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dc/11136127.json

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+"{\"id\": \"11136127\", \"name\": \"Wayne P. THOMAS, Appellant, v. UNITED STATES, Appellee\", \"name_abbreviation\": \"Thomas v. United States\", \"decision_date\": \"2001-01-25\", \"docket_number\": \"No. 00-CO-298\", \"first_page\": \"50\", \"last_page\": \"53\", \"citations\": \"766 A.2d 50\", \"volume\": \"766\", \"reporter\": \"West's Atlantic Reporter, Second Series\", \"court\": \"District of Columbia Court of Appeals\", \"jurisdiction\": \"District of Columbia\", \"last_updated\": \"2021-08-10T23:53:17.638081+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before STEADMAN, FARRELL, and GLICKMAN, Associate Judges.\", \"parties\": \"Wayne P. THOMAS, Appellant, v. UNITED STATES, Appellee.\", \"head_matter\": \"Wayne P. THOMAS, Appellant, v. UNITED STATES, Appellee.\\nNo. 00-CO-298.\\nDistrict of Columbia Court of Appeals.\\nSubmitted Dec. 18, 2000.\\nDecided Jan. 25, 2001.\\nWayne P. Thomas, pro se.\\nWilma A. Lewis, United States Attorney, and John R. Fisher, Elizabeth Tros-man, and Matthew E. Sloan, Assistant United States Attorneys, filed a brief for appellee.\\nBefore STEADMAN, FARRELL, and GLICKMAN, Associate Judges.\", \"word_count\": \"2079\", \"char_count\": \"12679\", \"text\": \"FARRELL, Associate Judge:\\nAppellant challenges the validity of his 1989 guilty plea and conviction in Superior Court for attempted distribution of cocaine, despite the fact that his sentence for the crime \\u2014 supervised probation \\u2014 has expired. He argues that he remains in custody for purposes of D.C.Code \\u00a7 23-110(a) (1996) (motion to vacate sentence) because the federal sentence he continues to serve was enhanced in some manner by his Superior Court conviction. We reserved the \\\"in custody\\\" issue in Spencer v. United States, 748 A.2d 940 (D.C.2000), on somewhat similar facts. We hold that the Superior Court lacked jurisdiction to entertain appellant's \\u00a7 23-110 attack upon the 1989 conviction. Treating the motion alternatively as one to withdraw his guilty plea under Super. Ct. Cr. R. 32(e), we reject it on the merits.\\nI.\\nFollowing his 1989 plea of guilty to attempted distribution, appellant was placed on supervised probation for twenty-four months. The trial court subsequently changed the sentence to unsupervised probation for the remainder of the term. The parties agree that the probation expired in or around January 1992. Meanwhile in September 1991, on the basis of conduct transpiring that year, appellant was convicted of federal drug and firearms offenses in the United States District Court for the District of Maryland. He was sentenced to consecutive prison terms of 240 months for the aggregated drug offenses and 60 months for the firearms conviction, a sentence which he continues to serve. In October 1998, appellant filed a pro se motion in Superior Court pursuant to D.C.Code \\u00a7 23-110, seeking to vacate his 1989 guilty plea. In this and two supplemental motions he asserted that the trial court had violated Super. Ct. Cr. R. 11 in accepting the plea and that his trial attorney had rendered ineffective assistance of counsel. The trial court denied the combined motions on the ground that appellant was no longer \\\"in custody\\\" for purposes of \\u00a7 23-110, since his probationary sentence for the attempted distribution had expired; and the court therefore lacked jurisdiction to consider his claims.\\nII.\\nSection 23-110(a) allows \\\"[a] prisoner in custody under sentence of the Superior Court\\\" to move to vacate his sentence on various grounds. Appellant concedes that the sentence imposed for his Superior Court conviction expired long ago. He argues, nonetheless, that he should be deemed to be \\\"in custody\\\" because the federal sentence he is currently serving was enhanced as a result of the Superior Court conviction. The government, for purposes of this motion and appeal, concedes that appellant's federal sentence was enhanced in some manner by his Superior Court conviction.\\nIn Maleng v. Cook, 490 U.S. 488, 109 S.Ct. 1923, 104 L.Ed.2d 540 (1989), the Supreme Court considered and rejected an argument similar to appellant's. Interpreting the \\\"in custody\\\" requirement of 28 U.S.C. \\u00a7 2241(c)(3), the Court held that \\\"once the sentence imposed for a [state] conviction has completely expired, the collateral consequences of that conviction are not themselves sufficient to render an individual 'in custody' for the purposes of [federal] habeas attack upon it.