recites that the return is “for myself and all the beneficiaries named in schedule £E’ hereto attached.” Schedule E is “Transfers.” Thereunder property valued at $465,398.85 is put down as “description is contained in the Schedule hereto attached” and as nontaxable. The schedule referred to as “hereto attached” was a lengthy document stating, in detail, the condition of the estate; the formation by decedent of a corporation sole to which he had transferred practically all of his property some years before death; the creation of four separate trusts (-one for the widow and one for each of the three children) by decedent shortly after formation of the corporation to which was distributed all but one share of the stock of the corporation; the value of the properties held by the corporation; an argument that the trusts were not in contemplation of death; and reasons for not seasonably filing an estate tax return. This attached schedule was under oath, and affiant “states that this return is made by him in behalf of the widow and all of the heirs at law of the said Elmer A. Higley, who are the beneficiaries of the trusts which are set out in this report.” The only property seheduled in the return as belonging to the estate was one small piece of real estate valued at $1,520.
The Commissioner determined that the entire property in the four trust estates should bo included in the estate and subjected to the tax. He assessed a deficiency of $18,-229.06. Notice of this deficiency was ad-; dressed only to “Fred M. Higley, Beneficiary, Estate of Elmer A. Higley.” Thereafter a petition for redetermination was filed with the Board by the widow and the three children. The substance of this petition was that the property in the trust estates was not subject to the estate tax, for various reasons set forth. There was an extended hearing before the Board resulting in findings that the trusts were in contemplation of death and taxable as determined by the Commissioner. Of its own motion, the Board examined its jurisdiction over the parties. As to that it held as follows: That neither a legal representative of the estate of the decedent nor the trustee (a hank) was a party; that the notice of deficiency was addressed only to Fred M. Higley, and therefore it had no jurisdiction over the widow and the two other children; that it had jurisdiction only of Fred M. Higley. The result of these views as to jurisdiction was that the petition was dismissed as to the widow and two children and retained as to Fred M. Hig'ley. Then the Board examined his liability for the “estate tax” and determined that he was a “transferee,” within section 315 (b) Revenue Act of 1926 (26 USCA § 1115 (b), and liable for the entire estate tax “to the extent of the value of the property received by such transferee.” The Board found it unnecessary to determine whether he was a “benefieiary,” within the meaning of the section. Since it was admitted that the value of the trust estate of which ho was the beneficiary was much more than the tax against the entire estate, the Board determined that he' was liable for the entire tax of $18,229.06, with the right to he reimbursed “by a just and equitable contribution from other persons who are subject to a liability for the estate taxes.” In conformity with such determination, the Board entered an order of re-determination “that there is a deficiency in tax with respect to the petitioner Fred M. Higley, in the amount of $18,229.06.” Fred M. Higley petitions for this review.
The contest here is along two lines: First, that this trust property is not subject to the estate tax; second, that there is no personal liability on this petitioner for any of the estate tax, if such be assessable. It seems so clear to us that the second of these propositions is sound that it is unnecessary to examine the liability of this_ property to the tax. For onr purposes, we will assume, though not examining nor deciding, that this trust property is liable for the estate tax, and that the only question is whether this petitioner is personally liable to pay sueh tax.
The facts material to determination of this question are as follows: Some years before his death, decedent formed a corporation sole to whieh he transferred all of his property, with trivial exceptions. This corporation had 2,250 shares of par value $100. Within a month thereafter, he created four entirely distinct trusts with the same trustee (Merchants’ National Bank of Cedar Rapids, Iowa); the beneficiaries being, separately, the widow and each of the three children. The trust for the widow was in 749 shares of the stock in the corporation (he having retained one share for himself). The trust for each of the children was in separate blocks of 500 shares each. The trust instrument provided that “The Income of the Trust Fund” was to be dividends from shares of stock or other securities belonging to the trust fund (there were no “other securities”), and that the trustee should vote the stock for the creator thereof “as sole director and officer of sueh corporation” until he be unable, mentally or physically, to act as such (in which eventuality, the stoek was to be so voted for his wife); that the creator of the trust might change the trustees, and that the trust should endure for six years after his death when it might he terminated by the beneficiary (except as to the daughter, such termination extended only to half the estate in the trust for her). No trust has or could have been terminated at the date the order of redetermination was entered by the Board — within six years after death of the creator of the trusts.
On the above facts, the legal question here is whether a beneficiary of an existing trust is personally liable to pay an estate tax levied under the Revenue Act of 1926 against an estate of whieh the trust corpus is a taxable part. This is a question of construction of statutes applicable to the situation. The statute involved here is section 315 (b) Revenue Act 1926 (44 Stat. 9, 80, 26 USCA § 1115 (b). It reads as follows: “If (1) the decedent makes a transfer, by trust or otherwise, of any property in contemplation of or intended to take effect in possession or enjoyment at or after his death (except in the ease of a bona fide sale for an adequate and full consideration in money, or money’s worth) or (2) if insurance passes under a contract executed by the decedent in favor of a specific beneficiary, and if in either ease the tax in respect thereto is not paid when due, then the transferee, trustee, or beneficiary shall be personally liable for such tax, and sueh property, to the extent of the decedent’s interest therein at the time of such transfer, or to the extent of sueh beneficiary’s interest under sueh contract of insurance, shall be subject to a like lien equal to the amount of such tax. Any part of'such property sold by sueh transferee or trustee to a bona fide purchaser for an adequate and full consideration in money or money’s worth shall be divested of the lien and a like lien shall then attach to all the property of such transferee or trustee, except any part sold to a bona fide purchaser for an adequate and full consideration in money or money’s worth.”
This section expressly imposes a personal liability on “the transferee, trustee, or beneficiary.” Obviously, the congressional definition of each of these words is to be found in their use in this section, if possible. The section deals with two general classes of disposition, before death, of property by the decedent. The first of these is “transfers”; the second is “insurance.” “Transfers” expressly include trusts. While cestui que trus-■tent are ordinarily called “beneficiaries,” both in legal and every-day speech, yet it is obvious the use of the word “beneficiary” in this section applies only to insurance policy beneficiaries. It is so used specifically in the first sentence, and it is entirely omitted in the second sentence whieh is not concerned with insurance but is with trust estates. If a trust beneficiary is to be personally liable under this section, it must be because he is a “transferee.” In a broad sense, and irrespective of this section, such a beneficiary might be regarded as a “transferee” under a trust instrument. In the same sense, a trustee, who takes the entire legal title, is eertainly a “transferee” under such an instrument. In short, one (the trustee) would always be regarded as a transferee and the other (the beneficiary) might be so regarded. The question here is the meaning intended in this section. The section expressly covers transfers other than trusts. The employment of the word “transferee” must apply to sueh other transfers, and the presence of the word is readily explainable in that connection. But, in addition, the word “trustee” is employed in connection with trusts only. The result is that the application of “transferee” to trust beneficiaries is at least doubtful and the statute iu that respect ambiguous. In sueh a situation the beneficiary is entitled to a favorable construction because liability for taxation must clearly appear. Miller v. Standard Nut Margarine Co., 284 U. S. 498, 508, 52 S. Ct. 260, 76 L. Ed. 422; U. S. v. Updike, 281 U. S. 489, 496, 50 S. Ct. 367, 74 L. Ed. 984; U. S. v. Merriam, 263 U. S. 179, 187, 188, 44 S. Ct. 69, 68 L. Ed. 240, 29 A. L. R. 1547.
Passing from consideration of this section alone to consideration of it as a part of the general scheme of collecting this estate tax, the position of petitioner is further strengthened. Throughout this chapter (Estate Taxes) runs the clear plan as to collection. The prime reliance is the property subject to the tax. Upon this a lien for the taxes is placed. As further assurance, a personal liability is placed upon those who are in position to disposo of the property and possibly delay or defeat collection. Upon them is placed a strong personal incentive to see that the tax is properly and promptly paid. This burden, is placed only upon those (executors, administrators, fiduciaries, transferees, trustees, and insurance beneficiaries) who have such legal title, control, and possession as would afford opportunity to dispose of the property primarily liable for the payment of the tax. A trust beneficiary may or may not occupy such a position, dependent npon the terms of the trust, but all opportunity for him to take advantage thereof is anticipated and guarded against by placing upon the trustee a personal liability and by attaching the lien to the trust property. Although Congress has legislated repeatedly in ¡his matter, it lias in no instance used language clearly providing personal liability of a eostui quo trust.
Again, the results flowing from such a personal liability easily explain why Congress would not impose it, and they argue for a construction of doubtful language against such construction. It is common knowledge that the most usual purpose of creating trusts in contemplation of or to be enjoyed after death of the creator thereof is to provide for children or other dependents. Very often such trusts pass only the income from a trust estate to the beneficiary. To require such beneficiary to be personally liable for the estate tax (in whole or part) would result in dire hardship in many instances. It is very natural to presume that Congress deemed payment of the tax sufficiently secured by a lien on the property and by imposing a personal liability on the trustee without going further and placing this real hardship on beneficiaries who would often ho hopelessly unable to bear it.
While Congress might have the power to place such a personal liability upon trust beneficiaries who did not renounce the trust, yet it would require clear expression of such intent, and it cannot be spelled out from language (as that here) which can be given an esitirely natural and useful meaning and application excluding such intent.
The cause should be remanded, with instruction to enter an order disallowing the determination of a deficiency as to this tax against this petitioner. | 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_r_fed |
Douglas M. JONES, Plaintiff-Appellee, v. Richard A. HEYMAN, Defendant-Appellant.
No. 88-5858.
United States Court of Appeals, Eleventh Circuit.
Nov. 22, 1989.
Michael T. Burke, Ft. Lauderdale, Fla., for defendant-appellant.
David P. Karcher, Miami, Fla., for plaintiff-appellee.
Before ANDERSON and COX, Circuit Judges, and BUTLER , District Judge.
Honorable Charles R. Butler, U.S. District Judge for the Southern District of Alabama, sitting by designation.
PER CURIAM:
This appeal arises from an action that Douglas M. Jones, a citizen of the city of Key West, Florida, filed against Key West’s former mayor, Richard Heyman, and the City of Key West. Jones claimed that the mayor and the city violated his First and Fourteenth Amendment rights when Jones was silenced and removed from a public meeting of the Key West City Commission. The district court agreed and awarded Jones compensatory and punitive damages. For the reasons set forth below, we reverse.
I. BACKGROUND
On February 5, 1985, Jones attended a meeting of the Key West City Commission. As the mayor of the city, Heyman presided at the meeting. Although Jones was a member of the city’s civil service board, Jones attended the meeting in his capacity as a private citizen. Jones had attended and voiced his opinion at many commission meetings in the past. On the evening in question, Jones complied with the customary procedure to be recognized to speak on an item on the agenda. He submitted his name and the topic on which he wished to speak — senior citizen discounts for garbage removal.
The meeting began at approximately 8:00 p.m. Two and one half hours later, the city commissioners turned to this topic, and the mayor recognized Jones’ request to speak. Jones approached the podium, and began by criticizing the commission’s general spending habits. The mayor quickly rebuked Jones, advising him to confine his comments to the topic at hand. Jones retorted in a raised voice: “Let me tell you something Mister, I am on the subject. If you can’t stay germane in your mind, that’s your problem, not mine.” At this point, Jones’ attitude was decidedly antagonistic. The mayor warned Jones that any further outbursts would result in his removal from the meeting. Jones responded by saying, “I don’t think you’re big enough,” and the mayor ordered his expulsion.
Jones was escorted out of the meeting by two city police officers, taken to a detaining room, and handcuffed to the wall. He was later released when the mayor told an officer he wanted Jones removed rather than arrested. Although advised by the police officers not to reenter the commissioners’ meeting, which was still continuing, Jones attempted to do so. He was then handcuffed again and taken back to the detaining room. There is no evidence that the mayor caused Jones to be handcuffed or arrested. At the time, Jones was charged with violating City Ordinance 85-1, which prohibits conduct intended to disrupt city commission meetings.
Key West City Commission meetings are broadcast live in the city and surrounding county. Area television viewers thus witnessed both the verbal exchange between Jones and the mayor and Jones’ subsequent expulsion from the room. The incident was re-televised several times after the initial broadcast and publicized by the local newspaper and radio stations. Jones testified that both the incident and the surrounding publicity embarrassed his family and caused his business to decline.
Jones filed suit against the mayor and the City of Key West for a violation of 42 U.S.C.A. § 1983 (1981), alleging that his removal from the meeting constituted a deprivation of his rights under the First and Fourteenth amendments. Jones also sought a declaratory judgment invalidating Ordinance 85-1 as unconstitutionally vague and overbroad, and a permanent injunction barring its enforcement. The city and the mayor answered that Jones was removed from the meeting for creating a disturbance in violation of the ordinance and that the mayor had acted in good faith and under the reasonable belief that this ordinance was constitutional. The mayor also asserted that his decision to remove Jones was protected by the qualified immunity doctrine because the mayor did not violate Jones’ clearly established First Amendment rights.
Following a bench trial, the district court held that the mayor had silenced Jones based on the content of his comments and thus deprived him of his First Amendment right of free speech. The court examined the manner and content of Jones’ “challenge” to the mayor — “I don’t think you’re big enough” — and concluded it was neither sufficiently violent or provocative to constitute “fighting words” outside the scope of First Amendment protection. Although noting its lack of clarity, the court declined to pronounce Ordinance 85-1 void for vagueness or unconstitutionally overbroad. The court then rejected the mayor’s qualified immunity defense. Based on Jones’ testimony as to the emotional and economic injury he suffered from the incident, the court awarded Jones compensatory damages of $31,500. The district court also found that the mayor’s actions had “evinced callous indifference to the Plaintiff’s first amendment rights,” and ordered that the mayor pay $31,500 in punitive damages. Jones v. City of Key West, Fla., 679 F.Supp. 1547, 1563 (S.D.Fla.1988).
The mayor presents three issues on appeal. First, he challenges the district court’s ruling that his actions impermissi-bly deprived Jones of his freedom of speech. Second, he contends he is entitled to qualified immunity for his discretionary decision to remove Jones from the meeting. Third, the mayor argues that the award of punitive damages is unsupported by the law and the evidence of the case. Because we reverse on the first issue, we need not address the mayor’s second and third contentions.
II. DISCUSSION
We initially note that we must conduct a de novo review of the evidence in the record and independently determine whether Jones’ First Amendment rights have been violated. “In reviewing findings of fact in first amendment cases, this Court must make an ‘independent examination of the whole record,’ rather than relying solely on the ‘clearly erroneous’ standard.” McMullen v. Carson, 754 F.2d 936, 938 (11th Cir.1985) (citing Bose Corp. v. Consumers Union, 466 U.S. 485, 104 S.Ct. 1949, 1958, 80 L.Ed.2d 502 (1984); New York Times v. Sullivan, 376 U.S. 254, 284-86, 84 S.Ct. 710, 728-29, 11 L.Ed.2d 686 (1964)). The facts in this case are essentially undisputed. We conclude that Jones has not demonstrated that the mayor’s actions abridged his freedom of speech within the meaning of the First Amendment.
The freedom of expression protected by the First Amendment is not inviolate; the Supreme Court has established that the First Amendment does not guarantee persons the right to communicate their views “at all times or in any manner that may be desired.” Heffron v. International Soc’y. for Krishna Consciousness, 452 U.S. 640, 647, 101 S.Ct. 2559, 2564, 69 L.Ed.2d 298 (1981); Adderley v. Florida, 385 U.S. 39, 48, 87 S.Ct. 242, 246, 17 L.Ed.2d 149 (1966). Accordingly, in evaluating a citizen’s right to express his opinion on public property, the Court has established certain boundaries within which it balances a citizen’s First Amendment rights and the government’s interest in limiting the use of its property. In a traditional public forum, such as a park or a street, the government’s power to limit expressive activity is severely curtailed:
“For the State to enforce a content-based exclusion it must show that its regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end.... The State may also enforce regulations of the time, place, and manner of expression which are content-neutral, are narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication.”
Airport Comm’rs. of Los Angeles v. Jews for Jesus, 482 U.S. 569, 573, 107 S.Ct. 2568, 2571, 96 L.Ed.2d 500 (1987) (quoting Perry Educ. Ass’n. v. Perry Local Educators’ Assn., 460 U.S. 37, 45, 103 S.Ct. 948, 955, 74 L.Ed.2d 794 (1983)). The same analysis applies to speech on property which is not a traditional public forum, but which has been intentionally designated a public forum for a certain time period. In a nonpublic forum, however, the government may limit expressive activity with less exacting scrutiny by the courts. Such regulations are upheld in a nonpublic forum if they are reasonable and not merely the result of disagreement with the speaker’s point of view. Jews for Jesus, 482 U.S. at 573, 107 S.Ct. at 2571; Cornelius v. NAACP Legal Defense and Educ. Fund, 473 U.S. 788, 806, 105 S.Ct. 3439, 3451, 87 L.Ed.2d 567 (1985); Members of City Council v. Taxpayers for Vincent, 466 U.S. 789, 812, 104 S.Ct. 2118, 2133, 8Ó L.Ed.2d 772 (1984).
We agree with the district court that the city commission designated their meeting a public forum when the commission intentionally opened it to the public and permitted public discourse on agenda items. As noted by the district court, although the commission need not have created this forum in the first place, once it did so, the commission became bound by the same standards that apply in the ease of a traditional public forum. Content-neutral time, place and manner restrictions are permissible if they are narrowly drawn to achieve a significant governmental interest and if they allow communication through other channels. Content-based exclusions must be narrowly tailored to effectuate a compelling governmental interest. We address each question separately.
A. Content
The government’s purpose in limiting one’s speech in a public forum constitutes the “controlling consideration” in determining content neutrality. Ward v. Rock Against Racism, — U.S. -, -, 109 S.Ct. 2746, 2754, 105 L.Ed.2d 661 (1989). Even if a limitation on speech incidentally affects only some speakers, “[a] regulation that serves purposes unrelated to the content of expression is deemed neutral.... Government regulation of expressive activity is content-neutral so long as it is ‘justified without reference to the content of the regulated speech.’ ” Id. at -, 109 S.Ct. at 2754 (quoting Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293, 104 S.Ct. 3065, 3069, 82 L.Ed.2d 221 (1984)).
The district court found that Jones had complied with the time, place and manner restrictions imposed on the meeting and was silenced because of the content of his speech. We disagree. In our opinion, the mayor’s actions resulted not from disapproval of Jones’ message but from Jones’ disruptive conduct and failure to adhere to the agenda item under discussion. Jones began by admonishing the commission to act more prudently in its spending habits, particularly with respect to its spending on waste disposal. The commissioners’ general fiscal habits were not the topic of debate, however, and the mayor quickly directed Jones to speak only on the relevant issue. Jones’ retort — that his comments were germane and that it was the mayor’s “problem” if he failed to recognize this— was also irrelevant, and Jones was warned that any further outbursts would result in his removal. Jones responded, “I don’t think you’re big enough,” and was expelled. The substance of Jones’ views on the agenda item was thus never expressed. We decline to rule that his expulsion was based on disapproval of the content of his opinion in view of this fact.
One could reasonably infer from both Jones’ opening comment and his mannerisms that his opinion would be critical of the commission’s actions. In this sense, the mayor could have disapproved of the content of Jones’ message. However, we also realize and emphasize that we necessarily must view this brief incident from hindsight, and we are hesitant to speculate about the mayor’s exact mindset at the moment he ordered Jones’ removal. The mayor testified at trial that he perceived that Jones’ disruptive behavior would worsen if ignored, that Jones presented a possible threat of violence to the commission, and that Jones was questioning the may- or’s authority to preside over the session. In view of this testimony and the plain fact that Jones did fail to address the subject of senior citizen discounts, we conclude that Jones has not demonstrated that the may- or’s actions resulted from disapproval of Jones’ message rather than from the need to continue the orderly progression of an already lengthy commission meeting.
B. Significant Governmental Interest
A valid time, place and manner regulation must be “narrowly tailored to serve a significant governmental interest.” The Supreme Court has recognized the significance of the government’s interest in conducting orderly, efficient meetings of public bodies. In City of Madison, Joint School Disk v. Wisconsin Employment Relations Comm’n, 429 U.S. 167, 97 S.Ct. 421, 50 L.Ed.2d 376 (1976), a case considered persuasive by the district court, a teachers’ union charged that the school board had committed a prohibited labor practice in allowing a non-union teacher to speak on a matter subject to collective bargaining at an open school board meeting. The Supreme Court held that the First Amendment permitted teachers to speak at public meetings of the school board, even if they are not union representatives and even if “such speech is addressed to the subject of pending collective-bargaining negotiations.” Id. at 169, 97 S.Ct. at 423. The Court deemed the union’s attempt to limit “participation in public discussion of public business ... to one category of interested individuals” the “antithesis of [the] constitutional guarantees.” Id. at 175-76, 97 S.Ct. at 426. The Court qualified its broad language, however, with this relevant statement: “Plainly, public bodies may confine their meetings to specified subject matter and may hold nonpublic sessions to transact business.” Id. at 176 n. 8, 97 S.Ct. at 426 n. 8 (emphasis added). Justice Stewart discussed this qualification in his concurrence:
A public body that may make decisions in private has broad authority to structure the discussion of matters that it chooses to open to the public. Such a body surely is not prohibited from limiting discussion at public meetings to those subjects that it believes will be illuminated by the views of others and in trying to best serve its informational needs while rationing its time.
Id. at 180, 97 S.Ct. at 427 (Stewart, J., concurring).
We believe this reasoning controls the instant case and consider the mayor’s interest in controlling the agenda and preventing the disruption of the commission meeting sufficiently significant to satisfy this governmental interest prong of the analysis. Unlike the situation in City of Madison, the mayor was not attempting to limit the discussion to one category of interested individuals. The topic of senior citizen discounts arose at 10:30 p.m., approximately two and one half hours after the meeting began. Although Jones was the only member of the public scheduled to speak on this subject, and although the record does not reveal the number of topics covered in any one commission meeting, we feel that the mayor certainly had an important interest in confining Jones to the topic at hand and in preventing disruption of the meeting. To hold otherwise — to deny the presiding officer the authority to regulate irrelevant debate and disruptive behavior at a public meeting — would cause such meetings to drag on interminably, and deny others the opportunity to voice their opinions.
The Eighth Circuit’s opinion in Wright v. Anthony, 733 F.2d 575 (8th Cir.1984), comports with our reasoning. In Wright the plaintiff claimed a violation of his First Amendment rights when a congressman silenced him at a public hearing on social security reform. The plaintiff had been given informal notice to limit his presentation to five minutes; the plaintiff had finished only half of this presentation when he exceeded this time limit and was interrupted. The Eighth Circuit affirmed the district court’s dismissal of the plaintiff’s complaint, holding that the congressman’s actions constituted a reasonable attempt to regulate the time, place and manner of the plaintiff’s speech. The court recognized the significance of the congressman’s interest in running the meeting, stating: “[T]he [time, place and manner] restriction may be said to have served a significant governmental interest in conserving time and in ensuring that others had an opportunity to speak.” Id. at 577.
C. Narrowly Tailored Means
The mayor’s actions must also be narrowly tailored to achieve this interest. As recently clarified by the Supreme Court, the means adopted by the government need not be the least-intrusive or least-restrictive means to satisfy this prong of the analysis. Instead, “the requirement of narrow tailoring is satisfied ‘so long as the ... regulation promotes a substantial government interest that would be achieved less effectively absent the regulation.’ ” Rock Against Racism, — U.S. at -, 109 S.Ct. at 2758 (quoting United States v. Albertini, 472 U.S. 675, 689, 105 S.Ct. 2897, 2906, 86 L.Ed.2d 536 (1985)). The analysis does not hinge on the “ ‘judge’s agreement with the responsible decisionmaker concerning the most appropriate method for promoting significant government interests’ or the degree to which those interests should be promoted.” Rock Against Racism, — U.S. at -, 109 S.Ct. at 2758 (quoting Albertini, 472 U.S. at 689, 105 S.Ct. at 2906).
The district court found that Jones was “quite clearly laying the groundwork for a presentation focusing on the senior citizen discount issue.” 679 F.Supp. at 1547 (emphasis added). The court apparently opined that Jones had not wandered far from the subject of the agenda item and that if left alone, Jones would immediately proceed to it. We could agree. It is also possible, however, that Jones would have continued to wander from the subject in question and unduly prolong the meeting. This is a judgment call that a presiding officer and parliamentarian must make without the benefit of leisure reflection. Rock Against Racism instructs us that our agreement with the mayor concerning the most appropriate method of conducting the meeting is not the test. An erroneous judgment call on the part of a presiding officer does not automatically give rise to liability for a constitutional tort. The may- or’s actions in this case constituted a reasonable attempt to confine the speaker to the agenda item in question, and that conclusion should end the inquiry. We should not inquire whether we as presiding officers would have handled the matter in the same way.
D. Alternative Channels of Communication
The last requirement, that there remain ample alternative channels of communication, is easily satisfied in this case. The mayor testified at trial that the city commission provided for public discussion of non-agenda items at the end of every meeting. If Jones wanted to discuss the general fiscal responsibility of the commission or some other non-agenda item, he would have only had to wait until the end of the meeting, which was approximately one half hour from the time Jones took the podium.
We thus conclude that the mayor acted reasonably in regulating the time, place and manner of Jones’ speech. Accordingly, the judgment of the district court is REVERSED.
. The City of Key West, initially an appellant, has dismissed its appeal and is no longer a party in this action.
. This entire incident was recorded on video tape; this tape forms part of the record on review. For a verbatim transcript of the entire exchange, see the district court’s opinion at 679 F.Supp. 1547, 1550-51.
. More specifically, Ordinance No. 85-1 provides in relevant part:
Section 1: It shall be unlawful for any person to disturb or interrupt any meeting of the City Commission. The use of obscene or profane language, physical violence or the threat thereof, or other loud and boisterous behavior which the presiding officer or a majority of the commission shall determine is intended as a disruption of the meeting and a failure to comply with any lawful decision or order of the presiding officer or of a majority of the City Commission shall constitute a disturbance.
******
Section 3: Any person violating the provisions of this Ordinance may be ejected from the Commission Chambers or other meeting room for the duration of the meeting or such lesser period as the presiding officer or a majority of the commission shall determine. Any decision of the presiding officer hereunder shall be subject to appeal pursuant to Robert’s Rules of Order and the by-laws of the Commission.
This ordinance was drafted by the city attorney and enacted only one month prior to this incident.
. Prior to Jones’ suit in the district court, this criminal charge was tried in the County Court in and for Monroe County. After a one and one-half day jury trial, Jones was pronounced not guilty of violating the ordinance.
. In an order dated January 22, 1986, the district court dismissed Jones’ claim for punitive damages against the city. The court thus considered the question of punitive damages only against the mayor.
.Jones does not challenge by cross-appeal the district court’s refusal to pronounce Ordinance 85-1 void for vagueness or unconstitutionally overbroad.
The mayor’s fourth ground of appeal, which challenged the district court’s award of compensatory damages, was rendered moot by the settlement between the city and Jones and eliminated from appellate review.
. Examples of public forums created by governmental designation include a university’s meeting facilities, Widmar v. Vincent, 454 U.S. 263, 102 S.Ct. 269, 70 L.Ed.2d 440 (1981): a municipal theater, Southeastern Promotions Ltd. v. Conrad, 420 U.S. 546, 95 S.Ct. 1239, 43 L.Ed.2d 448 (1975); and a school board meeting, City of Madison Joint School Dist. v. Wisconsin Employment Relations Comm’n, 429 U.S. 167, 97 S.Ct. 421, 50 L.Ed.2d 376 (1976). See Perry Educ. Ass’n, 460 U.S. at 45, 103 S.Ct. at 955.
. The parties apparently don’t dispute this conclusion, for neither party contends otherwise.
. The mayor testified that when an agenda item was a controversial one — one that many persons wanted to address — speakers were generally allotted two or three minutes apiece. The subject of senior citizen discounts was not such a topic, and Jones was not silenced because he exceeded this pre-set time limitation. | 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. | [] | [
1
] | songer_r_natpr |
UNITED STATES v. GOODYEAR.
No. 8725.
Circuit Court of Appeals, Ninth Circuit.
Oct. 18, 1938.
STEPHENS, Circuit Judge, dissenting.
James W. Morris, Asst. Atty. -Gen., Sewall' Key;- Norman D. Keller, James P. Garland, and Lester Gibson, Sp. Assts. to ■ Atty. Gen., and Ben Harrison, U. S. Atty., and E. H. Mitchell and Alva C. Baird, Asst. U. S. Attys., all of Los Angeles, Cal., forthe United States.
Dana Latham and George Bouchard, both of Los Angeles, Cal., for appellee.
Before GARRECHT, HANEY, and STEPHENS, Circuit Judges.
HANEY, Circuit Judge.
Refund of estate taxes paid the United States was obtained by the judgment appealed from.
Ida P. Goodyear and W. E. Goodyear were married in .California- on August 18, 1891. They were at that time, and continued to be thereafter, residents of California. They acquired certain community property while married prior to July 29, 1927. Since the wife had only an “expectancy” in community property prior to 1927 (Stewart v. Stewart, 204 Cal. 546, 269 P. 439), it was held that community income could not be divided between the spouses for income tax purposes. United States v. Robbins, 269 U.S. 315, 46 S.Ct. 148, 70 L.Ed. 285. At that time California Civil Code § 172 provided that “The husband has the management and control of the community personal property, with like absolute power of disposition, other than testamentary, as he has of his separate estate” subject to certain exceptions. Likewise at that time, California Civil Code § 172a provided that “The husband has the management and control of the community real property, but the wife, either personally or by duly authorized agent, must join with him in executing any instrument by which such community real property or any interest therein is leased for a longer period than one year, or is sold, conveyed, or encumbered” subject to certain exceptions.
Likewise it was held that all of the community property for estate tax purposes, must be included in the value of a decedent’s estate. Wardell v. Blum, 9 Cir., 276 F. 226, certiorari denied 258 U.S. 617, 42 S.Ct. 271, 66 L.Ed. 793; Talcott v. United States, 9 Cir., 23 F.2d 897, certiorari denied 277 U.S. 604, 48 S.Ct. 601, 72 L.Ed. 1011; Title Insurance & Trust Co. v. Goodcell, 9 Cir., 60 F.2d 803, certiorari denied 288 U.S. 613, 53 S.Ct. 404, 77 L.Ed. 986.
In 1923 there was an amendment to the Civil Code, § 1401 (now § 201 of the Probate Code) provided that “Upon the death of either husband or wife, one-half of the. community property belongs to the surviving spouse; the other half is subject to the testamentary disposition of the decedent, and in the absence thereof goes to the surviving spouse” subject to certain exceptions.
On July 29, 1927, § 161a, an amendment to the Civil Code became effective. It provided: “The respective interests of the husband and wife in community property during continuance of the marriage relation are present, existing and equal interests under the management and control of the husband as is provided in sections 172 and 172a of the Civil Code. This section shall be construed as defining the respective interests and rights of husband and wife in community property. * * *»
After that amendment, litigation ensued over the question as to whether the income of the community could then be divided for income tax purposes. The question was answered in the affirmative on January 19, 1931, in United States v. Malcolm, 282 U.S. 792, 51 S.Ct. 184, 75 L. Ed. 714.
Ida P. Goodyear and W. E. Goodyear entered into an agreement as of January 1, 1931, on July 9, 1931. The instrument provided in part:
“Whereas, the parties hereto are the owners of certain personal and real property, hereinafter described, as community property, all of the same having been acquired by them after their marriage on the 18th day of August, 1891; and,
“Whereas, all of said property was acquired by the parties hereto previous to July 29, 1927, or from income from property acquired previous to July 29, 1927; and,
“Whereas, it is the desire of the party of the first part to vest, in the party of the second part, a present, existing and equal interest in such community property and in all property acquired by them from income derived therefrom, the same as if said property had been acquired by the parties hereto as community property after July 29, 1927;
“Now, Therefore, the said party of the first part, in consideration of the love and affection which he has and bears unto the said party of the second part, does hereby give, grant, convey and confirm unto the party of the second part such an interest in the personal and real property herein described and referred to as will vest in her, with the party of the first part, a present, existing and equal interest in said personal and real property. * *
“It is not the intention of this instrument to create in the parties hereto a tenancy in common in said property to which reference is herein made, but rather to vest in the party of the second part such an interest in the community property as she would have at the present time were the property to be acquired now from earnings of either of the parties hereto accumulated or earned since July 29, 1927.”
That instrument was acknowledged on July 9, 1931, and recorded in the proper county in California on the following day.
On September 3, 1933, W. E. Goodyear died in California. On October 2, 1933, Ida P. Goodyear was appointed executrix of his estate, qualified, and since has acted as such. On June. 12, 1934, the executrix, hereafter called appellee, filed an estate tax return, including therein only one-half of the value of the community property, and on that day paid the amount of tax shown to be due by the return. The Commissioner of Internal Revenue audited the return, and determined that the entire value of the community property should have been included in the return. On December 21, 1935, appellee paid the additional tax and interest demanded, in the sum of $7,671.22.
On January 22, 1936, appellee filed a claim for refund, which was denied on April 10, 1936. On April 18, 1936, this action against appellant was commenced to recover the amount of the additional tax paid with interest. The trial court held that the agreement gave Ida P. Goodyear the same interest in the community property as she would have had if the property had been acquired after the effective date of § 161a of. the Civil Code. Judgment was entered on July 21, 1937. This appeal followed.
The' applicable statute is § 302 of the Revenue Act of 1926 (44 Stat. 9). The Act of March 3, 1931 (46 Stat. 1516) amended subdivision (c) of that section. In quoting that section the matter added to the amendment is shown in italics. Section 302 provides in part:
“The value of the gross estate of the decedent shall be determined by including the value at the time of his death of all property, real or personal, tangible or intangible, wherever situated — * * *
“(c) To the extent of any interest therein of which the decedent has at any time made a transfer, by trust or otherwise, in contemplation of or intended to take effect in possession or enjoyment at or after his death, including a transfer under Which the transferor has retained for, his life or any period not ending before his death (1) the possession or enjoyment of, or the income from, the property or (2) the right to designate the persons zvho shall possess or enjoy the property or the income therefrom; except in case of a bona fide salé for an adequate and full consideration in money or money’s worth.
“(d) To the extent of any interest therein.of which the decedent has at any time made a transfer, by trust or otherwise, where the enjoyment thereof was subject at the date of his death to any change through the exercise of a power, either by the decedent alone or in conjunction with any person,' to alter, amend, or revoke, or where the decedent relinquished any such power in contemplation of his death, except in case of a bona fide sale for an adequate and full consideration in money or money’s worth. * * * ”
First Although it had been decided that local law was controlling in determining who owned community earnings with regard to income tax, the Supreme Court had not, until recently ruled with respect to estate taxes. In Burnet v. Harmel, 287 U.S. 103, 110, 53 S.Ct. 74, 77, 77 L.Ed. 199, it was said that “state law may control only when the federal taxing act, by express language or necessary implication, makes its own operation dependent upon state law”. In accordance with that rule, thé Supreme Court had applied that rule, and held with respect to1 ownership of property, and the extent thereof, that general law would apply, rather than local law, and had reached a result opposite to what it would have reached had local law been applied. See cases cited in Welch v. Kerckhoff, 9 Cir., 84 F.2d 295, 298, 106 A. L.R. 1434.
The primary question was,, then, whether § 302 was to depend on ownership, as defined by local law. Construing that section, it was said in Porter v. Commissioner, 288 U.S. 436, 441, 53 S.Ct. 451, 452, 77 L.Ed. 880: “The net estate as there used does not mean an amount to be ascertained as such under any general rule of law or under statutes governing the administration of estates, but is the gross estate as specifically defined in section 302 * * * less deductions permitted by section 303 * * * ”
It is obvious that statutes relating to community property govern “the administration of estates” and therefore, under the language used, it would seem that such statutes would not be applicable. We so held in Bank of America Nat. T. & Sav. Ass’n v. Com’r of Int. Rev., 9 Cir., 90 F.2d 981, 983, saying that we believed local law “to be immaterial”. Thereafter, that statement was said to be “inaccurate” and community property law was applied under § 302, in Lang v. Commissioner, 304 U.S. 264, 58 S.Ct. 880, 82 L.Ed. 1331, May 16, 1938, the opinion making no explanation of, or reference to, Porter v. Commissioner, supra. In view of Lang v. Commissioner, supra, the present rule seems to be that community property law is applicable in determining the amount of the gross estate under § 302, and we consider the instant case on that assumption.
Second. Appellant contends that the agreement did not operate ás a “transfer” because it “merely attempted to define a. tenancy without creating one and did not establish an interest in and to property by any recognized conveyance”. In view of the granting words, we think the agreement was sufficient in form to operate as a conveyance.
Appellant further contends that there was no transfer'because decedent “gave up none of his statutory rights, powers or privileges with regard to community property acquired in California prior to 1927, and she by the same token gained no additional rights, powers or privileges in and to such property”. We believe this contention cannot be sustained.
California Civil Code, § 158 provides that “Either husband or wife may enter into any engagement or transaction with the other * * * respecting property, which either might if unmarried * * * ”. Section 159 provides: “A husband and wife cannot, by any contract with each other, alter their legal relations, except as to property is apparent that husband and wife may make a valid contract with each other, and may alter their legal relations with respect to property. Here decedent granted a present and equal interest in the property to which his wife then became entitled by virtue of the grant. Her legal rights were changed from an “expectancy” to a present and equal interest in the community property. The grant took effect, we think, upon delivery of the grant by virtue of § 1054 of the Civil Code, which provides: “A grant takes effect, so as to vest the interest intended to be transferred, only upon its delivery by the grantor”. * * ”. Thus, it
Third. Appellant further contends that even if the agreement did constitute a transfer, it was “intended to take effect in possession or enjoyment at or after death” and therefore the entire value should have been included in the gross estate pursuant to § 302(c), before amendment. Vesting of the interest, however, took place upon execution and delivery of the agreement, and was intended as such, and not at the death of the decedent. While such interest vested immediately, other rights, such as disposal, accrued to her upon the death of decedent. There is here no contention that such rights were sufficient to authorize taxation of the privilege of disposing of them. Compare Tyler v. United States, 281 U.S. 497, 50 S.Ct. 356, 74 L.Ed. 991, 69 A.L.R. 758; Gwinn v. Commissioner, 287 U.S. 224, 53 S.Ct. 157, 77 L.Ed. 270.
Fourth. Appellant further contends that decedent “retained for his life * * * the possession or enjoyment of * * * the property” ánd therefore the entire value should have been included in the gross estate under § 302(c) as amended. Eliminating redundant parts of the statute, we find that there must be included in the value of the gross estate “all property * * * To the extent of any interest therein of which the decedent has at any time made * * * a transfer under which the transferor has retained for his life * * * . the possession or enjoyment of * * * the property”. We think what decedent retained was his own interest. Both spouses had possession and enjoyment of the property and owned the income therefrom, although the property was subject to “management and control” by decedent. The terms “management and control” are not synonymous with “possession and enjoyment”. That one may manage and control property- without either possession or enjoyment is illustrated by the situation where an agent manages real property for the owner. In such case although the agent may have absolute control in managing and renting the property and in collecting rents, the rents belong to the owner who enjoys them. We think that theoretically each spouse had possession and enjoyment of his particular' in-s terest. Decedent, therefore, did not possess and enjoy his wife’s interest. If in controlling and managing the property, decedent transferred possession and enjoyment to' a third person, the fruits received for such transfer, were then owned by both spouses. See the cases in the dissenting opinion in Bank of America Nat. T. & Sav. Ass’n v. Com’r of Int. Rev., supra, page 985.
Fifth. Appellant further contends that while the agreement is irrevocable, decedent could have used the property so as to “alter, amend or revoke” the effect of the agreement, and therefore the entire value should be included pursuant to § 302(d). We do not understand that decedent had such power, however. By Civil Code § 172, he could not make a gift of, or dispose of, the community personal property, except for a valuable consideration, without the written consent of the wife. Civil Code § 172a, quoted above, discloses that except for leases for less than a year, the wife is required to join in executing an instrument. If on disposal of either kind of property, consideration is received, then such consideration becomes community property. See the dissent in Bank of America Nat. T. & Sav. Ass’n v. Com’r of Int. Rev., supra, page 985.
Sixth. The remaining contention of appellant is that if only one-half of' the community property is included, then only one-half of the community debts should be deducted. Section 303 of the act in question, 44 Stat. 72, permits deduction of “claims against the estate”. Article 36 of Regulations 80,.is applicable, and provides that there may be deducted amounts which “represent personal obligations of the decedent existing at the time of his death”. It was stipulated by the parties that the deduction was “the amount of $5,696.91, representing 100% of the debts of said W. E. Goodyear at the date of his death”. Since those debts were personal debts of decedent, and not debts of the community, the deduction was properly, made.
Affirmed.
The effect of Erie Railroad Company v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487, April 25, 1938 and Ruhlin v. New York Life Ins. Co., 304 U.S. 202, 58 S.Ct. 860, 82 L. Ed. 1290, May 2, 1938, if any, on this rule is yet to-be determined; | 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"
] | [
7
] | songer_genresp1 |
BUCHER v. VANCE et al.
Circuit Court of Appeals, Seventh Circuit.
December 13, 1929.
No. 4230.
A. D. Gash, of Chicago, 111., for appellant.
Allan Healy, of Chicago, 111., for appellees.
Before ALSCHULER, EVANS, and PAGE, Circuit Judges.
ALSCHULER, Circuit Judge.
The appeal is from a decree of the District Court dismissing as to appellee Bates a creditors’ bill, to which Bates was a party defendant, brought in the circuit court of Cook county, 111.,' and removed to the federal court by Bates.
Bueher had recovered in the state court a judgment for $1,301.75 against L. F. Vance, and execution thereon was returned unsatisfied.
In the United States District Court for the Northern District of Illinois there was pending a suit brought by Vance, in which, rmder order of the court, there had been paid to Bates, as the clerk of said District Court, a sum of money, of which the court ordered its clerk, Bates, to pay Vance the sum of $5,626.44. Pursuant to the order, Bates, as clerk, made and sent to Vance a check for that amount, which cheek Vance declined to accept, and returned it to Bates, leaving the possession of the fund unchanged.
Bucher filed his creditors’ bill in the state court, making Bates a party, seeking thus to subject the fund to the payment of his judgment against Vance.
The single issue here is whether funds so paid into and remaining under the control of the District Court can be reached by a creditors’ bill upon a judgment in another court.
Section 851, 28 USCA, makes provision for the payment of money into court and its deposit. Section 852 provides: “No money deposited as aforesaid shall be withdrawn except by order of the judge or judges of said court, respectively, in term or in vacation, to be signed by such judge or judges, and» to be entered and certified of record by the clerk; and every such order shall state the cause in or on account of which it is drawn.”
In Wayman v. Southard, 10 Wheat. (23 U. S.) 1, 23, 6 L. Ed. 253, it was said: “The jurisdiction of a court is not exhausted by the rendition of its judgment, but continues until that judgment shall be satisfied.”
In Osborn v. United States, 91 U. S. 474, 479, 23 L. Ed. 388, it was said: “The power of the court over moneys belonging to its registry continues until they are distributed pursuant to final decrees in the eases in which the moneys are paid. If from any cause they are previously withdrawn from the registry without authority of law, the court can, by summary proceedings, compel their restitution.”
Notwithstanding the issuance ' of the check, the money thus paid into court was not distributed until it reached the hand of the party to whom the court ordered it paid. The making of the order and the issuing of the cheek were not of themselves a distribution. They were steps which would lead to ultimate distribution by actual payment of the fund pursuant to the court’s order.
The trend of federal decisions has long been quite strongly against the right to subject such a fund to control by the process of another court, or through other proceedings.
In Re Lottawanna, 20 Wall. (87 U. S.) 201, 224, 22 L. Ed. 259, it was sought by an independent proceeding to reach a fund in the registry of the court. The court refused to subject the fund to seizure for the satisfaction of a judgment against its owner, giving as reasons for its conclusion:
“1. Because the fund, from its very nature, is not subject to attachment either, by the process of foreign attachment or of garnishment, as it is held in trust by the court to be delivered to whom it may belong, after hearing and adjudication by the court.
“2. Because the proceeds in such a case are not by law in the hands of the clerk nor of the judge, nor is the fund subject to the control of the clerk. Moneys in the registry of the Federal courts are required by the act of Congress to be deposited with the Treasurer of the United States, or an assistant treasurer or designated depositary, in the name or to the credit of such court, and the provision is that no money deposited as aforesaid shall be withdrawn except by the order of the judge or judges of said-. eourts respectively, in term time or vacation, to be signed by such judge or judges and to be entered and certified of record by the clerk. Regulations substantially to the same effect have existed in the acts of Congress for more than half a century, and within that period it is presumed that no proceeding to attach such a fund by a creditor of the owner has ever been sustained.”
In Jones v. Merchants’ Nat. Bank et al. (1 C. C. A.) 76 F. 683, 687, 35 L. R. A. 698, it was held that bills would not lie to reach funds in the hands of a United States District Court or other depositaries of the court. In the opinion it was said: “The futility of all such- bills is sufficient to defeat them, because, notwithstanding the pendency of one of them, the court having control of a fund may order the entire disposition of it summarily, thus leaving nothing for the bill to act on. A bill which can reach no result except by staying the ordinary and rightful exercise of the essential functions of the court is, by its character, so futile that it ought to be dismissed for that reason alone; but it is enough to say that the ruie that bills of this sort will not be tolerated is so fundamental, and so necessary to the full exercise of judicial functions, that the reasons on which it rests need not be further stated.” To like effect may be cited In re Forsyth (D. C.) 78 F. 296; United States v. Eisenbeis et al. (D. C.) 88 F. 4, and Martin Co. v. Shannonhouse (D. C.) 203 F. 517.
In 5 Pomeroy Eq. Jur., 2d Ed. 1919, § 2304 (881), it is stated that: “Money in custodia legis, iu the hands of a clerk of court in his official capacity, cannot be made the subject of a creditors’ bill.”
Upon authority, therefore, as well as upon principle, we are satisfied that, in the absence of federal statutory authorization, this fund, in the registry of the District Court, and under its control, could not be subjected to seizure on behalf of creditors of the owner.
The District Court properly dismissed the creditors’ hill as to'Clerk Bates, and its decree 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.
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"
] | [
2
] | songer_genresp2 |
LOCAL 620, ALLIED INDUSTRIAL WORKERS OF AMERICA, AFL-CIO, and Dura Corporation, Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
Nos. 16698, 16724.
United States Court of Appeals Sixth Circuit.
April 8, 1967.
Richard M. Goldberg, Milwaukee, Wis., for petitioner, Local, 620, etc., David Leo Uelman, Goldberg, Previant & Uel-man, Milwaukee, Wis., on the brief.
Donald S. Young, Detroit, Mich., for petitioner, Dura Corp., James D. Tracy, Dykema, Wheat, Spencer, Goodnow & Trigg, Detroit, Mich., on the brief.
Peter M. Giesey, A tty., National Labor Relations Board, Washington, D. C., for respondent, Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Assoc. Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Allison W. Brown, Jr., Atty., National Labor Relations Board, Washington, D. C., on the brief.
Before WEICK, Chief Judge, and O’SULLIVAN and PECK, Circuit Judges.
O’SULLIVAN, Circuit Judge.
The NLRB has found certain conduct of the Dura Corporation and Local 620 of the Allied Industrial Workers (AIW) violative of Sections 8(a) (1) and (2) and 8(b) (1) (A) and (2) of the National Labor Relations Act. Dura and AIW petition this Court for review of the Board’s decision, and the Board cross-petitions for enforcement of the order it has entered in the case. The issue before us is whether conduct of Dura and the AIW union and their making of a bargaining agreement coercively interfered with the rights of employees in one of Dura’s plants to choose their own bargaining representative.
Dura Corporation manufactures and sells automobile parts, lawn mowers, farm implements, and service station equipment at some thirteen locations throughout the United States. Its Motor State Products Division (Ypsilanti plant) in Ypsilanti, Michigan, manufactured exclusively, until June, 1964, convertible top frame assemblies for each of the major American automobile com-nanies.. Currently, it works mainly on tops for Ford Motor Company. Employees at the Ypsilanti plant have been represented by AIW since 1946.
In late 1963, executives at Dura concluded that the Ypsilanti plant was run on an excessive overtime basis; employees worked a 7 day week on two twelve-hour shifts, beyond the endurance and capacity of the workers and the plant’s machinery. Various proposals to ease the situation were suggested, and finally in April, 1964, a plant was acquired in Adrian, Michigan, some 45 to 50 miles from Ypsilanti, to be operated as an additional facility. It was anticipated that the Ford line of convertible tops, constituting fifty percent of Dura’s business in this field, would be retained in Ypsilanti, while the Fisher, Chrysler and American Motors lines would be transferred to Adrian.