\\\" Id. at 492, 109 S.Ct. 1923. Such \\\"collateral consequences\\\" include the fact that the expired conviction \\\"has been used to enhance the length of a current or future sentence imposed for a subsequent conviction.\\\" Id. at 491, 109 S.Ct. 1923. Mindful that this court \\\"relies on federal cases interpreting the federal post conviction statute,\\\" Spencer, supra, 748 A.2d at 945 n. 3, we recognized in Spencer that Maleng \\\"strong[ly] support[s]\\\" rejection of a claim \\u2014 such as appellant's \\u2014 that subsequent collateral use of an expired conviction meets the in-custody requirement of \\u00a7 23-110. Id. at 945. We did not, however, reach that issue of \\\"first impression\\\" in this jurisdiction, id., but instead considered and rejected on the merits Spencer's challenge to his expired conviction. Id. at 946-49.\\nOn the authority of Maleng, we hold expressly in this case that a prisoner who has fully served a Superior Court sentence is not \\\"in custody\\\" within the meaning of \\u00a7 23-110 merely because that sentence has been used to enhance a sentence for a subsequent conviction. To meet the in-custody requirement of \\u00a7 23-110, a prisoner must currently be serving or detained upon a sentence imposed by the Superior Court. That is the clear import of Maleng, which, after concluding that the prisoner-respondent was not \\\"in custody\\\" on his state sentence that had expired, held that he was in custody for habeas purposes by virtue of state sentences later imposed which he had not begun to serve but for which a detainer had been lodged against him. 490 U.S. at 493-94, 109 S.Ct. 1923; see also United States v. Clark, 203 F.3d 358, 364 (5th Cir.2000) (citing federal cases permitting attack on expired sentence, under 28 U.S.C. \\u00a7 2254 and 2255, \\\"as long as the habeas relief sought is framed as an attack on a present sentence, as to which the prisoner is still 'in custody,' \\\" rather than the expired conviction itself). Appellant is presently in custody serving his federal sentences. However, neither \\u00a7 23-110 nor any other provision of District of Columbia law authorizes the Superior Court to entertain an attack upon a federal sentence. Assuming appellant may challenge his federal sentence on the ground alleged, but see note 1, supra, that attack must be brought in the federal district court that imposed the sentence he is serving. See 28 U.S.C. \\u00a7 2255 (first paragraph).\\nIII.\\nAlthough appellant styled the attack on his guilty plea a \\u00a7 23-110 motion, it may also reasonably be viewed as a motion to withdraw the guilty plea under Super. Ct. Cr. R. 32(e). See Johnson v. United States, 633 A.2d 828, 831 (D.C.1993); see also Maleng, 490 U.S. at 493, 109 S.Ct. 1923 (construing prisoner's habeas petition \\\"with the deference to which pro se litigants are entitled\\\"). This raises initially the question of whether the in-custody requirement of \\u00a7 23-110 pertains also to a Rule 32(e) motion. On its face the rule contains no such limitation; as relevant here, it provides simply that \\\"to correct manifest injustice, the Court after sentence may set aside the judgment of conviction and permit the defendant to withdraw the [guilty] plea.\\\" We have never had occasion to decide whether the rule provides an individual seeking to withdraw a guilty plea a benefit denied to all other convicted persons \\u2014 i.e., the right to seek vacatur of his conviction even though the sentence imposed thereon has expired. Case law elsewhere is exceedingly sparse on the subject. One older federal case appears to hold that then-Fed. R.Crim. Pr. 32(d) was untethered by the in-custody requirement of 28 U.S.C. \\u00a7 2255. See United States v. Washington, 341 F.2d 277, 280-81 (3rd Cir.1965) (whereas appellant's claim under \\u00a7 2255 \\\"became moot [when appellant completed his sentence],\\\" it was \\\"not moot under Rule 32(d) . [because t]here is no . time limitation within which to file a motion under that rule.