News of the planned expansion reached the AIW, which reacted to what it considered a threat of reduction in jobs at the Ypsilanti plant if the move to Adrian took place. Dura was warned that it could expect a strike if it attempted to begin operations at the new site before any agreement had been reached protecting the Ypsilanti employees. Heated meetings and discussions ensued. Ways to meet the problem were suggested, considered and dropped. Finally a supplemental agreement to the existing master contract between Dura and AIW was drafted and executed. Its terms provided that employees at Ypsilanti, laid off because of seasonal lows in the automobile industry, would have the right, to bump junior employees at the Adrian plant; all Ypsilanti employees had the right to bid in to jobs as they became available at the new installation. Dura also agreed to recognize the AIW as the bargaining representative of all its new Adrian employees. In exchange for these concessions the AIW allowed Adrian workers to be paid on a day rate, rather than according to the incentive-wage plan in effect at Ypsilanti. Life and health insurance benefits were higher at Ypsilanti, but other provisions of the master contract — vacation, holiday and pension benefits — were carried over intact to Adrian. Transferees from Ypsilanti, however, in general would retain all the advantages they had enjoyed previously.
The supplemental agreement was reached on August 3, 1964. At that time the Adrian plant had begun operations and employed some 40 workers, all ■“new hires” from the Adrian area. AIW, which now purported to represent these employees, never made any claim to Dura that a majority of them had designated it as their bargaining agent. Nevertheless, on August 4, the Adrian workers were called together and informed by Dura’s Ypsilanti director of industrial relations that a contract covering the Adrian plant had been negotiated between Dura and the AIW.
Two days later Dura received a letter from the United Auto, Aerospace and Agricultural Implements Workers of America, AFL-CIO (UAW) informing it that agents of the UAW had commenced an organizational drive among the Adrian plant workers, and that a majority of them had chosen it as their exclusive representative for purposes of collective bargaining. Prior to this time, the company had no knowledge of UAW’s organizing activities. The letter advised Dura that no other union represented the involved Adrian employees and requested that negotiations leading to a contract begin.
Notwithstanding the UAW letter, Dura and AIW formally executed the supplemental agreement on August 14, 1964. Additional terms of that agreement, arrived at earlier, required Adrian plant employees be members of the AIW as a condition of employment; there was provision also for dues check-off by Adrian workers, but only ten or twelve ■employees ever signed a dues check-off authorization. No dues, however, were ■ever deducted by Dura on behalf of the AIW, and the union informed the company that it waived enforcement of the AIW membership requirement.
The accuracy of the foregoing facts is disputed in part by appellants; but such facts, and those hereinafter recited, were found by the Board, and we cannot say that they are not supported by substantial evidence. We, therefore, accept them. 29 U.S.C. § 160(e); Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951).
Both the Adrian and Ypsilanti plants are currently run as separate divisions of Dura Corporation, each reporting to Dura’s vice-president in charge of manufacturing and sales activities.. Each has its own plant superintendent and industrial relations director and does its own hiring, handles its own payroll and administers its own grievance procedures. Some tooling and dies were originally transferred from Ypsilanti to the Adrian plant, but most of the machinery the new installation uses in making convertible tops was acquired elsewhere. With the exception of the bows, components of the convertible frame assembly, that are made exclusively at Ypsilanti, the Adrian division does not depend on the Ypsilanti plant for any of its material or processing. The initial complement of manpower at Adrian went from 40 employees in August, 1964, to around 300 in December, 1964, and then leveled off to between 250 and 270. Ten workers from Ypsilanti transferred temporarily to Adrian in October-December of 1964, but none remained longer than a month or so; there has been no other interchange of employees between the two divisions. Petitioners attribute this fact, first, to the introduction of Ford’s Mustang in the summer of 1964, the success of which kept the Ypsilanti plant in full time operation, without the anticipated cut-back in production; when seasonal layoffs did occur, transfers of any employees from Ypsilanti to Adrian were refused by Dura after the issuance of the unfair labor charge and pending the outcome of this action.
From these facts the Board found that the Adrian plant was not an accretion to the Ypsilanti plant and that there was not such a community of interest and functional integration between the two facilities as to require them to be viewed as a single bargaining unit. It concluded that Dura Corporation and the AIW violated, respectively, Sections 8(a) (2) and (1) and Sections 8(b) (2) and (1) (A) of the Act, by executing the supplemental agreement at a time when AIW was not the majority representative of the Adrian plant employees. It held that such conduct accorded unlawful recognition of the union by the employer, and infringed upon the statutory right of Adrian employees to choose freely their own bargaining representative.
In attacking the Board’s determination appellants argue, first, that under the facts of this case the Adrian plant must be regarded as an accretion to the Ypsilanti plant, that a sufficient “community of interest” exists between the employees at the two facilities 'as to require that they bargain through the same representative. Second, the appellants urge that the issue properly before the Board was only whether Dura and AIW entered into a contract covering an appropriate unit in which the union represented a majority of the employees; and that the Board did not, in this case, have discretion to choose the appropriate unit.
We find it difficult to keep these contentions separate. Whether or not the Adrian plant was an accretion to the Ypsilanti plant, or whether the two facilities could be considered an appropriate single unit for collective bargaining is precisely the sort of issue to be left to the Board’s discretion by Section 9(b) of the Act. A unit is not a flexible thing, as broad or narrow as an employer and union care to make it. It is for the Board to decide, once the scope of a bargaining unit is called into question, whether or not such unit is appropriate for the purposes of collective bargaining. And this Court has said, in Metropolitan Life Ins. Co. v. NLRB, 330 F.2d 62, 65 (C.A. 6, 1964), rev’d and remanded on other grounds, 380 U.S. 525, 85 S.Ct. 1326, 14 L.Ed.2d 265:
“The Board has the authority under the Act to determine the appropriate units for collective bargaining. (Section 159(b), Title 29, U.S.C.) It has wide discretionary powers in this respect. What is an appropriate unit is a question of fact to be determined by the Board upon the facts of each case. Its decision will not be disturbed except for an abuse of discretion or violation of the statute. Packard Motor Car Co. v. N.L.R.B., 330 U.S. 485, 67 S.Ct. 789, 91 L.Ed. 1040; Pittsburgh Plate Glass Co. v. N.L.R.B., 313 U.S. 146, 61 S.Ct. 908, 85 L.Ed. 1251; N.L.R.B. v. Prudential Ins. Co., 154 F.2d 385, 388, C.A. 6; N.L.R.B. v. Morganton Full Fashioned Hosiery Co., 241 F.2d 913, C.A. 4.”
See also NLRB v. Winn-Dixie Stores, Inc., 341 F.2d 750, 756 (C.A. 6, 1965), cert. den. 382 U.S. 830, 86 S.Ct. 69, 15 L.Ed.2d 74.
That this is not a representation case does not change the role of the Board. Nor is this a case where an appropriate unit was already in existence, and the Board attempted to bypass the procedural requirements of Section 9(c) of the Act (which allows dissatisfied minority employees to seek separate representation) by holding that a new operating division within the unit did not constitute an accretion thereto. See NLRB v. Appleton Electric Co., 296 F.2d 202, 206 (C.A. 7, 1961). Here the question was whether the boundaries of a valid bargaining unit could be contractually extended by an employer and union to cover employees at a distant plant who never indicated their support of that union. The Board found that the new facility did not constitute an accretion to the old plant, and that there was not a sufficient community of interest demonstrated between the Adrian workers and the Ypsilanti workers to justify the former being represented, without their acquiescence, by the same bargaining agent. From the facts detailed in the record before us — the existence of separate administrative units, the geographical distance between the plants, their lack of significant functional integration, the contractual differences governing the two groups of workers, the failure of any substantial interchange of employees to take place, even in the period preceding the lodging of the unfair labor complaint — we are not able to conclude that the Board’s findings constituted an abuse of discretion.
We do not fault the vigorous effort of Dura and AIW to resolve the problems engendered by the transfer of operations from Ypsilanti. From the evidence it is clear that the AIW union employed strong pressures on the company —threats of a strike if any equipment was transferred for operations commenced at Adrian before a contract giving AIW exclusive bargaining rights at Adrian was concluded — but surrender to these pressures would not exculpate the company if by so doing the law was violated. Even assuming that the doctrine announced in Fibreboard Paper Products Corp. v. NLRB, 379 U.S. 203, 85 S.Ct. 398, 13 L.Ed.2d 233 (1964) required the two parties to bargain over the consequences of such a transfer, we do not believe that any settlement which emerges is necessarily invulnerable to Board inspection. Indeed the Supreme Court in Fibreboard acknowledged that it was not possible to say whether a satisfactory solution could be reached in every instance that an issue was subjected to the process of collective bargaining. 379 U.S. at 214, 85 S.Ct. 398. As found by the Board, the agreement entered into by petitioners cannot be regarded as a satisfactory solution. The rights of the employees at Adrian to choose their own bargaining representative cannot be abrogated by the contract executed between Dura and AIW. See International Ladies’ Garment Workers’ Union AFL-CIO v. NLRB, 366 U.S. 731, 738, 739, 81 S.Ct. 1603, 6 L.Ed.2d 762 (1961).
Enforcement of the order of the Board is granted.
. § 8(a) It shall be an unfair labor practice for an employer—
(1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 157 of this title;
(2) to dominate or interfere with the formation or administration of any labor organization or contribute financial or other support to it: Provided, that subject to rules and regulations made and published by the Board pursuant to section 156 of this title, an employer shall not be prohibited from permitting employees to confer with him during working hours without loss of time or pay; * * *
(b) It shall be an unfair labor practice for a labor organization or its agents—
(1) to restrain or coerce (A) employees in the exercise of the rights guaranteed in section 157 of this title: Provided, That this paragraph shall not impair the right of a labor organization to
prescribe its own rules with respect to the acquisition or retention of membership therein; or * * *
(2) to cause or attempt to cause an employer to discriminate against an employee in violation of subsection (a) (3) of this section or to discriminate against an employee with respect to whom membership in such organization has been denied or terminated on some ground other than his failure to tender the periodic dues and the initiation fees uniformly required as a condition of acquiring or retaining membership.
. Section 9(b) states that “The Board shall decide in each case whether, in order to assure to employees the fullest freedom in exercising the rights guaranteed by this subchapter, the unit appropriate for the purposes of collective bargaining shall be the employer unit, craft unit, plant unit, or subdivision thereof.” | 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. | [] | [
1
] | songer_r_fed |
EPISCOPAL HOSPITAL, et al., Appellants, v. Donna E. SHALALA, Secretary, Health and Human Services.
Nos. 92-5033, 92-5034.
United States Court of Appeals, District of Columbia Circuit.
Argued March 18, 1993.
Decided June 18, 1993.
Mark H. Gallant, Philadelphia, PA, argued the cause for appellants.
Linda A. Ruiz, Atty., Dept, of Health and Human Services, Washington, DC, argued the cause for appellee. With her on the briefs were Stuart M. Gerson, Asst. Atty. Gen., Jay B. Stephens, U.S. Atty. at the time the brief was filed, and John D. Bates, Asst. U.S. Atty. R. Craig Lawrence, Asst. U.S. Atty., Washington, DC, also entered an appearance for appellee.
Before EDWARDS, SENTELLE, and HENDERSON, Circuit Judges.
Opinion for the Court filed by Circuit Judge SENTELLE.
SENTELLE, Circuit Judge:
This is an appeal from a District Court judgment upholding the validity of regulations issued by the Secretary of Health and Human Services (the “Secretary”) under 42 U.S.C. § 1395ww(d) (1988), which sets forth the methodology for calculating hospitals’ Medicare cost reimbursement under the Prospective Payment System (“PPS”). Appellants argue that the Secretary’s PPS regulations are based in part on an erroneous interpretation of the enabling statute, or are arbitrary and capricious. The District Court disagreed; we reach the same result and therefore affirm the District Court’s judgment.
I. Background
A. Statutory and Regulatory Framework
Part A of the Medicare Program, 42 U.S.C. § 1395c et seq. (1988 & 1991 Supp. Ill), authorizes payment for primary institutional care, such as hospital services, to eligible aged and disabled persons. Providers of these services are reimbursed by fiscal intermediaries designated by the provider and the Secretary. 42 U.S.C. § 1395h (1988); 42 C.F.R. § 421.103 (1992). Under Part A, Medicare beneficiaries receive coverage for 90 days of hospital inpatient services in each benefit period, as defined by the statute and regulations, plus an additional 60-day lifetime reserve. 42 U.S.C. § 1395d (1991 Supp. Ill); 42 U.S.C. § 1395q (1988); 42 C.F.R. § 409.60 et seq. (1992).
Until October of 1983, the Medicare Program reimbursed hospitals and other health care providers for the “reasonable cost” of covered services, defined as the “cost actually incurred, excluding therefrom any part of incurred cost found to be unnecessary in the efficient delivery of needed health services.” 42 U.S.C. § 1395x(v) (1988). Under this reasonable-cost regime, hospitals providing inpatient care to Medicare patients received reimbursement for allowable operating costs of services provided to patients, but only to the extent the services were provided on days for which the patients had Medicare coverage. Id. § 1395q(d).
Concerned that hospitals had little incentive to reduce or contain costs because reasonable cost reimbursement shifts the burden of cost increases from hospitals to the federal government, Congress enacted provisions in the Tax Equity and Fiscal Responsibility Act of 1982 (“TEFRA”), Pub.L. No. 97-248, 96 Stat. 324 (1982) (codified at scattered sections of 42 U.S.C.), to address containment of Medicare costs. While the TEFRA provisions left the basic retrospective, cost-based structure of Part A reimbursement undisturbed, it imposed a limit on the rate of increase of Part A reimbursement.
Under TEFRA, the rate-of-increase limit for each hospital was tied to a “target amount.” This amount was the hospital’s allowable costs of inpatient hospital services for the preceding cost reporting period, increased by a specified percentage in each succeeding cost reporting period. 42 U.S.C. § 1395ww(b)(3)(A) (1988). Though hospitals were subject to reductions in the amount of their Part A reimbursements if their operating costs exceeded the applicable target amounts, id. § 1395ww(b)(l)(B), they received bonuses if their operating costs were less than their target amounts. Id. § 1395ww(b)(l)(A); 42 C.F.R. § 413.40 (1992).
TEFRA also set out specific exceptions and adjustments to the new limits. Section 1395ww(b)(4)(A) directed the Secretary to “provide for an exemption from, or an exception and adjustment to, the [rate of increase] method ... where events beyond the hospital’s control or extraordinary circumstances ... create a distortion in the increase in costs for a cost reporting period.” 42 U.S.C. § 1395ww(b)(4)(A). In addition, the subsection authorized the Secretary to “provide for such other exemptions from, and exceptions and adjustments to, such method as the Secretary deems appropriate.” Id.; see also 42' C.F.R. § 413.40(f)-(g) (exemptions and adjustments).
In 1983, Congress replaced the TEFRA-mandated system with a more radical reform of inpatient cost reimbursement, known as the Prospective Payment System. See Pub.L. No. 99-272, § 9102, 100 Stat. 155 (1986) (codified as amended, 42 U.S.C. § 1395ww(d) (1988 & 1991 Supp. Ill)); 42 C.F.R. § 412.1 et seq. (1992). Under this system, hospitals and other health care providers are reimbursed on the basis of prospectively determined national and regional rates, rather than reasonable operating costs. The system classifies Medicare patients into one of approximately 470 “diagnosis related groups” (“DRGs”) based on differences in patients’ utilization of hospital resources by groups and establishes fixed rates for each. The PPS rates do not vary according to the actual costs of individual cases, but are designed to allow efficient providers to recover their average costs of serving Medicare patients during a cost reporting period.
In enacting the PPS, Congress simultaneously provided for various exceptions and adjustments, as it had when it enacted TEFRA’s rate-of-increase limit. Section 1395ww(d)(5) directs the Secretary to implement specific exceptions and adjustments, 42 U.S.C. § 1395ww(d)(5)(A)-(H), and to provide by regulation for other exceptions and adjustments to payment amounts “as the Secretary deems appropriate.” Id. § 1395ww(d)(5)(I). In contrast to the analogous provision in TEFRA, however, § 1395ww(d)(5)(I) does not direct the Secretary to adjust reimbursement amounts where “extraordinary circumstances” distort the increase in costs for a particular cost reporting period.
Though eager to restrain health care costs, Congress recognized that immediate institution of the PPS could pose financial hardship for many health care providers. It therefore created a four-year transition period between the reasonable cost system and the PPS, 42 U.S.C. § 1395ww(d), designed to “minimize disruptions that might otherwise occur because of a sudden change in reimbursement policy.” H.R.Rep. No. 25, 136, 98th Cong, 1st Sess., reprinted in 1983 U.S.C.C.A.N. 143, 355.
During the transition period, the government was required to reimburse hospitals for inpatient hospital services according to a “blended” rate, based upon two components. The first was the hospital-specific portion (“HSP”), defined as a hospital’s “allowable operating costs of inpatient hospital services” in a prior base year’, ie., the Medicare cost year ending on or after September 30, 1982. 42 U.S.C. § 1395ww(b)(3)(A). The HSP is a percentage of the hospital’s target amount as defined in subsection (b)(3)(A). The second element was the “federal” portion, a computation from regional and national DRG rates approaching the PPS rate. 42 U.S.C. § 1395ww(d)(2)(A), (B). Over the course of the four-year transition period, the portion of the reimbursement amount attributable to the prospective rate became progressively larger and HSP progressively smaller, until the prospective rate formed the exclusive basis for PPS reimbursement at the end of the transition period. Id. § 1395ww(d)(l)(C).
In implementing the PPS, the Secretary promulgated regulations modifying prior Medicare coverage rules. See 48 Fed.Reg. 39,752 (1984) (codified at 42 C.F.R. § 405 et seq. (1992)). Inpatient hospital stays involving at least one day of Medicare eligibility would be treated as fully “covered” stays under Part A, for which the PPS payment itself would represent payment in full, regardless of the length of stay or extra costs attending the patient’s recovery. 42 C.F.R. § 412.2(b)(2) (1992) (formerly 42 C.F.R. § 405.70(b)(2)(ii) (1984)). Because hospitals were prohibited from billing costs not fully reimbursed by Medicare, id. § 412.42(a), the “balance,” in effect, was no longer reimbursa-' ble.
B. Facts
Appellants in this case are seven short-term acute care hospitals providing inpatient care under the Medicare program. Through their fiscal year ending June 30, 1984, appellants received reimbursement under the reasonable cost system. During the transition years, their PPS rates, including the HSP, were calculated by their intermediaries before the start of their first year under the PPS and were annually updated and used to determine their PPS payments per discharge. Excluded from the base-year costs were costs associated with care furnished to Medicare beneficiaries for hospitalization after their Medicare coverage had been exhausted, costs for which Medicare had reimbursed the hospitals under the reasonable cost system. The hospitals sought an adjustment from their intermediaries to include these costs in the base-year totals, for purposes of calculating the HSP of their PPS rates. The intermediaries declined to adjust the costs because the Secretary’s regulations did not provide for such an adjustment. The hospitals appealed to the Provider Reimbursement Review Board, which, on April 12, 1989, certified the issue for expedited judicial review pursuant to 42 U.S.C. § 1395oo(f) (1988).
The hospitals then filed the present action in the United States District Court on June 15, 1989, requesting an order compelling the Secretary to compensate them for costs that were improperly excluded from the hospital-specific portions of their transition-year payment rates. On cross-motions for summary judgment, the District Court reviewed the record and concluded that the Secretary had acted lawfully in not providing for adjustments to hospitals’ base-year costs to reflect costs associated with care furnished to patients after their Medicare coverage had been exhausted. Episcopal Hosp. v. Sullivan, Medicare & Medicaid Guide, (CCH) ¶ 39,817, 1991 WL 330924 (D.D.C.1991). The court assumed, without discussion, that 42 U.S.C. § 1395ww(b)(4)(A), which authorizes the Secretary to make adjustments in “extraordinary circumstances,” applies to transition rates under PPS. However, the court upheld as based on a permissible reading of the statute the Secretary’s conclusion that promulgation of a new regulation treating exhausted stays differently than under reasonable cost reimbursement was not an event “beyond the hospital’s control or extraordinary circumstances” within the meaning of § 1395ww(b)(4)(A). The court also concluded that the Secretary did not abuse her discretion under § 1395ww(d)(5)(D) to provide the adjustment the hospitals sought.
This appeal followed.
II. Disgussion
Appellants argue in the first instance that the plain meaning of the enabling statute required the Secretary to make adjustments they seek. In the alternative, they argue that even if the statute does not require the Secretary to make the requested adjustments, the Secretary’s refusal to make the base-year adjustments was arbitrary and capricious.
Chevron, U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), provides the proper framework for the statutory interpretation issue. That case held that
First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.... [However,] if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute.
Id. at 842-43, 104 S.Ct. at 2781.
Appellants rely on § 1395ww(b)(4)(A), which states that “[t]he Secretary shall provide for an exemption from, or an exemption and adjustment to, the [statutory rate of increase] method ... where events beyond the hospital’s control or extraordinary circumstances ... create a distortion in the increase in costs for a cost reporting period.” 42 U.S.C. § 1395ww(b)(4)(A). They note that § 1395ww(d)(l)(A)(i)(I) incorporates by reference the TEFRA “target rate” definition of subsection (b)(3), for purposes of setting the PPS base-period, hospital-specific costs. Subsection 1395ww(b)(3), they argue, is in turn subject to the provisions of subsection 1395ww(b)(4)(A), which requires the Secretary to make adjustments to the target rate in “extraordinary circumstances.” Id. § 1395ww(b)(4)(A). Thus, appellants conclude that § 1395ww(d)(l) explicitly incorporates subsection (4)(A)’s extraordinary-circumstances mandate.
We do not agree. Section 1395ww(b)(3)(A), defining “target amount,” plainly does not incorporate subsection (b)(4)(A). In fact, section 1395ww(b)(3)(A) never mentions that subsection, although it does refer to other exceptions from the target amount method determined under sub-paragraph (b)(3)(A). See 42 U.S.C. § 1395ww(b)(3)(A). Nor does subsection (b)(4)(A) either define “target amount” or modify the definition set forth in (b)(3)(A). In fact, subsection (b)(4)(A) explicitly authorizes the Secretary to depart from the “target amount” benchmark in (b)(3)(A) in specific circumstances, suggesting that incorporation of (b)(4)(A) might conflict with the congressional intent partially to' base reimbursement on the target amount during the PPS transition period. Certainly, the fact that Congress clearly incorporated subsection (b)(3)(A), while never referring to subsection (b)(4)(A), suggests that when Congress intended to incorporate a TEFRA provision into PPS, it did so expressly and that it did not intend to incorporate the provision at issue here.
Furthermore, appellants are unable to reconcile their argument with § 1395ww(d)(5). That section mandates specific adjustments and exceptions to the amount a hospital may be reimbursed for its inpatient operating costs under the PPS, see § 1395ww(d)(5)(A)-(H), and gives the Secretary general authority to provide for other exceptions and adjustments “as the Secretary deems appropriate.” Id. § 1395ww(d)(5)(I). The quoted language also appears in subsection (b)(4)(A); significantly, however, subsection (d)(5) contrasts with subsection (b)(4)(A), insofar as the former does not include a provision for upward modification of a hospital’s target rate in “extraordinary circumstances.” Compare 42 U.S.C. § 1395ww(d)(5)(I) with id. § 1395ww(b)(4)(A).
In light of the foregoing, not only are we unable to agree with appellants that the statute requires the Secretary to make the requested adjustments, but it appears that the meaning may be quite the contrary. Even if we admit the possibility of other interpretations, appellants still do not prevail. Under the second step of Chevron, we “need not conclude that the agency construction was the only one it permissibly could have adopted to uphold the construction, or even the reading the court would have reached if the question initially had arisen in a judicial proceeding.” Chevron, 467 U.S. at 843 n. 11, 104 S.Ct. at 2781 n. 11. We need only determine “whether the agency’s answer is based on a permissible construction of the statute.” Id. at 843, 104 S.Ct. at 2781. In short, to the extent that the statute is ambiguous, the Secretary’s interpretation, which is a permissible one for the reasons given above, must be upheld.
Having upheld the Secretary’s reading of the statute under the Chevron analysis, we turn to appellants’ second argument, that the Secretary’s promulgation and application of the implementing regulations was arbitrary and capricious.
The appropriate standard for reviewing the Secretary’s exercise of the discretion afforded under the statute is dictated by 42 U.S.C. § 1395oo(f)(l), which incorporates the Administrative Procedure Act (“APA”), 5 U.S.C. § 706(2)(A) (1988). Under the APA, we hold unlawful and set aside only those agency actions that we find “arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law.” Id. Insofar as the question of whether the Secretary’s regulations are in accordance with law, it follows from our analysis above the Secretary acted consistently with the statutory mandate, and in furtherance of the congressional goals.
As to the argued arbitrariness or capriciousness of the form she chose for doing so, we have often made it plain that we do not sit to interfere with the policy decisions of an agency, Ethyl Corp. v. EPA, 541 F.2d 1, 34 (D.C.Cir.) (en banc), cert. denied, 426 U.S. 941, 96 S.Ct. 2662, 49 L.Ed.2d 394 (1976) (noting that this Court is “forbidden from substituting [ourj judgment for that of the agency”), and we will not do so here. A review of the Secretary’s official explanation of the final rules, 49 Fed.Reg. 234, 246-49 (1984), reveals that the Secretary responded to the comments that were in fact submitted. She revealed her goals and reasoning. She gave us a record which “will enable us to see what major issues of policy were ventilated by the ... proceedings and why the agency reacted to them as it did.” Walter O. Boswell Mem. Hosp. v. Heckler, 749 F.2d 788, 794 (D.C.Cir.1984) (internal quotation marks omitted). She did, in short, all that the APA required.
We note that the root cause of appellants’ objection to the PPS implementing regulations lies not in the refusal of adjustments, but rather in 42 C.F.R. § 412.42(a), which prohibits hospitals from charging Medicare patients whose bills exceed the amount paid to the hospital under the PPS. That regulation reads as follows:
A hospital may not charge a beneficiary for any services for which payment is made by Medicare, even if the hospital’s cost of furnishing services to that beneficiary are greater than the amount the hospital is paid under the prospective payment systems.
Id. Obviously, this regulation may prevent health care providers from recouping losses which they may sustain when a Medicare patient remains with them beyond the average stay per ailment or requires greater than average care. There is, however, nothing we can do for appellants in this regard as they have not challenged § 412.42(a), but only the Secretary’s discretionary refusal to adjust the base-year computations to offset the effect of the change in regulations. See Association of Accredited Cosmetology Schools v. Alexander, 979 F.2d 859, 862 (D.C.Cir.1992) (courts ordinarily do not address new legal theories on appeal).
III. CONCLUSION
For the reasons set forth above, we hold that the plain language of the PPS statute and its implementing regulations support the Secretary’s contention that the PPS does not include an “emergency circumstances” provision. Further, the Secretary’s implementation of the statute was neither arbitrary, capricious, nor unlawful. Therefore, the judgment of the District Court is hereby
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 respondent. The nature of this litigant falls into the category "federal government (including DC)", specifically "cabinet level department". Your task is to determine which specific federal government agency best describes this litigant. | This question concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)", specifically "cabinet level department". Which specific federal government agency best describes this litigant? | [
"Department of Agriculture",
"Department of Commerce",
"Department of Defense (includes War Department and Navy Department)",
"Department of Education",
"Department of Energy",
"Department of Health, Education and Welfare",
"Department of Health & Human Services",
"Department of Housing and Urban Development",
"Department of Interior",
"Department of Justice (does not include FBI or parole boards; does include US Attorneys)",
"Department of Labor (except OSHA)",
"Post Office Department",
"Department of State",
"Department of Transportation, National Transportation Safety Board",
"Department of the Treasury (except IRS)",
"Department of Veterans Affairs"
] | [
6
] | songer_respond1_3_3 |
Konstantinos LENA, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
No. 15974.
United States Court of Appeals Seventh Circuit.
June 9, 1967.
Melvyn E. Stein, Chicago, Ill., for petitioner.
Edward V. Hanrahan, U. S. Atty., Robert J. Weber, Asst. U. S. Atty., Chicago, Ill., for respondent, John Peter Lulinski, Asst. U. S. Atty., of counsel.
Before KNOCH, CASTLE and FAIRCHILD, Circuit Judges.
KNOCH, Circuit Judge.
The petitioner, Eonstantinos Lena, is a native and citizen of Turkey. He came to the United States in the fall of 1964 as a visitor on a pleasure trip. He did not depart on February 4, 1966, when his authorization to remain expired. He admits that he is amenable to deportation under § 241(a) (2) of the Immigration and Nationality Act, Title 8 U.S.C.A. § 1251(a) (2), having outstayed his permitted time.
He sought a stay of deportation under § 243(h) as amended, Title 8 U.S.C.A. § 1253(h), which was denied by the Special Inquiry Officer, whose decision was sustained by the Board of Immigration Appeals. This petition for review was then filed pursuant to Title 8 U.S.C.A. § 1105a, on the ground that denial of a stay in this case was arbitrary and erroneous in law.
The petitioner takes the position that he has presented a prima facie case of persecution, because of his Greek Orthodox faith, if he is forced to return to Turkey, and that the Attorney General to justify denial of a stay must rebut that prima facie case with clear, convincing and unequivocal evidence.
The statute in question provides:
Title 8 U.S.C. § 1253(h) (1965)
Withholding of deportation
“(h) The Attorney General is authorized to withhold deportation of any alien within the United States to any country in which in his opinion the alien would be subject to persecution on account of race, religion, or political opinion and for such period of time as he deems necessary for such reason.”
It previously read:
“(h) The Attorney General is author-' ized to withhold deportation of any alien within the United States to any country in which in his opinion the alien would be subject to physical persecution and for such period of time as he deems to be necessary for such reason.”
Title 8, U.S.C. § 1253(h) (1952) (amended by P.L. 89-236, § 11(f), 79 Stat. 918, Oct. 3, 1965)
The pertinent change was the removal of the word “physical” before the word “persecution.”
The decision to be made is within the administrative judgment of the Attorney General or his duly authorized delegate. United States ex rel. Dolenz v. Shaughnessy, 2 Cir., 1952, 200 F.2d 288, 291, cert. den. 345 U.S. 928, 73 S.Ct. 780, 97 L.Ed. 1358.
This Court may determine whether there has been an abuse of the discretion reposed in the Attorney General but we do not substitute our own opinion for his so long as his reasons for denying suspension of deportation in any case are sufficient on their face. Obrenovic v. Pilliod, 7 Cir., 1960, 282 F.2d 874, 876; Chao-Ling Wang v. Pilliod, 7 Cir., 1960, 285 F.2d 517, 519; Kalatjis v. Rosenberg, 9 Cir., 1962, 305 F.2d 249, 250.
The Special Inquiry Officer in this case found that Greeks in Turkey do and are permitted to practice their religion, that such discrimination as exists is against the Church itself rather than individuals. The petitioner’s own testimony indicated that no one had tried to prevent his attending his Church. He had not been arrested. He had been allowed to hold a job for four years, and when he departed for the United States, his brother had been employed to fill that job. It does not appear that the Special Inquiry Officer denied suspension of deportation only because he found no danger of physical as distinguished from economic and other forms of persecution.
The respondent filed a supplemental memorandum in response to questions raised in oral argument as to the administrative guide lines followed by the Attorney General in the exercise of his discretion to withhold deportation of one who, in his opinion, would be subject to persecution on account of his religion if deported. The petitioner filed a reply to the supplemental memorandum.
It is clear that the Attorney General employs stringent tests and restricts favorable exercise of his discretion to cases of clear probability of persecution of the particular individual petitioner. The Attorney General’s course of conduct, however, shows consistency in the various cases. We cannot say that he has exercised his discretion in an arbitrary manner.
The petition for review is hereby dismissed.
Petition dismissed. | 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"
] | [
2
] | songer_genresp1 |
Jane J. SMITH, Executrix of the Estate of Michael J. Smith, Plaintiff-Appellant, v. UNITED STATES of America, Lawrence B. Mulloy, Defendants-Appellees.
No. 88-3177.
United States Court of Appeals, Eleventh Circuit.
July 11, 1989.
W.F. Maready, Petree, Stockton & Robinson, G. Gray Wilson, Winston-Salem, N.C., for Jane J. Smith.
Gary W. Allen, Torts Branch/Civ. Div., U.S. Dept, of Justice, Washington, D.C., John W. Adler, Adler, Kaplan & Begy, Michael McQillen, Catherine Tinker, Chicago, Ill., for defendants-appellees.
Gary W. Takacs, Asst. U.S. Atty., Tampa, Fla., for U.S.
Before RONEY, Chief Judge, COX, Circuit Judge and MORGAN, Senior Circuit Judge.
RONEY, Chief Judge:
Navy Commander Michael J. Smith was one of the crew members killed aboard the space shuttle Challenger when it exploded about 74 seconds after its launch on January 28, 1986. In this negligence action, Jane J. Smith, as executrix of her husband’s estate, sued the United States and Lawrence B. Mulloy, the Manager of the National Aeronautics and Space Administration's [NASA] Rocket Booster Program at Marshall Space Flight Center, for damages and injunctive relief. The plaintiffs initially sued, but have now settled with the manufacturer. The district court, relying on Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950) and its progeny, granted the Government’s motion to dismiss the claims against the Government and the individual defendant. For the purpose of the motion to dismiss, it was assumed the complaint accurately alleges that the accident was caused by the failure of the aft field joint on the right-hand solid rocket motor. We affirm.
As for plaintiffs claims against the United States, we affirm on the basis of the well-reasoned opinion of the district court in Smith v. Morton Thiokol, (M.D.Fla.1988), 712 F.Supp. 893 (N.D.Fla.1988). Although plaintiff argued on appeal that the district court erred in failing to grant her discovery against the United States, since it is clear from the face of the complaint that this action is barred, there was no reversible error in prohibiting plaintiff from discovery against the United States.
In a subsequent order, the district court granted the motion to dismiss for lack of jurisdiction the claim against defendant Lawrence B. Mulloy, a civilian employee of NASA, a Government agency. Without discussion, the court held that the Feres doctrine bars suit on a state law tort claim against civilian government employees when injury to a person in military service occurs during activity incident to military duty, citing Jaffee v. United States, 663 F.2d 1226 (3d Cir.1981), cert. denied, 456 U.S. 972, 102 S.Ct. 2234, 72 L.Ed.2d 845 (1982), and Uptegrove v. United States, 600 F.2d 1248 (9th Cir.1979), cert. denied, 444 U.S. 1044, 100 S.Ct. 732, 62 L.Ed.2d 730 (1980).
Even though Feres addressed the issue of sovereign immunity, courts, relying on the same policy reasons that bar suit against the Government for tort claims arising out of military service, have applied the Feres doctrine to immunize military defendants in their individual capacities. The Supreme Court has relied on Feres to bar claims of constitutional violations raised under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971) against individual defendants, both military, and civilian.
The Circuit courts have held that state law claims as well as federal law claims are so barred, both as to military employees, and as to civilian employees. It is of no consequence that plaintiff seeks recovery not only on behalf of Smith’s estate but on behalf of herself and the three minor children. We follow these cases which emphasize the activity in which the plaintiff was involved, an activity “incident to service,” as the controlling factor, not the status of the tortfeasor. Thus, the district court properly held that there was a lack of subject matter jurisdiction over the claims against defendant Mulloy.
Subsequent to the district court’s order in this case, Congress passed legislation that provides an additional reason for dismissing plaintiffs claims against Mulloy. On November 18, 1988, Congress passed the Federal Employees Liability Reform and Tort Compensation Act of 1988, Pub.L. No. 100-694, 102 Stat. 4563. The new law, which is retroactive, provides that the exclusive remedy for individuals allegedly harmed by common law torts committed by Government employees acting within the scope of their employment is through an action against the United States under the FTCA. This new legislation apparently would apply to this case, foreclosing plaintiffs suit against Mulloy in his individual capacity.
AFFIRMED.
. Chappell v. Wallace, 462 U.S. 296, 103 S.Ct. 2362, 76 L.Ed.2d 586 (1983).
. United States v. Stanley, 483 U.S. 669, 107 S.Ct. 3054, 97 L.Ed.2d 550 (1987).
. Mattos v. United States, 412 F.2d 793, 794 (9th Cir.1969) (parents of deceased soldier barred from suing fellow servicemember); Bailey v. DeQuevedo, 375 F.2d 72, 74 (3d Cir.1966) (medical malpractice suit against army physician brought under state law barred), cert. denied, 389 U.S. 923, 88 S.Ct. 247, 19 L.Ed.2d 274 (1967).
. Jaffee v. United States, 663 F.2d 1226, 1234-35 (3d Cir.1981) (en banc) (suit barred against Government officials for intentional torts), cert. denied, 456 U.S. 972, 102 S.Ct. 2234, 72 L.Ed.2d 845 (1982); Uptegrove v. United States, 600 F.2d 1248, 1250-51 (9th Cir.1979) (negligence action against civilian FAA Air Traffic Controllers prohibited), cert. denied, 444 U.S. 1044, 100 S.Ct. 732, 62 L.Ed.2d 730 (1980); Hass v. United States, 518 F.2d 1138, 1143 (4th Cir.1975) (negligence suit against civilian stable employees of the Marines barred).
.See Martinez v. Schrock, 537 F.2d 765 (3rd Cir.1976) (army surgeon immune from suit brought by representative of deceased’s estate under both a survival and wrongful death claim), cert. denied, 430 U.S. 920, 97 S.Ct. 1339, 51 L.Ed.2d 600 (1977). | 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"
] | [
2
] | songer_genresp2 |
Alvin W. MEADE, Plaintiff-Appellant, v. MERCHANTS FAST MOTORLINE, INC., Defendant-Appellee.
No. 85-1061.
United States Court of Appeals, Tenth Circuit.
June 18, 1987.
Lawrence W. Allred of Allred-Lilley, Las Cruces, N.M., for plaintiff-appellant.
Duane C. Gilkey and Tracy E. McGee of Rodey, Dickason, Sloan, Akin & Robb, P.A., Albuquerque, N.M., for defendant-appellee.
Before LOGAN, MOORE and TACHA, Circuit Judges.
PER CURIAM.
After examining the briefs and the appellate record, this three-judge panel has determined unanimously that oral argument would not be of material assistance in the determination of this appeal. See Fed.R. App.P. 34(a); 10th Cir.R. 34.1.8(c) and 27.1.-2. The cause is therefore ordered submitted without oral argument.
Plaintiff, Alvin W. Meade, appeals from an order of the district court dismissing with prejudice his employment discrimination complaint against defendant, Merchants Fast Motorline, Inc., for failure to state a claim under 42 U.S.C. § 1981. The district court found that the facts alleged did not support a § 1981 claim, but its order does not specify in what respect the complaint is deficient. Defendant advances several arguments in support of the district court’s decision.
Defendant’s primary argument, and the only one urged in the district court, is that the complaint fails to state a § 1981 claim because it contains no allegation of purposeful or intentional discrimination. On the contrary, we believe the following allegation sufficient on this issue: “Plaintiff was disciplied [sic] and finally terminated because of his race and not for good cause in connection with his employment ... plaintiff has been discriminated against by Merchants on account of his race.” (emphasis added). Although the words “purposeful” or “intentional” are not recited, the requisite state of mind is adequately captured in the allegation set out above. See New Mexico ex rel. Candelaria v. City of Albuquerque, 768 F.2d 1207, 1209 (10th Cir.1985).
The second argument advanced by defendant is that the claim of discrimination is not supported by sufficient factual allegations. A complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957); Morgan v. City of Rawlins, 792 F.2d 975, 978 (10th Cir.1986). Plaintiff, a black man, alleged that he had been disciplined and, ultimately, terminated on account of his race for conduct which did not give rise to similar sanctions when engaged in by defendant’s nonblack employees. Certainly, if plaintiff were to prove these allegations, he would be entitled to relief under § 1981. Although the specifics of the underlying incidents are not detailed in the complaint, we are unwilling to say at this early stage that plaintiff’s action is subject to dismissal on this basis, especially since the issue has not been raised and considered first in the district court. See generally Lessman v. McCormick, 591 F.2d 605, 607, 611 (10th Cir.1979); Candelaria, 768 F.2d at 1210.
Finally, defendant argues that the § 1981 claim cannot stand because Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17, provides the exclusive remedy for the wrong alleged in this case, citing Great American Federal Savings & Loan Association v. Novotny, 442 U.S. 366, 99 S.Ct. 2345, 60 L.Ed.2d 957 (1979), and Tafoya v. Adams, 612 F.Supp. 1097 (D.Colo.1985), aff'd on other grounds, 816 F.2d 555 (10th Cir.1987). In Novotny, the Supreme Court held that rights created by Title VII may not be asserted as the basis for a cause of action under 42 U.S.C. § 1985(3). 442 U.S. at 378, 99 S.Ct. at 2352. Obviously, the Novotny holding itself, which dealt only with § 1985(3), is not controlling in the present context. More importantly, Novotny rests on a dual rationale, neither prong of which is applicable to § 1981. First, the Supreme Court emphasized that § 1985(3) is a purely remedial provision that creates no substantive rights. Novotny, 442 U.S. at 372, 376, 99 S.Ct. at 2349, 2351. Consequently, the § 1985(3) remedy cannot stand independently of Title VII when the underlying right to be vindicated is created by Title VII. Id. at 376-77, 378, 99 S.Ct. at 2351, 2352. However, § 1981 differs from § 1985(3) in this important respect, as the Court expressly recognized in Novotny. In addition to its remedial role, § 1981 provided a substantive right against racial discrimination in employment before the enactment of Title VII, and it is that right— not the similar, but supplementary one created by Title VII — upon which plaintiffs § 1981 claim rests. See id. at 377-78, 99 S.Ct. at 2351-52; see also Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 459-60, 95 S.Ct. 1716, 1719-20, 44 L.Ed.2d 295 (1975).
Second, the Supreme Court noted in Novotny that, while the legislative histories of the Civil Rights Acts of 1964 and 1968 clearly indicate that Title VII was not meant to disturb the existing substantive rights and remedy provided in § 1981, no mention was made of § 1985. 442 U.S. at 377 & n. 21, 99 S.Ct. at 2351 & n. 21; see also Brown v. General Services Administration, 425 U.S. 820, 833-34, 96 S.Ct. 1961, 1968, 48 L.Ed.2d 402 (1976); Johnson, 421 U.S. at 459, 95 S.Ct. at 1719.
Although it is important to understand the limited reach of Novotny, an earlier precedent resolves the Title VII preemption issue raised in this case. We believe the Supreme Court’s decision in Johnson, as explained, distinguished and reaffirmed in Brown, 425 U.S. at 833-34, 96 S.Ct. at 1968, and Novotny, 442 U.S. at 377-78, 99 S.Ct. at 2351-52, continues to control this issue and permits the § 1981 cause of action asserted by plaintiff. In Johnson, the Court referred repeatedly to the “independence” of the Title VII and § 1981 remedies and gave effect to the legislative histories discussed above, stating:
“We are disinclined, in the face of congressional emphasis upon the existence and independence of the two remedies, to infer any positive preference for one over the other, without a more definite expression in the legislation Congress has enacted, as, for example, a proscription of a § 1981 action while an EEOC claim is pending.”
Johnson, 421 U.S. at 461, 95 S.Ct. at 1720. The Court concluded that “Congress clearly has retained § 1981 as a remedy against private employment discrimination separate from and independent of the more elaborate and time-consuming procedures of Title VII.” Id. at 466, 95 S.Ct. at 1723. Although Johnson specifically holds only that a claimant’s pursuit of administrative remedies under Title VII does not toll the running of the limitations period for an associated action under § 1981, the case has generally been recognized as establishing the principle that Title VII does not preempt § 1981 as a remedy for private employment discrimination. We have recognized Johnson as establishing the principle that Title VII does not preempt § 1981 as a remedy for private employment discrimination. See Whatley v. Skaggs Companies, Inc., 707 F.2d 1129, 1139 & 1139 n. 9 (10th Cir.), cert. denied, 464 U.S. 938, 104 S.Ct. 349, 78 L.Ed.2d 314 (1983); see also Brown, 425 U.S. at 833, 96 S.Ct. at 1968; Lowe v. City of Monrovia, 775 F.2d 998, 1010 (9th Cir.1985), amended, 784 F.2d 1407 (1986); Day v. Wayne County Board of Auditors, 749 F.2d 1199, 1203 (6th Cir.1984); Gooding v. Warner-Lambert Co., 744 F.2d 354, 359 (3d Cir.1984).
We recognize that use of § 1981 to redress wrongs also actionable under Title VII may to some extent appear to subvert the comprehensive statutory scheme established in the latter by, for example, permitting the complainant to bypass the mandatory administrative procedure of Title VII in favor of immediate resort to the courts under § 1981. See Tafoya, 612 F.Supp. at 1100, 1101-02. The Supreme Court, however, while sympathetic to this concern, recognized in Johnson that Congress’ resolution of this issue in favor of joint applicability controls. 421 U.S. at 459, 461, 465-66, 95 S.Ct. at 1722-23; see also Novotny, 442 U.S. at 377 n. 21, 99 S.Ct. at 2351 n. 21; Brown, 425 U.S. at 833-34, 96 S.Ct. at 1968.
Accordingly, we hold that plaintiff may properly pursue his cause of action under § 1981 for private employment discrimination despite the applicability of Title VII to the same conduct. The judgment of the United States District Court for the District of New Mexico is REVERSED and REMANDED.
. This prohibition was extended by the district court in Tafoya to claims brought pursuant to 42 U.S.C. § 1981 and § 1983, although the result in the case was ultimately affirmed by this court on other grounds. Tafoya, 816 F.2d at 556-57, 558.
. Similarly, in Tafoya, we held that the right to be free of retaliatory discharge, created by Title VII, cannot be the sole basis of a § 1983 action. 816 F.2d 558. | 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 use of the clearly erroneous standard support the government?" That is, a somewhat narrower standard than substantial evidence, or ignoring usual agency standards. 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 use of the clearly erroneous standard support the government? That is, a somewhat narrower standard than substantial evidence, or ignoring usual agency standards. | [
"No",
"Yes",
"Mixed answer",
"Issue not discussed"
] | [
3
] | songer_erron |
UNITED STATES of America, Appellee, v. Frank FRISONE, Defendant-Appellant.
No. 1169, Docket 86-1085.
United States Court of Appeals, Second Circuit.
Argued March 18, 1986.
Decided June 4, 1986 .
Michael A. Guadagno, Asst. U.S. Attorney-in-Charge, Organized Crime Strike Force, Brooklyn, N.Y. (Raymond J. Dearie, U.S. Atty., E.D.N.Y., Donald S. Sullivan, Sp. Asst. U.S. Atty., Brooklyn, N.Y., of counsel), for appellee.
Michael H. Sporn, New York City, for defendant-appellant.
Before PIERCE, MINER and ALTI-MARI, Circuit Judges.
This appeal was originally heard on March 18, 1986, and decided by order dated June 4, 1986. As a summary disposition it would have no precedential value under our Local Rule § 0.23. We have decided sua sponte to publish the substance of the June 4, 1986 order in this opinion.
PER CURIAM:
Appellant was arraigned on a multi-count indictment in May of 1985 in the United States District Court for the Eastern District of New York. On May 16, 1985, a detention hearing was held before Magistrate Chrein at which time detention was ordered. On January 21, 1986, Judge Henry Bramwell, after independent review of the transcript of the magistrate’s hearing and consideration of arguments presented by counsel for the appellant on a motion for release, concluded that there was probable cause to believe that appellant had been involved in at least three crimes of violence, that appellant had not rebutted the presumption drawn from the conclusion that no condition or combination of conditions would reasonably assure the safety of the community, and that, even if appellant had rebutted such a presumption, there was clear and convincing evidence that no condition or combination of conditions would reasonably assure the safety of the community.
On March 18, 1986, appellant challenged the district court’s ruling before this court on the grounds that there was insufficient evidence to support detention, and that his continued detention pursuant to the Bail Reform Act, 18 U.S.C. §§ 3141 et seq. (the “Bail Act”) violated the Constitution. After argument, the application was denied from the bench on all grounds asserted except the constitutional grounds, as to which decision was reserved pending decision of another case which involved this very issue and which was sub judice at the time of argument. That case has recently been decided, see United States v. Melendez-Carrion, 790 F.2d 984 (2d Cir.1986). Hence, we address the remaining issue herein.
In Melendez-Carrion, the appellants challenged, inter alia, the constitutionality of continued pretrial detention under the Bail Act, where such detention was based upon grounds of dangerousness to the community. Judge Newman found the statute facially unconstitutional in authorizing, even for a brief time, such pretrial incarceration of a competent adult criminal defendant. Chief Judge Feinberg, concurring in the result of Judge Newman’s opinion, found continued confinement for a period over eight months, solely on the ground of dangerousness, a violation of due process since it inflicted punishment without an adjudication of guilt. Judge Timbers vigorously dissented from each of these views. The effect of Judge Feinberg’s and Judge Newman’s decisions render unconstitutional the continued pretrial detention of the appellant herein on the basis of the dangerousness prong of the Bail Act.
Frisone has been denied bail and detained for nearly twelve months on federal charges solely on the ground of dangerousness under the Bail Act. We are constrained to find that the continued confinement of appellant is affected by the majority position as to result in Melendez-Carrion. Consequently, we vacate the order of the district court and remand for the district court to determine whether there are conditions of release which will reasonably assure appellant’s appearance as required, and, if so, to establish appropriate conditions of release. We withhold issuance of the mandate herein pending issuance of the mandate in Melendez-Carrion.
Vacated and remanded with instructions. | 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)"
] | [
9
] | songer_applfrom |
SECURITIES & EXCHANGE COMMISSION v. W. J. HOWEY CO. et al.
No. 11421.
Circuit Court of Appeals, Fifth Circuit.
Nov. 13, 1945.
William A. McClain, Atty., Securities and Exchange Commission, of Atlanta, Ga., and Roger S. Foster, Solicitor, Securities and Exchange Commission, Milton V. Freeman, Asst. Solicitor, Securities and Exchange Commission, and Alexander Cohen, Atty., Securities and Exchange Commission, all of Philadelphia, Pa., for appellant
George C. Bedell, of Jacksonville, Fla., and C. E. Duncan, of Tavares, Fla., for appellee.
Before HUTCHESON, WALLER, and LEE, Circuit Judges.
HUTCHESON, Circuit Judge.
The suit against W. J. Howey Company and Howey-In-The-Hills Service, Inc. was for an injunction under Section 20(b) of the Securities Act of 1933. The claim in general was that the defendants, without filing with the Securities and Exchange Commission a registration statement with respect thereto, 'have been, and are now, using the mails and interstate commerce to sell securities, to-wit, investment contracts, evidenced by warranty deeds and development contracts given in connection with, and as a part of, the sale of citrus groves in violation of Section 5(a), Securities Act of 1933, Sec. 77e(a), 15 U.S.C.A.
Particularized, the claim was: that the two companies under the same common control, with the same officers, facilities, and personnel, and substantially the same stockholders, were engaged in carrying on an investment business, to-wit, the growth and cultivation of citrus trees and the marketing and sale of fruit therefrom; that by the device of deeds from the Howey Company to the groves, and cultivation and management contracts from the Service Company, they were in substance and effect selling investment contracts to customers in that, though the purchasers of groves paid their money in form as purchasers of specific tracts of land, they were in fact investors with the Howey Companies in a citrus growing and marketing enterprise, the profits from their purchases to be derived not from their own skill and efforts but from the skill and efforts of others.
The defendants denied the charges of the complaint that they were jointly selling investment contracts. As to the Howey Company, they insist that it was selling specific groves and executing deeds carrying full title to them, that its contract was complete when the terms of sale were agreed on, and the sale was complete when the deed was delivered. As to the Service Company, the insistence was that it was engaged not in selling securities or investment contracts but in selling its services in caring for, cultivating and managing groves. Finally, pointing out that there was no requirement on the part of the Howey Company that its purchasers would have their groves served' by the Service Company, and no obligation on the part of such purchasers to have this done, they insisted that it could not reasonably be claimed that a purchaser of a grove from the Howey Company was nob purchasing merely a grove and looking to its growth and fruiting for a return on, and an increase in, value of his investment, but was in reality purchasing an interest in an investment enterprise being carried on by the two Howey Companies, looking to their work and efforts for a return on his investment and an increase in its value.
The district judge, upon facts stipulated and testified to without conflict, found with the defendants that they were not, as charged, selling securities, to-wit, investment contracts, but that the Howey Cornpany was selling groves, and the Service Company was contracting for a cultivating, managing and marketing service. Pointing out that the Joiner case, so strongly relied on by plaintiff, as well as those dealing with rabbit, fox, and tung tree culture, had to do with speculative promotions where the thing sold was valueless except as the prospect of a successful promotion gave it value, while here the transactions were not at all promotional but were sales of specific orange groves having an established value and specific contracts for their servicing, he concluded, we think, correctly, that those cases were not at all in point.
He thought, as we do, that the facts that orange groves need cultivating and servicing and that individual owners of small groves are not equipped to do this for themselves but must contract with service companies or others for its being done, were without significance in making the primary determination here. This is whether what Howey sold was a particular grove and what the Service Company sold was a particular service contract, or whether what was done, the sale of the grove and the issuance of the contract, was in effect one transaction, the sale of an interest in a general enterprise of grove cultivation and marketing. He, therefore, correctly concluded that the facts so strongly relied on by the plaintiff: that nearly all of the purchasers were residents of other states who did not expect to, and could not personally cultivate their groves; that some of the groves were very small in extent; and that the Howey Company in connection with the sale of a grove did emphasize the advantage to the purchaser of contracting with its subsidiary, the Service Company, for its servicing; could not convert what was in law and in fact the purchase in fee simple of a designated and described grove, and the making of a separate contract for servicing it, into the purchase of a security, to-wit, an investment contract under which the purchaser acquired not a grove with a separate contract to service it, but an interest in Howey & Company’s business of developing, selling and servicing orange groves.
We, of course, agree with plaintiff that the protection of the invoked statute and the jurisdiction of the commission extend equally to securities of established businesses as to those of new businesses, to non-speculative as well as to speculative investments, and that the fact that an activity or pursuit has passed out of the promotional or experimental stage does not at all exempt it from the Act. But it may not be doubted that in close cases, like Joiner’s was, the fact that an activity is purely promotional and speculative does have weight in answering the critical question, whether in fact the purchase was of a specific thing having specific value in itself or was of a thing having no value unless the enterprise as a whole should succeed. Where, in short, the seller is not conducting a speculative enterprise, and the thing sold has a specific and definite value apart from the success of the activity which sells it, it is exceedingly difficult to make out such a nexus between the sale and the enterprise sufficient to make the purchase not one of a specific thing but of an interest in the enterprise. On the other hand, when the enterprise is speculative and promotional in character and the thing sold has value only if the enterprise as a whole succeeds, the nexus between purchase and enterprise, which makes them one in the sense that the purchase is really not of a specific thing but of an interest in the enterprise, at once meets the eye of the judge and informs his judgment in the case.
We cannot agree, therefore, with appellant that the line of demarcation between the purchase of a specific thing and of an interest in an enterprise is to be drawn according to whether the purchaser manages the thing purchased or contracts with others for its management. Such a test would make every purchase of a thing, the management of which was to be conducted through agents, the purchase not of a thing but of an investment contract. Such a test, in the light of the established fact that a great number of properties, especially agricultural properties, are now run not by, but for, their owners under service contracts, is a completely unreal one. Here it is quite clear that each purchaser looked for the income from his investment to the fruitage of his own grove and not to the fruitage of the groves as a whole. It is quite clear, too, that each purchaser’s income was in no sense dependent upon the purchase or development of other tracts than his own except in the sense that as grove owners generally prospered, each owner of a grove would. To say that because a purchaser of a farm or a building, at the time and in connection with the purchase, secured the services of another, whether the seller, some one connected with him, or some one entirely independent of him, to manage it, he became a purchaser not of property but of a security, an investment contract, is to stretch beyond the breaking point the analogy of the Joiner case. It is, indeed, to run a good principle into tihe ground. The judgment was right. It is affirmed.
This company is the owner of large tracts of land in Lake County, Florida. For more than 20 years it has been planting citrus trees and, after the trees have reached one year or older, selling to various purchasers various size groves at various stages of development, the price varying according to the number of years the land has been planted to citrus trees. It also owns and operates the Floridan Country Club at Howey-In-The-Hills, a resort hotel frequented by tourists and vacationists. These are shown citrus groves owned by the company, are informed that young groves are for sale, and, if any interest is shown, this is followed up with an effort to make sales.
This company has since its organization in 1932 been engaged in cultivating and developing citrus groves for their owners, generally under a standard form of service contract used by it since 1935, with occasional modifications to suit particular requirements of particular owners.
15 U.S.C.A. § 77t(b).
“The term ‘security’ means any note, stock, treasury stock, bond, debenture, evidence of indebtedness, certificate of interest or participation in any profit-sharing agreement, collateral-trust certificate, preorganization certificate or subscription, transferable share, investment contract, voting-trust certificate, certificate of deposit for a security, fractional undivided interest in oil, gas, or other mineral rights, or, in general, any interest or instrument commonly known as a ‘security’, or any certificate of interest or participation in, temporary or interim certificate for, receipt for, guarantee of, or warrant or right to subscribe to or purchase, any of the foregoing.” Sec. 2(1), Securities Act 1933, 15 U.S.C.A. § 77b(1).
The citrus industry is an established industry in central and southern Florida. Its beginning antedates the building of railroads into the state, and its progress has been such that it is the largest single farming industry in the State. According to United States Census of 1910 there were 1721 farms reporting two acres or more of citrus trees in Lake County, with more than one million trees of bearing age. It is a matter of common knowledge in the citrus section of Florida, and the record discloses, that the care of citrus groves requires equipment and a force beyond the means of the owner of a small tract of citrus property and there are numerous companies of good standing in the State, whose business is to service groves owned by others. There are at least seven such companies operating in the area in which the Service Company operates.
The prices charged for the land, which vary according to the number of years it has been planted with citrus trees, are as follows:
One year old trees $675 per acre;
Two year old trees $750 per acre;
Bearing trees (five years old or older) approximately $1,000 per acre.
Upon full payment of the purchase price the land is conveyed to the purchaser by warranty deed. If the purchaser fails to pay the installments required by the Contract, the Howey Company may foreclose thé contract in the same manner as it would foreclose a mortgage under Florida laws.
All sales have been an out-right sale of a definitely identified tract of land. In no instance has there been a sale of a right to share with others in the profits of land held in common with the defendant Companies or others.
No sales have been made by the Howey Company to any purchaser who has not personally inspected the property. In numerous instances the purchasers have acquired homes in the vicinity or spend a portion of each year in the vicinity, frequently inquiring and making suggestions with respect to care of their land and marketing of the fruit. The standard service agreement provides that the development of the property and the harvesting and sale of the crop shall be done in accordance with the best judgment of the Service Company. A considerable number of the purchasers visit their property at least once a year.
The Howey Company sells acreage to persons who do not use the Service Company as their caretaker. The Service Company services trees on land not purchased from the Howey Company and solicits service contracts from others than purchasers of the Howey Company. Sales of acreage by the Howey Company are not conditioned upon the purchasers entering into service agreements with the Service Company, and the caretaking agreements are not conditioned upon the purchase of acreage from the Howey Company. Prospective customers have an opportunity to learn that there are numerous competing service companies of high standing operating in the vicinity of Howey-In-The-Hills whose business is to service property owned by others. Such competitors post signs by the land serviced by them which are visible from the highways, and they send advertisements to land owners. Moreover, officers of the Howey Company and the Service Company acquaint prospective purchasers with the existence of competitors. Of course, prospective customers are informed by them that the Service Company’s competency and efficiency exceed that of its competitors.
The defendant Service Company was servicing 2,487.36 acres of citrus groves in March, 1944, including therein 166.40 acres purchased from Howey Company since 1941, and maintains 75 tractors, sprayer wagons, fertilizer trucks, and other machinery used in cultivating these citrus groves, a machine shop and force of mechanics. The company also maintains a cannery and packing plant and a force of about one man to each 100 acres of land.
In the care of each grove, as in the yield of the fruit, the cost of the care and the proceeds of the fruit may be, and are, definitely and distinctly accounted for with respect to the specific property owned by the individual.
The purchasers do not possess the knowledge, skill or equipment necessary for the care and cultivation of citrus trees. It would be completely unfeasible and uneconomical for a small owner to take care of his property and therefore he must rely on a service company to do this work. A land sales contract and the service contract therefore are customarily offered to potential customers simultaneously.
Between the period of February 1941 .and May 31, 1943, 85% of the investors who purchased citrus acreage from the Howey Company simultaneously entered into service contracts with the Service Company.
Between February 1, 1941 and May 31, 1943, the Howey Company made 51 sales to 42 persons involving a total of 195.26 acres for $165,788. Eight of these sales were of non-bearing trees totaling 103.21 acres and 43 were sales of bearing trees totaling 92.05 acres. Of the 42 persons, 31 purchased tracts less than 5 acres. The average holding of these persons is 1.33 acre. All but one of these small purchasers' made only a single purchase, whereas the 11 purchasers of more than 5 acres purchased their holdings in 19 transactions. Sales of as little as .65 acre, .7 acre, .73 acre were made by the Howey Company. Of the acreage sold 166.54 acres (85%) are being cared for by the Service Company.
Securities and Exchange Comm. v. Joiner, 320 U.S. 344, 64 S.Ct. 120, 88 L.Ed. 88. | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "financial institution". Your task is to determine what subcategory of business best describes this litigant. | This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "financial institution". What subcategory of business best describes this litigant? | [
"bank",
"insurance",
"savings and loan",
"credit union",
"other pension fund",
"other financial institution or investment company",
"unclear"
] | [
5
] | songer_respond1_1_4 |
BAER v. SECURITY TRUST CO. et al.* In re STRATFORD SPRINGS CO.
Circuit Court of Appeals, Fourth Circuit.
April 9, 1929.
No. 2790.
Howard D. Matthews and Charles J. Schuck, both of Wheeling, W. Va. (W. C. Grimes, J. Bernard Handlan, and G. Alan Garden, all of Wheeling, W. Va., on the brief), for appellant.
James W. Ewing, of Wheeling, W. Va. (P. J. McGinley and Russell A. Klieves, both of Wheeling, W. Va., on the brief), for appellees.
Before PARKER and NORTHCOTT, Circuit Judges, and COLEMAN, District Judge.
WILLIAM C. COLEMAN, District Judge.
This is an appeal from an order of the District Court of the United States for the Northern District of West Virginia, at Wheeling, in bankruptcy. After hearing upon exceptions by various secured and unsecured creditors to the allowance of a secured claim filed by appellant in the amount of $51,675 and interest, the referee found that appellant’s claim to the extent of $33,-500 with interest should be allowed, but the District Court reversed the referee, sustained the exceptions, and disallowed the entire claim of appellant.
There are nine assignments of error directed to the court’s action with respect to various separate findings of the referee. All of the assignments may be summarized as claiming (1) that the court was in error in not reversing the referee in his finding that appellant’s claim should be reduced from $51,675, with interest, to $33,500, with interest; and (2) that the court should, in any event, have affirmed the finding of the referee that appellant was entitled to his claim for the reduced amount.
The Stratford Springs Company, a West Virginia corporation, had, for a number of years prior to its adjudication in bankruptcy, which occurred May 6,1924, been engaged in operating a bottling plant in Triadelphia district, Ohio county, W. Va., where it bottled and sold drinking water to the public. The company owned 37 acres of land on which there had formerly been a hotel. This company was the successor of the Stratford Magnesia Springs Company which, in February, 1918, had issued against this land, 150 6 per cent, five-year, first mortgage bonds, each of the denomination of $500, making a total face value of $75,000. ( In December, 1922, the Stratford Springs Company issued 300 second mortgage bonds with the same interest rate, face value, and maturity date, against the same land in the amount of $150,000. Because of the company’s financial difficulties, which had been long existent, it had been endeavoring for some time to dispose of its real estate, retaining only so much as might be necessary to con-duet its bottling plant. In furtherance of this plan, a reorganization of the company was attempted, and J. W. Adams, its secretary, asked the appellant, Ben S. Baer, who was engaged in the warehouse business in Wheeling, and not a stockholder of the Stratford Springs Company, to assist him. Two or more firms, which made a business of reorganizing companies, were consulted, but no satisfactory plan to keep the company going was agreed to. • Thereupon appellant, Baer, prepared a plan of his own, under which the company’s land was to go to the bondholders, except one-half acre and the water rights from the property, which were to be deeded to a reorganized bottling works company, free and clear of all liens. The plan was contingent upon all of the creditors accepting 40 cents on the dollar for their accounts, payment to be made in shares of the new company, which was to be capitalized at $100,000. The plan was submitted by appellant to creditors, and purported to come from a reorganization committee, whose membership, however, was not disclosed, nor does such a committee appear ever to have actually existed.
On August 13, 1923, Adams, on behalf of the Stratford Springs Company, and appellant entered into an agreement, by the terms of which it was stipulated that, upon the formation of a certain corporation, to be called' the Stratford Springs Holding Company, or given such other name as might be mutually agreed upon, appellant should have a 51 per cent, interest in this new company, and the balance, 49 per cent., should belong to Adams. Supplementary to this agreement, Adams and appellant entered into a second agreement, under the terms of which appellant was to use his best efforts towards bringing about the construction of a hotel upon the land of the Stratford Springs Company, in consideration and in furtherance of which Adams obligated himself to cause the real estate and personal property, ineluding the good will, of that company, to be transferred to the appellant and by him to the new company.
It appears that on August 23, 1923, a stockholders’ meeting was duly held at which the aforegoing agreements were made known to stockholders; they acquiesced in them, and resolutions were passed authorizing the board of directors to make such disposition of the assets of the company as, in their judgment, might seem proper. However, all of the unsecured creditors of the Stratford Springs Company did not accept the offer which was made to them, so the plan for organizing the bottling works company was abandoned, as was the rest of the plan to construct a hotel upon the land which was to become the property of the new company to be formed. Accordingly, the appellant returned to the various unsecured creditors their claims which had been deposited with him under the reorganization plan.
Thereafter, in October 1923, the appellant acquired from the Bank of Cameron a collateral note of the Stratford Springs Company, dated March 10, 1922, payable on demand to the order of that bank, for the sum of $20,000 and interest, secured by 50 of the first mortgage 6 per cent, bonds of the Strat-ford Magnesia Springs Company of a total par value of $25,000, which formed part of the $75,000 bond issue above referred to. The appellant held this note and collateral until March 18, 1924, when he purported to sell the collateral to himself through a brokerage firm in Wheeling, costing him only the usual broker’s commission. On October 24, 1923, appellant also acquired from the Wheeling Bank & Trust Company, four collateral demand notes for the sum of $12,000 and interest, which were secured by 25 of the bonds of the Stratford Magnesia Spring Company above referred to, of the face value of $12,500. Temporarily, appellant used these latter bonds as collateral against his personal note at the same bank, until, on March 18, 1924, this collateral having been returned to him, he purported to sell it to himself, as he had the collateral for the other note. In the spring of 1923, appellant had also acquired six bonds of the Stratford Magnesia Springs Company from, Adams, for which appellant paid $1,500. The evidence is irreconcilably conflicting as to whether these bonds were purchased outright, or merely given as collateral.
As a result of an involuntary petition filed against it April 15, 1924, the Stratford Springs Company was adjudicated a bankrupt on May 6th. On March 6, 1925, appellant filed his proof of claim in the bankruptcy proceedings, amounting to $51,675, with interest from February 1, 1925, at 6 per cent.; his claim being evidenced as follows: 81 bonds (acquired as aforesaid) $40,500; unpaid coupons on 75 bonds, $10,875; and interest, $300.
It is now necessary to examine the six findings of the referee, and the specific ruling of the court with respect to each of them. The referee found, first, that the Wheeling Bank & Trust Company and the Bank of Cameron sold to the appellant the notes in controversy for $12,000 and $20,000, respectively. The court reversed this finding, holding that appellant, pursuant to a fraudulent scheme, paid off and discharged the notes as a mere volunteer; that therefore he was not a purchaser of them, and never became liable for their payment. The referee next found that the appellant had purchased the notes in accordance with the agreement between himself and Adams, whereby appellant was to purchase and hold the notes and collateral until a reorganization of the Springs Company could be effected; that he was obligated not to sell any of the bonds but to hold them as collateral security for the payment of the notes; and that thus the alleged sale of all the bonds in controversy through a broker was contrary to the agreement, and also was contrary to the terms of the notes themselves. This finding was also reversed by the court, on the ground that, since the appellant had never become the owner of the notes, but had voluntarily paid them off pursuant to his agreement with Adams, appellant should have.returned the collateral to the company. The court further held that the alleged sale of the bonds through a broker was not in accordance with the agreement with Adams, nor in accordance with' the terms of the notes themselves, and that therefore the pretended sale was in fraud of the bankrupt’s creditors and void. In the third finding of the referee, the court concurred, namely, that the six bonds held by appellant were given him by Adams as collateral for a loan to the company of $1,500, and were not authorized to be sold. The court'also concurred in the fourth finding of the referee that the coupons attached to the bonds never became the property of tli8 appellant and therefore should not be allowed as any part of his claim. The fifth and sixth findings of the referee related to a reduction of appellant’s claim from the total sum of $51,675 with interest, to $33,500 with interest. The court did not analyze these findings, since it held, as just explained, that appellant’s entire claim should be disallowed, because predicated upon a fraudulent claim of ownership of the bonds.
Summarized and shorn of all minor points, the finding of the District Court is that appellant’s entire claim must be disallowed because ho never became the rightful owner of any of the collateral bonds, but merely acquired them through discharging the notes in a fraudulent manner, namely, that, after discharging the notes, appellant’s agreement, both verbal and written, made with the company, through its secretary, Mr. Adams, obligated him to return the collateral to the company.
With this conclusion of the lower court we cannot agree, because we find in the record no evidence sufficient to warrant our holding either (1) that appellant had obligated himself not to purchase, in his own right, the company’s notes and their collateral; or (2) that such a purchase, if permitted, irrespective of agreement, would be in fraud of the company’s creditors. In order that we may immediately dispose of these two points, we will postpone consideration of the further questions, (1) Did appellant in fact purchase the notes and collateral, or did he merely discharge the notes for the benefit of the company? and (2) Was his subsequent alleged sale of the collateral to himself valid?
There is nothing in the agreements which the appellant made with Adams, representing the company, that either expressly or by implication prohibited appellant from acquiring, as a personal investment, bonds of the company. There is no mention whatsoever of these securities in the agreements. In the so-called reorganization committee’s proposal to creditors, it is set forth that the reorganization contemplates' the bondholders taking .the company’s land in payment of their bonds. As a matter of fact, Adams expressly authorized, by letter addressed to the Wheeling Bank & Trust Company, the sale to appellant of the four notes with collateral held by that institution. The word “sale” was used in the letter of authorization without qualification. In the face of this fact, and the further fact that Adams never'demanded any of the collateral from appellant, and that appellant made written demand upon the company to pay the notes, otherwise they would be liquidated by sale of the collateral, which demand was received by Adams, the latter’s testimony that he meant merely to concur in appellant paying off (that is, extinguishing) the indebtedness on the notes, is entitled to little weight.
Turning next to the question whether, admitting there was no express prohibition, appellant had a right to acquire for himself the notes and collateral, vje find a failure of proof of such circumstances as would justify us in declaring that such acquisition would be in fraud of creditors, secured or unsecured, or of the stockholders of the bankrupt company. As to the bondholders, appellant practised no fraud upon them. They are in no worse position than they would have been in had the banks retained the notes and collateral and filed their claims. The company originally benefited by the money obtained on the notes. Appellant in turn gave value for them, and to that extent is entitled to share ratably with the other bondholders.
Next, as to unsecured creditors, whose claims amount to approximately $70,000, they were not deceived or defrauded. They were told what they might receive under the proposed reorganization plan (that is, 40 cents on the dollar for their claims) payable in the stock of a company to be formed. They were told that the bondholders would be paid in land of the company. Lastly, as to the stockholders, it is sufficient to point out that, at a meeting duly called and held, they were advised of the agreements between appellant and Adams, saw fit to leave the company’s affairs in their hands, and must have known that, whether appellant did or did not acquire any of the company’s bonds in his own right, the outstanding bonded indebtedness alone, not to mention unsecured creditors’ claims, was so far in excess of the company’s assets, that they could not reasonably hope to be paid anything in liquidation of their stock.
Fraud is not to be presumed. It must be proved. Hiscock v. Varick Bank, 206 U. S. 28, 27 S. Ct. 681, 51 L. Ed. 945; Jones v. Simpson, 116 U. S. 609, 615, 6 S. Ct. 538, 29 L. Ed. 742. The methods adopted by appellant in his efforts to obtain control of the company, were, it is true, not above criticism, but, under all the circumstances, nothing that he did, with respect to the acquisition of the notes, was tantamount to fraud.
We now come to the question, Did appellant in fact purchase or merely pay off the notes, as a volunteer, for the company? The referee found that appellant did in fact purchase all the notes, but that, by virtue of his agreement with Adams, he was obligated not to sell the collateral bonds, acquired with the notes, but to hold them merely as security for payment of the notes by the company, if and when the company’s contemplated reorganization was effected. The lower court rejected this finding and held that appellant never became a purchaser of the notes, but discharged them as a mere volunteer.
The official of each bank having charge of the transactions with appellant testified that his bank intended to transfer, and did transfer, to appellant all of its right, title, and interest in and to the notes and collateral. In the case of the Bank of Cameron, it was paid cash for the value of the note, $20,000, by another bank at appellant’s direction. In the case of the Wheeling Bank & Trust Company, after delivering to appellant the four notes and attached collateral bonds, the bank took back from him both the notes and collateral as security for appellant’s two personal notes for $12,000, which he gave in payment for the four notes. These facts, together with the fact, heretofore alluded to, that Adams gave express written authorization to the trust company to sell the notes with collateral to appellant, seem entirely adequate to refute the contention that appellant did not purchase the notes. This argument appears even less tenable when we analyze the entire transaction had with the trust company. That is to say, it is not to be assumed that a bank would take, as did the trust company, as collateral for a customer’s personal loans, notes of a third party, if they had in fact been paid off out of the proceeds of such personal loans, and also bonds which, by virtue of the payment of such notes, became the property of such third party.
The relation of a stranger to commercial paper who puts up his money and acquires possession of the paper is one of intention. The transaction is presumptively a purchase and not a payment or discharge of the instrument. Dodge v. Freedman’s Savings & Trust Co., 93 U. S. 379, 23 L. Ed. 920; Carter v. Burr, 113 U. S. 737, 5 S. Ct. 713, 28 L. Ed. 1147; Wood v. Guarantee Trust Co., 128 U. S. 416, 9 S. Ct. 131, 32 L. Ed. 472. This is entirely consistent with the provisions of the Uniform Negotiable Instruments Act, adopted in West Virginia, relating to the discharge of instruments. See 1923 Barnes’ West Virginia Code, Annotated, c. 98A, § 119. See, also, Kelley v. Briggs (Mo. App.) 290 S. W. 105.
We therefore conclude that the lower court was in error in not sustaining the findings of the referee to the extent that appellant could and did honestly purchase the notes. But there still remains to he decided the question whether the subsequent sale of the collateral bonds to himself — a mere paper transaction through the broker’s office— was a bona fide sale such as appellant might make. The referee found that this was an improper transaction, because in violation of his agreement with Adams. We concur in the result, but upon somewhat different reasoning. That is to say, we believe thpt, while the referee was correct in reducing the amount of appellant’s allowable claim to the total sum actually expended by him, with interest, such reduction is necessary, not because appellant had agreed not to sell the collateral, to himself or to others, in liquidation of the notes which he had bought, but because, as the lower court found, a bona fide sale did not in fact occur. A provision on the face of each note gave authority to the holder to sell the collateral and to purchase it, himself, “upon the nonperformance of this promise,” namely, upon failure to pay the principal or interest of the note according to its terms, and no demand was necessary, although such appears to have been made. However, the transaction was not in fact a sale, but a mere colorable paper transaction. The best evidence of this is that the broker’s record of the transaction shows that appellant sold the bonds to himself for an excess of $5,500 over what he had paid for the notes. That is, the sale and purchase purport to have been made at the full face value of the 75 bonds — $37,500—whereas appellant only paid $32,000 for the collateral notes. Glearly it would be unjust to other creditors to allow appellant to profit at their expense in this way. For the same reason, therefore, the court was correct in approving the fourth finding of the referee, that the coupons attached to the collateral bonds should not be allowed as part of appellant’s claim, because, were his claim allowed for anything more than what he had actually paid for the notes, with interest, it would he in fraud of other creditors.
Finally, with respect to the third finding of the referee, which the lower court confirmed, that finding was to the effect that the six bonds acquired by the appellant from Adams at the time appellant advanced $1,-500 to the company, were merely collateral in his hands. As already pointed out, the testimony respecting the exact nature of this transaction is in hopeless contradiction, and, under the circumstances, we see no reason to disturb the lower court’s conclusion.
For the foregoing reasons, we find the District Court to have been in error in reversing the action of the referee, and its judgment is accordingly reversed. | 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. | [] | [
0
] | songer_appnatpr |
Alson T. WAHRLICH, Petitioner-Appellant, v. STATE OF ARIZONA, A. E. “Bud” Gomes, Superintendent, Arizona State Prison, Respondent-Appellee.
No. 72-1638.
United States Court of Appeals, Ninth Circuit.
Argued Feb. 7, 1973.
Decided June 4, 1973.
Andrew Silverman (argued), Post Conviction Legal Assistance Clinic, Tucson, Ariz., for petitioner-appellant.
Thomas A. Jacobs, Asst. Atty. Gen. (argued), Gary K. Nelson, Atty. Gen., Phoenix, Ariz., for respondent-appellee.
Before CHAMBERS and HUFSTEDLER, Circuit Judges, and FERGUSON District Judge.
Honorable Warren J. Ferguson, United States District Judge for the Central District of California, sitting by designation.
OPINION
PER CURIAM:
Wahrlich’s petition for federal habeas relief from a conviction for kidnapping in a state court in Arizona was denied, and he appeals. He contends that the state court’s refusal to receive psychiatric testimony offered to prove that he was incapable of forming the specific intent that is an element of the offense denied him due process and equal protection secured by the Federal Constitution.
Wahrlich did not rely on an insanity defense, and the evidence was not offered to prove either insanity or diminished capacity. His theory is that the expert testimony offered was relevant to show that he could not have harbored the requisite “intent to hold or detain” the victim and that the rejection of the testimony deprived him of his due process right to introduce all evidence tending to disprove an essential ingredient of the offense. The argument is logical, and it has been skillfully presented, but we reject it.
We do not admit all evidence that is competent and probative in a criminal trial. A wide assortment of relevant evidence is deliberately excluded by reason of counterbalancing factors that are believed to be of greater moment than the unfettered admission of relevant testimony. Among the considerations that we have taken into account in refusing to accept Wahrlich’s argument are these: (1) in the interest of harmonious federal-state relations, federal courts should not unnecessarily interfere with the state’s trial of criminal cases; (2) courts should be extremely reluctant to constitutionalize rules of evidence; (3) the state of the developing art of psychiatry is such that we are not convinced that psychiatric testimony directed to a retrospective analysis of the subtle gradations of specific intent has enough probative value to compel its admission.
Alternatively, Wahrlich contends that Arizona’s admission of the evidence of age and of intoxication for the purpose of determining specific intent and its exclusion of psychiatric evidence offered for the same purpose create an unreasonable or arbitrary classification. We think not. Exposure to the effects of age and of intoxicants upon state of mind is a part of common human experience which fact finders can understand and apply; indeed, they would apply them .even if the state did not tell them they could. The esoterics of psychiatry are not within the ordinary ken. The differences are sufficiently manifest to thwart constitutional attack.
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 "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_casetyp1_1-2 |
COMDYNE I, INC. (formerly known as Corbin Sales Corporation) v. George T. CORBIN, Jr., Corbin Sales Corp., Corbin Superior Composites, Inc. Appeal of George T. CORBIN, Jr., Corbin Sales Corporation, Corbin Superior Composites, Inc., and Clifford L. Van Syoc, Esquire.
No. 89-5915.
United States Court of Appeals, Third Circuit.
Argued June 25, 1990.
Decided July 20, 1990.
Charles H. Nugent, Jr. (argued), Francis J. Hartman, Chartered, Moorestown, N.J., for appellants, George T. Corbin, Jr., Cor-bin Sales Corp. and Corbin Superior Composites, Inc.
Steven J. Fram (argued), Archer & Greiner, P.C., Haddonfield, N.J., for appellee.
Before: SLOVITER and MANSMANN, Circuit Judges, and FULLAM, District Judge .
Hon. John P. Fullam, Senior Judge, United States District Court for the Eastern District of Pennsylvania, sitting by designation.
OPINION OF THE COURT
SLOVITER, Circuit Judge.
I.
Facts and Procedural History
The following facts are taken from the Amended Complaint of appellee Comdyne, Inc. (Comdyne). George T. Corbin, appellant, was the founder and, until 1982, a director and the sole shareholder of Corbin Sales Corporation, a company in the business of manufacturing and selling filament-wound cylinders used primarily in national defense contracts. On August 2, 1982, Corbin sold 100% of the stock in the corporation to Johnson Industries Corporation. Corbin remained as an executive of Corbin Sales Corporation until on or about December 28, 1984.
In 1984, Corbin Sales Corporation changed its official corporate name to Com-dyne I, Inc., and identified itself as “Com-dyne I, Inc. (formerly known as Corbin Sales Corporation).” It continues to be listed as Corbin Sales Corporation in federal government procurement manuals and vendor codes, industrial directories, telephone directories, and other business documents. Comdyne claims that a number of its products bear the name “Corbin Sales Corporation” or its logo “CSC.”
On or about July 31, 1986, Corbin formed “Corbin Sales Corporation,” and on or about September 3, 1986, he formed a second corporation, “Corbin Superior Composites, Inc.” Although Corbin Sales Corporation never did any business and was dissolved on January 7, 1987, Corbin Superior Composites began to manufacture and sell filament-wound composite cylinders. Com-dyne alleged, inter alia, that Corbin contacted customers and vendors of Comdyne on stationery which identified him as an employee of “Corbin Superior Composites, Inc. (formerly Corbin Sales Corporation)” and used the same “CSC” logo that was being used by Comdyne.
Additionally, Comdyne alleged that Cor-bin “has publicly stated that plaintiff has defrauded the United States Government by falsely representing the history of manufacture of certain composite cylinders; that plaintiff made ‘serious and unauthorized’ changes in the design of certain composite cylinders, which changes made plaintiff’s products inferior and not in conformity with government specifications; and that plaintiff tampered with welds on certain nitrogen receivers, and changed and falsified serial numbers on certain nitrogen receivers to cover up failed welds, thereby defrauding the United States Government, endangering military personnel and engaging in criminal activity.” App. at 48.
Comdyne filed a three count complaint against Corbin and his newly formed corporations (jointly referred to as Corbin) on April 15, 1987, alleging federal trade name infringement, federal unfair competition and infringement and unfair competition under New Jersey law. On August 28, 1987, Corbin filed his Answer and a Counterclaim containing eight counts. Counts One through Four asserted claims arising out of the original sale of the business and Corbin’s subsequent employment by Com-dyne. The remaining four counts, arising out of Corbin’s post-employment competition with Comdyne, alleged malicious and intentional interference with his prospective economic advantage, slander and defamation, abuse of process, and a violation of civil RICO. Comdyne filed a motion to dismiss Counts Five through Eight of Cor-bin’s counterclaim for failure to state a claim on September 21, 1987. Some time thereafter, defense counsel deposed Com-dyne’s President, Robert S. Berrisford, over a two-day period during which Berris-ford testified under oath that the factual underpinnings for Counts Five through Eight of Corbin’s counterclaim were false.
On June 1, 1988, Comdyne filed an amended complaint, with leave of court, in which it added as Counts Four and Five allegations of trade libel and product disparagement. Defendants failed to answer the amended complaint and a default was entered by the Clerk of the district court against them on July 7, 1988 pursuant to Comdyne’s motion under Fed.R.Civ.P. 55(a). Defendants did not move to have the entry of default vacated or set aside under Fed.R.Civ.P. 55(c).
Both before and after the entry of the default, defendants failed to comply with a series of discovery orders of the district court and the magistrate. Initially, the defendants failed to answer the original complaint filed by Comdyne in April 1987 within the time period provided for under the court’s Local Rules, but instead sought pre-answer discovery and an extension of time in which to answer. On June 25, 1987 Comdyne notified defendants’ counsel that it would move, inter alia, pursuant to Rule 37(d) of the Federal Rules of Civil Procedure for an order directing defendants to pay its reasonable expenses incurred because of the failure of George Corbin and his wife, Tedi Corbin, who was President of Corbin Superior Composites, Inc., to appear for depositions which had been scheduled for June 18, 1987. Following a hearing the magistrate, by order dated August 6, 1987, permitted the defendants to file their answer by August 28, ordered discovery for both parties, and imposed a sanction against defendants of $250 for failing to appear at the depositions. The district court affirmed the sanctions.
On October 26, 1987, the district court sanctioned Corbin’s then-counsel $250 for failing to timely file opposition papers to Comdyne’s motion to dismiss, which had been filed September 21, 1987, or to properly request an extension of time to file such papers, pursuant to the Local Rules.
On November 10, 1987, the district court ordered the defendants to respond to two sets of interrogatories and document requests by Comdyne on or before November 17,1987. The defendants, however, provided incomplete answers to a number of interrogatories and failed to produce a number of the requested documents. They also failed to respond to a third set of interrogatories served on them by Comdyne on November 24, 1987. Consequently, in an order dated May 27, 1988, the magistrate ordered the defendants to fully answer specified interrogatories and to comply with the document requests by June 10, 1988. As a result of defendants’ failure to comply with that order, on July 20, 1988 the magistrate ordered defendants, pursuant to Rule 37(b)(2) of the Federal Rules of Civil Procedure, to pay $500 and to comply with the May 27 order.
At the close of discovery on September 2, 1988, after the Clerk entered the default, Comdyne filed a motion for partial summary judgment and a motion to strike Cor-bin’s answer and counterclaim for failure to comply with the May 27 and July 20 orders. On October 24, 1988 following a hearing, the magistrate found that the defendants’ refusal to comply with the orders dated May 27 and July 20, 1988 was “willful, unjustified and in bad faith,” App. at 282-83, ordered defendants to comply with these orders and pay an additional $1,000 in sanctions by November 18, and warned that failure to do so would result in their answer and counterclaims being stricken. On November 29, 1988, the magistrate, noting that defendants failed to comply with the October 24 order imposing sanctions, entered an order striking the defendants’ amended answer and counterclaim pursuant to Fed.R.Civ.P. 37(b)(2). In a subsequent Report and Recommendation on Comdyne’s motion for summary judgment, the magistrate recommended that the motion be denied as moot because Corbin’s answer and counterclaim had been struck.
The district court held an evidentiary hearing on May 18, 1989 pursuant to Fed. R.Civ.P. 55(b)(2) in order to determine the amount of damages to which Comdyne was entitled as a result of the default entered on July 7, 1988 for Comdyne on its amended complaint. At the hearing, Comdyne presented evidence to support its claim of damage consisting of the value of time which three of its employees spent in attempting to mitigate the damage to its reputation in the government contracting community caused by Corbin's defamatory statements, the expense it incurred in undertaking retesting of the composite cylinders to demonstrate that the cylinders met government specifications, and the time spent by Comdyne employees in responding to a newspaper article that appeared in the Pittsburgh Press in October 1988 containing a picture of Corbin and quoting his allegations that Comdyne’s cylinders were defective. Although Corbin’s counsel was at the evidentiary hearing, neither Corbin nor any other representatives of the defendants appeared or offered any testimony.
In an opinion entered on October 17, 1989, the district court first held that the record warranted entry of a default judgment in light of the six factors enunciated by this court in Poulis v. State Farm Fire and Casualty Co., 747 F.2d 863 (3d Cir.1984). The court next held that plaintiffs had established liability for the product disparagement and trade libel claims, as all well-pleaded allegations in a complaint, except those relating to the amount of damages, are admitted as true following a default.
Turning to the issue of damages, the court adopted in its entirety the summary of compensatory damages submitted by Comdyne and found that Comdyne was entitled to compensatory damages in the amount of $50,233.88 under Counts Four and Five of the complaint. The compensatory damages included (1) $40,540 for the retesting of the cylinders, and (2) the value of the time of Comdyne employees expended in attempting to reduce or avert the damage flowing from the defamation, consisting of $2,079 in billable time of Berris-ford, $300 in billable time of Franklin G. Buck, Comdyne’s Executive Vice President, and $2,193.75 in billable time of Richard Swan, Comdyne’s marketing manager, and the out-of-pocket cost of $5,121.13 for travel expenses incurred by Berrisford and Swann. The court also awarded Comdyne $10,000 in punitive damages. Finally, the court adopted the magistrate’s Report and Recommendation of January 5, 1989 dis-’ missing Comdyne’s motion for summary judgment as moot in light of the previous striking of the defendants’ counterclaims.
On November 6, 1989, the district court entered a “final judgment by default” in accordance with its October 13,1989 memorandum and order. This timely appeal followed.
II.
Liability
Although on appeal defendants focus primarily on the issue of the appropriateness of punitive damages and certain elements of compensatory damages, they also challenge the striking of the answer and counterclaim and the entry of default judgment. We note that there were, in effect, two sanctions entered for separate and distinct reasons. The default judgment was entered pursuant to Rule 55 which authorizes the clerk of court to enter a default against a defendant who has failed to file a timely answer, see Fed.R. Civ.P. 55(a), and the court to enter a default judgment when the plaintiffs claim is not for a sum certain, see Fed.R.Civ.P. 55(b)(2), as here. The striking of the counterclaim was entered pursuant to Rule 37(b)(2)(C), which authorizes such a sanction against a party for failure to obey an order to provide or permit discovery.
As a preliminary matter, we refer to this court’s opinion in Dunbar v. Triangle Lumber and Supply Co., 816 F.2d 126 (3d Cir.1987), a case involving a district court order dismissing the plaintiffs complaint under Fed.R.Civ.P. 41(b), where we invoked our supervisory power to require district courts, upon a motion for dismissal or default judgment “based on an apparent default on the part of a litigant’s counsel,” to “direct the clerk of the court to mail notice directly to the litigant of the time and place of a hearing on any such motion.” Id. at 129.
Entry of a default judgment under Rule 55 is plainly covered by Dunbar, Although there may not have been strict compliance with Dunbar, an issue defendants do not raise but which we review on our own initiative, we believe the record shows adequate notice to Corbin. On March 7, 1989, Comdyne notified Corbin’s counsel that it would move for an order scheduling a hearing to consider evidence for the purpose of entering a default judgment pursuant to Fed.R.Civ.P. 55(b)(2). By that time, the defendants themselves had been sanctioned in money damages on three different occasions spanning the period from August 1987 through November 1988.
Corbin’s actual knowledge of the May 18 hearing is demonstrated by his certification filed April 10, 1989, where he requested “that the Court deny the plaintiff's Motion for a hearing preliminary to entry of default judgment, and that it permit the reinstatement of my Answer and Defenses.” Supp.App. at 7. Corbin’s wife Tedi, who as noted above was President of Corbin Superior Composites, Inc., filed a certification on April 10, 1989, similarly “requesting] that the Court not rule on the plaintiff’s request for a hearing preliminary to the entry of default judgment, based on our sanctions which have been imposed against us.” Supp.App. at 20. In light of the defendants’ awareness of the pending motion for a default judgment, the underlying basis for Dunbar was satisfied. See Curtis T. Bedwell & Sons v. Int’l Fidelity Ins. Co., 843 F.2d 683, 693 n. 19 (3rd Cir.1988) (court conference and hearing “effectively notified” plaintiff of attorney misconduct, thereby satisfying Dunbar).
We consider then whether the district court abused its discretion in entering the default judgment and in striking the answer and counterclaim.
This court has applied the same general analysis in reviewing all sanction orders which deprive a party of the right to proceed with or defend against a claim, using some or all of the six-part test enunciated in Poulis v. State Farm Fire and Casualty Co., 747 F.2d 863, 868 (3d Cir.1984). See, e.g., Emcasco Ins. Co. v. Sambrick, 834 F.2d 71, 73-74 (3d Cir.1987); Gold Kist, Inc. v. Laurinburg Oil Co., 756 F.2d 14, 19 (3d Cir.1985). Under the Poulis test, the district court must consider:
(1) the extent of the party’s personal responsibility; (2) the prejudice to the adversary caused by the failure to meet scheduling orders and respond to discovery; (3) a history of dilatoriness; (4) whether the conduct of the party or the attorney was willful or in bad faith; (5) the effectiveness of sanctions other than dismissal, which entails an analysis of alternative sanctions; and (6) the meritoriousness of the claim or defense.
Poulis, 747 F.2d at 868 (emphasis omitted).
Applying the Poulis factors, the district court first found that “[t]he record demonstrates defendants’ personal responsibility in that they were personally sanctioned on three separate occasions for discovery misconduct which ultimately led to the entry of default.” App. at 312. The court further found that Comdyne has had to incur expenses in defending against a meritless counterclaim for over a year and in so doing has suffered prejudice; that the defendants and their counsel had a long history of dilatoriness as evidenced by their failure to comply with discovery orders; that the defendants presented no evidence demonstrating that their defenses or counterclaims are meritorious; and that a default judgment was an appropriate sanction.
On appeal, defendants only contest the district court’s finding that they bore personal responsibility for the discovery abuses, contending that insufficient evidence was introduced demonstrating that the defendants were the cause of the discovery misconduct or that their counsel informed them of the sanctions and the trial date. Consequently, they argue that we should remand for a determination of their personal responsibility.
The record, however, establishes that defendants did in fact have continuing knowledge of the tortuous course of this litigation. In a certification under oath submitted to the district court on August 12, 1988, at which time the defendants had already been fined $750 in two separate orders, George Corbin claimed that newly discovered information “would have been of extreme importance in the Court’s initial ruling on plaintiffs Motion to compel discovery and for sanctions, and respectfully submit that this entitles me and my employer to reconsideration of the initial order. We have not been simply defying the Court’s authority in this regard....” Supp.App. at 5. Similarly, in a certification submitted to the court on November 18, 1988, following the October 24, 1988 imposition of $1,000 in sanctions, Corbin requested that the court grant him a limited amount of time to retain an attorney “so that we can comply with our discovery obligations to the Court.” Supp.App. at 14. Corbin further requested “that the Court reconsider the presently outstanding sanctions against us,” that the defendants’ inability to answer the interrogatories was based on its “dire financial straits” and “has not been based on a contemptuous position towards the Court,” and that “in light of ... new information, we would request that the Court reconsider its presently outstanding Order.” Supp.App. at 15. Finally, in her April 10, 1989 certification, Tedi Corbin specifically “requested] that the court deny the plaintiff’s request that our attorney be sanctioned. He has bent over backwards to help us, is owed tremendous sums of money by us that we simply cannot pay at this time, and should not be faulted for believing his own clients and their documentation.” Supp.App. at 20-21.
Despite their knowledge of the pending sanctions and discovery orders, the defendants nevertheless continued to remain intransigent in their defiance of these orders. Although their affidavits in the district court attribute their failure to comply to their financial situation, unlike their position here shifting responsibility to their attorney, the district court was entitled to find, after almost two years in which defendants parried discovery requests and orders, that the conduct of both defendants and their trial counsel could no longer be countenanced. We therefore uphold the entry of default judgment and the striking of the answer and counterclaim.
III.
Damages
A consequence of the entry of a default judgment is that “the factual allegations of the complaint, except those relating to the amount of damages, will be taken as true.” 10 C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure, § 2688 at 444 (2d ed. 1983) (citing Thomson v. Wooster, 114 U.S. 104, 5 S.Ct. 788, 29 L.Ed. 105 (1885)). If the damages are not for a “sum certain or for a sum which can by computation be made certain,” Fed.R.Civ.P. 55(b)(1), the “court may conduct such hearings or order such references as it deems necessary and proper.” Fed.R.Civ.P. 55(b)(2). Corbin challenges the district court’s award of both compensatory and punitive damages to Comdyne.
A.
Compensatory Damages
Corbin first contends that the court erred in awarding Comdyne compensation for the damages which it incurred in attempting to mitigate damages to its reputation flowing from the defendants’ defamatory statements. Corbin argues that only three categories of damages are recoverable for defamation under New Jersey law: punitive damages, which require a showing of actual malice or recklessness; special damages, which require a showing of a loss of business flowing from the defamation; and general damages, which are presumed without proof of any special damages. Corbin argues that costs incurred in mitigating damages do not fall within any one of these categories.
This argument overlooks the principle, established in New Jersey as elsewhere, that “tort law require[s] one wronged by the action of another to mitigate damages.” Harvard v. Bushberg Bros., Inc., 137 N.J. Super. 537, 542, 350 A.2d 65, 68 (App.Div.1975), cert. granted, 71 N.J. 493, 366 A.2d 649 (1976) (dismissed by stipulation); see also Martin Marietta Corp. v. New Jersey Nat’l Bank, 653 F.2d 779, 784-85 (3d Cir.1981). As a corollary, New Jersey courts have held that a wronged party can recover for “expenditures made in a reasonable effort” to avert the harm caused by the defendant. Henry Clay v. Jersey City, 74 N.J.Super. 490, 497, 181 A.2d 545, 549 (Ch.Div.1962), aff'd, 84 N.J.Super. 9, 200 A.2d 787 (App.Div.1964); see also Smith v. Okerson, 8 N.J.Super. 560, 566, 73 A.2d 857, 860 (Ch.Div.1950) (“[pjrudent, reasonable expenses incurred [in mitigating damages] may be recovered as damages”).
Although we are not aware of any New Jersey cases which have considered a recovery of mitigation costs in the context of a defamation action, we see no reason why New Jersey would depart from the general rule in this specific context. Courts in other states that have considered this precise issue have held that such costs are recoverable in defamation actions. See, e.g., Bolduc v. Bailey, 586 F.Supp. 896, 901-02 (D.Colo.1984); Wachs v. Winter, 569 F.Supp. 1438, 1446, 1448 (E.D.N.Y.1983); Den Norske Ameriekalinje Acties-selskabet v. Sun Printing & Publishing Ass’n, 226 N.Y. 1, 122 N.E. 463 (1919) (cited with approval in Okerson, 8 N.J.Super. at 566, 73 A.2d at 857).