\\\") On the other hand, given the obvious purpose of finality served by the in-custody requirement, one may reasonably ask why the framers of the rule would have extended that benefit to persons convicted following guilty pleas but not after trial when, as the Supreme Court has stated in another context, \\\"the concern with finality served by the limitation on collateral attack has special force with respect to convictions based on guilty pleas.\\\" United States v. Timmreck, 441 U.S. 780, 784, 99 S.Ct. 2085, 60 L.Ed.2d 634 (1979) (footnote omitted).\\nWe find it unnecessary to decide the relationship between \\u00a7 23-110 and Rule 32(e) in this regard, however, because we conclude that appellant's attack upon the validity of his guilty plea is unpersuasive in any case.\\nRule 32(e), as indicated, permits relief only \\\"to correct manifest injustice.\\\" See Johnson v. United States, 631 A.2d 871, 874 (D.C.1993) (movant must show \\\"that the plea .proceeding was fundamentally flawed such that there was a complete miscarriage of justice\\\"). Appellant primarily argues that his attorney rendered ineffective assistance of counsel in advising him about various consequences of pleading guilty. Contrary to his first assertion, the attorney correctly advised him that the maximum prison sentence he could receive for the attempted distribution, at the time of appellant's offense, was twenty months to five years. Second, neither appellant's attorney nor the court was required to inform him of the potential \\\"collateral consequence\\\" that his conviction could be used to enhance a later sentence should he ever be convicted of another crime. See Goodall v. United States, 759 A.2d 1077, 1081 (D.C.2000); Matos v. United States, 631 A.2d 28, 31-32 (D.C.1993). Third, while appellant contends that his attorney failed to investigate the case adequately before advising him on the advantages of a guilty plea, he alleges nothing specific as to what a better investigation might have yielded or how it likely would have produced an acquittal had he gone to trial. See Southall v. United States, 716 A.2d 183, 190 (D.C.1998); Spencer v. United States, 688 A.2d 412, 420 (D.C.1997).\\nAppellant's further contention that his attorney told him he \\\"would be able to [ejxpunge [his] criminal case once it was disposed of' is belied by his admission under oath that he knew he could be sentenced to prison for up to five years and that no extra-record promises had been made to him about what the court would do if he pled guilty. See Blackledge, supra note 4; Smith v. United States, 116 U.S.App. D.C. 404, 407-408, 324 F.2d 436, 439-40 (1963) (claim that counsel \\\"led appellant to believe he would be granted probation and did not tell him he would be ineligible for parole\\\" was \\\"quite inadequate to amount to . 'manifest injustice' \\\"). Finally, his claim that his attorney failed to note a direct appeal despite appellant's having urged him to do so was not raised in the trial court, see Southall, 716 A.2d at 189, and fails to meet the miscarriage of justice standard since no grounds appear that would have justified withdrawal of the plea if raised oh direct appeal.\\nAffirmed.\\n.Recently, however, the Supreme Court granted certiorari in Lackawanna County, Pa., Dist. Atty. v. Coss, No. 99-1884,-U.S.-, 121 S.Ct. 297, 148 L.Ed.2d 238 (Oct. 10, 2000), to consider the issue: \\\"Does [the] custody requirement of [the] federal habeas corpus statute preclude, under all circumstances, [a] challenge upon [a] fully expired conviction that was used to enhance [a] current conviction under habeas attack and for which peti-lioner is presently in custody.\\\" See 69 U.S.L.W. 3249, 121 S.Ct. 297, (Oct. 10, 2000).\\n. The issue has not been a live one in the federal courts since 1983 when Rule 32 was amended to permit post-sentence vacatur of a guilty plea only on direct appeal or by motion under 28 U.S.C. \\u00a7 2255.\\n. This court may affirm for reasons other than those relied on by the trial court, at least when no additional factual issues remain to be resolved. See Lewis v. United States, 594 A.2d 542, 543 (D.C.1991). Although the decision whether to permit withdrawal under Rule 32(e) is committed to the discretion of the trial court, Johnson, 633 A.2d at 831, none of the grounds cited by appellant would have allowed withdrawal under a proper exercise of the court's discretion. Cf. Johnson v. United States, 398 A.2d 354, 364 (D.C.1979) (law as applied to facts may leave trial court with but one option it may choose without abusing its discretion).