Corbin, relying on Chatlos Sys. v. Nat’l Cash Register Corp., 479 F.Supp. 738 (D.N.J.1979), aff'd in part, 635 F.2d 1081 (3d Cir.1980), cert. dismissed, 457 U.S. 1112, 102 S.Ct. 2918, 73 L.Ed.2d 1323 (1982), next contends that even if mitigation costs incurred by Comdyne’s executives are recoverable as a general proposition, the time spent by Robert F. Berrisford, the President and Chief Executive Officer of Comdyne, is not recoverable. In Chatios, a case arising under the Uniform Commercial Code, the district court held that although the plaintiff was entitled to damages for executive time spent as a result of the defendant’s breach, it was not entitled to the time spent by the Chief Executive Officer because “he assumed the risk of all corporate problems.” 479 F.Supp. at 747. We did not reach that issue on appeal.
Again, we have found no New Jersey cases directly on point. However, in light of our prediction that the New Jersey Supreme Court would adopt the general rule that a party in a defamation action can recover for mitigation costs, we believe that New Jersey would not carve out an exception for chief executive officers but instead would follow the persuasive reasoning of the Sixth Circuit which, in explicitly rejecting the district court’s distinction in Chatios, reasoned that “[a] chief executive officer is a salaried employee like any other, and a distinction between him or her and other, lower level executives is unjustified. In either case, the corporation is paying for their time.” Dunn Appraisal Co. v. Honeywell Information Sys., 687 F.2d 877, 884 (6th Cir.1982). It follows that the district court did not err in allowing damages for Berrisford’s lost time flowing from Corbin’s defamatory statements.
For similar reasons, we reject Corbin’s contention that the district court erred in awarding damages of $2,193.75 in lost time and $4,728.01 in travel expenses for visits by Comdyne’s marketing manager, Richard Swann, to customers to alleviate concerns arising from the defamatory statements. Corbin argues that visits to customers is a part of Swann’s job responsibility and that damages should not be awarded for such visits, regardless of whether they were extra visits made because of the defamatory statements. However, there was testimony by Berrisford, credited by the district court, that Swann had to double the number of his visits because of the defamatory statements, see App. at 480-81, which suffices to support this element of damages flowing from the wrong.
Corbin next challenges the award of $40,540 for the retesting of the cylinders, arguing that the need for such retesting was not proximately caused by the defamatory statements. Corbin argues that Berrisford had acknowledged that the major cause of the need for the retesting was the fall-out from the Pittsburgh Press article, the design changes in the cylinders, and the length of time since the last test.
The district court did rule that “the actions taken by the plaintiff in response to the Pittsburgh Press article should not be considered by me as an element of damages,” App. at 511, and thereafter held that they were not a “compensable matter of damages,” App. at 513. Comdyne has not challenged that ruling on appeal, and thus we do not address the merits of that ruling. We note that notwithstanding this ruling, the court accepted in toto Comdyne’s summary of damages, which included 8.8 hours of Berrisford’s time (at $45/hour) and 3 hours of Comdyne’s Executive Vice President, Franklin G. Buck (at $50 dollars/hour), clearly identified as time spent in responding to the article. We will therefore vacate its order.and remand so that the court can deduct from the award these costs which were listed as flowing only from the article.
The fact that the damages from the Pittsburgh Press article were determined to be non-compensable does not mean that the cost of retesting of the cylinders, attributable in part to that article, is not a proper item of damages. Notwithstanding that a tortfeasor “is liable only for that harm that he proximately cause[s],” People Express Airlines, Inc. v. Consolidated Rail Corp., 100 N.J. 246, 253, 495 A.2d 107, 110 (1985), where a harm is produced by concurrent acts, each act is the cause of the harm if it was a material element or “substantial factor” in bringing the harm about. See Scafidi v. Seiler, 119 N.J. 93, 104, 574 A.2d 398, 403 (1990); Restatement (Second) of Torts § 431 (1979).
There was evidence from which the district court could have concluded that the defamatory statements made by Corbin other than those reported in the Pittsburgh Press article were a substantial cause for the need to retest the cylinders. At the hearing, the district court engaged in the following exchange with Berrisford:
The Court: Well, was the test done because it hadn’t been done in some time, or was the test done because of the assertions by Mr. Corbin, or both?
The Witness: ....
In this case, the government had not specifically required us to [retest], and we were still in production. However, we felt based on all these allegations that in fact, it was in our best interests to do one and pay for it ourselves, basically to satisfy everybody, and to remove any question that in fact the Navy might require one in the future or something.
The Court: Is this a normal updating test that you would have done, had there not been any allegation by the defense?
The Witness: No, sir. The normal updating test that you do, we had continued to do. Out of every 200 cylinders that we build, we test two of those to destruction, to assure consistent quality, that nothing has changed, if you will. This test was done totally in addition to that.
The Court: Why did you do that test?
The Witness: Sir, we did the test specifically because of our concerns, both with the things in the Pittsburgh Press and letters that had been written, that we had changed our cylinder, that it was not a valid cylinder, it wouldn’t pass the test, and so on. And we did it basically to be able to go to our customers and everybody else and say, look, it’s just not true.
The Court: Who had made those charges?
The Witness: Those charges were all made by Mr. Corbin and documented in letters to the Navy and to the Pittsburgh Press, and to Rubber Crafters.
App. at 503-04 (emphasis added).
Thus, even if the Pittsburgh Press article were considered to be one of the substantial causes of the retesting, damages are apportionable among concurrent causes only if there are “distinct harms” or if “there is a reasonable basis for determining the contribution of each cause to a single harm.” Restatement (Second) of Torts § 433A (1979); see also Scafidi, 119 N.J. at 110-14, 574 A.2d at 407-08. In such instances, the burden shifts to the defendant to demonstrate how the damages should be apportioned among the concurrent causes. See Fosgate v. Corona, 66 N.J. 268, 272-73, 330 A.2d 355, 358 (1974); Prosser and Keeton, Law of Torts § 52 at 350-51 (5th ed. 1984). Where the harm, however, is indivisible, there is no apportionment of damages among the concurrent causes. See Restatement (Second) of Torts § 433A (1979).
In this case, we need not decide whether the retesting is an indivisible harm which cannot be apportioned under any circumstances, or whether it is divisible and therefore apportionable, as Corbin never introduced any evidence at trial on the issue of apportionment. As Corbin did not meet his burden of proof on this issue, the district court did not err in awarding $40,540 in damages for the retesting.
B.
Punitive Damages
We turn finally to Corbin’s contention that the district court erred in awarding punitive damages in the amount of $10,000. Corbin argues that actual malice must be shown in order to award punitive damages, that malice cannot be presumed from the complaint following a default judgment, and that Comdyne did not introduce any evidence of malice at the Rule 55 hearing.
Corbin is correct that under New Jersey common law punitive damages in a defamation action may be awarded only upon proof of actual malice, which requires a showing of ill-will or wrongful intent to injure. See Weir v. McEwan, 94 N.J.L. 92, 109 A. 355 (1920); Bock v. Plainfield Courier-News, 45 N.J.Super. 302, 132 A.2d 523 (App.Div.1957). As a general proposition, punitive damages cannot be awarded simply on the basis of the pleadings, but must instead be established at an evidentiary hearing held pursuant to Fed. R.Civ.P. 55(b)(2) because they clearly are not liquidated or computable. See, e.g., Flaks v. Koegel, 504 F.2d 702, 707 (2d Cir.1974); Meehan v. Snow, 494 F.Supp. 690, 697-98 (S.D.N.Y.1980).
In this case, the court entered an order setting “a hearing to consider the plaintiff’s evidence of damages for the purpose of entering judgment by default against defendants on May 18 at 9:00 a.m.” App. at 327. Thereafter, the court did in fact hold a Rule 55(b) hearing for the explicit purpose of assessing damages. As noted above, neither Corbin nor his wife appeared and no employee of their companies offered any evidence. At the hearing, Comdyne’s counsel explained that he sought to establish punitive damages from testimony from the defendants, but that the absence of defendants hampered that course. While Comdyne could have subpoenaed Corbin had it known he would not appear, we believe that there was adequate evidence beyond the mere pleadings to show the type of actual malice that would support punitive damages.
At the evidentiary hearing, Comdyne submitted into evidence a letter dated June 25, 1987 written by George Corbin to a customer asserting that “in my opinion, the actions of Comdyne/Johnson borders [sic] criminal fraud on the U.S. Gov’t by their own admissions and records, if not in actual fact, done to cover-up their own incompetence and for their own monetary gain.” App. at 82. Similarly, in a July 20, 1987 letter to an official of the United States Navy, Corbin, referring to Comdyne, claimed that the Navy “had been provided untrue and misleading information by unscrupulous people, who are willing to engage in criminal fraud for their own personal gain.” App. at 104. In a letter to another Navy official, dated July 29, 1987, George Corbin contended that Comdyne “embarked on a program which was unethical and even criminal fraud,” App. at 116, that Comdyne provided “misleading information” to the government, App. at 115, and that “the deceit and criminal fraud, in my opinion, was perpetrated by Com-dyne/Johnson on the U.S. Gov’t. In my opinion, such contractors should be barred from doing business with the U.S. Gov’t.” App. at 114.
In the absence of any evidence whatsoever submitted by Corbin to justify the defamatory allegations, this evidence of allegations of “criminal fraud” by a competitor against a company which depended in large part on government contracts for its business supports a finding of actual malice.
IV.
Conclusion
In conclusion, we have determined that the district court’s orders entering default judgment and striking the counterclaim will be affirmed. We note that we have given considerably more attention to these orders than have the appellants, whose brief treats these issues somewhat summarily in a scant two and a half pages, because of our continuing concern with sanction orders pretermitting merits consideration. We cannot conclude, however, that in this case, the entry of these orders was an abuse of discretion. For the reasons set forth above, we will affirm the order fixing compensatory and punitive damages except that we will vacate the order to the extent that it includes the items attributable only to the Pittsburgh Press article, and remand this action so that the district court can eliminate from the compensatory damage award the items referred to in note 13 of this opinion. Costs on appeal to be assessed against the appellants.
. At that time, the magistrate stated that the case would proceed “solely on plaintiff’s affirmative claims.” App. at 286. There is no indication on the record that the magistrate was aware of the Clerk's entry of default on those claims on July 7, 1988.
. At the evidentiary hearing, the district court denied the request of Corbin’s counsel for a jury trial on the issue of damages. Although Corbin was arguably entitled to a jury trial under Fed. R.Civ.P. 55(b)(2), he does not raise this issue on appeal, and we therefore need not consider it.
. In its opinion, the court also sanctioned the defense counsel and held that the president of Comdyne should not be recalled for further testimony on the issue of damages. The parties have not challenged either of these orders on appeal and we therefore need not consider them.
.Although the court’s orders did not explicitly dispose of Comdyne’s first three counts, which alleged federal trade name infringement, federal unfair competition, and infringement and unfair competition under New Jersey law, it is evident from the record that these counts were moot by the time of the district court’s November 6, 1989 order because Comdyne, in its brief in support of its motion to enter default judgment, stated that it was only seeking injunctive relief, and not damages, on the first three counts, and Tedi Corbin averred in an affidavit submitted on April 10, 1989 that Corbin Superi- or Composites, Inc. was no longer using the "CSC” logo or identifying itself as "formerly Corbin Sales Corporation," the basis for the requested injunctive relief. Neither party suggests that these counts remained pending following the entry of the November 6 order denominated by the court as a “final judgment by default". We therefore find no impediment to our appellate jurisdiction.
.Rule 41(b) provides, inter alia, that "[f]or failure of the plaintiff to prosecute or to comply with these rules or any order of court, a defendant may move for dismissal of an action or of any claim against the defendant.” Fed.R.Civ.P. 41(b).
. In Dunbar, the Rule 41(b) dismissal had been entered in light of the plaintiffs’ counsel’s repeated failure to prosecute the case by failing to appear at court scheduled pre-trial conferences and hearings. The court invoked its supervisory power specifically in regard to dismissals and default judgments "based on an apparent default on the part of a litigant’s counsel." 816 F.2d at 129. In this case, as discussed in the text infra, there is an adequate basis to show Corbin’s awareness of the default and responsibility for at least some of the events which were the basis for the sanctions imposed.
. We note that the record shows that at the May 18, 1989 hearing, the court asked Corbin’s counsel whether defendants wished to offer any evidence and counsel responded that "I’d like to have a chance to discuss [that] with my clients. They are not here obviously.” App. at 605. The court gave counsel that opportunity and scheduled a conference call for the next day. The court thereafter rejected defendants' request to recall Berrisford, and defendants offered no additional evidence.
.The order striking the answer and counterclaim was a dispositive order which the magistrate by statute can only recommend but not enter. See 28 U.S.C. § 636(b)(1). There is no order by the district court formally striking the counterclaim. However, Corbin did not file objections to the magistrate’s order with the district court, see 28 U.S.C. § 636(b)(1)(C), nor does he raise that issue before this court. It is therefore waived. Moreover, the district court's opinion evidences awareness of and approval of the magistrate’s order.
. We note that there is, in any event, adequate support in the record for the district court’s findings on the other Poulis factors. Significantly, even on appeal Corbin asserts no claim that its counterclaim was meritorious. Moreover, we have previously noted that "a client cannot always avoid the consequences of the acts or omissions of its counsel.” Poulis, 747 F.2d at 868 (citing Link v. Wabash, 370 U.S. 626, 633, 82 S.Ct. 1386, 1390, 8 L.Ed.2d 734 (1962)).
. As discussed earlier, the defendants were fined $250 in an order dated August 6, 1987 and $500 in a July 20, 1988 order.
. We affirmed the district court’s finding of liability on the contract claim, but reversed the district court's award of consequential damages, including lost executive time, on the ground that the plaintiffs had contractually bargained away their right to such damages. 635 F.2d at 1086-87.
. The court excluded evidence of the Pittsburgh Press article both because it had not been included in the amended complaint and because it would be "difficult, if not impossible," to separate the harm flowing from the publicity in the lawsuit (which presumably would not be actionable) and that flowing from the article itself. App. at 513.
. Comdyne included the following items in their summary of damages for Berrisford:
Date: Description: Hours:
10/17/88 Discussed Pittsburgh Pre. Robert Hilgendorf and c article with Franklin G. Buck, 3.0
10/18/88 Telephone conference with NAVSEA — Robert Flynn; discus- 1.2 sion with Robert Hilgendorf concerning Pittsburgh Press article
11/4/88 Discussed Pittsburgh Press article with representatives of 1.1 Columbia Gas
11/4/88 Drafted letter on background relating to Pittsburgh Press 3.5 article for Columbia Gas Management; discuss letter with G. Moore
App. at 294-95.
The relevant entry for Buck was:
10/17/88 Discussed Pittsburgh Press article with Robert S. Berrisford, 3.0 Robert Hilgendorf and others
App. at 296.
. We note that the district court assessed the $10,000 punitive damages award based on documents submitted by the plaintiffs concerning the assets of the defendants. See Leimgruber v. Claridge Assoc., Ltd., 73 N.J. 450, 456, 375 A.2d 652, 655-56 (1977) (court must consider, inter alia, wealth of perpetrator when awarding punitive damages).
. Corbin's brief focuses primarily on the absence of evidence to meet the common law standard of actual malice. Although Corbin alludes in passing to the constitutional malice standard which precludes in certain circumstances presumed or punitive damages when liability "is not based on a showing of knowledge of falsity or reckless disregard for the truth,” see Gertz v. Robert Welch, Inc., 418 U.S. 323, 349, 94 S.Ct. 2997, 3011, 41 L.Ed.2d 789 (1974), his brief on appeal does not point to any place in the record where this issue was raised in the district court. This court has frequently stated that we will not consider on appeal issues that the parties failed to present to the district court. See Flick v. Borg-Warner Corporation, 892 F.2d 285, 287-88 (3d Cir.1989); Halderman v. Pennhurst State School & Hosp., 673 F.2d 628, 639 (3d Cir.1982) (in banc), cert. denied, 465 U.S. 1038, 104 S.Ct. 1315, 79 L.Ed.2d 712 (1984). This is particularly appropriate in this case where the district court was apparently not asked by Corbin to consider whether the Gertz standard applies in this factual situation. | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "manufacturing". Your task is to determine what subcategory of business best describes this litigant. | This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "manufacturing". What subcategory of business best describes this litigant? | [
"auto",
"chemical",
"drug",
"food processing",
"oil refining",
"textile",
"electronic",
"alcohol or tobacco",
"other",
"unclear"
] | [
8
] | songer_respond1_1_4 |
SOUTHWEST OFFSET, INC., Plaintiff-Appellant, v. HUDCO PUBLISHING CO., INC., Defendant-Appellee.
No. 79-3071
Summary Calendar.
United States Court of Appeals, Fifth Circuit.
July 23, 1980.
Jack Hill, Dallas, Tex., for plaintiff-appellant.
Freytag, Marshall, Beneke, Laforce, Rubinstein & Stutzman, Stephen L. Hubbard, Karl L. Rubinstein, Dallas Tex., for defendant-appellee.
Before GEE, HENDERSON and HATCHETT, Circuit Judges.
Fed.R.App.P. 34(a); 5th Cir. R. 18.
PER CURIAM:
Southwest Offset, Inc. (“Southwest”), a Texas contract printer, appeals the dismissal for want of jurisdiction of its diversity suit on a series of contracts against Hudco Publishing Company, Inc. (“Hudco”), an Alabama publisher of suburban telephone directories operating in Alabama and Mississippi only.
After we remanded for clarification of its findings of fact, the district court found, among other things, that Southwest, a Texas corporation, solicited Hudco’s business through Southwest’s sales representative in Alabama. After the initial order was placed with the sales representative, Hudco placed subsequent orders, approximately eight, either in writing or over the phone. No one associated with Hudco ever came to Texas in connection with the orders placed with Southwest. Payment for the orders was to be made at Southwest’s office in Dallas, Texas, and Hudco did mail some payments for these orders to Dallas. As a necessary part of Southwest’s printing process, Hudco mailed to Southwest’s office camera-ready copy of the telephone directories. Southwest, after preparing printing plates from the camera-ready copy, would print proofs and send them to Hudco for corrections. After Hudco examined the proofs, it would return corrected proofs to Southwest. The books would then be printed and shipped to Hudco F.O.B. Dallas. All the directories that are the subject matter of this suit were printed in Texas, and Hudco knew from the outset that Southwest’s only printing plant was located in Texas.
On the basis of the above facts, the court below concluded that personal jurisdiction was lacking over defendant, although the literal provisions of Texas’ long-arm statute, Tex.Rev.Civ.Stat.Ann. art. 2031b, were satisfied. The trial court held:
It would not be fair and reasonable to require the Defendant to come into Texas and defend this action considering the lack of purposeful activity by Defendant in Texas, the relative convenience of the parties (Defendant only doing business in two southeastern states balanced against the larger operations of Plaintiff which is soliciting orders throughout the United States), and the lack of minimum contacts with Texas. Moreover, Defendant has not purposefully availed itself of the privilege of conducting activity in Texas, and thus has not invoked the benefits and protections of its laws.
In so holding, the trial court rejected the applicability of Product Promotions, Inc. v. Cousteau, 495 F.2d 483 (5th Cir. 1974), and considered U-Anchor Advertising, Inc. v. Burt, 553 S.W.2d 760 (Tex.1977), to be controlling. We disagree and reverse.
As an initial matter, we reaffirm the principle that, in the determination of whether a foreign corporation should be required to defend itself in a suit in Texas arising out of a contract between it and a Texas corporation, each case must be decided on its own facts. See Product Promotions, Inc. v. Cousteau, 495 F.2d at 499; see also Kulko v. Superior Court, 436 U.S. 84, 98 S.Ct. 1690, 56 L.Ed.2d 132 (1978). Nonetheless, guiding principles may be found in the facts of other cases. In Cousteau, for example, a foreign corporation (CEMA) entered into a contract with a Texas corporation to test a device designed to attract fish. The contract was held to have been made in Texas, see 495 F.2d at 495, and under its terms, CEMA was to test the device and prepare a report and a film for television and other advertising promotions. The film and reports were sent to Dallas, and although CEMA had performed no physical act within the state, its activities in sending the report and film to Texas were adequate to support an inference of an “affirmative, purposeful decision ... to avail itself of the privilege of conducting some business in Texas.” Id. at 496.
By contrast, the parties in U-Anchor Advertising, Inc. v. Burt, supra, entered into a single written contract in Oklahoma, the contract having been solicited by a salesman in Oklahoma for U-Anchor. Defendant Burt agreed to pay U-Anchor $80 a month at its office in Amarillo, Texas, and U-Anchor constructed the signs in Amarillo and erected them in Oklahoma. Aside from mailing monthly payment checks to U-Anchor in Amarillo, Burt had no other contact with Texas. The Texas Supreme Court held that
Burt’s contacts with Texas were not grounded on any expectation or necessity of invoking the benefits and protections of Texas law, nor were they designed to result in profit from a business transaction undertaken in Texas. . . . Simply stated, Burt was a passive customer of a Texas corporation who neither sought, initiated, nor profited from his single and fortuitous contact with Texas.
553 S.W.2d at 763. Since Burt’s only Texas activity consisted of the preparation of and mailing of checks from his place of business in Oklahoma to Amarillo, the court found that the exercise of in personam jurisdiction over him would be offensive to due process.
We find the case at bar to be controlled by Cousteau, not by U-Anchor, for several reasons. First, Texas is probably the place of most of the contracts, since all except the first of Hudco’s offers to print were accepted by Southwest in Texas. See Cousteau, 495 F.2d at 495. This court has already held, in its remand order in this case, that the contracts are governed by Texas law. See also id. at n.20. While Burt might have expected that the contract he signed in Oklahoma with U-Anchor might be enforced according to Oklahoma law, see 553 S.W.2d at 763, Hudco, like the defendant in Cousteau, could expect that Texas law might govern the enforcement of their contracts, since a substantial part of the expected performance would occur in Texas.
Second, Hudco, unlike Burt, was no mere passive customer of a Texas corporation. Hudco repeatedly placed orders with the Texas corporation for the “manufacture” of telephone directories, from which Hudco expected to profit, and Hudco several times mailed camera-ready copy and proofs to Texas in order to facilitate the manufacturing process. Thus, Hudco did considerably more than Burt, whose “single and fortuitous,” 553 S.W.2d at 763, Texas contact consisted of mailing payments to an office in Amarillo. Rather, Hudco more resembles defendant CEMA in Cousteau, who was required to send certain items to Texas under the contract. Hudco does not argue that Southwest could have manufactured its product without the camera-ready copy. Thus, the sending of the copy to Texas was a necessary part of Hudco’s contract performance.
Third, even if we were to assume arguendo that the facts of this case were closer to those found in U-Anchor, we would not be bound by that court’s holding on lack of minimum contacts. This is so because the Texas Supreme Court’s holding in U-Anchor was predicated on the due process clause of the United States Constitution, and the federal courts are not bound by state court determinations of what the Constitution requires. We are, however, bound by the precedent of our own holding in Cousteau.
Finally, the district court’s holding that “it would be more burdensome for Defendant to come to Texas than for Plaintiff who solicited the contract in Alabama to go to Alabama and bring suit” is not supported by the evidence. We note that our decisions establish a two-pronged standard for determining whether constitutional due process requirements have been met. Defendant must have some minimum contacts with the state resulting from an affirmative act or acts on its part, and it must not be unfair or unreasonable to require the nonresident defendant to defend the suit in the forum. See Cousteau, 495 F.2d at 494, 497-98. The second prong, or “fairness” factor, requires the court to consider, among other things, the interest of the state in providing a forum for the suit, the relative conveniences and inconveniences to the parties, and the basic equities. Id. at 498. Southwest, as the party seeking to invoke the jurisdiction of the federal court, had the burden of establishing the district court’s jurisdiction over Hudco, id. at 490, and we believe that Southwest has carried that burden. It has proved that the contracts were made in Texas and would be governed by Texas law and thus that Texas has an interest in providing a forum for this suit. See id. at 498 and n.27. Notwithstanding the trial court’s holding, it would be just as inconvenient for Southwest to litigate in Alabama as it would be for Hudco to litigate in Texas. The fact that Southwest maintained a sales force in Alabama tells us nothing about its ability to prosecute a suit there. Thus, the convenience factor is a “stand-off.” See id. at 498. And, as in Cousteau, Hudco has pointed to no particular inequity that would result if a court in Texas exercises jurisdiction over its person in this suit.
Indeed, there seems to be more purposeful activity in Texas by Hudco than by CEMA, a French corporation over which this court in Cousteau approved the exercise of in personam jurisdiction in Texas. In light of the facts and our precedent, we could hardly hold that it would be unfair or unreasonable to require Hudco to defend against this suit in a Texas court.
REVERSED and REMANDED.
. See note 2, infra.
. In our remand order, we indicated that we were unable to determine from the trial court’s findings whether the suit involved one omnibus agreement or a series of contracts. The trial court on remand used the term “contracts” several times and made no finding regarding any overall agreement calling for several printing jobs. Thus, we will treat each printing order as a separate contract.
. Art. 2031b reads, in pertinent part:
Sec. 4. For the purpose of this Act, and without including other acts that may constitute doing business, any foreign corporation, joint stock company, association, partnership, or non-resident natural person shall be deemed doing business in this State by entering into contract by mail or otherwise with a resident of Texas to be performed in whole or in part by either party in this State, or the committing of any tort in whole or in part in this State.
The Texas courts construe this provision as reaching “as far as the federal constitutional requirements of due process will permit.” U-Anchor Advertising, Inc. v. Burt, 553 S.W.2d 760, 762 (Tex.1977). Since we agree with the trial court’s holding that the Texas statutory requirements are met, we must proceed to inquire into whether the exercise of in personam jurisdiction over Hudco by a Texas federal court sitting in diversity satisfies the requirements of the due process clause of the United States Constitution. See Product Promotions, Inc. v. Cousteau, 495 F.2d 483, 489 (5th Cir. 1974).
. Indeed, the testing of the fish call was carried out halfway around the globe, off the coasts of France and Monaco. Id. at 488.
. We realize that if the trial court is correct in its implicit holding that a Texas state court would not exercise in personam jurisdiction over Hudco, on the authority of U-Ánchor, this case will have a different result than if filed in state court. But Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), and its progeny have not removed from the shoulders of federal judges the onus of authoritatively interpreting our federal Constitution when that document’s meaning must be found. This and like ironies, see, e. g., Hanna v. Plumer, 380 U.S. 460, 85 S.Ct. 1136, 14 L.Ed.2d 8 (1965), are unavoidable consequences of our dual court system.
. See id. This language in Cousteau appears to place the burden of proving the relative equities at least partially on defendant, despite the court’s earlier holding placing the burden of proving jurisdiction on plaintiff. This appears a fair allocation, since defendant would have unique knowledge of any particular hardships making it inequitable for it to defend in a foreign forum. | 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"
] | [
8
] | songer_genresp2 |
UNITED STATES of America, Plaintiff-Appellee, v. Willard Richard SANDERS, Defendant-Appellant.
No. 72-1026.
United States Court of Appeals, Eighth Circuit.
Submitted June 16, 1972.
Decided July 26, 1972.
William L. Kutmus, Des Moines, Iowa, for defendant-appellant.
Allen L. Donielson, U. S. Atty., John B. Grier, Asst. U. S. Atty., Des Moines, Iowa, for plaintiff-appellee.
Before LAY and BRIGHT, Circuit Judges, and DEVITT, District Judge.
DEVITT, District Judge.
Found guilty on each count of a four count indictment charging violation of the Federal Drug Statutes, defendant appeals from the conviction entered on three of these counts. Appellant claims error in the admission of hearsay testimony, insufficiency of the evidence, and improper joinder of offenses.
Defendant was charged in Count I with dispensing and distributing a narcotic drug in violation of 26 U.S.C. § 4704(a); in Count II, with selling, bartering, or exchanging a narcotic drug in violation of 26 U.S.C. § 4705(a); in Count III with willfully and knowingly receiving, concealing and facilitating the transportation of a narcotic drug, a violation of 21 U.S.C. § 174; and in Count IV, with intentionally distributing a narcotic drug in contravention of 21 U. S.C. § 841(a) (1). The crimes charged in Counts I, II and III allegedly were committed on February 10, 1971. The crime charged in Count IV allegedly was committed on October 12, 1971. Defendant appeals from the conviction on the first three counts but does not appeal from conviction on the fourth.
Two co-defendants, Joseph Alexander and Howard Anthony Gray, did not stand trial and subsequently pled guilty. Defendant was sentenced to concurrent terms of ten years on each of the four counts.
The evidence concerning the commission of the crimes charged in the first three counts reveals that these crimes took place within a two hour period on February 10, 1971 in Des Moines, Iowa. The government sought to make its case with the assistance of an informant, Billie Joe Lincoln, and an undercover agent, Tyrone Von Yarn. The activities of these two were directed and supervised by Federal Narcotic Agents and surveillance teams from the Iowa Bureau of Narcotics.
The evidence showed that on February 10 the government informant, the undercover agent and one co-defendant, Alexander, went to Joyce’s Lounge in Des Moines, Iowa and met there the defendant Sanders. Lincoln, who was previously acquainted with the defendant, approached the defendant and inquired about the purchase of some heroin. Sanders indicated that Lincoln could buy a half spoon for $300. Lincoln then advised Sanders that he would take a half spoon for that price and that he also wanted to introduce defendant to a friend, Von Yarn. The defendant said he would not deal with Von Yarn because he did not know him and if Von Yarn wished to deal at all he would have to deal with Joseph Alexander. Defendant told Lincoln to go to Alexander’s home at 1240 — 12th Street in Des Moines and that he would meet him there with the heroin.
Lincoln, Von Yarn and Alexander then went to the Alexander house, some two blocks from Joyce’s Lounge. Defendant did not appear at Alexander’s home but co-defendant Gray appeared on the scene. Gray, Alexander, Lincoln and Von Yarn went into the kitchen where Lincoln was invited to test the heroin. He did and subsequently turned over to Gray $300, the agreed purchase price. The bottle containing the heroin was then given to Von Yarn and he and Lincoln left the Alexander residence.
At trial Von Yarn, the government undercover agent, testified to the transactions which took place at Joyce’s Lounge and at the Alexander home. In addition, he testified as to the conversation between Billie Joe Lincoln and the defendant regarding the proposed sale of heroin. Each of the government’s principal witnesses, Lincoln and Von Yarn, was permitted over objection of defendant to testify as to the conversation Lincoln had with Alexander and to the conversation Alexander had with Von Yarn, the defendant not being present, regarding the defendant’s involvement in the alleged sale of heroin.
Defendant claims that this testimony was hearsay and erroneously admitted. We do not agree. It is well settled that once a conspiracy, agency, or concert of action between the declarant and the defendant is independently shown, hearsay statements made in furtherance of the relationship are admissible. Lutwak v. United States, 344 U.S. 604, 73 S.Ct. 481, 97 L.Ed. 593 (1953), United States v. Krulewitch, 336 U.S. 440, 69 S.Ct. 716, 93 L.Ed. 790 (1949). This principle was recently restated by Judge Van Oosterhout for this circuit in United States v. Reed, 446 F.2d 1226 (8th Cir. 1971), and is the holding of the ease principally relied upon by defendant, United States v. Ragland, 375 F.2d 471 (2d Cir. 1967).
The requirement for admissibility of this type of testimony is satisfied by showing likelihood of illicit association between the declarant and the defendant. Ragland, supra. If the issue is submitted to the jury, it is the responsibility of the jury to determine whether the evidence is credible and convincing beyond a reasonable doubt. United States v. Pugliese, 153 F.2d 497, 500 (2d Cir. 1945). In determining preliminary questions of fact relating to admissibility of hearsay evidence the trial judge has wide discretion and need be satisfied only that the independent evidence is credible and sufficient to support a finding of a joint undertaking. Ragland, supra, and cases there cited 375 F.2d at 477. The independent evidence of illicit association may be totally circumstantial. Bartlett v. United States, 166 F.2d 920, 925 (10th Cir. 1948).
We are satisfied that the trial judge was fully justified in concluding from the testimony of Lincoln alone that there was sufficient evidence to establish the requisite likelihood of illicit association between the defendant and Alexander so as to justify the submission of the question to the jury. The trial judge submitted the matter to the jury by his instructions 10 and 11; and by its verdict the jury must be said to have found that there was a concert of action between defendant and Alexander. Clearly it was within the discretion of the trial court to admit the testimony subject to its being connected up by subsequent proof. Fabian v. United States, 358 F.2d 187, 192 (8th Cir. 1966) ; Reistroffer v. United States, 258 F.2d 379, 386, 388 (8th Cir. 1958). There was adequate factual basis in the record for the submission of the question to the jury and for the finding by the jury. We conclude that the admission of the testimony was proper. Reed, supra.
The defendant also urges that the evidence was insufficient to sustain the verdict and that the court erred in overruling his motion for judgment of acquittal made at the end of the government’s case.
In determining the sufficiency of the evidence to support the conviction we must view the evidence in the light most favorable to sustaining the jury verdict of guilty. As the prevailing party the government is entitled to the benefit of all reasonable inferences that tend to support the verdict. Langel v. United States, 451 F.2d 957, 961 (8th Cir. 1971).
Whether the indictment charges the defendant as a principal, as urged by the government and as it appears to us, or as an aider and abettor, as urged by defendant, we are satisfied from a review of the transcript that there was sufficient evidence of defendant’s involvement in the offense to sustain a conviction. The testimony of Lincoln and Von Yarn, if believed by the jury, was sufficient to show defendant’s participation in the crimes charged. Even if, as urged, the defendant was charged as an aider and abettor, the evidence satisfies the test of Nye & Nissen v. United States, 336 U.S. 613, 69 S.Ct. 766, 93 L.Ed. 919 (1949). Nye & Nissen holds that it must be shown that defendant associated himself with the venture, participated in it as something that he wished to bring about, and sought by his actions to make it succeed. See also Mack v. United States, 326 F.2d 481 (8th Cir. 1964), Mays v. United States, 261 F.2d 662 (8th Cir. 1958).
Defendant’s last point is that the court erred in denying his motion to sever the trial of Count IV from the trial of Counts I, II and III. Counts I, II and III charged crimes allegedly committed on February 10, 1971. Count IV charged a crime on October 12, 1971, some eight months later. Defendant claims the trial of the four offenses at the same time was prejudicial to him.
It is of course permissible for the government to join all four counts in the same indictment where, as here, the offenses are “of the same or similar character.” Fed.R.Cr.P. 8(a). In addition, the motion for severance here was untimely, not having been made until after the government rested. Finally, no prejudice has been shown by the joinder of the offenses, even though they occurred eight months apart. Severance is a matter committed to the discretion of the trial court and is not subject to reversal unless clear prejudice is shown. United States v. Schroeder, 433 F.2d 846 (8th Cir. 1970). No prejudice has been shown here.
The trial court was attentive to possible prejudicial joinder of defendants, granting separate motions of co-defendants Alexander and Gray for severance and separate trials.
Defendant has also filed a brief Pro Se. We' have examined each of the points raised and find them nonmeritorious. Defendant’s complaint that the informant’s statement was not made available to defendant’s counsel until the morning of the first day of trial is without merit. Under the Statute, 18 U.S.C. § 3500, such a statement need not be made available until the witness whose statement is sought has testified. The names of all witnesses except the informant were given to defendant’s counsel at an omnibus hearing. In the interest of protecting the personal safety of the informant, it was prudent not to disclose his identity until just before trial. Defendant’s objection to the court’s reception of rebuttal evidence is likewise meritless. The testimony was properly received without objection as bearing on the credibility of defendant’s testimony.
Defendant was represented by competent counsel at trial and in this court. The trial judge afforded defendant a fair trial. Evidence of guilt is substantial and the record is without prejudicial error. We affirm the Judgment of Conviction. | 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. | [] | [
0
] | songer_r_bus |
Joseph MORRIS et al., Plaintiffs, Appellees, v. John R. AFFLECK, Director, etc., et al., Defendants, Herbert F. DeSimone, Appellant.
No. 7710.
United States Court of Appeals, First Circuit.
Jan. 6, 1971.
See also, D.C., 310 F.Supp. 857.
Donald P. Ryan, Asst. Atty. Gen., with whom Herbert F. DeSimone, Atty. Gen., was on the brief, for appellant.
Robert L. Barton, Jr., Providence, R. I., with whom Cary J. Coen, Providence, R. I., and Stanley A. Bass, New York City, were on the brief, for Raymond Wilbur, appellees.
Before ALDRICH, Chief Judge, Me-ENTEE and COFFIN, Circuit Judges.
COFFIN, Circuit Judge.
The plaintiff below, an inmate in a Rhode Island prison, claimed the state was prosecuting him because he had exercised certain rights guaranteed prisoners by an earlier consent decree issued by the District Court of the District of Rhode Island. The district court held no evidentiary hearing, but did hear arguments from counsel before entering a preliminary injunction against the state proceedings. Before defendants could obtain review of that order in this court, the district court dissolved the preliminary injunction. Plaintiff now moves to dismiss the appeal as moot.
Defendants urge that the appeal is not moot because there is involved a continuing controversy between state officials and the prisoners over the rights of prisoners. If any of these prisoners are prosecuted, say defendants, they will seek a similar injunction, which the defendants believe the district court has no power to grant.
We recognize the “recurring controversy” exception to the normal rule against hearing cases no longer in dispute. See Marchand v. Director, U. S. Probation Office, 421 F.2d 331, 333-334 (1st Cir.1970). We do not think, however, that the possibly continuing controversy between state officials and prisoners means that there is also the likelihood of continuing controversy over whether the district court has power to temporarily enjoin .any state prosecutions against prisoners. The court has done so in only one instance; this is not like a situation where an agency continually issues short term orders on the basis of questionable authority. Southern Pacific Terminal Co. v. I.C.C., 219 U.S. 498, 31 S.Ct. 279, 55 L.Ed. 310 (1911). Moreover, in some limited circumstances the district court clearly has authority to enjoin state prosecutions of prisoners. 28 U.S.C. § 2283; Drombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965). Whether this preliminary injunction was necessary in aid of the disti’ict court’s jurisdiction, to protect or effectuate its earlier judgment, or to prevent a chilling of prisoners’ rights, is a legal question that cannot be separated from the precise facts of this case. So is the vexing question whether the district court had sufficient factual basis to issue a preliminary injunction.
If we were to decide this case, the court would, if another prisoner sought a similar injunction, still have to face the basic question whether the facts fell within one of the three exceptions to the rule against enjoining state court proceedings. The propriety of the preliminary injunction is a question so integrated with the factual setting that our ruling in this case might offer the district court little guidance.
The appeal is dismissed. | 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"
] | [
4
] | songer_genapel1 |
NORTHWEST EQUIPMENT SALES CO., a Washington Corporation, Plaintiff-Appellee, v. WESTERN PACKERS, INC., an Idaho Corporation, Defendant-Appellant, The Small Business Administration, United States Government, Defendants.
No. 78-1043.
United States Court of Appeals, Ninth Circuit.
July 10, 1980.
Herbert W. Rettig, Rettig, Rosenberry & Roberts, Caldwell, Idaho, for defendant-appellant.
William F. Almon, Halverson, Applegate, McDonald, Bond, Grahn, Wiehl & Almon, Yakima, Wash., for plaintiff-appellee.
Before SKELTON , Judge, and FARRIS and PREGERSON, Circuit Judges.
Hon. Byron G. Skelton, Senior Judge of the United States Court of Claims, sitting by designation.
FARRIS, Circuit Judge:
Western Packers, Inc. is appealing from the Idaho federal district court’s decision that appellee Northwest Equipment Sales Co. has a security interest in certain fixtures which is prior to the interest that Western acquired by purchasing the fixtures at a foreclosure sale. Under Idaho law, the foreclosure sale discharged Northwest Equipment’s security interest. We, therefore, reverse and remand for the district court to enter an order directing Northwest to refund the judgment paid by Western Packers.
FACTS
Northwest Equipment sold to Orchards, Inc. various items of fruit packing machinery, retaining a security interest to secure the purchase price. Orchards, Inc. affixed the machinery to real property which it purchased the day after affixation. Cold-house, Inc. succeeded to Orchard’s interest in both the real property and the fruit packing machinery. Coldhouse mortgaged the real property with its fixtures to First Security Bank of Idaho and to Gem County Development Company.
The Bank and Gem assigned their mortgages to the Small Business Administration (SBA). Coldhouse defaulted and the SBA foreclosed, selling both the real property and the fruit packing machinery to Western Packers. Northwest Equipment brought an action against both Western Packers and the SBA in an Idaho state court, alleging the priority of its purchase money security interest in the machinery. The SBA had the action removed to federal district court.
PROCEDURAL BACKGROUND
The appeal presents us for the second time with the conflict between the interests of Northwest Equipment and Western Packers in the fruit packing machinery purchased by Western at an SBA private foreclosure sale. Northwest Equipment initially sued both Western Packers and the SBA contending that each had purchased the machinery with knowledge of Northwest’s existing security interest. Thus, Northwest maintained, Western Packers and the SBA were not entitled to protection under Idaho Code § 28-9-313(4) (1967) as subsequent purchasers without knowledge.
The district court rejected Northwest’s contention. It held that the SBA’s interest had priority over Northwest’s because the SBA had purchased the entire interest of the original mortgagees, First Security Bank and Gem County Development, who themselves had taken mortgages on the machinery without knowledge of Northwest’s interest. The district court held further that Western Packers’ interest was prior to Northwest’s since Western had purchased the entirety of the SBA’s superior mortgage interest.
Northwest Equipment appealed from the district court’s judgment quieting title in Western Packers. We vacated the district court’s finding that the original mortgagee, Gem County Development, had taken its interest in the machinery without knowledge of Northwest’s purchase money security interest. Northwest Equipment Sales Co. v. Western Packers Inc., 543 F.2d 65, 67 (9th Cir. 1976). We remanded for further proceedings to determine whether Western Packers and the SBA had themselves taken without knowledge and were thus independently entitled to the protection of section 28-9-313(4) regardless of the priority of their predecessors’ interests.
The district court, on remand, found that the SBA had taken the mortgage interests of Gem and the Bank without knowledge of Northwest’s interest but that Western Packers had knowledge when it purchased at the SBA’s foreclosure sale. The district court concluded, therefore, that the SBA took the property clear of Northwest’s interest but that Western Packers, not being entitled to protection as a purchaser without knowledge under section 28-9-313(4), took the property from the SBA subject to Northwest’s interest.
DISCUSSION
Northwest does not dispute the district court’s finding that the SBA lacked knowledge of Northwest’s security interest when it took the assignment of the mortgages from Gem and the Bank. Nor does Northwest contest the district court’s conclusion, based on that finding, that the SBA took the machinery clear of the purchase money security interest under section 28-9-313(4). Both parties agree that the crucial question is whether Western Packers’ knowledge at the time of its purchase from the SBA precluded it from taking the machinery clear of Northwest’s interest.
Northwest Equipment argues that we resolved this question in the previous appeal. We disagree. The basis of our prior remand was our inability to accept the district court’s finding that there was “no evidence’’ in the record that Gem took its mortgage interest in the machinery without knowledge. 543 F.2d at 67. We stated further, in dictum, that “we would not make the assumption of law that the predecessors’ lack of knowledge fulfills the statutory requirement [of section 28-9-313(4)] for the S.B.A. and Western.” Id.
In light of the new facts which the district court found pursuant to our remand, we conclude that the priority of Western Packers’ interest is not governed by section 28-9-314(4). The SBA held a security interest in the fruit packing machinery both under the Uniform Commercial Code and under its real estate deed of trust which covered the real property and fixtures. The SBA’s interest based on its deed of trust is prior, under section 28-9-314(4), to Northwest’s Article Nine security interest. The SBA’s Article Nine interest in the machinery, being unperfected because of an improper filing, was not prior to Northwest’s.
Accordingly, Western Packers argues, the SBA’s sale was the foreclosure of a real estate mortgage governed by Idaho real estate law. Under Idaho Code § 45-1508, a foreclosure sale under a deed of trust “shall foreclose and terminate all interest in the property covered by the trust deed of all persons to whom notice is given under subsection (2) of section 45-1505 . . . .” The SBA gave notice to Northwest Equipment of the sale of both the fruit packing machinery and the real estate. Northwest does not challenge the validity of this notice or of any other aspect of the foreclosure sale procedure. Thus, if Western Packers is correct in maintaining that Idaho’s real estate mortgage foreclosure law governs, the SBA’s sale terminated Northwest’s interest. Idaho Code § 28-9-312(1) (1967) provides that section 28-9-313 governs the priorities between security interests in fixtures and interests in real estate. If Northwest’s interest has been terminated, then section 28-9-313 is inapplicable.
The result is the same even if the SBA’s sale was governed by Idaho’s commercial code, as Northwest Equipment asserts. Section 28-9-504(4) provides that, in a private foreclosure sale:
When collateral is disposed of by a secured party after default, the disposition transfers to a purchaser for value all of the debtor’s rights therein, discharges the security interest under which it is made and any security interest or lien subordinate thereto. The purchaser takes free of all such rights and interests even though the secured party fails to comply with the requirements of this Part or of any judicial proceedings
. if the purchaser acts in good faith.
Northwest contends that Western Packers cannot satisfy the “good faith” requirement because of its knowledge of Northwest’s subordinate interest. It is not clear from the face of this subsection whether the good faith requirement applies to purchasers at all private sales or only those at sales which fail to comply with Part 5 of Article Nine. The parties have not cited and we have not found any Idaho cases resolving the issue. Section 28-1-203, however, imposes “an obligation of good faith” in the performance or enforcement of “every contract or duty” within the code. We will accept arguendo Northwest’s contention that Western Packers cut off Northwest’s interest only if Western Packers purchased the machinery in “good faith.”
The issue then becomes whether good faith is inconsistent with the purchasing an interest with knowledge of an existing subordinate claim. Section 28-1-201(19) defines good faith as “honesty in fact in the conduct or transaction concerned.” An examination of the priority and foreclosure scheme of Article Nine demonstrates that absence of knowledge of subordinate security interests could not be a prerequisite for a purchaser to buy property free of encumbrances at a foreclosure sale.
If absence of knowledge were required, the party whose interest would be undermined would be the secured party who was conducting the sale. Northwest, under such an interpretation of the good faith requirement, would be able to notify all prospective purchasers at the SBA’s sale either by filing a financing statement or by attending the sale and announcing its interest. The SBA would, thus, be able to sell only to someone willing to pay off Northwest’s interests. The SBA properly recorded its real estate mortgage without notice or knowledge of Northwest’s interest. Northwest could have protected itself by filing its financing statement properly. With certain specifically enumerated exceptions not applicable here, Article Nine consistently reflects the policy that conflicting interests in property should be resolved in favor of the party that properly filed and against the party that could have protected itself by filing but failed to do so.
CONCLUSION
The SBA properly recorded its real estate mortgage covering the machinery. The interpretation of the good faith requirement of section 28-9-504(4) which Northwest urges would devalue the interest acquired by a party in the SBA’s position in favor of a party that failed to properly avail itself of the Code’s protection. Western Packers purchased the fruit packing machinery in good faith and thus discharged Northwest’s interest.
We reverse and remand to the district court for entry of an order directing Northwest to refund the money paid it by Western Packers in satisfaction of the court’s judgment.
Reversed and remanded.
. The version of the Uniform Commercial Code adopted by Idaho in 1967 governs this case. Note that an amended version was adopted in 1979.
. The district court also concluded that Western Packers was not protected by Idaho’s successor-in-interest rule under § 28-9-312(2). Western has not appealed in this decision.
. Because this case is governed by Idaho foreclosure sale law and not by § 28-9-313(4), we need not decide whether the requirement of lack of knowledge under that subsection may be satisfied by a purchaser’s predecessor’s ignorance.
. Filing a financing statement alone might be insufficient since it would give prospective purchasers notice but not necessarily knowledge. Section 28-1-201 provides that knowledge means actual knowledge. | 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"
] | [
6
] | songer_geniss |
O’BRYAN, O’BRYAN & O’BRYAN v. Wm. M. HARRISON, Successor Trustee.
No. 6262.
United States Court of Appeals Tenth Circuit.
Dec. 2, 1959.
W. H. Pat O’Bryan, Oklahoma City, Okl., for appellant.
Luther Bohanon, and James D. Fellers, Oklahoma City, Okl., for appellee.
Before LEWIS and BREITENSTEIN, Circuit Judges, and CHRISTENSON, District Judge.
PER CURIAM.
Appeal dismissed on motion of appellee on ground that the notice of appeal was not timely filed. | 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"
] | [
36
] | songer_state |
UNITED STATES of America, Appellant, v. Ralph A. CHINBURG, doing business as Fremont Plumbing Shop; Sunset Lumber and Hardware Company, a Wyoming corporation; Ed Von Krosigh; Clarence E. Blomberg; and C. A. McDougall, Sheriff, Fremont County, Appellees.
No. 5076.
United States Court of Appeals Tenth Circuit.
June 29, 1955.
Fred W. Smith, Atty., Dept. of Justice, Washington, D. C. (Perry W. Morton, Asst. Atty. Gen., John F. Raper, Jr., U. S. Atty., Cheyenne, Wyo., and Roger P. Marquis, Atty., Dept. of Justice, Washington, D. C., were with him on the briefs), for the United States.
Donald Spiker, Riverton, Wyo., and A. G. McClintock, Cheyenne, Wyo., for appellees.
Before PHILLIPS, Chief Judge, and HUXMAN and PICKETT, Circuit Judges,
PHILLIPS, Chief Judge,
In September, 1951, Esther Chamber-lin entered into a contract with Ernest Grider for the erection of a dwelling house on an 80-acre tract of land situate in Fremont County, Wyoming. Chin-burg, Von Krosigh, Blomberg, and the Sunset Lumber and Hardware Company, a Wyoming corporation, furnished labor and material in the construction of the house and each of them filed a notice of claim of lien upon the improvements. Esther Chamberlin paid to Grider, $18,-714.00, the full amount due him under the contract. Grider failed to pay amounts due to the lien claimants, aggregating $4,446.01.
The lien claimants brought actions in the District Court of Fremont County, Wyoming, against Esther Chamberlin and Jesse Chamberlin to foreclose their claimed mechanics’ liens under the provisions of Ch. 55, Wyo.Comp.Stat.1945. The United States was not a party to such acti0ns.
. . , , , , . ,7 A judgment was entered m the state . court awarding the lien claimants a hen , , . upon the dwelling house and ímprove- , . . ,, , , , ments placed upon the land under the , . ... ~ ., mi. • j , , contract with Grider. The judgment ad- . . , , judged that the lien claimants were not . entitled to a lien upon any portion of the Jand
The United States brought this action in the United States District Court for the District of Wyoming against the four uen claimants and McDougall, Sheriff of Fremont County, who was appointed in the state court action to sell the house and improvements to satisfy the lien claims, to set aside the state court judgment, and to quiet the title of the United States in and to the land and the improvements thereon against the lien claimants.
From a judgment denying the United States any relief and dismissing the Federal court action, the United States has appealed.
The land was allotted to Kate S. Breaker under the provisions of the General Allotment Act of February 8, 1887, 24 Stat. 388, 25 U.S.C.A. § 331 et seq. On January 6, 1908, a patent therefor was issued to Breaker. As required by § 5 of the General Allotment Act, 25 U.S.C. A. § 348, the patent reserved the title to the land in the United States, in trust for the Indian, for a period of 25 years. In accordance with the provisions of the General Allotment Act, such trust period has been extended by Executive Orders until 1968. By deed dated June 12, 1950, the heirs of Breaker conveyed the land to Esther Chamberlin, an enrolled Arapahoe allottee. By the terms of the deed the trust status was preserved and the legal title remained in the United States in trust for Chamberlin.
The last statement of fact is challenged here for the first time by the lien claimants. However, their contention is foreclosed by the provisions of the deed, by a stipulation entered into by them in the state court action, by the judgment in the state court action, by stipulation entered into by them in the instant action, and by admissions of record in the instant action.
The question presented, therefore, is this: Is a dwelling house erected upon land held in trust by the United States for the benefit of its Indian ward, under contract with the Indian, subject to the state law of Wyoming providing for mechanics’ liens, and may such dwelling house be sold to satisfy such liens?
We are of the opinion that the question is answered by the decision of the Supreme Court of the United States in United States v. Rickert, 188 U.S. 432, 23 S.Ct. 478, 479, 47 L.Ed. 532. In that case, the question was presented whether permanent improvements, such as houses and other structures upon lands which had been allotted to Indian allottees under the General Allotment Act and to whom trust patents had been issued, were subject to taxation by the State of South Dakota and to a lien for such taxes. The court quoted the Fifth section of the General Allotment Act, which in part read:
“ ‘That upon the approval of the allotments provided for in this act by the Secretary of the Interior, he shall cause patents to issue therefor in the name of the allottees, which patents shall be of the legal effect, and declare, that the United States does and will hold the land thus allotted, for the period of twenty-five years, in trust for the sole use and benefit of the Indian to whom such allotment shall have been made, or, in case of his decease, of his heirs according to the laws of the state or territory where such land is located, and that at the expiration of said period the United States will convey the same by patent to said Indian, or his heirs as aforesaid, in fee, discharged of said trust and free of all charge or encumbrance whatsoever: * *
The court, 188 U.S. at pages 442, 443, 23 S.Ct. at page 482, then stated:
“Looking at the object to be accomplished by allotting Indian lands in severalty, it is evident that Congress expected that the lands so allotted would be improved and cultivated by the allottee. But that object would be defeated if the improvements could be assessed and sold for taxes. The improvements to which the question refers were of a permanent kind. While the title to the land remained in the United States, the permanent improvements could no more be sold for local taxes than could the land to which they belonged. Every reason that can be urged to show that the land was not subject to local taxation applies to the assessment and taxation of the permanent improvements.
“It is true that the statutes of South Dakota, for the purposes of taxation, classify ‘all improvements made by persons upon lands held by them under the law of the United States’ as personal property. But that classification cannot apply to permanent improvements upon lands allotted to and occupied by Indians, the title to which remains with the United States, the occupants still being wards of the nation, and as such under its complete authority and protection. The fact remains that the improvements here in question are essentially a part of the lands, and their use by the Indians is necessary to effectuate the policy of the United States.
“Counsel for the appellee suggests that the only interest of the United States is to be able at the end of twenty-five years from the date of allotment to convey the land, free from any charge or encumbrance; that if a house upon Indian land were seized and sold for taxes, that would not prevent the United States from conveying the land free from any charge or encumbrance; and that, in such case, the Indians could not claim any breach of contract on ■ the part of the United States. These suggestions entirely ignore the relation existing between the United States and the Indians. It is not a relation simply of contract, each party to which is capable of guarding his own interests, but the Indians are in a state of dependency and pupilage, entitled to the care and protection of the government. When they shall be let out of that state is for the United States to determine without interference by the courts or by any state. The government would not adequately discharge its duty to these people if it placed its engagements with them upon the basis merely of contract, and failed to exercise any power it possessed to protect them in the possession of such improvements and personal property as were necessary to the enjoyment of the land held in trust for them. * * * ”
The reasoning in the Rickert case is equally applicable here. The results that would flow from the taxation of improvements upon land held in trust by the United States and the sale of such improvements for taxes would likewise flow from the imposition of mechanics' liens upon lands held in trust by the United States and the sale of such improvements to satisfy such liens, and would frustrate the declared policy of the United States with respect to such lands.
The judgment is reversed and the cause remanded with instructions to enter judgment for the United States.
. Section 55-201, Wyo. Comp. Stat. 1945, in part provides for a mechanic’s lien upon the improvements and upon the land on which, they are situated to the extent of one acre,
. The deed recited:
“That whereas the lands hereinafter described were allotted to or inherited by the said parties of the first part under the provisions of legislation by Congress pursuant to which said lands are restricted or held in trust by the United States for the benefit of said grantors and are not subject to taxation; nor to alienation or encumbrance without the consent of the Secretary of the Interior, and whereas the said party of the second part being also a restricted Indian desires to acquire said hereindescribed lands subject to the same conditions, restrictions, and limitations as to taxation, alienation, or encumbrance as now rest thereagainst;” and the conveyance was subject to the express condition “that the execution of this deed by the party or parties hereto or its approval by the Secretary of the Interior shall not operate in any manner to remove any of the restrictions now resting against said lands, or to remove any trust or other conditions imposed upon said land as expressed in the original trust or any other patent issued therefor, or any part thereof; it being distinctly understood and agreed that the scope and intent of this deed is simply to transfer and convey such right, title, and interest as the parties of the first part now have in such lands to the said party of the second part subject to the conditions, restrictions and limitations as now rest there-against in the hands of the parties of the first part.” | 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_typeiss |
Denis P. KELLY, Petitioner, v. BUTLER COUNTY BOARD OF COMMISSIONERS, Board of Prison Managers, Butler County Correctional Institution, Thomas Hutchinson, Warden, Butler County Correctional Institution and their Agents.
Misc. No. 718.
United States Court of Appeals ' Third Circuit.
Submitted on Briefs July 17, 1967.
Decided Sept. 20, 1967.
See also, 3 Cir., 399 F.2d 133.
Denis P. Kelly, pro se.
Charles T. Chew, County Sol., County of Butler, Butler, Pa., for appellee.
Before BIGGS, MeLAUGHLIN and VAN DUSEN, Circuit Judges.
OPINION OF THE COURT
PER CURIAM.
This suit seeking money damages only and filed under 28 U.S.C. § 1343 and 42 U.S.C. §§ 1981 and 1983 is before this court on plaintiff’s application, supported by affidavit of poverty, to prosecute an appeal in this court in forma pauperis from an order of the District Court denying his application to proceed in forma pauperis in that court under 28 U.S.C. § 1915. The District Court opinion stated: “a more detailed pleading is necessary * * * for the purpose of informing any judge to whom resort is had that the claim is not frivolous.”
In view of these allegations, as summarized at pages 1-2 of the District Court opinion, and the terms of the Complaint, the request for permission to proceed in forma pauperis in this court will be granted:
“The plaintiff-petitioner alleges that his federal civil rights were violated by the named defendants in the following particulars: (1) the defendants interfered with and obstructed the plaintiff’s right to access to the Federal courts in that they did not permit him to file legal documents with the United States District Court at Pittsburgh in November 1965 and in February 1966, * * *; and (2) in June 1966, ‘after having been extradicted from the State of New York and returned to the Butler County Correctional Institution’, the plaintiff-petitioner was placed in solitary confinement and subjected to cruel and unusual conditions in order to coerce a guilty plea to the charges lodged against him. The allegedly cruel and unusual conditions which endangered the health and emotional well-being of the plaintiff-petitioner were a steel bunk without a mattress, lack of clothing, no facilities to wash himself, bad food, and foul air. The plaintiff-petitioner was also denied medical care.”
Our recent decision of June 16,1967, in Negrich v. Hohn et al., 379 F.2d 213 (3rd Cir.) is inapplicable to the issue now before this court, since that case involved an appeal from a dismissal of a complaint under the Civil Rights Act on the merits whereas the application now before the court is to proceed in forma pauperis so that the appeal may be considered by this court.
. Paragraphs 8 and 9 of the Complaint allege that attempts to send legal documents to the courts in November 1965 and February 1966 were denied. Paragraph 11 alleges that in June 1966, when in the Butler County Correctional Institution, “Plaintiff and a co-defendant were placed in solitary confinement under cruel and unusual conditions * * * for several weeks until they succumbed to the coercion of the defendants and/or their agents to submit guilty pleas to charges lodged against them.” Paragraph 12 contains this language, inter alia:
“Plaintiff was stripped of all clothing and was unable even to wash himself. The food served to plaintiff was approximately one third of the daily ration provided for other prisoners, and was so inadequately prepared that plaintiff suffered intermittent bouts of diarrhea and vomitting. After several days the air became unbearably foul, yet defendants and/or their agents refused to open a window despite 100 degree temperature.”
. The situation presented by this record is factually quite different from that before the courts in cases such as Ray v. Commonwealth of Pennsylvania, 263 F.Supp. 630 (W.D.Pa.1967); Cooper v. Hutchinson, 184 F.2d 119, 124-125 (3rd Cir. 1950), where equitable injunctive relief was sought and 28 U.S.C. § 1915 not involved; and Gaito v. Prasse, 312 F.2d 169 (3rd Cir. 1963), where equitable injunctive relief was sought. The past conditions about which plaintiff complains may no longer exist so that administrative relief would be useless. | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "sub-state government (e.g., county, local, special district)". Your task is to determine which category of substate government best describes this litigant. | This question concerns the first listed respondent. The nature of this litigant falls into the category "sub-state government (e.g., county, local, special district)". Which category of substate government best describes this litigant? | [
"legislative",
"executive/administrative",
"bureaucracy providing services",
"bureaucracy in charge of regulation",
"bureaucracy in charge of general administration",
"judicial",
"other"
] | [
5
] | songer_respond1_4_2 |
NOERR MOTOR FREIGHT, INC., et al., Appellants in No. 12750, v. EASTERN RAILROAD PRESIDENTS CONFERENCE et al., Appellants in No. 12751.
Nos. 12750, 12751.
United States Court of Appeals Third Circuit.
Argued June 8, 1959.
Decided Dec. 10, 1959.
Biggs, Chief Judge, dissented.
Harold E. Kohn, Philadelphia, Pa., (Philip P. Kalodner, Aaron M. Fine, Philadelphia, Pa., Dilworth, Paxson, Kalish, Kohn & Dilks, Philadelphia, Pa., on the brief), for plaintiffs.
Daniel Mungall, Jr., Philadelphia, Pa.. (Seth W. Watson, Jr., Philadelphia, Pa., on the brief), for Main Cent. R. Co.
Philip Price, Philadelphia, Pa. (Ballard, Spahr, Andrews & Ingersoll, Philadelphia, Pa., Hughes, Hubbard, Blair & Reed, New York City, Barnes, Dechert, Price, Myers & Rhoads, Harold B. Borne-mann, Philadelphia, Pa., Dennis P. Donovan, New York City, Drinker, Biddle & Reath, Philadelphia, Pa., Carl E. Glock, Pittsburgh, Pa., James B. Anderson, Montgomery, McCracken, Walker & Rhoads, Morgan, Lewis & Bockius, Daniel Mungall, Jr., Cornelius C. O’Brien, Jr., Philadelphia, Pa., T. W. Pomeroy, Jr., Pittsburgh, Pa., Paul Maloney, Saul, Ewing, Remide & Saul, Philadelphia, Pa., on the brief), for defendants.
Before BIGGS, Chief Judge, and MCLAUGHLIN and STALEY, Circuit Judges.
PER CURIAM.
In this antitrust action for an injunction and treble damages, forty-one long distance trucking companies and their trade association, Pennsylvania Motor 'Truck Association, sued twenty-four major eastern railroads, Eastern Railroad Presidents Conference and Carl Byoir Associates, Inc. a New York corporation, the public relations agency for the Conference.
Plaintiffs charged in their complaint (filed April 30, 1953) inter alia, that in or about May, 1949, the defendant Railroads embarked upon an illegal conspiracy, in violation of the civil and criminal provisions of the antitrust laws of the United States, aimed at destroying the plaintiffs and those similarly situated as competitors in the field of the hauling of freight, and at carving out exclusive, monopolistic spheres of operation in the freight transportation business of the United States, so that the railroads would have a monopoly on freight hauling in interstate commerce; that the defendant Railroads worked for those ends through the defendant Conference; that the latter retained defendant Byoir as publicity agent to carry said conspiracy into effect; that thereafter the Conference, its committees, members thereof, the defendant Railroads, their presidents and trustees and other individual defendants and Byoir, with divers other persons unknown to plaintiffs, have acted in combination and concert to obtain the objectives of the conspiracy. The means used are detailed in the complaint; a continuing conspiracy to the date of the complaint is alleged; damage to each of the plaintiffs is asserted, irreparable, continuing injury stated and an injunction asked. Defendants denied the charges of the complaint. In 1956, after the case had been assigned a trial date, October 1, 1956, and while discovery procedures were pending, some of the Railroads and the Conference sought permission to and were allowed to file a counterclaim against the plaintiffs. This claimed that plaintiffs were engaged in an illegal conspiracy to obtain a monopoly of the long haul freight industry in the same part of the United States as set out in the complaint and to force the Railroads out of that part of the transportation business in that area.
The case went to trial before Judge Clary on October 1, 1956 and lasted almost four months. There were many witnesses and 968 exhibits. On October 10, 1957, the court in an exhaustive opinion (it covers 73 pages in 155 F.Supp. 768-841) found in favor of the plaintiffs against all the defendants on plaintiffs’ cause of action and against the defendant counterclaimants and in favor of the plaintiffs on the counterclaim.
Soundly based on substantial evidence, the trial court found that the Railroads and Byoir, as contended, had conspired in unreasonable restraint of trade to injure the truckers in their competitive position in the long haul freight industry in the northeastern part of the United States; that their immediate purpose was to create public resentment to the truckers, not only in the minds of the general public but in the minds of those who utilized the services of the trucks and in such a manner as to interfere with business relations between shippers and truckers; that instead of meeting the truckers competition in the long haul freight field, the Railroads and Byoir combined to injure and/or destroy the truckers and thereby force the shippers to their detriment to continue to use the Railroads; that they adopted and carried out a full program to obtain that objective; that serious private injury to the truckers was accomplished, definitely a loss of good will to the trucking industry and in some instances that loss of good will being extreme; that their actions destroyed to a large extent the public confidence which the truckers had fairly earned and which might have been increased in the light of the innumerable beneficial accomplishments of the truckers in long haul transportation.
The court found on overwhelming evidence that it was no series of individual conspiracies in the various states involved but one large ever-growing conspiracy as charged having as its goal to injure and/or destroy the long haul trucking industry and that the main means used to attain such end was primarily a campaign designed to destroy the good will of the truckers and to instigate and foster government restrictions by creating public hostility to the truckers, bringing this to the attention of the various legislatures, then proposing legislation crippling to the trucking industry and favored by the Railroads, all under the guise of public spirited organizations and with the defendants’ interest concealed.
The record shows the defendants’ antitrust conspiracy completely established against all the defendants named in the decree. It shows both legal and illegal methods to obtain the illegal objective of injuring and/or destroying the long haul trucking industry. It shows injury to the plaintiffs and to the public. It justifies the injunctive relief against continuing illegal activities of the defendants. It justifies the compensatory damages (trebled by statute) allowed plaintiff Pennsylvania Motor Truck Association, together with costs and counsel fees. It justifies the holding of the district court that the other plaintiffs, by reason of the stipulation which is very clear and is part of the record, are only entitled to nominal damages. It justifies the dismissal of the counterclaim, which action is not disputed by the Railroads except in line with their argument that the counterclaim is similar in content to the plaintiffs’ claim.
Though we think it plain from what we have said, it might be well to expressly note that the suggestion that the Railroads’ entire activity, spearheaded by Byoir, was merely a perfectly legitimate public relations campaign for legislation is fanciful in view of the impressive documentation in the record of the finding of the trial court “ * * * that the entire campaign and its objectives did not constitute a mere appeal to the legislature; nor was it a large scale lobbying campaign. True, one phase of the activities was of a legislative nature — but a rather new approach to legislation, to say the least. The other phase, and the more important one of the campaign, was one of vilification designed to destroy the good will of the long-haul trucking industry. Hence, the Court has rejected the contention of the defendants that their combination was entirely legislative. 1 have further determined that the ro.ilroads were not acting as the guardian of the public welfare, as they have so earnestly asserted.” (Emphasis supplied.)
Judge Clary’s opinion is soundly predicated on the facts and law of this litigation. We are in accord with it. The decree and orders of the district court of July 22, 1958 and July 31, 1958 will be affirmed.
. Sherman Act, 15 U.S.C.A. § 1 et seq.; Clayton Act, 15 U.S.C.A. § 15.
. The third party apparatus employed by the defendants, while concealing their own adroit manipulation thereof, in seeking to procure legislative and executive action is contrary to public policy and illegal. Marshall v. Baltimore & O. Railroad Co., 1853, 16 How. 314, 335, 14 L. Ed. 953; Angle v. Chicago, St. Paul, M. & O. R. Co., 1893, 151 U.S. 1, 14 S.Ct. 240, 38 L.Ed. 55; Commissioner of Internal Revenue v. Textile Mills Securities Corp., 3 Cir., 1940, 117 F.2d 62, affirmed 1941, 314 U.S. 326, 62 S.Ct. 272, 86 L.Ed. 249. Cf. United States v. Silliman, 3 Cir., 1948, 167 F.2d 607, certiorari denied 1948, 335 U.S. 825, 69 S.Ct. 48, 93 L.Ed. 379.
. The attempt to influence legislation and executive action while rightly held by the trial court to be less important than the direct vilification of the long haul trucking industry was nevertheless properly found to be a vital element of the defendants’ conspiracy to injure and/or destroy that group. Even assuming the brazen interference with legislation and executive action in this instance was lawful, its entire motivation was shown to emanate from the conspiracy charged. It was part of defendants’ scheme to wreck their competitor, to monopolize that branch of commerce for themselves. As such it violated the Sherman Act. Giboney v. Empire Storage & Ice Co., 1949, 336 U.S. 490, 497-502, 69 S.Ct. 684, 93 L.Ed. 834; United States v. Krasnov, D.C. E.D.Pa.1956, 143 F.Supp. 184, affirmed 1957, 355 U.S. 5, 78 S.Ct. 34, 2 L.Ed. 2d 21; Atchison, Topeka & Santa Fe Railway Co. v. Aircoach Transport As-soeiation, 102 U.S.App.D.C. 355, 253 F. 2d 877, 887.
American Banana Co. v. United Fruit Co., 1909, 213 U.S. 347, 29 S.Ct. 511, 53 L.Ed. 826, urged below and here by the Railroads, has no real application to the facts before us. The later decisions of the Supreme Court in United States v. Sisal Sales Corporation, 1927, 274 U.S. 268, 47 S.Ct. 592, 71 L.Ed. 1042, and Steele v. Bulova Watch Co., 1952, 344 U.S. 280, 73 S.Ct. 252, 97 L.Ed. 252 clearly indicate that the Banana Company opinion is limited to the proposition that the Sherman Act cannot be invoked against persuading a foreign sovereign to act. Okefenokee Rural Electric Membership Corp. v. Florida Power & Light Co., 5 Cir., 1954, 214 F.2d 413, is the other decision stressed by the Railroads in the district court and on appeal. That too is hardly an authority for anything pertinent under the instant unescapable facts. There the complaint made no allegation that the conspiracy was directed to ruining a competitor in his business. The later case of Crummer Co. v. Du Pont, 5 Cir., 1955, 223 F.2d 238 and 5 Cir., 1958, 255 F.2d 425, certiorari denied 1958, 358 U.S. 884, 79 S.Ct. 119, 3 L. Ed.2d 113, leaves no doubt but that as of now in the Fifth Circuit Court of Appeals, a conspiracy to drive a competitor out of business is a violation of the Sherman Act even though, as in Crum-mer, its most important element was the obtainment of its objective by secretly moving under the guise and protection of the public interest and through the public authorities. | 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 criminal procedure in the headnotes to this case. Answer "0" if less than two federal rules of criminal procedure are cited. For ties, code the first rule cited. | What is the second most frequently cited federal rule of criminal procedure in the headnotes to this case? Answer with a number. | [] | [
0
] | songer_crmproc2 |
Charles Frank SHOLE, Appellant, v. Alfred J. O’FERRALL, Assistant Attorney General; Francis B. Burch, Attorney General, J. Harold Grady, Judge, Howard L. Aaron, Judge, Appellees.
No. 14346.
United States Court of Appeals, Fourth Circuit.
April 30, 1970.
Charles Frank Shole, pro se.
Francis B. Burch, Atty. Gen. of Maryland, and William J. Rubin, Sp. Asst. Atty. Gen. of Maryland, on the brief, for appellees.
Before HAYNSWORTH, Chief Judge, and SOBELOFF and BUTZNER, Circuit Judges.
PER CURIAM:
Upon consideration of the appellees’ motion for summary affirmance and a review of the record and briefs, we find oral argument unnecessary and summarily affirm the order of the district court dismissing the action.
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 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"
] | [
1
] | songer_respond1_5_2 |
MINNESOTA POWER & LIGHT COMPANY, Petitioner, v. FEDERAL POWER COMMISSION, Respondent.
No. 17680.
United States Court of Appeals Eighth Circuit.
April 7, 1965.
Vogel, Circuit Judge, dissented.
Robert C. Woodbury and Robert George Schuur, New York City, and Francis C. Sullivan, of Sullivan, McMillan, Hanft & Hastings, Duluth, Minn., with Harry A. Poth, Jr., New York City, on the brief, for petitioner.
Josephine H. Klein, Atty.,' Federal Power Commission, Washington, D. C., made argument. Richard A. Solomon, Gen. Counsel, Federal Power Commission; Howard E. Wahrenbrock, Solicitor, and Joseph B. Hobbs, Atty., Federal Power Commission, Washington, D. C., on the briefs, for respondent.
Before VOGEL, MATTHES and RIDGE, Circuit Judges.
MATTHES, Circuit Judge.
This is a proceeding to review and set aside an order of the Federal Power Commission (Commission) requiring Minnesota Power & Light Company (petitioner) to file application for license under the Act for the continued maintenance and operation of its Little Falls Project.
Petitioner, a public utility, was originally organized in 1906 as the Duluth Edison Electric Co., and reorganized as the Minnesota Power & Light Company in 1923. It acquired the project under consideration from the Little Falls Company in 1924.
Petitioner and the Commission agree that the legal issues in this case are substantially the same as those in Northwest Paper Company et al. v. Federal Power Commission, 344 F.2d 47 (8 Cir.) decided by opinion filed this day. According to the petitioner there are “substantial” factual differences whereas the Commission asserts “none of these differences is of substantial legal significance.” We agree with the Commission.
On July 3, 1886, a Special Act of Congress was approved (24 Stat. 123) providing in material part:
“ * * * That it shall be lawful for the Little Falls Water-Power Company of Minnesota to improve and develop the water-power in the Mississippi River at Little Falls, in the State of Minnesota, by constructing, maintaining, and operating in said river, at said Little Falls, dams, piers, sluice ways, canals, locks, ponds, break-waters, abutments, and mill sites for manufacturing purposes * * *.
“Sec. 2. That the right to alter, amend, or repeal this act is hereby expressly reserved.”
Pursuant to the foregoing authority, the permittee completed the initial construction in and across the Mississippi River about 1887. The project was comprised of a timber crib dam at the present powerhouse site and a rock crib dam to provide a logging pond and divert water to a paper company canal. Mill buildings (razed around 1920) were equipped with water wheels for furnishing hydro-mechanical power for flour milling. The hydro-electric water power equipment was later installed. The Commission stated in its Declaratory Order that
“In the period of 1925 through 1927, which was- subsequent to the enactment of the Federal Water Power Act, Petitioner states that a substantial amount of structural work was accomplished, including the replacement of portions of the power house and the wheel pits and portions of the dam itself. In the period of 1928-29, Petitioner constructed a 33/2:3 KV substation and in 1962, it replaced some spalled concrete on the dam structure. The foregoing construction was accomplished without a license from the Federal Power Commission."
The Declaratory Order was issued December 30, 1963. Thereafter, the Commission granted a rehearing for further consideration of the issues and stayed the Declaratory Order. On March 17, 1964, the Commission issued its order denying petitioner’s application for rehearing and directing petitioner to apply for a license. Minnesota Power & Light Company, 31 FPC 592.
The points relied upon by petitioner, the arguments advanced in support thereof and the Commission’s response thereto are, with one exception, identical to those advanced in Northwest Paper Company case, supra.
The one exception relates to the so-called cutoff date. Petitioner asserts that “The only new works added to the project were constructed before 1935.” From this statement it would appear that petitioner assumes that the Federal Power Act did not become applicable to its project until 1935. We do not subscribe to this theory. Sec. 23 of the original Act of 1920 specifically provides that “the provisions of this Act shall not be construed as aifecting any permit * * * heretofore granted.” In no way does it limit the Commission’s jurisdiction over pre-existing structures which have been substantially reconstructed subsequent to 1920. In our view, the August 26, 1935 amendment to Sec. 23 (49 Stat. 846,16 U.S.C.A. §§ 816, 817) is nothing more than an express clarification of the congressional intent embodied in the original Act of 1920 which exempted from jurisdiction permits “heretofore granted,” not to reconstructed projects.
Further discussion is unnecessary. The petitioner concedes in its brief, and the Commission found that the project works authorized and constructed under the Special Act of 1886 no longer substantially exist and that the project has been rebuilt and modified a number of times since its initial construction.
Accordingly, we agree with the Commission that the Special Act of 1886 does not authorize the continued maintenance and operation of the Little Falls Project. The order appealed from is affirmed for the reasons stated in our opinion in Northwest Paper Company et al. v. Federal Power Commission, supra.
. “Subsequent to 1920, Project maintenance lias included replacement of a substantial amount of the structural work done after 1912 because of inferior concrete. This work, accomplished in the period from 1925 through 1927, included the replacement of portions of the powerhouse and of the dam itself. During this period, substantial repairs were also required to restore a dashboard section of the concrete dam to operating condition. In 1928-29, a substation was constructed on the Project site. In 1962 maintenance required the replacement of some spalled concrete on a portion of the dam structure.” | What follows is an opinion from a United States Court of Appeals.
Your task is to determine the number of judges who dissented from the majority (either with or without opinion). Judges who dissented in part and concurred in part are counted as dissenting. | What is the number of judges who dissented from the majority? | [] | [
1
] | songer_dissent |
Orville E. STIFEL, II, Plaintiff-Appellant, v. William F. HOPKINS, Esq., et al., Defendants-Appellees.
No. 72-1424.
United States Court of Appeals, Sixth Circuit.
Submitted Oct. 3, 1972.
Decided May 1, 1973.
Orville E. Stifel, II, pro se.
Lindhorst & Dreidame by James L. O’Connell, Cincinnati, Ohio, for defendant-appellee, William F. Hopkins.
Before PHILLIPS, Chief Judge, and EDWARDS and McCREE, Circuit Judges.
McCREE, Circuit Judge.
This case presents the question whether a federal prisoner who is incarcerated in a state other than the state of his domicile prior to conviction can show that he is a citizen of the state of incarceration for purposes of federal diversity jurisdiction. The District Court held that as a matter of law the prisoner was precluded from making this showing, and dismissed the complaint for lack of jurisdiction. We reverse.
In 1969, appellant was convicted by a jury of violating 18 U.S.C. § 1716 (1970), by mailing an “infernal machine” that exploded and caused the death of the addressee upon opening the package. Appellant’s conviction was subsequently affirmed by this court. United States v. Stifel, 433 F.2d 431 (6th Cir. 1970), cert. denied, 401 U.S. 994, 91 S.Ct. 1232, 28 L.Ed.2d 531 (1971), and he is now serving a life sentence in the federal penitentiary in Lewisburg, Pennsylvania. Prior to his arrest and conviction, appellant lived with his parents in Cincinnati, Ohio, and concededly was a citizen of Ohio. As we recognized in our consideration of his prior appeal, he was known in his community “as something approaching a model young man.” 433 F.2d at 431.
In 1971, following the denial of certiorari by the Supreme Court in appellant’s criminal case, he instituted this action against his parents and against the attorney who represented him throughout the criminal proceedings. Reciting that plaintiff was a citizen of Pennsylvania, that defendants were citizens of Ohio, and that the amount in controversy exceeded $10,000, the complaint, which was filed in United States District Court for the Southern District of Ohio, invoked the diversity jurisdiction of the court. The complaint asserted that the attorney had fraudulently induced plaintiff to retain him and had deliberately and negligently engaged in acts of professional misconduct to the detriment of plaintiff; that plaintiff’s parents had agreed to pay the attorney a large sum of money for representation of their son and then obtained a judgment in federal court against plaintiff in the amount of their debt to the attorney; and that plaintiff was entitled to compensatory and punitive damages from the attorney and to injunctive relief against the payment of any moneys by plaintiff’s parents to the attorney.
Defendant attorney moved to dismiss the complaint pursuant to Fed.R.Civ.P. 12(b)(1) for lack of subject matter jurisdiction. In support of this motion, he submitted an affidavit stating that plaintiff resided with his parents in Ohio until he was incarcerated in federal prison in Pennsylvania and that Stifel was in prison at the time of suit. Plaintiff filed a counter-affidavit in which he stated that he was 25 years of age, unmarried, and childless; that from July 1969 he had resided in Pennsylvania and would continue to do so indefinitely; that all his personal belongings and assets were in Pennsylvania and that all his business transactions were conducted in Pennsylvania; that, because of the actions of his attorney as set out in the complaint, he had been subject to public scorn and ridicule in Ohio, had become a “notorious person” there, and was a “target of great public hostility” in his former community, and that he therefore did not intend ever to return to Ohio. He stated that he considered Pennsylvania his home and intended to remain there indefinitely. Plaintiff subsequently submitted a supplemental memorandum in which he asserted that federal prisoners have some choice of the particular prison facility in which they will be incarcerated and that transfers are often allowed, and he contended that he had decided to remain in Pennsylvania despite urgings by unnamed prison officials that he transfer to a facility in Indiana.
The District Court granted the motion to dismiss. The court accorded no weight to appellant’s affidavit on the ground that appellant was not voluntarily in Pennsylvania and his intentions regarding his domicile if and when he should be released from prison were irrelevant. Appellant’s domicile, the court held, remained in Ohio until appellant should have voluntarily changed it, and a prisoner cannot perform such a voluntary act because he is at all time subject to the physical and legal compulsion of federal authorities.
On appeal, plaintiff contends that a rule of law that precludes a prisoner from showing that he has changed his domicile and thereby denies him access to federal court is a rule that is based solely on the litigant’s status as a prisoner, and as such violates the due process clause of the Fifth Amendment. He contends that it works arbitrarily to discriminate against prisoners and to deprive them of an important federal right —the right to sue in federal court. He claims that the rule constitutes an irrebuttable presumption in violation of the Fifth Amendment, that it restrains his First Amendment right to form and express his thoughts, and that it places unjustifiable obstacles in the path of prisoner-litigants that would not have to be overcome by unconfined citizens.
We agree with appellant that the District Court should not have ruled as a matter of law that appellant could not make the requisite showing of a change of domicile. We reach this result not on constitutional grounds but instead on the basis of our interpretation of the meaning of the word “citizen” in the statute defining the diversity jurisdiction of the federal courts.
Federal district courts have diversity jurisdiction of civil actions between “citizens of different states” if the amount in controversy exceeds $10,000. 28 U.S.C. § 1332(a)(1) (1970). The determination of a litigant’s state citizenship for purposes of diversity jurisdiction is a matter of federal law, Ziady v. Curley, 396 F.2d 873, 874 (4th Cir. 1968); Taylor v. Milam, 89 F.Supp. 880, 883 (W.D.Ark.1950); see 1 J. Moore, Federal Practice (pt. 1) ¶ 0.74 [1], at 707.1 (2d ed. 1972), although federal courts may look to state law for guidance in defining terms, formulating concepts, or delineating policies. See Napletana v. Hillsdale College, 385 F.2d 871, 872 (6th Cir. 1967). Thus, although it is settled that citizenship for purposes of 28 U.S.C. § 1332(a) means domicile rather than residence, Gilbert v. David, 235 U.S. 561, 569, 35 S.Ct. 164, 59 L.Ed. 360 (1915); Williamson v. Osenton, 232 U.S. 619, 624, 34 S.Ct. 442, 58 L.Ed. 758 (1914); see D. Currie, Federal Courts 250 (1968); 1 J. Moore, supra, ¶ 0.74 [3], considerations on which federal courts rely in determining domicile often derive from state choice-of-law rules that have been developed in such diverse contexts as probate jurisdiction, taxation of incomes or intangibles, or divorce law. See 1 J. Moore, supra, ¶ 0.74 [3.-1], at 707.53; C. Wright, Law of Federal Courts § 26, at 86 n. 4 (2d ed. 1970); Restatement (Second) of Conflict of Laws § 11, comment o (1971); cf. Note, Evidentiary Factors in the Determination of Domicile, 61 Harv.L.Rev. 1232, 1233-34 (1948). Although this importation of the law of conflicts into resolution of federal jurisdictional questions can have the unfortunate consequence of causing federal courts to lose sight of important federal interests that may be involved, conflicts law is useful in providing basic working definitions. But see Currie, The Federal Courts and the American Law Institute (pt. 1), 36 U.Chi.L.Rev. 1, 10-12 (1968).
To acquire a domicile within a particular state, a person must be physically present in the state and must have either the intention to make his home there indefinitely or the absence of an intention to make his home elsewhere. Gilbert v. David, supra, 235 U.S. at 569-570, 35 S.Ct. 164; Gallagher v. Philadelphia Transp. Co., 185 F.2d 543, 546-547 (3d Cir. 1950); see 1 J. Moore, supra, ¶ 0.74 [3.-1]; C. Wright, supra, § 26. A threshold inquiry, then, is whether a person has the legal capacity to form the intention to abide where he resides. Although in a federal diversity case the capacity of a person to sue or be sued is to be determined by the law of the state of the litigant’s domicile, Fed.R.Civ.P. 17(b), and although state law may define certain concepts or relations that bear on the question of a litigant’s disability to perform particular acts, see Spurgeon v. Mission State Bank, 151 F.2d 702 (8th Cir. 1945), cert. denied, 327 U.S. 782, 66 S.Ct. 682, 90 L.Ed. 1009 (1946), the determination in a diversity case whether a litigant can acquire .citizenship in a particular state is a federal question to be resolved in accordance with federal principles. Cf. O’Brien v. Avco Corp., 425 F.2d 1030, 1034 (2d Cir. 1969); Ziady v. Curley, supra; Napletana v. Hillsdale College, supra.
If appellant is not legally capable of establishing a domicile in Pennsylvania, it must be either because he is in Pennsylvania under compulsion and for that reason cannot, as a matter of law, form the intent to make the state his home, or because he is under a civil disability resulting from his status as an inmate of a federal prison. We will consider each of these possible reasons in turn.
I
In his essay on the subject of domicile in 1830, Joseph Story stated the rule to be that “[rjesidence in a place by constraint, or involuntarily, will not give the party a domicile there; but his antecedent domicile remains.” Hogan, Joseph Story’s Essay on “Domicile,” 35 B.U.L.Rev. 215, 221 (1955). It has since become black-letter law that a person cannot acquire a domicile of choice in a place if he is there by virtue of physical or legal compulsion. See, e. g., Neuberger v. United States, 13 F.2d 541, 542 (2d Cir. 1926); Shaffer v. Tepper, 127 F.Supp. 892, 894 (E.D.Ky.1955); Wendel v. Hoffman, 24 F.Supp. 63, 64-65 (D.N.J.1938); 1 J. Beale, The Conflict of Laws § 21.1 (1935); 1 J. Moore, supra, ¶ 0.74 [3.-3], at 707.67; Restatement (Second) of Conflict of Laws, supra, § 17; Note, Domicile as Affected by Compulsion, 13 U.Pitt.L.Rev. 697, 699 (1952); Recent Decision, 26 Mich.L.Rev. 571, 572 (1928). The rule has been applied, in a variety of contexts, to political refugees, see White v. Burnley, 20 How. (61 U.S.) 235, 248-249, 15 L.Ed. 886 (1858); to persons living in forced exile, see Neuberger v. United States, supra; cf. Guessefeldt v. McGrath, 89 F.Supp. 344, 347 (D.D.C.1950), aff’d, 88 U.S.App.D.C. 383, 191 F.2d 639 (1951), rev’d on other grounds, 342 U.S. 308, 72 S.Ct. 338, 96 L.Ed. 342 (1952); to evacuees, see Hiramatsu v. Phillips, 50 F.Supp. 167 (S.D.Cal.1943), noted in 42 Mich.L.Rev. 321 (1943); and to servicemen, see Kinsel v. Pickens, 25 F.Supp. 455 (W.D.Texas 1938); Radford v. Radford, 26 Ky.Law Rep. 652, 82 S.W. 391 (1904). It has also been consistently applied to inmates of penal institutions. See Cohen v. United States, 297 F.2d 760, 774 (9th Cir.), cert. denied, 369 U.S. 865, 82 S.Ct. 1029, 8 L.Ed.2d 84 (1962) (mailing of notice of tax deficiency); United States v. Stabler, 169 F.2d 995, 998 (3d Cir. 1948) (venue for cancellation of citizenship); White v. Fawcett Publications, 324 F.Supp. 403, 404 (W.D.Mo.1970) (diversity of citizenship) ; Urbano v. News Syndicate Company, 232 F.Supp. 237, 239 n. 1 (S.D.N.Y.1964), rev’d on other grounds, 358 F.2d 145 (2d Cir. 1965), cert. denied, 385 U.S. 831, 87 S.Ct. 68, 17 L.Ed.2d 66 (1966) (capacity to sue); Shaffer v. Tepper, 127 F.Supp. 892, 894-95 (E.D.Ky.1955) (diversity of citizenship); Ferguson’s Adm’r v. Ferguson’s Adm’r, 255 Ky. 230, 73 S.W.2d 31 (1934) (jurisdiction to appoint administrator of estate); People v. Cady, 143 N.Y. 100, 37 N.E. 673 (1894) (voting residence); Anno., 132 A.L.R. 509, 510 (1941) (venue); Restatement (Second) of Conflict of Laws, supra, § 17 comment c; 1 J. Beale, supra, § 21.3, at 158-59; cf. Ott v. Ciccone, 326 F.Supp. 609, 613 & n. 3 (W.D.Mo.1970); Wendel v. Hoffman, 24 F.Supp. 63 (D.N.J.1938). As one commentator has observed, this rule
was doubtless designed to help persons who presumably would prefer to retain their old domicile in spite of enforced presence elsewhere. It is also based on the proposition that, if a person is forced to do a certain act, he cannot at the same time be doing the thing of his own free will. Intent, which is of its very nature voluntary cannot co-exist with compulsion.
Note, Domicile as Affected by Compulsion, supra, 13 U.Pitt.L.Rev. at 699. See also 1 J. Beale, supra, § 21.1, at 154; Recent Decision, 26 Mich.L.Rev. 571, 572 (1928).
As an abstract proposition, the rule is unassailable. It makes eminent good sense to say as a matter of law that one who is in a place solely by virtue of superior force exerted by another should not be held to have abandoned his former domicile. The rule shields an unwilling sojourner from the loss of rights and privileges incident to his citizenship in a particular place, such as, for example, paying resident tuition at a local university, invoking the jurisdiction of the local divorce courts, or voting in local elections.
However, in practice this salutary principle has hardened into a per se rule that prevents any prisoner from ever effecting a change of domicile, although at the same time it will yield with respect to persons in other situations when its application would produce illogical or socially undesirable results. See generally Comment, Domicile of Choice — Fixed Rules, 36 Yale L.J. 408, 410-12 (1927). In fact, prisoners appear to be the only persons who may never be able to escape the rule even though there are many other classes of individuals that are subject to compulsion similar to that experienced by prisoners but have been permitted to attempt to show a change of domicile to the place of their enforced presence.
The most obvious example is the serviceman. It has long been the rule that presence at his military station, without more, cannot make the station his domicile because a serviceman is subject to the orders of his superior officer. See, e. g., Deese v. Hundley, 232 F.Supp. 848, 850 (W.D.S.C.1954); Kinsel v. Pickens, 25 F.Supp. 455 (W.D.Tex.1938); Radford v. Radford, supra; 1 J. Moore, supra, ¶ 0.74 [6.-4], at 708.-62; Anno., 21 A.L.R.2d 1163, 1168 (1952); Anno., 148 A.L.R. 1413, 1414 (1944). A corollary of this rule is that a serviceman who lives on the military base, even if his family is living on-base with him, cannot establish a domicile at the base. E. g., Deese v. Hundley, supra; Harris v. Harris, 205 Iowa 108, 215 N.W. 661 (1927); see Anno., supra, 21 A.L.R.2d at 1173-75; 1 J. Moore, supra, ¶ 0.74 [6.-4], at 708.63; Restatement (Second) of Conflict of Laws, supra, § 17 comment d. The reason usually assigned in support of this rule is that a serviceman has no free choice in the decision that he live on base: whether or not he wishes to live on-base, his commanding officer makes the decision that he will be allowed, or required, as the case may be, to reside in quarters on the base. See Harris v. Harris, supra; 1 J. Beale, supra, § 21.2.
However, the serviceman is not precluded as a matter of law from showing that he has established a domicile different from the one he had before he entered military service. Although the standard of proof is variously stated, a serviceman who lives off-base will be regarded as a domiciliary of the place of his residence if the circumstances surrounding his acquisition of an off-base residence unmistakably indicate an intention on his part to abandon his former domicile and adopt a new one. E. g., Ellis v. Southeast Construction Co., 260 F.2d 280 (8th Cir. 1958); Ferrara v. Ibach, 285 F.Supp. 1017 (D.S.C.1968); Deese v. Hundley, supra; see Anno., supra, 148 A.L.R. at 1415-17; Anno., supra, 21 A.L.R.2d at 1167-79; 1 J. Moore, supra, ¶ 0.74 [6.-4], at 708.63-.64; Restatement (Second) of Conflict of Laws, supra, § 17 comment d. Illustrative indicia of intent include affidavits of intention, transfer requests, registration for driver’s licenses, opening bank accounts, addressing tax returns, motive for establishing domicile, and other physical facts evidencing that the desire to remain will not expire when the order requiring presence does. See authorities collected in Annos., supra, 148 A.L.R. 1413, 21 A.L.R.2d 1163; 1 J. Moore, supra, ¶ 0.74 [6.-4]; Restatement (Second) of Conflict of Laws, supra, § 17 comment d; Thames, Domicile of Servicemen, 34 Miss.L.J. 160 (1963); Note, Domicile of Members of Armed Forces, 26 Tenn.L.Rev. 415 (1959); see generally Note, Evidentiary Factors in the Determination of Domicile, 61 Harv.L.Rev. 1232, 1235-40 (1948).
Indeed, the distinction between on-post and off-post residence, for purposes of applying a per se rule, has been criticized as an “artificial” distinction that substitutes a difference of physical fact for one of intention. Note, Domicile as Affected by Compulsion, 13 U.Pitt.L. Rev. 697, 700 (1952). It might also be observed that a serviceman who lives off-base does so only by permission of his superior officers, and thus, although the fact of his living off-base may lend substance to a claimed intention, it can hardly be distinguished in terms of the exercise of volition from the situation of the serviceman who is allowed to live on-base at the pleasure of his commander. Compare 1 J. Beale, supra, § 21.2. And, military personnel have a much greater voice in the location of their duty stations today than was true in the past. See Thames, supra, 34 Miss.L.J. at 165-72; Note, supra, 13 U.Pitt.L.Rev. at 700, 710; Recent Case, 13 Iowa L. Rev. 347, 348 (1928). This proposition has found some support in the cases. See, e. g., Volmer v. Volmer, 231 Or. 57, 371 P.2d 70 (1962); Thomas v. Thomas, 58 Wash.2d 377, 363 P.2d 107 (1961); Percy v. Percy, 188 Cal. 765, 207 P. 369 (1922).
The civilian counterpart of the serviceman — the officer or employee of the federal government who must change his residence upon assuming his duties — may establish a domicile at his new residence. See District of Columbia v. Murphy, 314 U.S. 441, 62 S.Ct. 303, 86 L.Ed. 329 (1941); Anno., 129 A.L.R. 1382, 1396-1401 (1940). This is the rule generally with respect to holders of public office or public employees. See Restatement (Second) of Conflict of Laws, supra, § 17 comment h; Anno., supra, 129 A.L.R. at 1392-1404.
Inmates of institutions other than prisons can show that they have become domiciled within institutional confines even if they have been compelled by circumstances beyond their control to become institutionalized. See, e. g., Sealey v. United States, 7 F.Supp. 434, 437 (E.D.Va.1934) (old-soldier’s home); Sturgeon v. Korte, 34 Ohio St. 525 (1879) (charitable hospital); Restatement (Second) of Conflict of Laws, supra, § 17 comment e (paupers); cf. Coppedge v. Clinton, 72 F.2d 531 (10th Cir. 1934) (mental incompetents).
Refugees or fugitives, who leave their homes because of unhappiness with existing political conditions, fear of physical harm, or apprehension of prosecution, can establish domiciles within the jurisdictions in which they seek asylum. See Ennis v. Smith, 14 How. (55 U.S.) 399, 423-424, 14 L.Ed. 472 (1853); Restatement (Second) of Conflict of Laws, supra, § 17 comment g. Persons who are forced to leave their homes and travel to other jurisdictions for reasons of health can become domiciled at their new abodes. See Note, supra, 13 U.Pitt.L.Rev. at 704.
Students or teachers who are required to live in a particular jurisdiction because of the location of the institution in which they are enrolled or employed can establish domiciles within that jurisdiction. See Johnston v. Cordell National Bank, 421 F.2d 1310 (10th Cir. 1970); Milliken v. Tri-County Electric Cooperative, Inc., 254 F.Supp. 302 (D.S.C.1966); Wehrle v. Brooks, 269 F.Supp. 785 (W.D.N.C.1966), aff’d, 379 F.2d 288 (4th Cir. 1967). In Krasnov v. Dinan, 333 F.Supp. 751 (E.D.Pa.1971), on rehearing, 339 F.Supp. 1357 (E.D.Pa.1972), the court held that defendant was a citizen of Pennsylvania for purposes of diversity of citizenship even though he was in Pennsylvania because he was a member of a semi-monastic order that assigned him to teach in that state. In so holding, the court rejected arguments that defendant had moved to the state “only because directed to do so by his superiors” and that “he did not intend to live in Pennsylvania permanently, but only until he was reassigned elsewhere.” 333 F.Supp. at 753.
Many political subdivisions have ordinances requiring police officers and other municipal employees to reside within the city limits. See Detroit Police Officers Association v. City of Detroit, 385 Mich. 519, 190 N.W.2d 97 (1971), appeal dismissed, 405 U.S. 950, 92 S.Ct. 1173, 31 L.Ed.2d 227 (1972). Can it be doubted that municipal police officers may establish domiciles within the cities where they must live ?
The foregoing examples warrant two observations. First, the bare fact that a person has been “compelled” to relocate within a particular jurisdiction does not ordinarily prevent him from becoming domiciled therein, although courts are justifiably concerned with substantiating declared intentions. Second, persons are “compelled” to relocate by a variety of circumstances, ranging from pursuit of employment to therapeutic dictates for illness; from the desire to attend educational or vocational institutions to the demands of the sovereign. Although these forces may differ in kind, they often equate in degree, and yet the law in this area has developed along the lines of per se rules tailored to the type of compulsion being exerted rather than in the direction of varying standards of proof directly with the strength of the constraints upon individual freedom of action.
We believe that the prisoner, like the serviceman or the Cabinet official, should not be precluded from showing that he has developed the intention to be domiciled at the place to which he has been forced to remove. No good reason appears for applying a contrary per se rule to him by making the presumption that he has retained his former domicile an irrebuttable one.
In addition, whatever may be the rule ordinarily applied in resolving problems of conflicts of law, we decline to adopt a per se principle in defining “citizenship” for purposes of federal jurisdiction. We ought to be hesitant to define a cognizable class of citizens out of access to the federal courts, which are, after all, the courts of the sovereign to which that class of citizens belongs. Cf. Moore & Weckstein, Diversity Jurisdiction: Past, Present, and Future, 43 Texas L.Rev. 1, 19 (1964). We ought further to hesitate to raise the spectre of unconstitutionality by approving the application of an irrebutable presumption of fact to a particular class of citizens. Cf. Carrington v. Rash, 380 U.S. 89, 85 S.Ct. 775, 13 L.Ed.2d 675 (1965); Kelm v. Carlson, 473 F.2d 1267 (6 Cir. 1973).
Finally, it is interesting to observe that the facts of this case provide a rather unique twist to the reason most often given for the inclusion of diversity jurisdiction in the Constitution: the fear of local prejudice against out-of-state residents. See, e. g., Moore & Weckstein, supra, 43 Texas L.Rev. at 15-16; Warren, New Light on the History of the Federal Judiciary Act of 1789, 37 Harv.L.Rev. 49, 83 (1923); C. Wright, supra, § 23 at 73. Assuming the accuracy of this explanation, determination of the citizenship of a party for purposes of federal diversity jurisdiction should emphasize the physical facts of the party’s situation that could tend to result in local prejudice. See Currie, The Federal Courts and the American Law Institute (pt. 1), 36 U.Chi.L.Rev. 1, 11-12 (1968). Appellant, as we have pointed out, was known as a model young man in his community prior to his well-publicized conviction for the commission of a heinous crime. He has asserted that he will never return to his former community because of the scorn and obloquy to which he would be subject, and there is every reason to agree with his prediction in this respect. Should appellant not have the assurance that his suit for damages against his parents and his attorney would not .be infected by the same feeling of outrage that he anticipates will prevent him from ever assuming residence at his erstwhile home? Federal courts should be alert to vindicate this type of interest in recognition of one of the traditional justifications for their existence.
II
The other possible rationale for denying a federal prisoner the opportunity to establish his citizenship in the state of his incarceration for purposes of diversity jurisdiction, which the District Court did not reach, can be quickly disposed of. We cannot find any federal statute or common-law rule to the effect that conviction and imprisonment destroys a citizen’s right to invoke the diversity jurisdiction of the federal courts. In fact, whatever may be the viability of the “civil death” concept as it relates to the loss of fundamental rights by persons imprisoned for crime, see, e. g., Goosby v. Osser, 409 U.S. 512, 93 S.Ct. 854, 35 L.Ed.2d 36 (1973); Nolan v. Fitzpatrick, 451 F.2d 545 (1st Cir. 1971); cf. Carrington v. Rash, supra; the loss of the right to invoke the diversity jurisdiction of federal courts is not a collateral punishment of incarceration. See Ames v. Keuhnle, 425 F.2d 224 (5th Cir. 1970); White v. Fawcett Publications, 324 F.Supp. 403 (W.D.Mo.1970); 1 J. Moore, supra, ¶ 0.74 [6.-5], at 708.-65. We have no occasion to decide at this time whether appellant would have the capacity, under Pennsylvania law, to sue, see Fed.R.Civ.P. 17(b); Urbano v. News Syndicate Co., 358 F.2d 145 (2d Cir. 1966), cert. denied, 385 U.S. 831, 87 S.Ct. 68, 17 L.Ed.2d 66 (1966); 1 J. Moore, supra, ¶ 0.74 [6.-5], at 708.65 & n. 7; 3A id. ¶ 17.16; 3B id. ¶ 25.06 [3], at n. 1, or whether, under Ohio law, he would have an enforceable remedy. See Angel v. Bullington, 330 U.S. 183, 67 S.Ct. 657, 91 L.Ed. 832 (1947); 3A J. Moore, supra, ¶ 17.16, at 653-54; 3B id. ¶ 25.06 [3], at n. 1.
We hold that a litigant will not be precluded from establishing a domicile within a state for purposes of federal diversity jurisdiction solely because his presence there initially resulted from circumstances beyond his control. We recognize the importance of considering physical or legal'compulsiori in determining whether domicile is gained or lost, but we limit the application of involuntary presence to its operation as a presumption ordinarily requiring more than unsubstantiated declarations to rebut.
Accordingly, we reverse the judgment of the District Court and we remand for further proceedings. Appellant has the burden of proving Pennsylvania citizenship, and the District Court may decide the question upon affidavits or, if required, in a full evidentiary hearing, with or without a jury, in his discretion. See 1 J. Moore, supra, ¶ 0.74 [1], at 707.3-.5. In making this essentially factual determination, the court should accord weight to appellant’s declarations of intentions, but in the circumstances of this case the physical facts pertaining to appellant’s incarceration and to the conduct of his personal affairs assume perhaps a greater than usual significance because appellant’s statements of intention cannot bear on the fact of his initial relocation to Pennsylvania. The court should consider factors such as the possibility of parole for appellant, the manner in which appellant has ordered his personal and business transactions, and any other factors that are relevant to corroboration of appellant’s statements. These factors must be weighed along with the policies and purposes underlying federal diversity jurisdiction to determine whether appellant has overcome the presumption that he has maintained his former domicile.
Reversed and remanded.
. The court observed that the judgment obtained by plaintiff’s father against plaintiff in the United States District Court for the Southern District of Ohio could not avail plaintiff in this proceeding because that judgment was void for lack of jurisdiction.
. As with servicemen, see Carrington v. Rash, 380 U.S. 89, 85 S.Ct. 775, 13 L.Ed. 2d 675 (1965), the determination of a student’s domicile can be affected by the fundamental nature of the right being asserted, such as the right to vote. See Wilkins v. Ann Arbor City Clerk, 385 Mich. 670, 189 N.W.2d 423 (1971); see generally, Anno., 37 A.L.R. 138 (1925).
. In fact, the Detroit ordinance requires that the employees be actually domiciled within the city, as contrasted with mere nominal residence. See Detroit Police Officers Ass’n v. City of Detroit, 385 Mich. 519, 525-526, 190 N.W.2d 97 (1971), appeal dismissed, 405 U.S. 950, 92 S.Ct. 1173, 31 L.Ed.2d 227 (1972).
. Development of the law of “citizenship” for federal diversity purposes has proceeded largely on the assumption that domicile is a unitary concept, meaning the same thing in all contexts. Perhaps the classic statement is that of Justice Holmes: “The very meaning of domicil is the technically pre-eminent headquarters that every person is compelled to have in order that certain rights and duties that have been attached to it by the law may be determined. ... In its nature it is one, and if in any case two are recognized for different purposes, it is a doubtful anomaly.” Williamson v. Osenton, 232 U.S. 619, 625, 34 S.Ct. 442, 443, 58 L.Ed. 758 (1914). Eleven years later, Professor Walter Wheeler Cook took issue with that proposition during the debates of the American Law Institute on the adoption of the first Restatement on the conflict of laws. He argued: “There is no doubt that what you might call the core of the concept is the same in all these situations; but as you get out towards what I like to call the twilight zone of the subject, I don’t believe the scope remains exactly the same for all purposes.” 3 Proceedings of the American Law Institute 227 (1925). This position was rejected by the first Restatement (see Restatement (First) of the Conflict of Laws § 11 (1934)), and it evoked the indignant response of Professor Joseph Beale that to adopt it would ignore 150 years of legal history in which courts had been applying domicile as a single concept by citing cases from different contexts interchangeably in formulating general rules. See 1 J. Beale, The Conflict of Laws § 9.4, at 92-94 (1935).
However, the argument that domicile is not a unitary concept, that its elements vary according to the nature of the rights being adjudicated, that it is applied in a flexible manner so that courts can reacli equitable results (e. g., by varying the quantum of evidence required or by drawing different inferences from identical facts) has gained scholarly support over the years since Cook’s statement. See Currie, The Federal Courts and the American Law Institute (pt. 1), 36 U.Chi.L.Rev. 1, 12 n. 61 (1968); Reese, Does Domicil Bear a Single Meaning?, 55 Colum.L.Rev. 589 (1955) ; Weintraub, An Inquiry into the Utility of “Domicile” as a Concept in Conflicts Analysis, 63 Mich.L.Rev. 961, 983-986 (1965); Note, Evidentiary Factors in the Determination of Domicile, 61 Harv.L.Rev. 1232, 1233-1234 (1948); Comment, Necessity for a Continued Residence in Acquisition of a Domicile, 37 Yale L.J. 649 (1928). But cf. McClean, The Meaning of Residence, 11 Int. & Comp.L.Q. 1153 (1962). It should be observed that this argument attempts to describe what courts do, not what courts say, because courts ordinarily will pay lip-service to standard rules even while they strain and distort the rules to reach sound results. See Comment, Domicile of Choice-Fixed Rules, 36 Yale L.J. 408, 412 (1927). Nevertheless, occasional judicial expressions of doubt about the utility of the unitary-concept theory can be found. See Williams v. North Carolina, 325 U.S. 226, 244, 65 S.Ct. 1092, 89 L.Ed. 1577 (1945) (Rutledge, J., dissenting); Ziady v. Curley, 396 F.2d 873, 876 (4th Cir. 1968); Woolridge v. McKenna, 8 F. 650, 683 (C.C.W.D.Tenn.1881); In re Estate of Jones, 192 Iowa 78, 82, 182 N.W. 227 (1921).
Professor Currie is unhappy with the equation of domicile with state citizenship for purposes of diversity jurisdiction because it is difficult to determine and because “it too frequently bears no relation to the probability of bias.” Currie, supra, 36 U.Chi.L.Rev. at 10. He advocates that federal courts focus more on physical facts rather than on a probably unknown domiciliary intention, and he contends that the traditional tests of domicile, because they were not formulated with diversity jurisdiction in mind, should not be taken as determinative. Id. at 11-12 & n. 61. To an extent, this argument ignores the fact that, except when precluded by the operation of some per se rule of law, see, e. g., Seegers v. Strzempek, 149 F.Supp. 35 (E.D.Mich.1957), courts usually will examine the physical facts in an effort to ascertain domiciliary intent, and will often assign a domicile on the basis of what appears to be the choice of a home rather than accept at face value declarations of intention. See Levitt, Recent Domicil Cases, 20 Ill.L.Rev. 134, 138-140 (1925). To the extent that he is arguing that federal courts are not bound by the traditional fixed rules of conflicts of law in the context of resolving federal jurisdictional questions, and that it is unfortunate to attach a blanket equivalence to areas of the law that may intersect in only one particular — the notion of attachment to a single locale— his objections can be met by rejecting the unitary-concept rule and weighing in each case the policies underlying the question at issue and adapting the rules or evaluating the evidence in accordance with those policies. See Ziady v. Curley, supra; Woolridge v. McKenna, supra; Williams v. Williams, 328 F.Supp. 1380, 1382-1384 (D. Virgin Islands 1971); Pannill v. Roanoke Times Co., 252 F. 910, 914-915 (W.D.Va.1918); Reese, supra.
. As Chief Justice Marshall put it:
However true the fact may be, that the tribunals of the States will administer justice as impartially as those of the nation, to parties of every description, it is not less true, that the constitution itself either entertains apprehensions on this subject, or views with such indulgence the possible fears and apprehensions of suitors, that it has established national tribunals for the decision of controversies between aliens and a citizen, or between citizens of different States.
Bank of the United States v. Deveaux, 5 Cranch (9 U.S.) 61, 87, 3 L.Ed. 38 (1809). See also Lankford v. Platte Iron Works Company, 235 U.S. 461, 478, 35 S.Ct. 173, 59 L.Ed. 316 (1915) (Pitney, J., dissenting); Scott v. Sandford, 19 How. (60 U.S.) 393, 580, 15 L. Ed. 691 (1857) (Curtis, J., dissenting); Dodge v. Woolsey, 18 How. (59 U.S.) 331, 354, 15 L.Ed. 401 (1856).
. But see Friendly, The Historic Basis of Diversity Jurisdiction, 41 Harv.L.Rev. 483, 492-499 (1928).
. The fact that he is serving a life sentence, of course, lends a great deal of credibility to his assertion that he will never return to Ohio.
. Considerations ordinarily relevant to determination of domiciliary intent are discussed in 1 J. Beale, The Conflict of Laws §§ 41A-41D (1935); Beale, Proof of Domicile, 74 U.Pa.L.Rev. 552 (1926); Currie, The Federal Courts and the American Law Institute (pt. 1), 36 U. Chi.L.Rev. 1, 11-12 (1968); Heilman, Domicil and Specific Intent, 35 W.Va.L.Q. 262 (1929); Levitt, Recent Domicil Cases, 20 Ill.L.Rev. 134 (1925); 1 J. Moore, Federal Practice ¶ 0.74[3.-3] (2d ed. 1948); Note, Evidentiary Factors in the Determination of Domicile, 61 Harv.L.Rev. 1232 (1948); Note, Self-Serving Declarations and Acts in Determination of Domicile, 34 Geo.L.J. 220 (1946); Comment, Necessity for a Continued Residence in Acquisition of a Domicile, 37 Yale L.J. 649 (1928); Comment, Domicil of Choice —Fixed Rules, 36 Yale L.J. 408 (1927). | 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"
] | [
1
] | songer_appel1_7_5 |
Donald H. FRIEZE, Appellee, v BOATMEN’S BANK OF BELTON, Appellant.
No. 91-1030.
United States Court of Appeals, Eighth Circuit.
Submitted Sept. 13, 1991.
Decided Dec. 2, 1991.
Robert B. Hoemeke, St. Louis, Mo., argued (John J. Moellering and Curtis C. Callow, St. Louis, Mo., on the brief), for appellant.
G. Edwin Proctor, Jr., Kansas City, Mo., argued, for appellee.
Before McMILLIAN, FAGG, and WOLLMAN, Circuit Judges.
FAGG, Circuit Judge.
Donald H. Frieze brought this action against Boatmen’s Bank of Belton (Boatmen’s) under the Age Discrimination in Employment Act, 29 U.S.C. §§ 621-634 (1982 & Supp. Ill 1985). Boatmen’s appeals the district court’s denial of its motion for judgment notwithstanding the verdict. We reverse.
We state the facts in the light most favorable to Frieze, who won the verdict. See Caudill v. Farmland Indus., 919 F.2d 83, 86 (8th Cir.1990). Boatmen’s corporate predecessor hired Frieze in October 1979 when Frieze was forty years old. During his employment with Boatmen’s, Frieze primarily made and collected loans. Frieze advanced from making simple consumer loans to making more sophisticated commercial and real estate loans. Boatmen's always rated Frieze as either competent or superior on his performance evaluations. In May 1983 Frieze’s supervisor in the loan department, Edwin Hartzler, was promoted to president of Boatmen’s. Boatmen’s hired Jerry Martin as senior vice-president to replace Hartzler as head of the loan department. Boatmen’s made Frieze an assistant vice-president, but Frieze’s duties did not change.
In November 1986 Martin told Frieze to prepare a stock appraisal for a loan file. Frieze had reviewed the customer’s appraisal of the stock, but had not prepared his own appraisal. Angered by Martin’s request, Frieze prepared the stock appraisal and signed it, “[Pjersonally by God looked up by me—D.H. Frieze.” Later that month, Hartzler terminated Frieze’s employment at Boatmen’s. Hartzler told Frieze he was being discharged because of the defiant notation he made on the stock appraisal. Frieze admits making the notation was unprofessional.
Boatmen’s did not hire another loan officer when it discharged Frieze. Martin and two other loan officers, Deborah Catron and John West, absorbed the work Frieze had performed. Martin was forty-four, Ca-tron was thirty-one, and West was thirty-seven. Almost five months after Frieze was discharged, Martin resigned from Boatmen's to take a position at another bank. Boatmen’s then promoted Catron to assistant vice-president and West to vice-president. In May 1987 Boatmen’s hired John Dix Wellington as a management trainee. Wellington was twenty-four years old and had no banking experience. Wellington began working in the loan department in September 1987, but did not make his first loan until February 1988. Wellington did not begin making commercial and real estate loans until 1989, more than two years after Boatmen’s discharged Frieze.
Frieze brought this action asserting Boatmen’s stated reason for discharging him was a pretext and Boatmen’s really fired him because of his age. The jury returned a verdict in favor of Frieze. In deciding whether Boatmen’s is entitled to judgment notwithstanding the adverse jury verdict, we must consider the evidence in the light most favorable to Frieze, assume all conflicts in the evidence were resolved by the jury in Frieze’s favor, assume Frieze proved all facts his evidence tends to prove, and give Frieze the benefit of all favorable inferences that may reasonably be drawn from the proven facts. Caudill, 919 F.2d at 86. A judgment notwithstanding the verdict “should be granted only when all the evidence points one way and is susceptible of no reasonable inferences sustaining [Frieze’s] position.” Washburn v. Kansas City Life Ins. Co., 831 F.2d 1404, 1407 (8th Cir.1987); see also Caudill, 919 F.2d at 86.
Boatmen’s claims a jury could not reasonably infer Frieze was discriminated against on the basis of age. We agree. In reaching this conclusion, we have considered the evidence favoring Frieze and uncontradicted evidence of Martin’s departure and Wellington’s arrival. See Cau-dill, 919 F.2d at 86. It is not our task to assess the soundness of Boatmen’s decision to terminate Frieze. See Wilkins v. Eaton Corp., 797 F.2d 342, 343 (6th Cir.1986). “[0]ur role is to ascertain whether the record contains evidence from which a reasonable [jury] could have concluded that age discrimination was a determining factor in [Frieze’s] dismissal.” Brooks v. Monroe Sys. for Business, Inc., 873 F.2d 202, 204 (8th Cir.), cert. denied, 493 U.S. 853, 110 S.Ct. 154, 107 L.Ed.2d 112 (1989).
Frieze contends the absorption of his work by other members of the loan department creates a reasonable inference of age discrimination because some of the members were under forty. We disagree. Employers often distribute a discharged employee’s duties to other employees performing related work for legitimate reasons. Boatmen’s distributing Frieze’s work to other members of the loan department does not increase or decrease the likelihood that Boatmen’s discharged Frieze because of his age. Frieze presented no evidence that his discharge was part of a pattern of Boatmen’s discharging employees over forty and distributing their work to younger employees. See Morgan v. Arkansas Gazette, 897 F.2d 945, 950-51 (8th Cir.1990). Thus, the absorption of Frieze’s work by other employees in Boatmen’s loan department does not permit a reasonable inference of discrimination. Although Frieze is entitled to the benefit of all reasonable inferences, an inference is reasonable only if it can be drawn from the evidence without resort to speculation. See Caudill, 919 F.2d at 86.
Frieze also contends Boatmen’s hiring Wellington creates a reasonable inference of age discrimination. We disagree. Boatmen’s hired Wellington only after Martin resigned from the bank, nearly five months after Frieze was discharged. Given Wellington’s total lack of banking experience and the time lag between Frieze’s discharge and Wellington’s emergence in the loan department as a loan officer, the jury could not reasonably infer Boatmen’s hired Wellington to replace an experienced loan officer like Frieze. See De Arteaga v. Pall Ultrafine Filtration Corp., 862 F.2d 940, 943 (1st Cir.1988). Thus, Boatmen’s hiring Wellington does not create a reasonable inference of age discrimination. Similarly, Boatmen’s promoting Catron and West does not create a reasonable inference of age discrimination because Catron and West were not promoted until Martin resigned from Boatmen’s.
In an attempt to discredit Boatmen’s stated reason for firing him, Frieze presented evidence showing Martin was not terminated when he made a loan without performing a stock appraisal. Frieze contends the difference between Boatmen’s treatment of him and Boatmen’s treatment of Martin shows Boatmen’s stated reason for firing Frieze was a pretext, and thus, creates an inference of discrimination. Discrediting an employer’s stated reason for discharging an employee can create an inference of age discrimination. See MacDissi v. Valmont Indus., 856 F.2d 1054, 1059 (8th Cir.1988). Boatmen’s stated reason for firing Frieze, however, was not Frieze’s failure to perform a stock appraisal. Thus, evidence that Martin was not fired when he failed to perform a stock appraisal does not create an inference that Boatmen’s discriminated against Frieze.
Frieze also contends Boatmen’s rating Frieze as competent in its employee performance evaluations discredits Boatmen’s stated reason for firing Frieze. An employer rating an employee as competent discredits the employer’s stated reason for discharging the employee, however, only when the employer’s stated reason is the employee’s general incompetence. See La Montague v. American Convenience Prods., 750 F.2d 1405, 1414 (7th Cir.1984). Boatmen’s stated reason for discharging Frieze was Frieze’s insubordinate response to his superior’s insistence on an in-house stock appraisal, not Frieze’s incompetence. Thus, Boatmen’s rating Frieze as competent does not give rise to an inference of discrimination.
Finally, Frieze contends comments made to him by Boatmen’s employees create an inference of age discrimination. More than four years before Hartzler discharged Frieze, Hartzler told Frieze that Frieze had “waited too long ... to start [his] effort towards becoming president of a bank and [Frieze] would never make it.” Hartzler made this comment during a general discussion with Frieze about their personal goals. Hartzler had not yet become president of Boatmen’s. Martin and the bank’s cashier also told Frieze that Frieze “was too old and ... had too little rank ... [to become] president of a bank.” When Hartzler terminated Frieze, Hartzler suggested Frieze could not work within the bank’s framework. Martin’s and the cashier’s comments do not create a reasonable inference of age discrimination because Martin and the cashier did not take part in the decision to discharge Frieze. La Montagne, 750 F.2d at 1412. Hartzler’s statement about Frieze’s chances to become president of a bank does not create a reasonable inference of discrimination because Hartzler made this stray remark more than four years before he discharged Frieze. See Guthrie v. Tifco Indus., 941 F.2d 374, 378-79 (5th Cir.1991). Similarly, Hartzler’s statements about Frieze not being able to fit into the bank’s framework are too vague to create a reasonable inference of age discrimination. See id.
In sum, we conclude the evidence in this case does not support the jury’s verdict that Frieze was discharged because of his age. Accordingly, we reverse and remand to the district court to enter judgment notwithstanding the verdict in Boatmen’s favor. | 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"
] | [
1
] | songer_geniss |
UNITED STATES v. SEALE.
No. 5973.
Circuit Court of Appeals, Fifth Circuit.
Dec. 15, 1930.
Norman A. Dodge, U. S. Atty., and A. M. Mood, Asst. U. S. Atty., both of Fort Worth, Tex., and Erie Eades, Regional Atty., U. S. Veterans’ Bureau, of Dallas, Tex. (William Wolff Smith, Gen. Counsel, U. S. Veterans’ Bureau, and Bayloss L. Guffy, Atty., U. S. Veterans’ Bureau, both of Washington, D. C., on the brief), for the United States.
Y. D. Mathes, of Houston, Tex. (Baker, Botts, Parker & Garwood, of Houston, Tex., on the brief), for appellee. '
Before BRYAN and FOSTER, Circuit Judges, and HUTCHESON, District Judge.
BRYAN, Circuit Judge.
This appeal is based on assignments of error which complain of rulings on the evidence. No error is assigned on the record proper. Appellee has filed a motion to strike the bill of exceptions on the grounds that it was not presented during the term at which judgment was entered, and that no order was made during that term extending the time for presentation and settlement of a bill of exceptions. The grounds of the motion are supported by the record; but, after the expiration of the term during which the judgment was entered, the district judge signed a nunc pro tunc order purporting to extend the time within which to present a bill of exceptions, and such bill is the one that we are asked to consider.
Appellee’s motion was well taken, as the power of the court in the absence of an extension order ended with the trial term. United States v. Jones, 149 U. S. 262, 13 S. Ct. 840, 37 L. Ed. 726; Jennings v. Philadelphia, etc., Ry. Co., 218 U. S. 255, 31 S. Ct. 1, 54 L. Ed. 1031. And such power could not be restored by a nunc pro tune order. Michigan Insurance Bank v. Eldred, 143 U. S. 293, 12 S. Ct. 450, 36 S. Ct. 162; Exporters v. Butterworth-Judson Co., 258 U. S. 365, 42 S. Ct. 331, 66 L. Ed. 663. Accordingly, appellee’s motion to strike the bill of exceptions is granted; and, there being no question for review presented by the record proper, the judgment is affirmed. | 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"
] | [
0
] | songer_origin |
Joseph B. WHITE and James Purdham, Appellants, v. Stephen O’HEARNE, Deputy Commissioner, Bureau of Employees’ Compensation, Fourth Compensation District, and Maryland Shipbuilding & Drydock Company, Appellees.
No. 9520.
United States Court of Appeals Fourth Circuit.
Argued Sept. 22, 1964.
Decided Nov. 9, 1964.
Bernard G. Link, Baltimore, Md., for appellants.
George M. Lilly, Atty., U. S. Dept. of Labor (Charles Donahue, Sol., and Alfred H. Myers, Atty., U. S. Dept. of Labor, and Thomas J. Kenney, U. S. Atty., and Joseph H. H. Kaplan, Asst. U. S. Atty., on brief), for appellee Stephen O’Hearne.
Thomas E. Cinnamond (Semmes, Bowen & Semmes, Baltimore, Md., on brief), for appellee Maryland Shipbuilding and Drydock Co.
Before SOBELOFF, Chief Judge, and HAYNSWORTH and J. SPENCER BELL, Circuit Judges.
PER CURIAM.
The appellants, two employees of the Maryland Shipbuilding and Drydoek Company injured in the course of their employment, seek review of a judgment of the district court affixming compensation orders and awards under the Longshoremen’s and Harborworkers’ Compensation Act by the Deputy Commissioner of the Department of Labor’s Bureau of Employees’ Compensation, Fourth Compensation District.
This appeal raises two issues. It is contended first that the Deputy Commissioner should have used subsection (b) of section 910 of the Act, rather than subsection (c), in computing the earnings of these employees for purposes of the compensation awards, and second, that even if subsection (c) was the correct section, it was misapplied. Both issues must be decided against the appellants.
On the first issue, we agree with the district court that the evidence in the record amply supports the Deputy Commissioner’s findings of fact and conclusions of law that because their employment during the appropriate statutory period was intermittent and irregular in nature, these employees are not within the categories covered by subsections (a) and (b) of the Act. This point was long ago clearly settled in this Circuit by the opinion in Baltimore & O. R.R. Co. v. Clark, 59 F.2d 595 (4 Cir. 1932), and reaffirmed in O’Hearne v. Maryland Casualty Co., 177 F.2d 979 (4 Cir. 1949). In the former case the principle is discussed at length, and we see no need to repeat what was said there, since its application to the facts in this case is obvious.
As to the second point, appellants assert that the Deputy Commissioner considered only their actual earnings during the twelve month period preceding the injury even though the statute required that he consider the earnings of other employees in appellants’ seniority units. The record before us clearly shows, however, that the Deputy Commissioner considered and compared the earning records of employees performing the same work who had both higher and lower seniority status than the litigants. After making the comparison, he reached the expert conclusion that the use of the litigants’ actual earnings for the previous twelve month period was fair and equitable to all concerned, because the seniority system controlled the availability of work for the individual employee, resulting in substantial differentials in earnings. The weight which the Deputy Commissioner gave to these facts is a matter within his expert competence; and since his conclusions are in accordanee with law, we must accept them. 33 U.S.C.A. § 921; Walsh Stevedoring Co. v. Henderson, 203 F.2d 501 (5 Cir. 1953); Colonna’s Shipyard, Inc. v. O’Hearne, 200 F.2d 220 (4 Cir. 1952).
The appellants’ reliance upon Fireman’s Fund Ins. Co. v. Peterson, 120 F. 2d 547 (9 Cir. 1941), is not well taken. The opinion in that case clearly states that the award was set aside because there was no evidence that the previous earnings of other employees had been considered. Here the Deputy Commissioner’s memorandum in support of the compensation orders expressly recites that he considered the earnings of other employees; however, he concluded that this information did not justify changing his decision to use the appellants’ actual earning experience as the basis for the compensation awards.
Affirmed.
. The relevant parts of 33 U.S.C.A. § 910 are:
Ҥ 910. Determination of pay
“Except as otherwise provided in this chapter, the average weekly wage of the injured employee at the time of the injury shall be taken as the basis upon which to compute compensation and shall be determined as follows:
“(a) If the injured employee shall have worked in the employment in which he was working at the time of the injury, whether for the same or another employer, during substantially the whole of the year immediately preceding his injury, his average annual earnings shall consist of three hundred times the average daily wage or salary for a six-day worker and two hundred and sixty times the average daily wage or salary for a five-day worker, which he shall have earned in such employment during the days when so employed.
“(b) If the injured employee shall not have worked in such employment during substantially the whole of such year, his average annual earnings, if a six-day worker, shall consist of three hundred times the average daily wage or salary, and, if a five-day worker, two hundred and sixty times the average daily wage or salary, which an employee of the same class working substantially the whole of such immediately preceding year in the same or in similar employment in the same or a neighboring place shall have earned in such employment during the days when so employed.
“(c) If either of the foregoing methods of arriving at the average annual earnings of the injured employee cannot reasonably and fairly be applied, such average annual earnings shall be such sum as, having regard to the previous earnings of the injured employee in the employment in which he was working at the time of the injury, and of other employees of the same or most similar class working in the same or most similar employment in the same or neighboring locality, or other employment of such employee, including the reasonable value of the services of the employee if engaged in self-employment, shall reasonably represent the annual earning capacity of the injured employee.
“(d) The average weekly wages of an employee shall be one fifty-second part of his average annual earnings.” | 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"
] | [
1
] | songer_casetyp1_7-2 |
LIVERPOOL & LONDON & GLOBE INS. CO., LTD. v. OTIS ELEVATOR CO.
No. 5878.
United States Court of Appeals Fourth Circuit.
Argued June 27, 1949.
Decided July 28, 1949.
Charles McCamic and Wayne T. Brooks, Wheeling, W, Va. (Frank A. O’Brien, O’Brien & O’Brien, and McCamic & Clarke, Wheeling, W. Va., on the brief), for appellant.
Carl G. Bachmann and Joseph R. Curl, Wheeling, W. Va. (J. Donald Ezell, Wheeling, W. Va., bn the brief), for appellee.
Before PARKER, SOPER and DOBIE, Circuit Judges.
SOPER, Circuit Judge.
On December 2, 1947, Wheeling Steel Corporation' suffered a fire loss in its plant at Wheeling, West Virginia, in the sum of $79,440.80, which was paid by Liverpool & London & Globe Insurance Co., Ltd., under a policy of insurance covering the plant. The fire occurred while Otis Elevator Company was making repairs to an elevator in the plant under a contract with Wheeling, and the Insurance Company, claiming that the fire was caused by the negligent manner in which Otis did the work, brought this suit as the subrogee of the Steel Corporation. The case was submited to a jury and both parties offered a prayer for directed verdict, but these were denied and’the jury found for the defendant. ■ The plaintiff appealed contending that the judge erred in not directing a verdict in its favor and in certain instructions contained in the charge to the jury.
The case turns on the nature of the work that was in progress when the fire occurred, and especially upon the relationship of the contracting parties to the work, since the Insurance Company sues in its character as subrogee, and can assert against Otis only such right as Wheeling possessed, so that if Wheeling had no right of action against Otis, none passed to the Insurance Company. St. Louis, I. M. & S. Ry. Co. v. Commercial Union Ins. Co., 139 U.S. 223, 235, 11 S.Ct. 554, 35 L.Ed. 154.
• The. contract was contained in an interchange of letters in which it was agreed that Otis should make certain changes and repairs to the elevator for $1715 and that Otis’ men should have uninterrupted use of the elevator during the woik; but the contract provided that Wheeling should furnish certain material for the job and should do all the “cutting with torch, welding, drilling, etc. required in the removal of old material and installation of the new material.” In the proposal of Otis, there was a reference to provisions printed on the back of the page to the effect that Otis would not be liable for any loss from a number of causes, including fire. Wheeling’s acceptance reiterated the description ■ of the work to be done by each party, but did not include the exculpatory clauses.
The quoted provision of the contract as to welding was all important, since it furnishes the key to the problem to be solved. For the execution of the work on the elevator, Otis furnished two men, Helfenbine, a superintendent, and Wolfe, his assistant, and Wheeling furnished Kryah, a welder. Kryah brought to the job the tools of his trade and three fire extinguishers supplied by Wheeling. The operation of welding produces sparks and fire prevention is recognized as part of a welder’s duty. On this occasion each man took a fire extinguisher. Kryah sprayed the walls of the elevator shaft with pyrene, and Wolfe sprayed the floor of the cage, but fire curtains or spark arresters were not used, although they should have been used, according to uncon-tradicted expert testimony, in order to prevent the escape of sparks from the shaft into the adjoining rooms of the building through perforations in the metal partitions or doors which gave access to the shaft.
A short time before the fire broke out, Wolfe was inside the cage so as to move it up and down when required in the progress of the work. He had a fire extinguisher and was told to look out for sparks. The floor of the car at that time was level with the third floor of the building. Helfenbine and Kryah, each armed with a fire extinguisher, were standing on top of the cage. Helfenbine instructed Kryah where to weld but Kryah himself decided when to perform the operation and how to perform it, selecting the pressure and size of the tip to be used. When the welding started, sparks as usual were emitted, but Wolfe noticed no sparks coming into the car or falling between the car and the shaft. Nevertheless, a short time after the welding started, Wolfe discovered smoke and when the car was lowered to the mezzanine floor between the first and second floors, a raging fire was discovered in a room on the mezzanine adjoining the shaft near a pile of synthetic rubber which was stored in burlap sacks. This was the origin of the fire which caused the substantial damage referred to.
Upon this testimony, the Insurance Company contends that a verdict in its favor should have been directed. Since no explanation of the cause of the fire other than the sparks from the welding operation was offered, it is argued that the judge should not have left to the jury to decide whether the welding caused the fire; and since the evidence of negligence in the failure to use fire curtains was not controverted, and Otis was an independent contractor whose men were in charge of the elevator at the time, it is contended that Otis should have been held liable for the loss.
This line of argument, however, ignores the patent fact that Wheeling, and not Otis, was primarily responsible for the welding, and actually performed it. Wheeling furnished one of its skilled employees as the welder, supplied the welding equipment and all the means of fire prevention which were used, inadequate though they were; and the welder actually did the work in his own way and was subject to the control of Otis only as to what welding should be done. If we assume, in the absence of any other explanation, that the welding caused the fire, it is obvious that the major part, if not all of the blame must fall upon Wheeling since it agreed to do the work and actually performed it in a negligent manner. It is too clear for argument, under the undisputed facts, that the welding operation was Wheeling’s work and that Kryah remained Wheeling’s employee in the performance of the work, and that this relationship was not changed so as to relieve Wheeling of responsibility for Kryah’s action by the mere fact that Otis pointed out the work to be done. He remained the employee of Wheeling in the performance of the work which Wheeling had contracted to do. See Standard Oil Co. v. Anderson, 212 U.S. 215, 29 S.Ct. 252, 53 L.Ed. 480; Restatement of Agency, §§ 220, 227.
The strongest statement that can be made as to the liability of Otis is that it should share the blame for the catastrophe, since it had charge of the repair work which could not be done without the welding operation, had possession of the place in which the welding was done, ordered the operation to proceed, and participated in the faulty fire protection procedure; or in other words, that Otis and Wheeling both contributed to the negligence which caused the loss. Thus it is plain, looking at the case in the aspect most favorable to the Insurance Company, that Wheeling, because of its contributory negligence, had no right of action against Otis for the damage to the building, and hence the Insurance Company, which stands in Wheeling’s shoes, cannot prevail in its action. The uncontradicted facts created such a situation that the prayer of Otis for a directed verdict in its favor might well have been granted. Having reached this conclusion, it is unnecessary to consider the contentions of the plaintiff that the judge should have instructed the jury more fully as to the respective obligations of Otis and Wheeling under the contract between them.
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 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 first 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"
] | [
8
] | songer_respond1_1_4 |
Allen L. GRIFFIN, Appellee, v. INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, UAW, Appellant.
No. 72-1126.
United States Court of Appeals, Fourth Circuit.
Argued Sept. 11, 1972.
Decided Oct. 24, 1972.
Bernard G. Link, Baltimore, Md. (Stephen I. Schlossberg, John A. Fillion, and Jordan Rossen, Detroit, Mich., on brief), for appellants.
Hugh G. Casey, Jr., Charlotte, N. C. (George S. Daly, Jr., and Casey & Daly, P. A., Charlotte, N. C., on brief), for ap-pellee.
Before SOBELOFF, Senior Circuit Judge, and WINTER and BUTZNER, Circuit Judges.
SOBELOFF, Senior Circuit Judge:
Allen Griffin, the appellee, brought a civil action for damages against the International Union, United Automobile, Aerospace and Agricultural Implement Workers of America. He claimed that the UAW had breached its duty of fair representation in handling the grievance based on his discharge by the Ford Motor Company. The case was tried before Judge McMillan and a jury and resulted in a verdict in favor of Griffin in the amount of $12,000. From this judgment, the UAW appeals.
In its brief the appellant raised several issues which were not pursued at oral argument. After a careful examination of the record, the briefs of the parties and the pertinent authorities, we conclude that these contentions are without merit. The only issue deserving discussion is whether there was sufficient evidence to support the jury’s finding that the Union breached its duty of fair representation.
I
The phrase “duty of fair representation” is a legal term of art, incapable of precise definition. St. Clair v. Local 515, Int’l Bhd. of Teamsters, etc., 422 F.2d 128, 130 (6 Cir. 1969). There is no code that explicitly prescribes the standards that govern unions in representing their members in processing grievances. Whether a union breached its duty of fair representation depends upon the facts of each case. Thompson v. Brotherhood of Sleeping Car Porters, 316 F.2d 191 (4 Cir. 1963); Trotter v. Amalgamated Ass’n of Street Railway Employees, 309 F.2d 584 (6 Cir. 1962), cert. den., 372 U.S. 943 (1963). But pronouncements made from time to time by the Supreme Court, articulating the somewhat hazy contours of the union’s obligations, do furnish a measure of guidance.
The doctrine of the “duty of fair representation” was first given currency by the Supreme Court in Steele v. Louisville & N. R. Co., 323 U.S. 192, 65 S.Ct. 226, 89 L.Ed. 173 (1944). Although first propounded in the context of racial discrimination under the Railway Labor Act, the Court extended this duty to cases under Section 301 of the National Labor Relations Act. Ford Motor Co. v. Huffman, 345 U.S. 330, 73 S.Ct. 681, 97 L.Ed. 1048 (1953). In representing its members, declared the Court, a union is permitted “a wide range of reasonableness,” but this latitude is “subject always to complete good faith and honesty of purpose in the exercise of its discretion.” Id. at 337-338, 73 S.Ct. at 686.
The outline of the duty of fair representation cognizable under Section 301 was further clarified in Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967). That case declared that a union is accorded considerable discretion in the handling and settling of grievances. The individual employee has no absolute right to insist that his grievance be pressed through any particular stage of the contractual grievance procedure. A union may screen grievances and press only those that it concludes will justify the expense and time involved in terms of benefiting the membership at large. Encina v. Tony Lama Boot Co., 448 F.2d 1264 (5 Cir. 1971). In the Vaca decision itself, the Court held that a union did not necessarily breach its duty of fair representation when it refused to take a member’s grievance to arbitration.
Nonetheless, the Supreme Court did not invest the union with a carte blanche. It sought to fashion an appropriate standard by which to measure union conduct. “[The doctrine of fair representation] includes a statutory obligation to serve the interests of all members without hostility or discrimination toward any, to exercise its discretion with complete good faith and honesty, and to avoid arbitrary conduct.” Vaca v. Sipes, supra, 386 U.S. at 177, 87 S.Ct. at 910. A union must conform its behavior to each of these three separate standards. First, it must treat all factions and segments of its membership without hostility or discrimination. Next, the broad discretion of the union in asserting the rights of its individual members must be exercised in complete good faith and honesty. Finally, the union must avoid arbitrary conduct. Each of these requirements represents a distinct and separate obligation, the breach of which may constitute the basis for civil action.
The repeated references in Vaca to “arbitrary” union conduct reflected a calculated broadening of the fair representation standard. Retana v. Apartment, Motel, Hotel & El. Op. U., Local 14, 453 F.2d 1018, 1023 n. 8 (9 Cir. 1972); Feller, “Vaca v. Sipes, One Year Later” in N.Y.U. Twenty-First Annual Conference on Labor 141, 167 (1969). While negligence in handling grievances has not been identified as breaching the union’s duty of fair representation, Bazarte v. United Transportation Union, 429 F.2d 868, 872 (3 Cir. 1970), the courts have adopted the position that a union may not arbitrarily ignore a meritorious grievance or handle it in a perfunctory manner. Vaca v. Sipes, supra 386 U.S. at 191, 194, 87 S. Ct. 903; Retana v. Apartment, Motel, Hotel & El. Op. U., Local 14, supra, 453 F.2d at 1024 n. 10; De Arroyo v. Sindi-cato de Trabajadores Packinghouse, 425 F.2d 281, 284 (1 Cir. 1970); St. Clair v. Local 515, Int’l Bhd. of Teamsters, etc., 422 F.2d 128, at 130. Without any hostile motive of discrimination and in complete good faith, a union may nevertheless pursue a course of action or inaction that is so unreasonable and arbitrary as to constitute a violation of the duty of fair representation. A union may refuse to process a grievance or handle the grievance in a particular manner for a multitude of reasons, but it may not do so without reason, merely at the whim of someone exercising union authority. A union must especially avoid capricious and arbitrary behavior in the handling of a grievance based on a discharge — the industrial equivalent of capital punishment.
For a successful suit against a union for breach of its duty of fair representation, the employee “must also have proved arbitrary or bad-faith conduct on the part of the union in processing his grievance.” Vaca v. Sipes, supra, 386 U.S. at 193, 87 S.Ct. at 918 (emphasis added). We believe that looking at the evidence in the light most favorable to Griffin — as we are bound to do at this stage — there is sufficient evidence to support a conclusion of arbitrary or bad-faith conduct.
II
For seven years Allen Griffin worked for the Ford Motor Company at its parts depot in Charlotte, North Carolina. His problems apparently began in July, 1965, when he was disciplined by the Warehouse Operations Manager, D. J. Cashion, management’s second ranking member at the forty men depot, for allegedly reading a newspaper that lined the handtruck used by Griffin in his work. Cashion’s disciplinary action was successfully appealed by the Union. Subsequently, the relationship between the two men further deteriorated until they became embroiled in a fight at a local hockey game, with Cashion sustaining facial lacerations and cracked ribs. As a result of these fisticuffs, Griffin was discharged by Depot Manager Meares upon his return to work. In addition, a local court fined Griffin $50 for the assault.
J. W. Brown, who worked immediately under Cashion, was the chairman of the Union’s Local House Committee. His responsibilities included handling the preliminary stages of the grievance procedure. He filed with Cashion, the very man with whom Griffin had the fight, the grievance seeking Griffin’s reinstatement. Not surprisingly, Cashion, representing Ford, refused reinstatement. After Griffin’s assault conviction, Brown recommended to his fellow committee members that Griffin’s grievance be withdrawn. When one of the committee members objected, Brown threatened to resign. The grievance was withdrawn by a 2-1 vote.
Griffin then appealed to the membership of his Local to reverse the decision to withdraw his grievance. A vote was taken and it was decided that Griffin’s grievance be pursued. In protest of the members’ action, House Committee Chairman Brown resigned his position as House Chairman. But the action of the House Committee in withdrawing Griffin’s grievance was upheld by an appeals committee of the International; although the committee recommended that efforts to secure Griffin’s reinstatement continue. Finally, Ford agreed to reinstate Griffin’s grievance and allow it to be processed through normal channels on the condition that Griffin waive any claim for back pay prior to the time the grievance was reinstated. Griffin accepted this proposal. The revived grievance, “frozen dead” after the two-year hiatus, was eventually heard by the Ford Umpire, who on March 22, 1968, upheld the discharge.
Ill
The Union’s insistence on filing the discharge grievance with Cashion, the man with whom Griffin had fought, cannot be justified. It represents a stubborn refusal to recognize the inequity of placing the matter in the hands of a hostile person — Griffin’s antagonist. Although the Union may have acted in good faith, grieving the discharge in this manner can be viewed — as the jury apparently viewed it — as the equivalent of arbitrarily ignoring the grievance or handling it in a perfunctory manner. Vaca v. Sipes, supra, 386 U.S. at 191, 194, 87 S.Ct. 903. The “arbitrary” standard elucidated in Vaca was thus breached.
The Union attempts to justify submitting the grievance to Cashion by pointing out that the only other person with whom the grievance could have been filed was Meares, the Depot Manager. This, the UAW maintains, “was at best a Hobson’s choice: Cashion, the man Griffin assaulted on the one hand, and Meares, the man who discharged Griffin, the very act that was being protested, on the other hand.”
The Union’s contention overstates the case. Cashion had a history of difficulties in supervising the men under him. There was evidence that he was “very high tempered” and that he was willing to use his position of authority to punish those “who crossed him.” Meares, at the time of the discharge, had heard only Cashion’s version of the fight and the incidents that led np to it. It is quite possible that if the grievance had been immediately filed with Meares and Cashion’s history of pugnacity with workers in general, and his goading of Griffin in particular, had been adequately presented, Meares would have mitigated his disciplinary action. The fact that Meares refused the grievance after it was reinstated nearly one and one-half years later has no relevance. The passage of time and the hardening of positions had taken their effect.
There was also evidence presented to the jury from which it might have found the Union’s handling of the grievance to have been motivated by bad faith. After the membership of the Local voted to pursue Griffin’s grievance, House Committee Chairman J. W. Brown resigned his position to protest the members’ action. He was replaced by George R. Kennedy. On April 8, 1966, Kennedy wrote Walter P. Reuther, the late president of the UAW, to express his opinion that the action of the Local in dropping Griffin’s grievance was the result of the friendship between Cashion and J. W. Brown. In the course of the letter Kennedy stated poignantly:
Mr. Cashion, having been a personal friend of the former Chairman [Brown] for many years, as well as a very good friend with one of the committeemen and a close friend of the union member who testified against Mr. Griffin, used these friendships to influence the committee’s decision to drop the case as far as the committee was concerned. Therefore, when the membership overruled the committee, the Chairman, Mr. J. W. Brown resigned.
In my opinion those officers who were in a position to help Mr. Griffin, were trying to find as many reasons as they could not to help him. This is illustrated by the very fact that I am writing this letter because Mr. T. C. Brown, our Recording Secretary, and the brother of Mr. J. W. Brown, the resigned Chairman, refused to answer your letter of March 80, 1966. (Emphasis added.)
There is sufficient evidence in the record to support the jury’s finding that the Union breached its duty of fair representation in handling Griffin’s discharge grievance. Therefore, the judgment of the District Court is hereby
Affirmed.
. Earlier in the summer, the two men almost became involved in a fight when Cashion invited Griffin outside the plant behind the railroad tracks to settle their difference and to “whip his blank” — an invitation declined by Griffin.
. This characterization was given the reinstated grievance by Judge McMillan. (Tr. 403.)
. Appellant’s Reply Brief at 2-3. | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
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. | [] | [
0
] | songer_appnatpr |
GOLO SLIPPER CO. v. HAMILTON SHOE STORES CO. et al.
No. 200.
Circuit Court of Appeals, Tenth Circuit.
Aug. 21, 1930.
E. M. Boddington, of Kansas City, Kan. (Ered Robertson and W. E. Stiekel, both of Kansas City, Kan., on the brief), for appellant.
J. Francis O’Sullivan, of Kansas City, Mo. (George Halpem, Maurice 3. O’Sullivan, and O. H. Stevens, all of Kansas City, Mo., on the brief), for appellees.
Before COTTERAL, PHILLIPS, and McDERMOTT, Circuit Judges.
COTTERAL, Circuit Judge.
In a suit filed on April 10, 1929, a receiver was appointed by the trial court on that day to take charge of and dispose of the property of the Hamilton Shoe Stores Company, for the benefit of creditors, and on the next day was named as ancillary receiver in the Western district of Missouri. The company had been operating stores in Kansas and Missouri.
On June 20, 1929, the appellant, located at New York City, filed with the receiver a claim for $1,542.60 (as corrected), for which a priority was sought, arising from the sales of footwear it had made to the company, on the ground that the deliveries were actually made to and accepted by the receiver. The demand was denied priority and allowed only as a general claim. Prom that action this appeal has been taken.
The controversy was submitted upon an agreed statement of facts. This shows that the shipments were made on orders given by the company in November, 1928; that the shipments were made by freight on- April 2 and by express on April 8; that three of them amounting to $729.90 were received on April 10, three of them amounting to $315, on April 11; and the last amounting to $497.-70, on April 12; that the receiver took actual physical possession of the stores on April 12, 15, and 17, when the merchandise shipped was in the stores and had been commingled with the other merchandise. It was also stipulated that appellant did not exercise a right to stop the merchandise in transit, and did not file any application to reclaim or replevy it, or to have it segregated at the stores.
There were communications between appellant and the receiver, in which the former stated it expected a return of the merchandise, as the deliveries were made when the company was in the receivership, and urged a prompt return of it. The receiver advised appellant of his appointment, of his pro- . posed operation of the stores and reorganization of the company, and later, by a letter of May 24, that he found on investigation the merchandise was delivered before the receivership, except as to small amounts, for which appellant would be entitled to a priority, suggesting the filing of a claim therefor or for redelivery of the merehan-disc for action, by tbe court, without which he had. no authority to act, except by way of dividends to general creditors.
Counsel for appellant state the controversy to be whether the receiver was vested with title to the merchandise which had not yet been delivered at the time of his appointment, and they contend he had no right to receive or take into his possession merchandise to which the title of the company was not then complete.
Appellant had the burden of establishing the facts' essential to its claim. It is settled law that, in the absence of a different agreement, delivery to a carrier at the location of the seller constitutes delivery to the purchaser, and title vests in the latter at that time. Delaware, L. & W. R. Co., v. United States, 231 U. S. 363, 34 S. Ct. 65, 58 L. Ed. 269; 23 R. C. L. 1423, 1424 ; 35 Cyc. 172. But appellant wholly failed to prove an agreement for delivery of the merchandise that would take the case out of this general rule. The showing was only that the sales were made on credit and on orders given five months prior to shipment. The title to the merchandise therefore vested in the company at the time of delivery to the carriers, and this antedated the receivership. The sale contracts had been fully performed by appellant, and nothing remained to discharge them, but payment by the company. It was immaterial whether the receiver’s possession dated from the time when he was appointed or when he took physical possession of the stores.
We are not called upon to determine the rights of appellant, had it sought to rescind the sale contracts and replevy or otherwise reclaim the merchandise. Although demands were made upon the receiver for its return, this was not justified as long as the contracts of sale stood in force, and the title had passed from the appellant. Having elected to affirm the contracts by presentation of its claim, its remedy was limited to the price at which the merchandise was sold. Its claim to priority failed because it was merely a creditor to that extent and it had no better right to payment than the other creditors.
It is obvious that the complaint of appellant is based on the misconception that title to the goods had not passed to the company. It is true, as counsel insist, that title does not pass if any act remains to be done to complete it. But it had vested before the bill was filed or the receiver was appointed. Appellant’s claim was not bettered by the correspondence with the receiver. As a neutral party, he was not authorized to prejudice the interests of creditors, especially since the statement in his letter was expressly conditioned on action by the court.
We are of the opinion that the deeree of the District Court must be, and it 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_counsel2 |
Fidel RAMOS, David Lee Anderson, Sadiki Lisimba Ajamu (a/k/a Eugene Collins), Alexander Roses, Mark J. Menchetti and Lester Lazenby, et al., Plaintiffs-Appellees, v. The Honorable Richard D. LAMM, Governor of the State of Colorado; James G. Richetts, Executive Director of the Dept. of Corrections; John Perko, Director of Div. of Adult Services of Colo. Dept. of Corrections; Edgar Fox, Dir. of Div. of Correctional Industries of Colo. Dept. of Corrections and William Wilson, Supt. of Max. Sec. Unit (Warden) Defendants-Appellants.
No. 79-2324.
United States Court of Appeals, Tenth Circuit.
Argued June 3, 1980.
Decided Sept. 25, 1980.
Rehearing and Rehearing In Banc Denied Nov. 10, 1980.
Certiorari Denied April 6, 1981.
See 101 S.Ct. 1759.
John D. MacFarlane, Atty. Gen., and David K. Rees, Asst. Atty. Gen., Denver, Colo. (Richard F. Hennessey, Deputy Atty. Gen., Mary J. Mullarkey, Sol. Gen., Sarah Scott Sammons, Asst. Atty. Gen., Litigation Section, Tarquín Jay Bromley, Asst. Atty. Gen., Human Resources Section, Denver, Colo., were on the brief) for defendants-appellants.
James E. Hartley of Holland & Hart, Denver, Colo., and Peggy A. Wiesenberg, National Prison Project, Washington, D. C. (Hugh Q. Gottschalk, Denver, Colo., and Ralph I. Knowles, Jr., National Prison Project, Washington, D. C., were on the brief), for plaintiffs-appellees.
William C. Robb, Denver, Colo. (Philip G. Dufford of Welborn, Dufford, Cook & Brown and Michael T. Risner, Denver, Colo., were on the brief) for amicus curiae The General Assembly of the State of Colo.
Before HOLLOWAY, BARRETT and LOGAN, Circuit Judges.
The position of The General Assembly was supported by additional amici curiae, the Attorneys General of States of Alaska, American Samoa, Arizona, Delaware, Hawaii, Idaho, Indiana, Iowa, Kansas, N. Mexico, Ohio, Oklahoma, S. Dakota, Utah, Washington, Wyoming, Illinois, Michigan and Nebraska.
HOLLOWAY, Circuit Judge.
The defendants-appellants, hereafter the State or the State of Colorado, appeal from an order of the United States District Court directing inter alia that the State of Colorado close the maximum security unit of the Colorado State Penitentiary at Canon City, Colorado, hereinafter referred to as “Old Max.” The order was premised mainly on findings of numerous violations of the constitutional rights of the plaintiff class (inmates of the penitentiary) under the Eighth Amendment protecting against cruel and unusual punishment, with some additional constitutional infringements also being found. Ramos v. Lamm, 485 F.Supp. 122 (D.Colo.). Implementation of the order to close Old Max was deferred on the condition that the State would present proper plans for eradication of the constitutional violations found by the district court. Id. at 169-70.
I
The factual background
In November 1977 Fidel Ramos, an inmate at Old Max, filed a pro se civil rights suit under 42 U.S.C. § 1983 against certain State defendants challenging as unconstitutional his status as a “transitional worker” at Old Max and his living conditions at that facility. In February 1978 the National Prison Project and the A.C.L.U. Foundation of Colorado appeared on behalf of Ramos and filed an amended complaint, styled as a class action, basically alleging that “the totality of the conditions” at Old Max violated various constitutional rights of the inmates confined in that facility. The amended complaint did not seek compensatory or punitive damages as did the original pro se complaint; rather it asked only for declaratory and injunctive relief along with costs, expenses, and attorneys’ fees. The district court certified the suit as a class action under Rule 23(a), F.R.Civ.P. and described the class as “[a]ll persons who are now or in the future may be incarcerated in the maximum security unit of the Colorado State Penitentiary at Canon City, Colorado.” I R. 62.
After extensive discovery trial began on October 15, 1979. Following five (5) weeks of trial, the district court on November 15 ruled from the bench in favor of the plaintiff class and entered certain emergency orders pertaining to medical care. On December 20 the court filed a memorandum opinion and order supplementing the bench ruling and detailing its findings of violations of the plaintiffs’ rights. Ramos v. Lamm, supra.
On this appeal the State of Colorado argues that the trial court erred: (1) in refusing to abstain from exercising its jurisdiction in this case; (2) in failing to “apply the correct constitutional standard in making its findings that the totality of conditions at . . . [Old Max] violated the plaintiff class’ eighth amendment rights;” (3) in finding a constitutional violation because the evidence, measured under the correct constitutional standard, was insufficient to support such findings; and (4) in choosing an appropriate remedy. We will detail additional facts as we discuss the appellate contentions, to which we now turn.
II
Abstention
Subsequent to the filing of the amended complaint the State filed a “motion to dismiss and/or abstain.” After a hearing the district court denied the motion to abstain without prejudice to the issue being raised at a later time. During closing arguments, counsel for the State again asked the district court to abstain from exercising its jurisdiction.
In its written opinion the court concluded that although it had shown “great deference” to Colorado prison officials in the past, it was unable to continue that deference in light of the “substantial, often compelling, evidence of long existing and continuing constitutional violations.” 485 F.Supp. at 132. Accordingly, the district court declined to abstain.
The State first strenuously argues for reversal under the principles enunciated in such cases as Colorado River Water Cons. Dist. v. United States, 424 U.S. 800, 96 S.Ct. 1236, 47 L.Ed.2d 483; Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669; Burford v. Sun Oil Co., 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424; Railroad Comm’n v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971. The state claims that there were several pending state proceedings in which the conditions of confinement at Old Max were being challenged, that the plaintiffs could have intervened as a matter of right in at least one of these proceedings under Colo.R.Civ.P. 24, and that the plaintiffs could have instituted a § 1983 civil rights action in a Colorado state court. Thus abstention was mandated since the plaintiff class had an “opportunity” to present their federal claims in a state forum.
The State further claims that the principle of comity and the critical state interest in the operation of its penal system make federal court abstention “particularly important where the plaintiff challenges the constitutionality of the state’s prison system”; that “the state’s efforts to establish a coherent policy with respect to a matter of substantial public concern” were disrupted by the district court’s refusal to abstain; and that since questions of state law are critical to the resolution of the case, the district court should have abstained. See Brief of Appellant at 15-25.
We are acutely aware of the delicate role of the federal courts in matters involving the administration, control, and maintenance by the states of their penal systems-an area historically within the domain and control of those sovereign entities. See Battle v. Anderson, 564 F.2d 388, 391-92 (10th Cir.); Bethea v. Crouse, 417 F.2d 504, 505-06 (10th Cir.); see also Procunier v. Martinez, 416 U.S. 396, 404-05, 94 S.Ct. 1800, 1807, 40 L.Ed.2d 224; Preiser v. Rodriguez, 411 U.S. 475, 491-92, 93 S.Ct. 1827, 1837, 36 L.Ed.2d 439. We cannot agree, however, with the State’s argument here that the district court abused its discretion in refusing to abstain in view of the serious violations alleged of basic rights under the First, Eighth, and Fourteenth Amendments, and the substantial evidence later offered on these claims. See, e. g., Campbell v. McGruder, 580 F.2d 521, 527 (D.C. Cir.); and see Bell v. Wolfish, 441 U.S. 520, 562, 99 S.Ct. 1861, 1886, 60 L.Ed.2d 447. “The doctrine of abstention, under which a District Court may decline to exercise or postpone the exercise of its jurisdiction, is an extraordinary and narrow exception to the duty of a District Court to adjudicate a controversy properly before it.” Colorado River Water Cons. Dist. v. United States, supra, 424 U.S. at 813, 96 S.Ct. at 1244. Only in “exceptional circumstances” should a federal plaintiff be ordered to repair to the state court. Id.; accord, Zwickler v. Koota, 389 U.S. 241, 248, 88 S.Ct. 391, 395, 19 L.Ed.2d 444 (abstention appropriate “only in narrowly limited special circumstances”).
In reviewing the district court’s refusal to abstain, we note that the Supreme Court has “confined the circumstances appropriate for abstention to three general categories,” none of which apply to justify refusal to hear this constitutional case. Colorado River, supra, 424 U.S. at 814, 96 S.Ct. at 1244; see generally 17 C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure §§ 4241-55 (1978). This is not a case where the federal constitutional issues “might be mooted or presented in a different posture by a state court determination of pertinent state law.” Colorado River Water Cons. Dist. v. United States, supra, 424 U.S. at 814, 96 S.Ct. at 1244; Railroad Comm’n v. Pullman Co., supra, 312 U.S. at 500-01, 61 S.Ct. at 645; see Manney v. Cabell (9th Cir. No. 79-3260, April 29, 1980). The Manney case does apply the abstention doctrine in the setting of a correctional institution controversy, but it does so in a case where the application of two state statutes might avoid the federal constitutional issues. Here there are no underlying issues of state law which, if resolved, might avoid the decision of this case as a whole and its substantial constitutional claims, most of which we uphold. The rights claimed to have been violated are plainly federal in origin and nature and are in no way “entangled in a skein of state law that must be untangled before the federal case can proceed.” McNeese v. Board of Educ., 373 U.S. 668, 674, 83 S.Ct. 1433, 1437, 10 L.Ed.2d 622. The mere fact that a federal claim, brought in federal court, might have been brought instead in state court does not justify abstention. See, e. g., Zablocki v. Redhail, 434 U.S. 374, 379-80 n.5, 98 S.Ct. 673, 677 n.5, 54 L.Ed.2d 618; Colorado River, supra, 424 U.S. at 813-14, 96 S.Ct. at 1244; Zwickler v. Koota, supra, 389 U.S. at 251, 88 S.Ct. at 397.
Likewise, this is not a case which presents “difficult questions of state law bearing on policy problems of substantial public import whose importance transcends the result in the case ... at bar.” Colorado River, supra, 424 U.S. at 814, 96 S.Ct. at 1244. In Burford v. Sun Oil Co., supra, 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424, the Supreme Court held that the district court should dismiss a complaint on the ground that the issues involved a specialized aspect of a complicated local regulatory system which, the court concluded, should be left to local administrative bodies and courts. See also Alabama Public Service Comm’n v. Southern R. Co., 341 U.S. 341, 349, 71 S.Ct. 762, 768, 95 L.Ed. 1002. Here local state courts have not been assigned a special review function over the administration and maintenance of Old Max. There is no state adjudicative system charged with the implementation of state policy as in Colorado River. Thus the exercise of federal jurisdiction in this case will not cause a widespread disruption of a unified scheme of local regulation. See, e. g., Campbell v. McGruder, supra, 580 F.2d at 525; Santiago v. City of Philadelphia, 435 F.Supp. 136, 145 (E.D.Pa.1977); see generally Procunier v. Martinez, supra, 416 U.S. at 405-06, 94 S.Ct. at 1807; Preiser v. Rodriguez, supra, 411 U.S. at 499 & n.14, 93 S.Ct. at 1841 & n.14. The fact that a federal constitutional challenge is made against state penal administration “does not establish that the controversy is an unduly sensitive one beyond legitimate federal concerns.” McRedmond v. Wilson, 533 F.2d 757, 764 (2d Cir.).
Finally, this is not a case in which the plaintiffs have attempted to enjoin a pending state proceeding initiated by the state against them in which they would have an opportunity to present their federal claim in a state forum. See Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971); see also Moore v. Sims, 442 U.S. 415, 423-25, 99 S.Ct. 2371, 2377, 60 L.Ed.2d 994. Here there is no pending state proceeding initiated by the state. There are only pending actions in the state court with a number of similar issues, in which the plaintiff class might have intervened. “Generally, as between state and federal courts, the rule is that ‘the pendency of an action in the state court is no bar to proceedings concerning the same matter in the Federal court having jurisdiction . . . .’ ” Colorado River, supra, 424 U.S. at 817, 96 S.Ct. at 1246; accord, Will v. Calvert Fire Ins. Co., supra, 437 U.S. at 662 (plurality) and 670, 98 S.Ct. at 2557 and 2561 (Brennan, J., dissenting). Consequently, the district court correctly determined that abstention under the Younger line of cases was inappropriate. See Ramos v. Lamm, supra, 485 F.Supp. at 174.
In sum, we conclude there was no error or abuse of discretion by the district court in declining to abstain from hearing this constitutional case and the substantial constitutional claims asserted. As the Supreme Court noted in Procunier v. Martinez, supra, 416 U.S. at 405-06, 94 S.Ct. at 1807:
[A] policy of judicial restraint cannot encompass any failure to take cognizance of valid constitutional claims whether arising in a federal or state institution. When a prison regulation or practice offends a fundamental constitutional guarantee, federal courts, will discharge their duty to protect constitutional rights.
Like the trial judge, we are moved by the words of Judge Murrah from Stapleton v. Mitchell, 60 F.Supp. 51, 55 (D.Kan.), words recalled by the Supreme Court in Zwickler v. Koota, supra, 389 U.S. at 248, 88 S.Ct. at 395, in describing the duty of federal courts “to guard, enforce, and protect every right granted or secured by the Constitution of the United States”:
We yet like to believe that whenever the Federal Courts sit, human rights, under the Federal Constitution are always a proper subject for adjudication, and that we have not the right to decline the exercise of that jurisdiction simply because the rights asserted may be adjudicated in some other forum.
Ill
The Eighth Amendment claims
In a bifurcated argument the State, supported by the Colorado General Assembly as amicus, challenges the district court’s ultimate finding that the constitutional rights of the plaintiff class have been violated as a result of the conditions of confinement at Old Max. Their general line of argument is that (1) the trial court failed to use the correct constitutional standard in assessing the Eighth Amendment claims, and (2) the evidence, measured by the correct standard, “is insufficient to support the trial court’s finding that the conditions of confinement . constitute cruel and unusual punishment.” See Brief of Appellant at 25, 34; Brief of Amicus Curiae at 13-14.
We will consider the constitutional standard to be applied to the Eighth Amendment claims first. Then we will analyze the more specific challenges to the trial court’s findings leading to its conclusion that the State has violated the constitutional guarantee.
A. The constitutional standard
In Battle v. Anderson, supra, 564 F.2d at 393, we stated that “the Supreme Court has not wavered in its holding that the Eighth Amendment ... is, inter alia, intended to protect and safeguard a prison inmate from an environment where degeneration is probable and self-improvement unlikely because of the conditions existing which inflict needless suffering, whether physical or mental.” In affirming the district court’s finding there that overcrowding in the Oklahoma State Penitentiary violated the inmates’ Eighth Amendment rights, we held “that while an inmate does not have a federal constitutional right to rehabilitation, he is entitled to be confined in an environment which does not result in his degeneration or which threatens his mental and physical well being.” Id. at 401, 403.
The district court and the plaintiffs rely to some degree on this language from Battle to support the conclusion that a constitutional violation occurred here. See 485 F.Supp. at 133, 156; Brief of Appellee at 43, 101. The State and the amicus say that it was error to apply the “degeneration standard” from Battle, error which taints the finding that the totality of conditions at Old Max violate the Eighth Amendment. They urge that we adopt instead the standard enunciated in Newman v. Alabama, 559 F.2d 283, 291 (5th Cir.), cert. denied, 438 U.S. 915, 98 S.Ct. 3144, 57 L.Ed.2d 1160:
If the State furnishes its prisoners with reasonably adequate food, clothing, shelter, sanitation, medical care, and personal safety so as to avoid the imposition of cruel and unusual punishment, that ends its obligation under Amendment Eight.
See Brief of Appellant at 27-33; Reply Brief of Appellant at 6, 9-11; Brief Amicus Curiae at 8-9, 11-14.
We see no conflict between our decision in Battle and the Fifth Circuit’s decision in Newman. The standard announced in Battle concerned degeneration in relation to the entire penal environment — the conditions of confinement. These conditions were not identified in Battle beyond inadequate cell space. We conclude that in the areas of shelter, sanitation, food, personal safety, and medical care — the core areas in any Eighth Amendment claim — the district court’s findings and conclusions of violations of the plaintiffs’ rights are entirely justified and supported by the record. We do not think, however, that the record in this case requires or justifies going into all of the concepts on penology pressed by the plaintiffs and adopted in the district court’s opinion — the concepts of motility, classification, and idleness — since the shortcomings in these areas are not of constitutional dimension. While there may be a point where abuse in these areas would constitute an actual violation of the Eighth Amendment guarantee, we hold that in this case the present record and the findings on these subjects do not warrant the court’s broad remedial orders (485 F.Supp. at 170) intruding into these areas of prison administration. See Battle v. Anderson, supra, 564 F.2d at 403; Newman v. Alabama, supra, 559 F.2d at 291-92; Marchesani v. McCune, 531 F.2d 459, 462 (10th Cir.), cert. denied, 429 U.S. 846, 97 S.Ct. 127, 50 L.Ed.2d 117.
Thus we conclude that the district court did not apply an improper constitutional standard here in making its findings on shelter, sanitation, food, personal safety, and medical care at the Colorado prison.
B. The sufficiency of the evidence to support the findings of Eighth Amendment violations
With a few exceptions, the State generally admits that there was “little conflict in the evidence which was introduced at trial.” Instead its argument is “directed towards what it feels was a clearly erroneous assimilation of those facts” by the district court. Brief of Appellant at 25-26, 37. Thus it appears the State is mainly arguing that the undisputed evidence does not support the court’s ultimate finding and conclusion that the conditions of confinement at Old Max violate the Eighth Amendment rights of the inmates. See generally XLV R. 106-07.
After extensive hearings and a personal inspection of the prison, the district court made detailed findings of fact in the core areas which we have mentioned. Such findings by the trial judge who heard and saw the evidence may not be set aside on appeal unless they are clearly erroneous. See e. g., Rasmussen Drilling, Inc. v. Kerr-McGee Nuclear Corp., 571 F.2d 1144, 1148-49 (10th Cir.), cert. denied, 439 U.S. 862, 99 S.Ct. 183, 58 L.Ed.2d 171 (1978); Battle v. Anderson, supra, 564 F.2d at 400; F.R. Civ.P. 52(a). The resolution of conflicts in the evidence and the appraisal of credibility of witnesses are for the trial court hearing a case without a jury. See Rasmussen Drilling, Inc. v. Kerr-McGee Nuclear Corp., supra, 571 F.2d at 1149. Guided by these principles we will consider the findings in detail.
1. Shelter and Sanitation
The district court made a general finding that the inmates of Old Max “are housed under conditions which fall below all recognized constitutional and professional standards.” 485 F.Supp. at 133. Specifically it found inter alia that “[t]he main living areas of Old Max are unfit for human habitation”; that most of the cells in which inmates are confined provide for barely one-half the square footage of space required by modern correctional standards; and that “[e]nvironmentally Old Max is inadequate to meet the health and safety needs of prisoners in the correctional system.” Id. at 134. With respect to the “physical environment,” the court found that the “conditions are grossly inadequate and constitutionally impermissible.” Id. at 155.
The State argues that much of the court’s criticism of Old Max is directed at the prison’s design, which it admits “is a vestige of the past and is not consistent with modern penology.” Brief of Appellant at 48. The “salient point” according to. the State “is that long before this suit was filed, the state had begun to build a ‘state of the art’ prison which will not have the deficiencies of the present Auburn prisons.” Id. It argues that since the designing of Auburn style prisons was stopped in the late 1960’s, and the constitutionality of using certain cells at Old Max was upheld by this court in 1975, “its beginning to plan a new prison in 1976 is overwhelming evidence that it is keeping pace with evolving standards of decency that mark a maturing society.” Id. at 50. The State also says that since “the length of confinement must be considered” in determining whether constitutional standards have been violated, the trial court’s failure to recognize that Old Max will soon be closed voluntarily constitutes reversible error. Id. Finally, with respect to sanitation, the State argues that “the totality of circumstances in sanitation cannot be held to be unconstitutional” because the evidence clearly shows that sanitation “has improved greatly over the last few years”; that cleaning activity has increased significantly under the directorship of defendant Richetts; and that many of the sanitation problems at Old Max are a direct result of the inmates’ absolute refusal to help keep the prison clean. Id. at 56-57.
In response, plaintiffs argue that “the undisputed findings establish that the physical conditions of confinement at Old Max are ‘grossly inadequate’ ”; that the construction of new prison facilities which will be completed in the future is not a defense to present unconstitutional conditions of confinement; and that there is no record evidence which supports the State’s claim that Old Max will be closed voluntarily or permanently. Answer Brief of Appellees at 46-49, 55-59.
In Battle v. Anderson, supra, we upheld the district court’s conclusion that “[i]t is incumbent on the incarcerating body to provide the individual with a healthy habilitative environment.” 564 F.2d at 395. In affirming in Battle, we upheld the finding that 60 square feet of living space was the minimum amount of square footage which the Eighth and Fourteenth Amendments require that a state provide an inmate. Id. at 395, 397, 403. A necessary corollary to this ruling is that a state must provide within such living space reasonably adequate ventilation, sanitation, bedding, hygienic materials, and utilities (i.e., hot and cold water, light, heat, plumbing). Id. at 394-95, 403; see also Bono v. Saxbe, 620 F.2d 609, 613 (7th Cir.); Hite v. Leeke, 564 F.2d 670, 674 (4th Cir.); Palmigiano v. Garrahy, supra, 443 F.Supp. at 979; Laaman v. Helgemoe, 437 F.Supp. 269, 308-09, 323 (D.N.H.). In short, a state must provide an inmate with shelter which does not cause his degeneration or threaten his mental and physical well being. Battle v. Anderson, supra, 564 F.2d at 403.
Considering the record in light of this standard, the evidence showed these facts. Old Max came into existence as a territorial prison in the late 1860’s before Colorado became a state. The physical facility as it exists now “dates from 1895, with numerous additions, the most recent in 1971.” II App.Exh. 26; I App.Tes. 15-17. Approximately 1000 inmates are housed in five cell-houses within the walls of the institution and one cellhouse outside the prison walls. I App.Tes. 16-17; IV App.Tes. 114; Brief of Appellant at 39.
Most of the prison population is housed in three cellhouses - 1, 3 and 7. Cellhouse 1, built in 1948, contains approximately 360 inmates who are assigned single cells which are 35 square feet in size, with net usable space of about 14 square feet. I App.Tes. 43-44; II App.Exh. 97; V R. 849. Cell-house 3, built in 1951, contains approximately 86 prisoners in protective custody, administrative segregation, punitive segregation, or deathrow. Inmates in cellhouse 3 are not considered members of the general prison population since they are locked in their cells an average of 23 hours a day. I App.Tes. 19. These cells do not provide the inmate the 60 square feet of space required in Battle. Cellhouse 7 was built in 1938 and is structurally similar to cellhouse 1. It houses approximately 390 inmates who are either in protective custody or administrative segregation, or who are classified as transitional workers (i. e. inmates without jobs). Cellhouse 7 has 326 cells of 31.5 square feet and 64 cells, used for administrative segregation, of approximately 62 square feet. I App.Tes. 30; II App.Exh. 165-66; V R. 862; XXIII R. 11; XXIX R. 50.
The remainder of the prison population is housed in cellhouses 4 and 5 and the Diagnostic Unit. Cellhouse 4, built in the 1930’s, is located outside the prison walls and once was used as the women’s prison. The cells are about 40 square feet. I App.Tes. 17, 44-45. Cellhouse 5 is located under the prison infirmary and houses about 20 trustee inmates. Id. at 17. The Diagnostic Unit cellhouse is a three-tier unit which was built in 1962 and currently houses 120 inmates. The cells in this unit are approximately 49 square feet. I App.Tes. 45-46, 369; III App.Tes. 110. Thus we note that there is a widespread deficiency in living space under the Battle standard.
Aside from the deficiency in cell size, the buildings where inmates live are in a serious state of disrepair and fail to meet minimal health and safety needs of the prisoners. For example, the roofs in the major cellhouses and the prison auditorium leak, despite repair work. See 1 App.Tes. 27, 392, 395, 398; III App.Tes. 131-32; II App.Exh. 130- 32, 144-45. Existing heating and ventilation systems are incapable of providing adequate temperature control and ventilation in the cellhouses and in some work buildings used by the inmates. See III App.Tes. 102-03, 128-46; 189, 191; II App. Exh. 130-32, 143-50, 158, 162-66, 196-97, 200.
Inadequate ventilation, especially in the cells and shower areas, results in excessive odors, heat, and humidity with the effect of creating stagnant air as well as excessive mold and fungus growth, thereby facilitating personal discomfort along with health and sanitation problems. See II App.Exh. 158, 162-67. Leaking pipes and defective plumbing cause sewage to accumulate in cells and service areas or to drain into adjacent or lower cells, resulting in innumerable health and safety problems which, when combined with the temperature control and ventilation problems, make the main living areas particularly unfit for human habitation. See I App.Tes. 29, 42, 44, 85; II App.Exh. 11-13, 26, 131-51; III App.Tes. 131- 47, 215; IV App.Tes. 116-17; XXXIII R. 83-85, 106.
In addition, the evidence also shows an extensive problem with rodent and insect infestation in the cellhouses. See I App. Tes. 27, 191-92; II App.Exh. 145, 147, 163, III App.Tes. 109-10, 128-46, 195-96. Trash, decayed food, and other material routinely litter the cells and corridors of the cellhouses, conditions which are partially the product of the inmates’ own actions. See, I App.Tes. 27-28, 196; II App.Exh. 131-45, 162, 167; III App.Tes. 137-38. Nevertheless, many of the health and sanitation deficiencies, were found to be “the result of a lack of routine maintenance and cleaning programs.” 485 F.Supp. at 136. Bath water in the shower areas remains impounded on the floors due to obstructed drains. Missing ceramic floor tiles make shower room floors exceptionally difficult to clean and provide areas for significant mold and slime buildup. Metal stubs sticking up through the floor along with exposed electrical wiring provide additional health hazards to inmates using the shower facilities. See I App.Tes. 203; II App.Exh. 130-32,144,148-52, III App.Tes. 107-09,125-26, 143, 147, 195. These deficiencies could be corrected by routine maintenance and cleaning programs. See II App.Exh. 130-32, 162-68.
The health and sanitation problems extend beyond the common-use areas and into the individual cells. The evidence shows that in some instances inmates are not provided with enough cleaning supplies to allow them to adequately clean their own cells. See I App.Tes. 197; III App.Tes. 18, 125-27, 197. Numerous broken windows and the lack of window screens contribute significantly to the fly infestation problem. See id. at 128. The bedding used by inmates is heavily stained and soiled, and is not cleaned or changed when a new inmate is assigned to a cell. See id. at 105-07,131, 139; II App.Exh. 144, 152; I App.Tes. 196. These items could also be corrected by routine maintenance and cleaning programs. See II App.Exh. 162-68.
Without doubt, the State’s inability to meet minimal shelter and sanitation standards contributes immeasurably in making the main living areas unfit for human habitation. Ill App.Tes. 215. Unquestionably, the small cells in which inmates are confined, along with the deteriorating and unsanitary conditions in the main living areas, have a direct detrimental impact on the health and well being of the inmates. Considering the record as a whole we must sustain the trial court’s findings and conclusion that the conditions in which inmates are confined at Old Max are “grossly inadequate and constitutionally impermissible.”
2. Food
The district court found that the “[cjonditions in the food services areas . fail to meet any known public health standards”; the kitchen facilities and equipment are obsolete and unsanitary; state health code violations persist, after numerous inspections; most of the deficiencies are “caused by a lack of routine maintenance, operational and cleaning procedures”; these deficiencies “have long been serious problems”; and the “unsanitary conditions have a direct impact on the health of the inmate population.” 485 F.Supp. at 136, 155. The court concluded that these “conditions are grossly inadequate and constitutionally impermissible.” Id. at 155.
The State recognizes that the court’s findings concerning the sanitation in the kitchen areas are “extremely serious.” However, it argues that the court “pieced together various facts and failed to accurately reflect the totality of conditions” at Old Max. Brief of Appellant at 53-54. Moreover, because this is “the one area in which the defendant’s evidence significantly conflicted with the plaintiff’s evidence,” the State complains that the court failed to note favorable testimony from a defense witness concerning the kitchen facility, despite the court’s conclusion that all state witnesses were credible. Id. at 52, 54. Finally, although it does not deny the health code violations, the State objects to the district court’s use of state health department standards in determining whether the conditions in the food service area violate constitutional standards. Id. at 55-56.
As we noted earlier, the State must provide an inmate with a “healthy habilitative environment.” This includes providing nutritionally adequate food that is prepared and served under conditions which do not present an immediate danger to the health and well being of the inmates who consume it. See, e. g., Palmigiano v. Garrahy, supra, 443 F.Supp. at 962, 979; Laaman v. Helgemoe, supra, 437 F.Supp. at 309, 323; Pugh v. Locke, 406 F.Supp. 318, 329 (M.D.Ala.), aff’d as modified sub nom., Newman v. Alabama, 559 F.2d 283, 288 (5th Cir.), rev’d in part sub nom., Alabama v. Pugh, 438 U.S. 781, 98 S.Ct. 3057, 57 L.Ed.2d 1114; cert. denied, Newman v. Alabama, 438 U.S. 915, 98 S.Ct. 3144, 57 L.Ed.2d 1160; see also Campbell v. McGruder, supra, 580 F.2d at 548, Sweet v. South Carolina Dept. of Corrections, 529 F.2d 854, 862 (4th Cir.). Moreover the state health code, while not establishing “constitutional minima,” is relevant in making a finding regarding the constitutionality of existing conditions. See note 10 supra; see also Williams v. Edwards, 547 F.2d 1206, 1214 (5th Cir.).
Here conditions in the main food service areas are substantially similar to the unsanitary conditions which exist in the main living areas. The physical plant itself is old, outdated, and poorly maintained. Kitchen equipment is in a state of disrepair. The dishwasher in the main kitchen leaks water all over the floor, creating a safety hazard for those working in the kitchen area. Floor drains barely function and standing pools of water are common. Rotting food remains on floors which are not readily cleanable due to their deteriorated condition. Ventilation throughout the main kitchen is inadequate and high temperatures are common.
In addition, sanitation deficiencies are compounded by a highly irregular and ineffective cleaning program. The floors, walls, windows, and food storage shelves throughout the food service area are soiled with dirt and rodent droppings. The walls of the walk-in coolers where food is stored have mold growing on them. Floor fans used to circulate the air cause dust and lint to be blown over the food preparation and dishwashing areas. Rodent and insect infestation is extensive.
Inmate workers are not given basic instruction on food protection and food service sanitation. Consequently food items are stored on the floors of walk-in storage compartments and food is often left uncovered allowing the rodents and roaches to contaminate it. Food products which can support food borne diseases are not properly stored and are often left out at room temperature. Food preparation surfaces and cooking equipment are not properly cleaned and therefore provide areas for significant bacterial growth. Food, when it is being served to inmates, is kept at substandard temperatures due to the improper use of the available equipment. See III App.Tes. 98-102,110-125, 209; II App.Exh. 283-88.
After inspecting such conditions the Colorado Department of Health itself found that “[sjubstantial deficiencies exist in the food service facilities” at Old Max. As of July 17, 1979, that state agency refused to issue a Certificate of Inspection for the food service facilities since they were not “in substantial compliance with the ‘Rules and Regulations Governing the Sanitation of Food Service Establishments in the State of Colorado.’ ” II App.Exh. 255, 291. It was the conclusion of Mr. Gordon, an expert in the field of environmental health, sanitation, and safety, that “the food service [at Old Max] represents imminent danger to the health and well-being of the inmates consuming food in that operation.” XXIX R. 35 (emphasis added); see also III App. Tes. at 94, 199-200, 205-06, 215.
Considering all the evidence, we conclude that the record amply supports the district court’s findings and conclusions that the conditions in the food service areas at Old Max are unsanitary and have a substantial and immediate detrimental impact upon the health of the inmate population. We must uphold the court’s findings and conclusion that the conditions in the food services areas at Old Max “are grossly inadequate and constitutionally impermissible.”
3. Personal safety
The district court found that the inmates and correctional staff at Old Max have lived in an atmosphere of tension, anxiety and fear, resulting in an unsafe environment for both; that the institution “is still fraught with tension and violence”; and that “[t]he design and staffing of all the major housing units contribute immeasurably to violence between inmates, often leading to severe injury and death.” 485 F.Supp. at 140-42. It also found that the conditions of confinement, one of which was the lack of physical safety for inmates, “evidenced . . . deliberate indifference to the prisoners’ protected interests.” Id. at 153-54 n. 20. The court concluded that the lack of safety deprived prisoners of their constitutional right to be reasonably protected from constant threats of violence and sexual assault from other inmates. Id. at 155-56.
The State claims that the district court has distorted the facts and has “patched together various portions of the record under the guise of making a finding of the totality of conditions” at Old Max; that it “has failed to distinguish between the prison’s history of violence and the conditions which existed in October 1979”; that the level of violence at Old Max has been “significantly reduced” in recent years; that the reference to suicides and self-mutilatory gestures is improper since a state has no duty to keep an inmate from hurting himself; and that reliance upon the number of inmates in protective custody to show that fear and violence exists at Old Max is misplaced since Old Max houses protective custody cases from other prisons in the state system. Brief of Appellant at 57-64. The State further says that the current staffing levels at Old Max are based on the needs of the new prison which is currently being built and that the district court’s finding that inadequate staffing at Old Max contributes to inmate violence is inconsistent with its finding that the prison’s physical design makes it impossible to provide adequate security. Id. at 58. Finally, the State argues that the district court has misconstrued the law concerning a prisoner’s right to safety and that the plaintiff class has failed to show that the State has acted with deliberate indifference toward their safety. Id. at 62-64.
As we noted in Marchesani v. McCune, 531 F.2d 459, 462 (10th Cir.), cert. denied, 429 U.S. 846, 97 S.Ct. 127, 50 L.Ed.2d 117, a “[pjrison setting is, at best, tense. It is sometimes explosive, and always potentially dangerous.” Nevertheless, as the State concedes, an inmate does have a right to be reasonably protected from constant threats of violence and sexual assaults from other inmates. Brief of Appellant at 62. See Clappier v. Flynn, 605 F.2d 519 (10th Cir.); Hite v. Leeke, 564 F.2d 670, 673 (4th Cir.); Finney v. Arkansas Bd. of Correction, 505 F.2d 194, 201 (8th Cir.). Moreover, he does not need to wait until he is actually assaulted before obtaining relief. See Woodhous v. Virginia, 487 F.2d 889, 890 (4th Cir.).
Here the evidence shows that in recent years the inmate population at Old Max has been plagued with violence and the fear of violence. See II App.Exh. 109; XXXVII R. 55-58, 61-64; and Brief of Appellant at 6-7. In May 1975 a major riot occurred at Old Max. In August 1976 the Governor of Colorado ordered prison officials to conduct a massive lockup of the total prison population to help reduce the violence and other criminal activity which was occurring inside the prison walls. See I App.Exh. 97, 108; XXXVII R. 66. In 1977 a special project team investigated Colorado’s correctional system and concluded “that an environment of tension, anxiety, and fear exists for both inmates and correctional staff” at Old Max. II App.Exh. 15, 25. In June 1978 an interagency crisis committee, investigating attempted suicides in cellhouse 3, concluded that under the current conditions and staffing patterns, security could not be maintained in that cellhouse. Id. at 114.
The violence and fear which permeated the prison population of Old Max in past years continues to exist. The efforts of many inmates are directed at merely staying alive while they serve their sentences. IV App.Tes. 118. Protective custody inmates are routinely threatened and attacked by other inmates. See XXVII R. 121-24; XXXVII R. 84; I App.Tes. 39. Prison records for 1978 and part of 1979 show a significant number of stabbings, assaults, fights, and threats. See II App. Exh. 227-47; I App.Tes. 79-87, 429-31; II App.Tes. 188-90. Undoubtedly many more incidents go unreported. See I App.Tes. 79, 429; II App.Tes. 189.
The evidence indicates that the architecture of the cellhouses and the physical layout of buildings and other structures contribute to the violence and illegal activity between inmates. II App.Exh. 12, 26, 89-90, 97-100, 105-06, 110; IV App.Tes. 117; XXXIII R. 52-61; XXXVII R. 185. The architecture of cellhouses 1 and 7, which was designed for a less mobile prison population, does not provide adequate visibility for guards to properly monitor from secure vantage points inmate movement within the cellhouse. See I App.Tes. 42-44, 389-90; II App.Exh. 97; XXXIII R. 58-61. The internal structure of the cellhouses along with the random construction of the buildings, walls, and fences within the perimeter of the prison provide numerous “blind areas” where violence, threats, and other illegal activities can occur without detection by prison officials. See, XXVII R. 95-97; I App.Tes. 42-43, 85-86, 431; IV App.Tes. 72, 113; II App.Exh. 89-90; XXXIII R. 52-61.
Violence and illegal activity between inmates at Old Max is further facilitated by the inadequacy of the staffing levels. Past investigations by the State revealed that staffing levels at Old Max were insufficient to provide adequate security for inmates and staff and that the lack of adequate supervision and surveillance of inmates contributes significantly to violence and other illegal activity. See II App.Exh. 12, 89-90, 97-100, 105-07, 111, 114. Despite the reports which highlighted the need for increased staffing at Old Max, the Colorado Department of Corrections actually decreased its security staff in fiscal year 1978-79. See IV App.Tes. 131. The expert witnesses, including the former executive director of the Department of Corrections, overwhelmingly concluded that current staffing levels at Old Max continue to be inadequate and cannot provide a reasonably safe environment for inmates. See I App. Tes. 20-44.
Although a larger security staff would not completely obviate the inmate safety problem the evidence shows that additional security personnel could significantly reduce it. E. g., I App.Tes. 21-22, 76-78; II App.Exh. 12. We are convinced that the record amply supports the finding that the State has been “deliberately indifferent” to the legitimate safety needs of the inmates confined at Old Max. See Palmigiano v. Garrahy, supra, 443 F.Supp. at 973, 980; see also Little v. Walker, 552 F.2d 193, 197-98 n. 8 (7th Cir.), cert. denied, 435 U.S. 932, 98 S.Ct. 1507, 55 L.Ed.2d 530. Accordingly we must uphold the court’s finding and conclusion that the State has failed to reasonably protect inmates from constant threats of violence and assaults from other inmates and that this failure violates the inmates’ constitutional rights under the Eighth Amendment.
4. Health Care
The district court found that “the blatant inadequacy of health care is perhaps the most appalling” of all the problems at Old Max and that the State has “been aware of grave and systemic deficiencies in the medical care delivery system at Old Max for years.” 485 F.Supp. at 142, 158. It concluded that:
The failures of Old Max extend across the board from inadequate staff and resources to insufficient transportation arrangements to lack of training and qualification of the limited staff that does exist. The problem is not simply a matter of isolated incidents of alleged negligence or difference of opinion. It is a matter of such large scale failure as to evidence deliberate indifference to serious health needs.
Id. at 158.
The State argues that the district court “misconstrued the applicable law and failed to accurately reflect the evidence in the record.” Brief of Appellants at 82, 117; Reply Brief of Appellants at 11-13. With respect to the medical care which is provided to inmates at Old Max, the State admits that deficiencies existed prior to 1977. However, it says that the “[h]ealth care provisions at . [Old Max] must be seen in a continuum”; that the general standard of care provided has been upgraded consistently and that the evidence shows that “[t]he medical facilities, equipment, and staff . . . [are] sufficient to deliver adequate medical care to the prison population.” Brief of Appellants at 104, 115. The State further claims that the record does not show “deliberate indifference” by prison officials to inmates’ medical needs and that the trial court’s conclusion concerning the inadequacy of medical care at Old Max is based on “isolated instances” of inadequate or improper medical care. Id. at 99-100.
With respect to mental health care, the State relies on Bowring v. Godwin, 551 F.2d 44 (4th Cir.) and maintains that the evidence shows that out of the entire prison population only 15 inmates were identified as being “seriously mentally ill.” According to the State, the evidence did not show “that action by health care personnel could have made any appreciable difference in the condition of these [15] inmates.” Furthermore, the evidence also failed to show that prison officials were deliberately indifferent to “inmates’ serious psychological/psychiatric needs.” Brief of Appellants at 107-09. Consequently the State argues that the court erroneously concluded that inmates at Old Max received constitutionally inadequate health care from the State.
As the State admits, it has a constitutional obligation “to provide medical care for those whom it is punishing by incarceration.” Estelle v. Gamble, 429 U.S. 97, 103, 97 S.Ct. 285, 290, 50 L.Ed.2d 251; Brief of Appellants at 97. We are convinced that this duty necessarily requires that the State “make available to inmates a level of medical care which is reasonably designed to meet the routine and emergency health care needs of inmates.” Battle v. Anderson, 376 F.Supp. 402, 424 (E.D.Okla.); accord, Laaman v. Helgemoe, supra, 437 F.Supp. at 312. This includes medical treatment for inmates’ physical ills, dental care, see, e. g., id. at 313, and psychological or psychiatric care, see, e. g., Inmates of Allegheny Cty. Jail v. Pierce, 612 F.2d 754, 763 (3d Cir.), on remand, 487 F.Supp. 638, 643 (W.D.Pa.); Bowring v. Godwin, supra, 551 F.2d at 47.
Although the constitutional standard for adequate health care has not been fully spelled out, the Supreme Court has held in the context of a § 1983 action for damages and injunctive relief that only “deliberate indifference to serious medical needs” of prisoners violates the Eighth Amendment proscription against cruel and unusual punishment. Estelle v. Gamble, supra, 429 U.S. at 106, 97 S.Ct. at 292; see also Twyman v. Crisp, 584 F.2d 352, 355 (10th Cir.). Consequently, accidental or inadvertent failure to provide adequate medical care, or negligent diagnosis or treatment of a medical condition do not constitute a medical wrong under the Eighth Amendment. See Estelle v. Gamble, supra, 429 U.S. at 105-06, 97 S.Ct. at 291. A fortiori, a mere difference of opinion between the prison’s medical staff and the inmate as to the diagnosis or treatment which the inmate receives does not support a claim of cruel and unusual punishment. See, e. g., Bowring v. Godwin, supra, 551 F.2d at 48; Smart v. Villar, 547 F.2d 112, 114 (10th Cir.).
The two-pronged Estelle standard “requires deliberate indifference on the part of prison officials and it requires the prisoner’s medical needs to be serious.” West v. Keve, 571 F.2d 158, 161 (3d Cir.). A medical need is serious if it is “one that has been diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person would easily recognize the necessity for a doctor’s attention.” Laaman v. Helgemoe, supra, 437 F.Supp. at 311; See also West v. Keve, supra, 571 F.2d at 162-63 n.6. Deliberate indifference to serious medical needs is shown when prison officials have prevented an inmate from receiving recommended treatment or when an inmate is denied access to medical personnel capable of evaluating the need for treatment. See, e. g., Inmates of Allegheny Cty. Jail v. Pierce, supra, 612 F.2d at 762; Todaro v. Ward, 565 F.2d 48, 52 (2d Cir.). In class actions challenging the entire system of health care, deliberate indifference to inmates’ health needs may be shown by proving repeated examples of negligent acts which disclose a pattern of conduct by the prison medical staff, see id. at 52, or by proving there are such systemic and gross deficiencies in staffing, facilities, equipment, or procedures that the inmate population is effectively denied access to adequate medical care. See, e. g., Inmates of Allegheny Cty. Jail v. Pierce, supra, 612 F.2d at 762-63; Todaro v. Ward, supra, 565 F.2d at 52; Williams v. Edwards, supra, 547 F.2d at 1215; Palmigiano v. Garrahy, supra, 443 F.Supp. at 983-84; Laaman v. Helgemoe, supra, 437 F.Supp. at 312-13; Battle v. Anderson, supra, 376 F.Supp. at 424. Much of the evidence presented at trial is relevant to this last standard of “deliberate indifference.”
The record shows that the medical staff at the infirmary in Old Max is responsible for providing medical services for all the prison facilities in the Canon City area, including the maximum security prison, the medium security prison, and the women’s prison-a total inmate population of approximately 1,400. XXV R. 82-83; XXXVIII R. 5, 100-01. In addition, the medical staff is responsible for the initial medical and dental screening of all new prisoners entering the Colorado prison system-approximately 1,350 inmates in 1978. XXXVIII R. 101,-114.
Despite the large number of prisoners who depend on the Old Max staff for medical services, the State provides less than 10 hours per week of on-site primary physician coverage. Expert witnesses agreed that a minimum of 40 hours per week of on-site primary care physician coverage is needed for the Maximum Security Prison (Old Max) to meet minimally acceptable standards of health care. See XXV R. 80-84, 90-92, 201; XXXVIII R. 75, 78-79, 101-02; Brief of Appellants at 85. One expert indicated that “primary care physician on-site coverage” is the “most important aspect of the medical care services at the facility” and that 10 hours per week is “grossly inadequate. ” XXV R. 90 (emphasis added); see also I App.Tes. 238; XXV R. 96; XXXVIII R. 74-75. Expert witnesses uniformly agreed that a four-fold increase in primary physician coverage was necessary, along with additional on-site coverage from specialists. See XXV R. 92, 126-27, 200-02, 213; XXXVIII R. 74-78. The State’s expert admitted that in order to meet minimally acceptable standards of health care, there must be at least 4 hours per week of on-site coverage from a general internist and a general surgeon, and 4 hours of on-site coverage every other week from an ear, nose, and throat specialist and an orthopedic surgeon. See XXXVIII R. 76, 79; see also XXV R. 126-27, 201. At the time of trial this specialist coverage was not provided.
Experts from both sides agreed that because of the inadequacy of on-site primary physician coverage, other medical personnel are being used as “physician substitutes” and are being forced to make decisions and perform services for which they are neither trained nor qualified. XXV R. 90-98, 113-14, 127; XXXVIII R. 75; see also XXI R. 129. Experts agreed that the current practice of leaving “standing orders”-a system where the physician leaves instructions for handling a number of medical situations which may arise-could be “dangerous” and cannot substitute for adequate on-site physician coverage. XXV R. 172-74; Brief of Appellants at 86. One expert described a number of “typical” incidents where inadequately supervised medical staff have misdiagnosed or improperly treated inmates’ medical conditions and have on occasion caused potentially life-threatening situations along with needless pain and suffering. XXV R. 99-125; see also I App.Tes. 234, 270-73.
Prisoners generally have more extensive dental problems than the average citizen. Consequently dental care is one of the most important medical needs of inmates. XXV R. 133; XXXVIII R. 85, 113. In August 1978 the Old Max infirmary provided only 12 hours per week of on-site dental care by a licensed dentist. XXXVIII R. 35, 116. Prior to trial only 28 hours per week of on-site dental care was available at the Old Max infirmary-a level of coverage which experts agreed was inadequate to meet the needs of the prison population at Old Max. XXV R. 134, 182; XXXVIII R. 84-85. During the trial, the State increased the on-site dental care coverage at the Old Max infirmary to 40 hours per week which, according to the State’s expert witness, is sufficient for an inmate population of 800 to 1,000. XXXVIII R. 35, 84-85. However, since the medical staff at Old Max is responsible for providing dental care for a prison population of approximately 1,400, along with screening a large number of new prisoners, dental care coverage remains inadequate to meet the needs of Old Max inmates. See XXXVIII R. 35,113-117; see also II App.Exh. 8. This conclusion is further supported by evidence which shows that as of July 1979, inmates needing oral surgery had to wait an inordinate amount of time before receiving proper care and that these inmates when not treated in a timely fashion are prone to develop infections and abscesses leading to continued and unnecessary pain and loss of teeth. XXV R. 135.
In addition to the physicians and dentists, the medical staff at the Old Max infirmary includes three Physician’s Assistants (PA’s), three Registered Nurses (RN’s), one licensed practical nurse (LPN) and one nurse practitioner. XXV R. 89, 136, 170; XXXVIII R. 39-40, 44, 109. Although the infirmary is open 24 hours a day, seven days a week, PA’s are scheduled only five days a week. However, at least one PA is “on call” during the hours when there are none in the infirmary. Id. at 41-44. Expert testimony indicated that there is a “definite need” for several more PA’s. XXV R. 90; see also XXXI R. 142-43. The evidence also indicates that there is no Registered Nurse working the late night shift, notwithstanding a state health department regulation requiring that an RN be on duty 24 hours a day. XXV R. 136-38; XXXVIII R. 109; II App.Exh. 5; Brief of Appellant at 86.
While there was some dispute by the experts as to the proper scope of medical services which should be provided by the staff at the infirmary, it is clear from the evidence that in order to meet the needs of inmates the medical staff must currently rely on medical services provided by civilian health care facilities. See XXXVIII R. 46-48, 56. Consequently an integral part of the prison health care program is the transportation of inmates to and from the locations where the medical care is given. See XXV R. 128-29. At the time of trial the medical department at Old Max did not have any security staff or vehicles assigned to it solely for the purpose of transporting inmates to health facilities. The one prison vehicle used for transporting inmates to outside health facilities is also used for transporting prisoners to court. The lack of staff and vehicles often results in cancellation of planned medical trips in order to transport inmates to court. Transportation cancellations result in a serious backlog of prisoners who are waiting to be sent to outside facilities for needed care. I App. Tes. 254; II App.Exh. 6-7; XXV R. 128-29; XXXVIII R. 48-49, 78, 121, 128-29.
Expert witnesses uniformly recognized that transportation problems exist which unnecessarily delay the delivery of health care services to inmates. See I App.Tes. 254; IV App.Tes. 130; XXV R. 128-33; XXXVIII R. 48-49, 78, 126-31. One prison official who is directly responsible for health care at Old Max testified that the medical department needed to have its own staff to transport prisoners to the prison infirmary and the outside health facilities. More importantly, this prison official admitted that the medical staff has an “essential need” for at least 6 additional officers along with 2 cars which are used exclusively for transporting prisoners to outside medical facilities. See XXXVIII R. 48-49, 130-31.
Undoubtedly because of the lack of civilian staff, the State has permitted inmates to be used in delivering health care services to the inmate population. The evidence shows that inmates are used as lab technicians, dental assistants, orderlies, X-ray technicians, and as file clerks in the medical records department. XXV R. 138; XXXVIII 28-30, 33-34, 37, 45-46, 87, 120-23; II App.Exh. 5,91. Expert testimony indicated that “virtually all” existing standards on health care in correctional institutions prohibit the use of inmate personnel in providing direct health services to other inmates. XXV R. 139.
Dr. King, attending physician in the Department of Medicine at the Cook County Hospital in Chicago and Assistant Professor in the Department of Community Health and Preventive Medicine at Northwestern University, testified after reviewing the medical services provided at Old Max. He concluded that: “Given the types of staffing and the types of other resources such as transportation, certain equipment deficiencies, I do not believe that they [the defendants] are able to provide minimally adequate basic medical care. ” XXV R. 158, 72. (Emphasis added). A State expert concluded that additional personnel and equipment were necessary to provide adequate medical care at the Old Max infirmary. XXXVIII R. 90.
Inadequate staffing also negatively affects the delivery of reasonable mental health care to those inmates who are seriously mentally ill. Experts estimated that 5-10% of the inmates at Old Max are “seriously mentally ill” and that another 10-25% need treatment although they are not seriously ill. I App.Tes. 229-31, 245, 373; XXV R. 176; but see XXXI R. 68. One expert found that there are clearly more inmates at Old Max who need psychiatric or psychological treatment than are receiving it. I App.Tes. 231-32. Another expert concluded that the “[mjental health service at Old Max is extremely limited and totally incapable of providing the mental health care of those who have been identified as having severe, chronic or acute disorders . . .. ” II App.Tes. 191; see also I App.Tes. 245-46, 376, 382- 83; II App.Tes. 301. The lack of adequate mental health services, according to this expert, contributes to inmate suffering and at times causes suicide and self-mutilation by inmates. II App.Tes. 209; see also I App.Tes. 233-35, 254-55.
As the State admits, there is no on-site psychiatrist or licensed Ph.D. psychologist at Old Max to provide daily care and counselling for inmates. A psychiatrist from the state reformatory is scheduled to visit Old Max once a month, but in the year before trial had only come once every two months. One expert found that this level of psychiatric coverage is “ridiculously pathetic” considering the number of “clearly recognizable seriously ill people” at Old Max. I App.Tes. 233; see also II App.Tes. 198.
Efforts to obtain further psychiatric coverage have been frustrated due to the lack of funding. XXXI R. 138-39. In fact psychiatric coverage has been cut back in order to increase dental and optometric coverage. XXV R. 112. Experts uniformly agreed that for Old Max to have a minimally adequate mental health program it needed at least one full time psychiatrist. I App.Tes. 255-56; II App.Tes. 192, 196-97.
At the time of trial the regular mental health staff at Old Max consisted of three civilians and two inmates who do clerical work. XXXIV R. 80, 116. The clinical staff members apparently spend more of their time on administrative work than on the treatment of ill inmates. See XXXI R. 90; XXXIV R. 80. Once an inmate is placed on a waiting list, it takes anywhere from 2-5 weeks before he is seen by a member of the mental health staff. Id at 85. One expert witness found that the mental health staff is overworked, under-trained, and underqualified. II App.Tes. 200-09. Both experts who testified on mental health matters found that the work by individual staff members was not being competently handled. I App.Tes. 225-26; II App.Tes. 209.
Considering the evidence as a whole, we must hold that the district court was not in error in finding that the medical and mental health staffs of Old Max are “grossly inadequate.” Because of the staff shortages inmates are effectively denied access to diagnosis and treatment by qualified health care professionals. Such conditions endanger their health and well being, make unnecessary suffering inevitable, and evince on the part of the State a deliberate indifference to the serious health needs of the prison population. . Accordingly, we must uphold the district court’s findings and conclusion that the State has subjected the plaintiff class to cruel and unusual punishment in that it has denied them access to reasonably adequate health care.
IV
Restrictions on visitation
In addition to the Eighth Amendment violations, the district court found that prison visitation policies “are overbroad and prevent or impair meaningful visitation without being necessary to any legitimate penological purpose” and do not take into consideration individual circumstances. 485 F.Supp. at 162. It was further found that the current restrictions on visitation “are an exaggerated and excessive response to concerns for prison security.” Id The court held that these policies improperly infringe upon inmates’ fundamental rights of association, privacy, and liberty which are protected by the First, Ninth, and Fourteenth Amendments. Id at 150-51, 161-62.
The State argues that the court ignored well established law, erroneously cited professional and other standards to establish constitutional minima, and improperly relied on a line of cases dealing with the sanctity of the family which is inapplicable in a prison setting. The State says that since 1976 visitation policies have gradually been relaxed, new policies and regulations enhance the visitation process, all inmates except those in segregated units are permitted contact visits, and the restrictions presently imposed are constitutional since they “are clearly justified by the legitimate policies and goals of the correctional system.” Brief of Appellants at 125-29.
When confronted with the question whether inmates have a constitutional right to receive visits from family and friends, courts have reached varying results. See, e. g., White v. Keller, 438 F.Supp. 110, 114-19 (D.Md.), aff’d, 588 F.2d 913 (4th Cir.); Laaman v. Helgemoe, supra, 437 F.Supp. at 320-22 and cases discussed therein. However we need not decide this basic issue since the district court did not find, nor is it claimed by the plaintiffs, that prison officials are denying visitation entirely.
Assuming that such a right exists, the Supreme Court has made it clear that “lawful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system.” Pell v. Procunier, 417 U.S. 817, 822, 94 S.Ct. 2800, 2804, 41 L.Ed.2d 495; accord, Jones v. North Carolina Prisoners’ Union, 433 U.S. 119, 125, 97 S.Ct. 2532, 2537, 53 L.Ed.2d 629; See generally Daughtery v. Harris, 476 F.2d 292 (10th Cir.), cert. denied, 414 U.S. 872, 94 S.Ct. 112, 38 L.Ed.2d 91. A corollary in the context of a First Amendment claim “is that a prison inmate retains those First Amendment rights that are not inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system.” Pell v. Procunier, supra, 417 U.S. at 822, 94 S.Ct. at 2804. We think that the underlying principle of this corollary is also applicable to rights which are guaranteed by other constitutional provisions. See Bell v. Wolfish, supra, 441 U.S. at 544-48, 554, 99 S.Ct. at 544; Jones v. North Carolina Prisoners’ Union, supra, 433 U.S. at 125, 129, 97 S.Ct. at 2537, 2539.
When an institutional restriction infringes on a specific constitutional right, the prison policy must be evaluated in light of the legitimate objectives of penal administration-security, order and rehabilitation. See Bell v. Wolfish, supra, 441 U.S. at 520, 99 S.Ct. at 1863. And when the policy in question involves the entry of people into the prison for face-to-face contact with inmates, security and related administrative considerations are sufficiently paramount to justify the imposition of some restrictions on such visits. Pell v. Procunier, supra, 417 U.S. at 826-27, 94 S.Ct. at 2805; see also Jones v. North Carolina Prisoners’ Union, supra, 433 U.S. at 125-26, 97 S.Ct. at 2537. Because the running of a penal institution is both complex and difficult, prison administrators are to be “accorded wide-ranging deference” in adopting and executing policies and practices which, in their judgment, are necessary to preserve internal order and discipline and to maintain institutional security. Bell v. Wolfish, supra, 441 U.S. at 547, 99 S.Ct. at 1878; Jones v. North Carolina Prisoners’ Union, supra, 433 U.S. at 126, 97 S.Ct. at 2538. “Such considerations are peculiarly within the province and professional expertise of corrections officials, and, in the absence of substantial evidence in the record to indicate that officials have exaggerated their response to these considerations, courts should ordinarily defer to their expert judgment in such matters.” Pell v. Procunier, supra, 417 U.S. at 827, 94 S.Ct. at 2806; accord, Bell v. Wolfish, 441 U.S. at 547-48, 99 S.Ct. at 1878; Jones v. North Carolina Prisoners' Union, supra, 433 U.S. at 128, 97 S.Ct. at 2539.
The regulations being challenged here permit each inmate a total of 5 full days or 10 half days of visiting privileges per month. Visits by attorneys are not counted against inmate visiting days. Prisoners are permitted visitors on specific days between Thursday and Sunday. All visitors must be on an approved visitors list which is generally limited to the inmate’s immediate family. If an inmate has no immediate family residing in Colorado, he may have 3 non-family visitors on his approved list, which is limited to 13 persons. Changes in individual visiting lists may be made each 60 days. VII Supp.R.Pl. Exh. No. 128 at 2-4; Def. Exh. No. 1107.
Because of security problems which existed with open visitation, prison officials, beginning in 1976, did not permit inmates to have physical contact with their visitors. IV App.Tes. 128-29. Instead, inmates and their visitors sat in booths with glass partitions between them and spoke with each other through telephones. In July 1979, prison officials removed the glass partition in many booths to permit limited physical contact between inmates and visitors. With the exception of those inmates confined in segregated units, who must use the partitioned booths, inmates may now kiss their visitors at the beginning and conclusion of a visit. They may hold hands with their visitors and may hold small children on their laps. Any other type of bodily contact is prohibited. I App.Tes. 402; XXXVIII R. 117; VII Supp.R. PI. Exh. No. 128 at 7; Def. Exh. No. 1107; Brief of Appellants at 128.
As noted, the district court found that these regulations were overbroad, unrelated to any legitimate penological purpose, and an exaggerated and excessive response to concerns for prison security. We cannot agree with the trial court’s conclusions on this subject.
There can be no doubt that contact visits between inmates and their visitors provide a unique opportunity for passing contraband, including weapons and drugs, into the prison. See Feeley v. Sampson, supra, 570 F.2d at 373; see generally Woods v. Daggett, 541 F.2d 237, 240 (10th Cir.); Daughtery v. Harris, supra, 476 F.2d at 294. Prison officials have chosen to permit limited contact visitation for most inmates as opposed to some other method of countering a known security problem. This decision should be accorded deference so long as it is a reasonable response to the legitimate concerns of prison security. The existence of less restrictive alternatives is not dispositive of the matter, see, e. g., Inmates of Allegheny Cty. Jail v. Pierce, supra, 612 F.2d at 759; Feeley v. Sampson, supra, 570 F.2d at 373, for we are convinced that the discretion of prison officials in these matters should stand unless patently unreasonable.
We cannot say that this record “conclusively” shows that the prison officials were wrong in considering unlimited contact visitation a threat to the security and order of the prison. See Bell v. Wolfish, supra, 441 U.S. at 555, 99 S.Ct. at 1882. Nor is there any basis in the record for saying that the restrictions imposed on contact visitation are irrational. In fact the record shows that the current restrictions on contact visitation have been successful in discouraging the transfer of contraband between inmates and their visitors. See I App. Tes. 404; cf. Bell v. Wolfish, supra, 441 U.S. at 559, 99 S.Ct. at 1884.
With respect to the regulation allowing three non-family visitors to be on an inmate’s approved visiting list only when the inmate does not have immediate family residing in Colorado, we think that the regulation is a rational response to legitimate penal concerns. The current regulation permits inmates to have personal contact with those individuals whom prison officials believe are most likely to aid in their rehabilitation, while keeping visitations at a manageable level that will not jeopardize institutional security. See Pell v. Procunier, supra, 417 U. S. at 827, 94 S.Ct. at 2806. Those prisoners who have immediate family in Colorado may still communicate with non-family friends by using the mails or by communicating to these individuals through the family members and attorneys who are permitted to visit them. See id. at 823-25 & n.4, 94 S.Ct. at 2805 & n.4. So long as these alternative channels of communication are open to prison inmates, we think that the numerical and qualitative restrictions on inmates’ visitors are not unreasonable. See id. at 827-28, 94 S.Ct. at 2806.
Accordingly, the trial court’s ruling on the visitation regulations must be set aside.
V
Restrictions on prisoners’ mail
Under the subject of “access” the trial court dealt with several regulations concerning prisoners’ mail. It was held that certain prison censorship rules complied with the requirements of Procunier v. Martinez, 416 U.S. 396, 418-19, 94 S.Ct. 1800, 1814, 40 L.Ed.2d 224; that in case of rejection of a letter to or from an inmate, the writer must be given an opportunity to protest the decision; that complaints thereon be referred to a prison official other than the one who originally disapproved the correspondence; and that notice that correspondence has been rejected must contain a brief but adequate explanation, with rejected correspondence being returned to the sender. The trial judge also upheld the regulation prohibiting the receipt of periodicals and other materials not mailed directly from the publisher or an established vendor or distributor. 485 P.Supp. at 163. No appellate issue is raised as to these rulings.
However, other mail restrictions were held invalid by the trial court. First, it was found that there is a policy of refusing to deliver mail in a language other than English; that one-third of the population at Old Max is Hispanic; that “[n]umerous prisoners lack speaking, reading and writing skills in English, as do many of their correspondents”; and that the English language rule seriously infringed protected First and Fourteenth Amendment interests without being necessary to any legitimate penological purpose. 485 F.Supp. at 151, 164. Beyond the general argument that the trial court’s order intrudes on prison administration, there is no argument or authority presented in defense of this language discrimination by the State with respect to correspondence. We must agree with the trial court that the policy as applied infringes on the constitutional rights of the defendants, without any reasonable justification furthering an important or substantial state interest. See Procunier v. Martinez, 416 U.S. 396, 413, 94 S.Ct. 1800, 1811, 40 L.Ed.2d 224.
Second, the court found that there is a policy of refusing to deliver mail when correspondence would allegedly cause severe psychiatric or emotional disturbance to an inmate. CCF Reg. 302-18(7)(b). The trial court found that such a restriction is not wholly unreasonable on its face, but that there is an anomaly in that there is no qualified psychiatrist or psychologist at the prison to make a decision whether receipt of certain correspondence would cause such disturbance. The court ruled that until there is such personnel to apply the rule, it is void and may not be applied. Again, there is no specific defense of this restriction by the State, nor any authority or evidence presented to justify the application of the rule while the medical personnel deficiency exists. We feel again that, in the circumstances, the order of the trial court was not in error in restraining the enforcement of the restriction until qualified personnel is available to apply the rule. See Guajardo v. Estelle, 580 F.2d 748, 757 (5th Cir.).
Third, the trial court found that the prison regulation does not make clear that in those exceptional circumstances when outgoing privileged (legal) mail may be opened, it can only be opened in the presence of the sending inmate. The court held that such presence of the sender is required when the opening of his mail occurs. 485 F.Supp. at 164. In this instance also there is no specific defense of the prison policy and we agree again with the ruling of the trial court. See Hardwick v. Ault, 447 F.Supp. 116, 129-30 (M.D.Ga.); see also Gates v. Collier, 501 F.2d 1291, 1310-14 (5th Cir.); Carty v. Fenton, 440 F.Supp. 1161, 1163 (M.D.Pa.) (incoming privileged mail must be opened in the presence of the inmate).
Fourth, the trial court found that in defining “legal mail,” the regulations state that such mail is “any mail directed between an inmate and any public official or agency or any lawyer with respect to either his criminal conviction or a complaint he might have concerning the administration of the prison under exceptional circumstances.” CCF Regulation 302-18(6) (emphasis added). The court found that the latter qualification is not allowable. 485 F.Supp. at 164. No authority or record evidence is cited by the State as a specific defense of this regulation. We therefore sustain the trial court’s ruling, holding invalid the restrictive definition of legal mail quoted above. The protection afforded to legal correspondence applies equally to criminal and civil matters, and privileged correspondence with counsel, public officials, and agencies cannot be thus confined. See Guarjardo v. Estelle, 580 F.2d 748, 758 (5th Cir.).
In sum, we must agree that in the particulars discussed the restrictions on prisoners’ mail are invalid under the First and Fourteenth Amendments, being unjustified under the standards laid down by the Supreme Court in Procunier v. Martinez, supra, 416 U.S. at 413, 94 S.Ct. at 1811. We accordingly affirm the rulings of the district court in these respects.
VI
Access to the courts
The district court found that the three law libraries at Old Max “fall below any known acceptable standard.” Ramos v. Lamm, supra, 485 F.Supp. at 151. More specifically the court found that the general population library contains approximately half the volumes recommended by the American Association of Law Libraries Committee on Law Library Services to Prisoners; that this library consists mainly of outdated advance sheets, pocket parts, and discards from other sources; and that the separate law libraries for protective custody inmates in cellhouse 7 and for segregated inmates in cellhouse 3 have fewer materials and are far more inadequate than the general population library.
With respect to the staffing of these facilities, the court found that while there is inmate assistance available for those inmates who need help, there is no civilian staff with legal or paralegal training to supervise the libraries or to assist inmates with research. The court also found that the law libraries are open five days a week, that prison regulations permit only 13 inmates to use the law library facilities each day (65 inmates per week), that each library visit is limited to a maximum of three hours, and that with the current inmate population at Old Max, a prisoner may have access to a prison law library for only three hours every 13 weeks. Id. at 151-52, 165-66. Considering the prison’s facilities and rules as a whole, the district court held that inmates are not provided with “meaningful access to the courts.” Id. at 166.
The State argues that the trial court erred in finding that the law library facilities and the library regulations at Old Max are constitutionally defective; that existing facilities “far exceed” those which were approved by the Supreme Court in Bounds v. Smith, 430 U.S. 817, 97 S.Ct. 1491, 52 L.Ed.2d 72; and that there was no evidence, showing a pattern or practice by prison officials of denying inmates access to legal materials, library facilities or the courts, or showing that any inmate had been prejudiced (i. e., by dismissal of a case) or substantially harmed due to current prison regulations or facilities. Brief of Appellants at 129-34.
It is now clear that inmates have a constitutional right to “adequate, effective, and meaningful” access to the courts and that the states have “affirmative obligations” to assure all inmates such access. Bounds v. Smith, supra, 430 U.S. at 822, 824, 97 S.Ct. at 1496. In Bounds the Supreme Court held that “the fundamental constitutional right of access to the courts requires prison authorities to assist inmates in the preparation and filing of meaningful legal papers by providing prisoners with adequate law libraries or adequate assistance from persons trained in law.” Id. at 828, 97 S.Ct. at 1498. However the ruling in Bounds does not hold that inmates have an absolute right to any particular type of legal assistance. See Williams v. Leeke, 584 F.2d 1336, 1339 (4th Cir.), cert. denied, 442 U.S. 911, 99 S.Ct. 2825, 61 L.Ed.2d 276. The states are still free to choose among a variety of methods or combinations thereof in meeting their constitutional obligations. See Bounds, supra, 430 U.S. at 830-32, 97 S.Ct. at 1499.
Under some circumstances, however, even the existence of an adequate law library will not satisfy the State’s constitutional duty. See Id. at 823-24 & n. 10-11, 97 S.Ct. at 1499 & n. 10-11; Twyman v. Crisp, 584 F.2d 352, 357 (10th Cir.); Glover v. Johnson, 478 F.Supp. 1075, 1096 (E.D.Mich.); Wade v. Kane, 448 F.Supp. 678, 684 (E.D.Pa.) aff’d without opinion, 591 F.2d 1338 (3d Cir.); see also Battle v. Anderson, 614 F.2d 251, 255 (10th Cir.); Wetmore v. Fields, 458 F.Supp. 1131, 1142-43 (W.D.Wis.). The existence of prison regulations that limit an inmate’s access to the law library or that limit the time, place, and manner in which he can engage in legal research or preparation of legal documents must be considered. See Twyman v. Crisp, supra, 584 F.2d at 358; Elkanich v. Alexander, 315 F.Supp. 659, 662 (D.Kan.), aff’d, 430 F.2d 1178 (10th Cir.) (per curiam); see generally annot., 23 A.L.R.Fed. 1, 28 (1975 & Supp.1979). In order to properly evaluate existing conditions, courts must consider the regulations, facilities, and available resources together as a whole, remembering that “meaningful access” is the touchstone of this constitutional guarantee. See Bounds, supra, 430 U.S. at 823, 832, 97 S.Ct. at 1495, 1500; Twyman v. Crisp, supra, 584 F.2d at 357-58.
Here the record shows that the State has chosen to provide both law libraries and inmate assistance. Old Max has three law “libraries,” each serving a different segment of the inmate population. The library in cellhouse 3 is used exclusively by the inmates in that building. Cellhouse 7 library is for the exclusive use of protective custody inmates in that building. The remainder of the prison population, except for inmates housed in the Diagnostic Unit, is permitted to use the general population law library. Inmates in the Diagnostic Unit do not have direct access to any law library facility. XXXI R. 7-8; XXXIX R. 26-27, 58-59; VII Supp.R.Pl. Exh. No. 36 at 1.
Current regulations indicate that the general population law library is open 12V2 hours a day, five days a week and that the library in cellhouse 3 is open four hours a day, five days a week. Id. at 1; see also Brief of Appellants at 133; Brief of Appellees at 141. The testimony at trial, however, indicated that during the summer months the libraries are closed in the evenings. XXXIX R. 24-25. The record does not show that any regulations currently exist for the use of the library in cellhouse 7, although the State claims that it is open the same number of hours as the cellhouse 3 library. The absence of regulations for this library is possibly due to the fact that it was just being stocked with books at the time of trial and was not in operating order prior to that time. See Brief of Appellants at 132; XXXIX R. 26-27.
The record also shows that prison officials permit a maximum of six inmates to use the general population library at one time, while only one inmate is allowed to use the library in cellhouse 3 at any one time. Library time is allocated among inmates by the prison’s school supervisor based on daily requests from inmates. Priority is given to inmates facing court deadlines. Inmates are limited to approximately three hours or less per visit. Regulations prohibit inmates from checking out legal materials from the library. At the time of trial, an inmate requesting use of the general population library normally could obtain access the same day. Waiting lists in the past have required inmates to wait no longer than a week. Apparently the State has kept no records on inmate use of the libraries in cellhouses 3 and 7.
The law books available to inmates vary, depending on the library being used. The evidence shows that the library in cellhouse 3 has only a few volumes of the Federal Reporter (2d series) and the Federal Supplement. The State admits that the cell-house 7 library “contains approximately the same materials as the library in cellhouse 3.” Id A prison library which lacks these basic materials is an inadequate law library. See Wade v. Kane, supra, 448 F.Supp. at 682; see also Bounds, supra, 430 U.S. at 819-20 n. 4, 97 S.Ct. at 1493 n. 4. Consequently, we must agree with the district judge who saw the facilities that the law libraries in cellhouses 3 and 7 fall below acceptable standards and cannot alone provide inmates with meaningful access to the courts.
The general population law library is the largest of the three law libraries at Old Max. Its book collection consists mainly of paperback advance sheets and other outdated material. An evaluation of this library, prepared by an outside source at the request of the State in 1978, determined that many of the volumes were unusable and should be discarded. This same report concluded that the book collection is “wholly inadequate” to meet the minimum standards of the American Association of Law Libraries Committee on Law Library Service to Prisoners — standards which the Supreme Court found relevant in Bounds, supra, 430 U.S. at 819-20 n.4, 97 S.Ct. at 1493 n.4. The State’s most recent inventory of the library’s law books shows that volumes are missing throughout its collection of federal decisions (i. e., U.S. Reports, Supreme Court Reporter, Federal Reporter, 2d Series, and Federal Supplement). E. g., VII Supp.R.Pl. Exh. No. 37 at 11, 22; VIII Supp.R.Def. Exh. No. 1123 at 1-10. Consequently we must agree with the trial judge that the general population library is inadequate and does not meet the needs of the inmates who use it.
Concluding that the prison’s law libraries are inadequate does not end our inquiry. We must also consider the adequacy of alternative methods which the State has adopted to satisfy its constitutional duty of affording inmates meaningful access to the courts. The record shows that the State has allowed 3 inmate law library clerks to provide assistance to those inmates who request help. XXXIX R. 26-29. However there are no specific findings concerning the training or competence of these library clerks and the State has not pointed to any record evidence which would show these critical factors. Consequently we think the State has failed to demonstrate that it has furnished an adequate alternative means of access to the courts for the inmates. See Buise v. Hudkins, 584 F.2d 223, 228 (7th Cir.), cert. denied, 440 U.S. 916, 99 S.Ct. 1234, 59 L.Ed.2d 466; Cruz v. Hauck, 515 F.2d 322, 332 (5th Cir.), cert. denied, 424 U.S. 917, 96 S.Ct. 1118, 47 L.Ed.2d 322; compare Hampton v. Schauer, 361 F.Supp. 641 (D.Colo.). In this connection we note that there is no evidence that the inmate library clerks have access to any law library facility other than the inadequate ones at Old Max. Even an individual highly trained in the law would be unable to provide competent assistance to others if forced to depend solely upon the inadequate law libraries at Old Max.
Accordingly, we sustain the district court’s finding and conclusion that the State has denied the inmates meaningful access to the courts in violation of their constitutional rights.
VII
The remedy and disposition of this appeal
To remedy the constitutional violations found the district court ordered that the Old Max facility be closed. However, the execution of the order was temporarily stayed on the condition that the State would take immediate steps to provide the plaintiff class “with the basic human needs” which the court had identified in its opinion, and that the State would present a detailed plan setting forth the means by which it would protect the plaintiff class from further constitutional violations. The State’s plan, according to the district court, was to be “in furtherance of, but not necessarily limited to” five enumerated principles-the principles of productive activity, motility, health, integrity and safety, and coherence. Future stays were contingent upon the State’s compliance with these conditions. 485 F.Supp. at 169-70.
Subsequently, in denying the State’s motion for a stay of execution of the judgment pending an appeal, the court explained its earlier order:
All that the remedy requires, in essence, is that the state develop its own plans and make good faith immediate and continuing efforts to implement those plans so that the numerous constitutional violations set forth in my memorandum opinion and order will neither be repeated nor advanced.
Id. at 175.
The State argues on this appeal that the district court abused its discretion in its choice of remedy. Specifically it claims that the order of closure was the most intrusive action the court could have taken, that since 1977 it has been moving in a rapid manner to change its prison system, and that since 1978 it has been working according to a five year master plan, introduced into evidence, to insure that this change will take place in an orderly manner. Brief of Appellants at 141-47.
The Colorado General Assembly, as amicus, states that its good faith efforts to eliminate undesirable prison conditions are well established in the record which shows, according to the amicus, appropriations of nearly $22,500,000 between 1976 and 1979 for the State’s prison system, including an allocation of major funds for the construction of an entirely new maximum security and close security facility. The amicus claims that this evidence amply demonstrates that it “has embarked on a plan, which is being funded and implemented, and which will result in the substantial modification of the correctional system in Colorado.” Brief of Amicus Curiae at 14-15.
During the oral argument of this appeal, the State claimed that the new prison facility will be completed and occupied within a matter of months. The amicus makes a similar claim in its appellate brief. Reply Brief of Amicus Curiae at 6. In an authorized post-argument response to this contention, the appellees claim that there are conflicting reports on this point and that if “developments in the construction of the new facilities are relevant to the remedy in this case, these developments should be presented in the first instance to the district court.” Letter of Appellees’ Counsel, filed 6/9/80.
We must agree that the developments in the construction of the new prison facilities are extremely relevant in fashioning an appropriate remedy for the constitutional violations which exist in this case. See Holt v. Sarver, 442 F.2d 304, 309 (8th Cir.). And while the scope of a district court’s equitable powers to remedy constitutional violations is “broad,” see Hutto v. Finney, 437 U.S. 678, 687 n.9, 98 S.Ct. 2565, 2572 n.9, 57 L.Ed.2d 522 we have noted before that the exercise of this power is necessarily tempered by the public interest involved. See Battle v. Anderson, 594 F.2d 786, 793 (10th Cir.); Gates v. Collier, 407 F.Supp. 1117, 1120-21 (N.D.Miss.).
It is common ground that the State of Colorado has appropriated large amounts of money for the construction of a new correctional facility to accommodate the inmates of Old Max and that this construction has been underway for some time. See I App. Exh. 96-107. The amicus points out that recent legislation has authorized funds for 90 new staff positions to coincide with the opening of both the new maximum and the close security facility. The vast majority of these new positions will be used for new security, housing and medical personnel. Reply Brief of Amicus Curiae at 8.
The district court entered its Rule 54(b) order and an immediate appeal of the court’s December 1979 order followed. The appeal is now decided in this court, with the rulings on constitutional violations sustained in part and vacated in part. However, it is apparent that events have moved forward, that new measures have been taken, and whether the remedial order should stand or be modified should be reconsidered after further proceedings in light of changed conditions and this opinion.
For these reasons we feel that the case should be remanded for the district court to reconsider the proper remedy in light of the present state of conditions, as was done in the Battle controversy involving the Oklahoma penitentiary. See 594 F.2d 786, 793. On remand the district court should consider, inter alia, the present status of the new facility, the specific plans to which the State is committed for the transfer and housing of inmates in the new facilities, the specific commitments for enlarged staff personnel to remedy the deficiencies in personnel that have been found, and the actual progress made in these areas. The district court should conduct any necessary further proceedings for the development of the facts on the status of these matters and on actions required to eradicate the constitutional violations found, with respect to those violations on which the district court’s rulings are upheld herein.
VIII
Conclusion
In sum, we hold: (1) that the district court did not err or abuse its discretion in refusing to abstain from deciding the merits of this case; (2) that the district court’s findings were not in error as to Eighth Amendment violations at Old Max in the areas of shelter, sanitation, food, safety, and medical care and in the finding of a violation of the inmates’ constitutional right of access to the courts, due to the inadequate law library facilities and the restricted access permitted to them; (3) that the provisions of the district court’s remedial order on motility, classification, and idleness, are vacated, as provided in Part III A, supra ; (4) that the findings and judgment holding unconstitutional the prison’s visitation regulations and policies are vacated; (5) that the ruling holding invalid and unenforceable four of the restrictions on inmates’ correspondence was not in error and is sustained; and (6) that the remedial order is vacated and the cause remanded for further proceedings and reconsideration as provided above, except with respect to the portions of the order on health care, which shall remain in effect until the district court’s reconsideration and entry of any new order thereon.
Accordingly, the district court’s findings and conclusions are affirmed in part and set aside in part; the district court’s remedial order is vacated in part; and the cause is remanded for further proceedings, all in accord with this opinion.
. The State of Colorado, after filing a timely notice of appeal on December 28, sought a stay of the judgment from the district court, pending final resolution of this appeal. The district court, after a hearing, refused to grant the stay on February 21, 1980. VI R. 1293-C; Ramos v. Lamm, supra, 485 F.Supp. at 180. The State of Colorado then filed in this court a motion to stay enforcement of the judgment. On March 14, 1980 we granted the stay except with respect to the portion of the judgment and order which related to the health care of the inmates at Old Max. The stay order has been continued pending disposition of this accelerated appeal on the merits.
. The class definition was later amended at trial to include: “All persons who now or in the future may be incarcerated in the maximum security unit, or the new maximum or close security unit, of the Colorado Department of Corrections.” See VI R. 1165, 1274; XL R. 128-29.
. A final judgment under Rule 54(b), Fed.R. Civ.P., was entered on the claim for injunctive relief. See Ramos v. Lamm, supra, 485 F.Supp. at 170. No final judgment was rendered on the claims for attorneys’ fees and costs and therefore those claims are not before us now.
. The decision to abstain is largely committed to the discretion of the district court. See e. g., Will v. Calvert Fire Ins. Co., 437 U.S. 655, 663-66, 98 S.Ct. 2552, 2557, 57 L.Ed.2d 504 (1978) (plurality); Baggett v. Bullitt, 377 U.S. 360, 375, 84 S.Ct. 1316, 1324, 12 L.Ed.2d 377; George v. Parratt, 602 F.2d 818, 819 (8th Cir.).
. It is true, as the State points out, that the district court did discuss and interpret several state statutes. See 485 F.Supp. at 139, 146, 157, 159-60, 167 n. 44. However, resolution of these state law questions does not mandate the conclusion that the district court should have abstained from deciding this case which is primarily concerned with federal constitutional law. See Hagans v. Lavine, 415 U.S. 528, 545-46, 94 S.Ct. 1372, 1383, 39 L.Ed.2d 577.
. Appellant argues that Procunier is distinguishable because in that prison case “there was no parallel state proceeding and . . . [it] was strictly a first-amendment case.” Reply Brief of Appellant at 4. We cannot agree that the Supreme Court’s reasoning logically applies only to First Amendment claims. And for reasons already noted we do not feel that the pending state proceedings justified abstention from hearing this case.
. The district judge did not rely solely upon the quoted language from Battle in finding that the inmates’ constitutional rights had been violated. He also stated (485 F.Supp. at 153-54 n.20):
I find that the conditions of confinement at . . . [Old Max] meet ail tests by ail known measures of proof. As shown by substantial evidence, these conditions shock the conscience, are incompatible with evolving standards of decency, involve unnecessary and wanton infliction of pain, and evidence both deliberate indifference to the prisoners’ protected interests and “circumstances and conduct so grossly incompetent, inadequate or excessive as . . to be intolerable to basic fairness.” (Emphasis added).
See also Brief of Appellees at 37-38.
. We would agree that adequate clothing is also a core area of consideration in an Eighth Amendment claim. However, because it is not an issue in this case, we need not discuss it.
. In applying Rule 52 the Supreme Court has said that
A finding is “clearly erroneous” when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.
United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746.
. The appellants point out that professional standards “establish goals and simply do not establish constitutional minima.” Reply Brief of Appellant at 11, quoting Bell v. Wolfish, 441 U.S. 520, 544, 99 S.Ct. 1861, 1876, 60 L.Ed.2d 447. While we agree that a variance from state standards or from standards promulgated by certain professional organizations does not establish a per se constitutional violation, it is a factor to be considered in determining whether contemporary standards of decency have been met. See, e. g., Estelle v. Gamble, 429 U.S. 97, 103-04 & n. 8, 97 S.Ct. 285, 103 & n. 8, 50 L.Ed.2d 251; Smith v. Sullivan, 611 F.2d 1039, 1045 (5th Cir.); Burks v. Walsh, 461 F.Supp. 454, 483 (W.D. Mo.); Palmigiano v. Garrahy, 443 F.Supp. 956, 961 n. 2, 979-80 n. 30 (D.R.I.); see generally Battle v. Anderson, supra, 564 F.2d at 395.
. Although construction of a new prison should be considered in devising an appropriate remedy, see Part VII, infra, we must agree with the district court that it is not a defense to demonstrated present constitutional violations. See 485 F.Supp. at 167-68; see also Battle v. Anderson, supra, 564 F.2d at 403.
. Appellants admit “that most of the cells in cellhouses 1 and 7 do not provide the sixty square feet per inmate required by Battle . . ” Brief of Appellant at 52. There is some indication in the record that the cells in cellhouse 3 are smaller than those in cellhouses 1 and 7. See I App.Tes. 392-93. However the record, the appellate briefs, and the district court’s opinion do not reveal the exact size of the cells in cellhouse 3. However, the district court did find that these cells in cellhouse 3 failed to meet the Battle standard, see 485 F.Supp. at 134, and the defendants do not contest this finding.
. In 1975, cellhouse 7 was closed and plans were made to tear it down. However, after the prison riot in May 1975, it was reopened to relieve the overcrowded condition of cellhouse 1. Brief of Appellant at 41; I App.Tes. 31; 485 F.Supp. at 134.
. The record does not reflect the size of the cells in cellhouse 5. Appellant claims that cell-house 5 houses approximately 40 prisoners who live “in cubicles, not cells, which surround a central common area.” Brief of Appellant at 40.
. There is no claim here that the food being served to the inmates is nutritionally inadequate.
. III App.Tes. 119.
. In the District of Columbia, Mr. Gordon was serving by appointment of the Mayor as Program Manager for a special task force on inspection of city-wide, community-based residential facilities. Previously he was Chief of the Institutional Hygiene Division of the District of Columbia Environmental Health Administration. XXIX R. 2-3.
. The district court did note that “violence at Old Max has been significantly reduced, [but that] the threat of occurrence is omnipresent.” 485 F.Supp. at 155-56. Since violence has been “significantly reduced,” appellants argue that “it cannot be said that the level of violence at the institution violates the plaintiffs’ constitutional rights.” Brief of Appellant at 62, 64. We disagree. Merely because the current level of violence and illegal activity is statistically lower than in past years does not mean that the present situation meets minimum constitutional standards. See Finney v. Arkansas Bd. of Correction, 505 F.2d 194, 201 (8th Cir.); Holt v. Sarver, 309 F.Supp. 362, 377 (E.D.Ark.), aff’d, 442 F.2d 304 (8th Cir.).
. If the appellants are suggesting, by their reference to their proposed 1981 budget, that they lack sufficient funds to increase the security staff at Old Max, we must reject their argument. The lack of funding is no excuse for depriving inmates of their constitutional rights. See Smith v. Sullivan, 611 F.2d 1039, 1043-44 (5th Cir.); Campbell v. McGruder, 580 F.2d 521, 540 (D.C.Cir.); Battle v. Anderson, supra, 564 F.2d at 395-96, 400; Palmigiano v. Garrahy, 443 F.Supp. 956, 979 (D.R.I.) and cases cited therein.
. Appellees claim that the “deliberate indifference” standard is applicable only in § 1983 damage actions against specific prison staff members. Brief of Appellee at 73-74. While it appears that a showing of deliberate indifference is not a prerequisite to obtaining the injunctive and declaratory relief sought here, see Withers v. Levine, 449 F.Supp. 473, 479 (D.Md.), aff’d, 615 F.2d 158, 162 (4th Cir.), petition for cert. pending, No. 79-6535 (May 5, 1980), we need not reach this issue since the record here supports the finding of deliberate indifference.
. The record does show that a certified radiologist comes to Old Max two days a week to perform diagnostic X-ray procedures and an optometrist comes once a week to perform optical examinations and prescribe glasses for inmates. XXXVIH R. 28-29, 44-45, 80-81.
. As noted earlier because of the deep concern of the panel as to this problem, we did not stay the provisions of the district court’s order pertaining to health care. Our full review of the case reenforces our concerns on this medical care question which is of paramount importance.
. Under the general heading “Access,” the district court held that certain prison policies concerning visitation, mail, and the law library violated inmates’ constitutional rights. The issues of restrictions on prisoners’ mail are discussed below in Part V, infra, while the issues of access to the courts and the prison law library are treated in Part VI, infra.
. Legitimate penological objectives thus far identified by the Supreme Court include “the preservation of internal order and discipline, the maintenance of institutional security against escape or unauthorized entry, and the rehabilitation of the prisoners.” Procunier v. Martinez, 416 U.S. 396, 404, 412, 94 S.Ct. 1800, 1807, 1810, 40 L.Ed.2d 224; see also Bell v. Wolfish, 441 U.S. 520, 546-47, 99 S.Ct. 1861, 60 L.Ed.2d 447; Pell v. Procunier, supra, 417 U.S. at 822-23 94 S.Ct. at 2804 (deterrence of crime is an important function of the corrections system along with rehabilitation and security).
. The regulation provides that an inmate’s “immediate family includes spouse, common-law spouse, fiance if inmates are respectively not married, children, stepchildren, grandparents, siblings, step-siblings, or legal guardian, parents, and step parents.” VII Supp.R. Pl. Exh. No. 128 at 3.
. Because this part of the plaintiff class is denied contact visitation privileges, the question of whether such visits are mandated by the constitution is properly presented. Although the Supreme Court has not addressed this particular issue, see Bell v. Wolfish, supra, 441 U.S. at 559-60 n. 40, 99 S.Ct. at 1885 n. 40, we think the weight of present authority clearly establishes that there is no constitutional right to contact visitation. See, e. g., Feeley v. Sampson, 570 F.2d 364, 373 (1st Cir.); Oxendine v. Williams, 509 F.2d 1405, 1407 (4th Cir.) (per curiam); Lock v. Jenkins, 464 F.Supp. 541, 550 (N.D.Ind.); Owens-El v. Robinson, 457 F.Supp. 984, 988 (W.D.Pa.), aff’d in part, rev’d in part sub nom., Inmates of Allegheny Cty. Jail v. Pierce, 612 F.2d 754, 758-60 (3d Cir.); see also White v. Keller, supra, 438 F.Supp. at 114-19. We agree with this view.
. The record does show that an inmate library clerk visits the Diagnostic Unit one morning every week to help inmates with their legal needs. XXXI R. 7-8; XXXIX R. 27, 58-59.
. The regulations do permit inmates, absent compelling reasons to the contrary, to purchase law books or other legal materials from the primary .sources of supply (/. e., the publisher). These purchased items may apparently be kept by the inmate in his cell. See VII Supp.R.Pl. Exh. No. 39 at 5-6.
. One defense witness did state that he “believed” the inmate library clerks knew “how to use the books and assist other inmates with the use of the books.” XXXIX R. 25. This evidence does not show, however, that the library clerks are capable of helping any inmate draft a legal document. More importantly, this evidence does not show that the library clerks are capable of helping the large number of prisoners who, as the district court found, are unable to speak, read, or write in English. 485 F.Supp. at 151.
. The district court’s opinion in December 1979 referred to the fact that Colorado has appropriated funds to build a new maximum security prison and a new close security prison, and that opening of these facilities is not scheduled until January or February 1981. 485 F.Supp. at 134. | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the second listed respondent. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine 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 second listed respondent. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". 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"
] | [
1
] | songer_respond2_7_5 |
Martin F. FEENEY, Petitioner, Appellant, v. UNITED STATES of America, Respondent, Appellee.
No. 7072.
United States Court of Appeals First Circuit.
April 18, 1968.
Martin F. Feeney, pro se.
Paul F. Markham, U. S. Atty., and Herbert N. Goodwin, Asst. U. S. Atty., on brief for appellee.
Before ALDRICH, Chief Judge, Mc-ENTEE and COFFIN, Circuit Judges.
PER CURIAM.
In 1954 petitioner was charged" with four others in two indictments — kidnaping a prison guard in the course of a prison break and transporting him across state lines, and transporting a motor vehicle across state lines knowing the same to have been stolen. He was charged individually in a third indictment with unlawful flight with intent to avoid confinement after a state conviction for robbery. The three indictments were tried together and the jury found the defendant guilty as charged. Thereafter he was sentenced to fifteen years imprisonment on the kidnaping charge and to concurrent terms of five years on the other two convictions to begin on and after completion of the sentence in the kidnaping case. This court affirmed the convictions. Feeney v. United States, 221 F.2d 959 (1st Cir.), cert. denied, 350 U.S. 852, 76 S.Ct. 94, 100 L.Ed. 758 (1955).
In 1967 petitioner brought the instant motion, under 28 U.S.C. § 2255, to vacate the three sentences. The district court vacated the sentence imposed on the unlawful flight conviction but denied the motion as to the other two. On appeal petitioner complains that the district court erred in not vacating all three sentences. He asserts that prior to imposing sentence, the trial court did not offer him the right to allocution as required by Fed.R.Crim.P. 32(a) and secondly that the court’s charge was erroneous and prejudicial.
A § 2255 proceeding is a collateral remedy available to a petitioner only when some fundamental right is denied and not as a routine review at the behest of a defendant who is dissatisfied with his sentence. Dirring v. United States, 370 F.2d 862 (1st Cir. 1967). It is established that failure on the part of the trial court to follow the formal requirements of Rule 32(a) is not of itself an error that can be raised by collateral attack. Machibroda v. United States, 368 U.S. 487, 82 S.Ct. 510, 7 L.Ed.2d 473 (1962); Hill v. United States, 368 U.S. 424, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962). Petitioner alleges that the court’s failure to afford him an opportunity to make a statement in his own behalf before sentence was imposed occurred amid “aggravating circumstances” which take the case out of the holding in Hill. We do hot agree. A careful examination of the record on appeal does not reveal any such circumstances. The trial court did not affirmatively deny petitioner an opportunity to speak and it does not appear that the court was “either misinformed or uninformed as to any relevant circumstances.” See Hill, supra at 429, 82 S.Ct at 472.
Nor is petitioner’s claim that the trial court’s instructions to the jury were erroneous and prejudicial a basis for § 2255 relief. The issue of the trial court’s instructions is a matter for appeal and is not within the scope of § 2255. West v. United States, 117 U.S.App.D.C. 90, 326 F.2d 633 (1963). While it is true that the district court at the trial of this action, committed an unusual error, in that it directed the jury to find the defendant guilty on the third indictment, this conviction has now been set aside and we do not agree that the error warranted a § 2255 attack on the convictions under the other indictments.
Affirmed.
. In 1954 this rule provided in pertinent part: “Before imposing sentence the court shall afford the defendant an opportunity to make a statement in his own behalf and to present any information in mitigation of punishment.”
. There the Court stated at 429, 82 S.Ct. at 472: “Whether § 2255 relief would be available if a violation of Rule 32(a) occurred in the context of other aggravating circumstances is a question we therefore do not consider.” | 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_numresp |
Subsets and Splits