\\n. Viewed from the standpoint of appellant's burden to demonstrate manifest injustice, his claim that his attorney \\\"told him he had no choice but to plead guilty\\\" fails because he alleges no facts whatsoever as to when or in what circumstances the statement was made. Moreover, the claim is contradicted by his \\\"[sjolemn declarations\\\" at the plea proceeding. Blackledge v. Allison, 431 U.S. 63, 74, 97 S.Ct. 1621, 52 L.Ed.2d 136 (1977).\\n. Appellant's claim that the trial judge did not comply with Rule 11 merely echoes in different dress the point, already rejected, that he was not advised of the potential use of his drug conviction to enhance a later sentence.\"}"

dc/11208938.json

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+"{\"id\": \"11208938\", \"name\": \"In re ESTATE OF John W. TUTHILL. Burke & Herbert Bank & Trust Co., et al., Appellants\", \"name_abbreviation\": \"In re Estate of Tuthill\", \"decision_date\": \"2000-05-11\", \"docket_number\": \"No. 98-PR-1181\", \"first_page\": \"272\", \"last_page\": \"276\", \"citations\": \"754 A.2d 272\", \"volume\": \"754\", \"reporter\": \"West's Atlantic Reporter, Second Series\", \"court\": \"District of Columbia Court of Appeals\", \"jurisdiction\": \"District of Columbia\", \"last_updated\": \"2021-08-10T18:45:20.940818+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before REID and WASHINGTON, Associate Judges, and MACK, Senior Judge.\", \"parties\": \"In re ESTATE OF John W. TUTHILL. Burke & Herbert Bank & Trust Co., et al., Appellants.\", \"head_matter\": \"In re ESTATE OF John W. TUTHILL. Burke & Herbert Bank & Trust Co., et al., Appellants.\\nNo. 98-PR-1181.\\nDistrict of Columbia Court of Appeals.\\nSubmitted Nov. 16, 1999.\\nDecided May 11, 2000.\\nWilliam J. Carter and Paul J. Maloney, Washington, DC, were on the brief for appellants.\\nBefore REID and WASHINGTON, Associate Judges, and MACK, Senior Judge.\", \"word_count\": \"2721\", \"char_count\": \"16521\", \"text\": \"WASHINGTON, Associate Judge:\\nThis matter comes before the court on appellants' appeal of the trial court's denial of the Trustee's Motion to Reconsider its denial of the Trustee's Consent Motion to Reform Trust. Appellants argued in the trial court that a scrivener's mistake had made it impossible for the Trustee to effectuate the intent of the decedent, Mr. Tuthill, to provide all of the income and as much of the principal as was necessary from the Trust to support Mrs. Tuthill during her lifetime. The single issue on appeal is whether the trial court erred in denying the appellants' Motion to Reform the Trust because the appellants failed to introduce certain evidence that the trial court believed was necessary to satisfy the appellants' burden of proof. While the trial court correctly determined that in order to grant the reformation motion the appellants had to introduce clear and convincing evidence of the decedent's intent, the trial court's reliance on the absence of specific extrinsic evidence to deny the appellants' Motion to Reform the Trust was in error. Accordingly, we reverse and remand the case.\\nI.\\nThe facts of this case are simple, On September 29,1993, John and Erna Tuthill met with Joy S. Chambers, Esquire for estate planning purposes. Based on that conversation, Ms. Chambers produced draft wills and trust documents, as well as an advisory transmittal letter describing the purposes and goals of the draft documents, and mailed them to Mr. and Mrs. Tuthill on October 8, 1993. The Tuthills executed the trust documents on October 20, 1993. Because Mr. Tuthill had always handled. the family finances, he named himself as Trustee and Beneficiary of the Trust during his lifetime. The Trust provided that at the time of his death, if Mrs. Tuthill survived him, two Trusts were to be created, a Family Trust and a spillover Marital Trust. The Family Trust made up the first fractional share of the Trust assets that could pass free from federal estate taxes, which at the time was $600,000. Any assets above $600,000, according to a fractional formula, would then fund the Marital Trust. The spillover Marital Trust was designed to ensure that any trust assets over $600,000 would become part of the survivor's estate for estate tax purposes. The primary purpose in creating the Trust was to shelter as much of the Tuthills' assets as possible from estate taxes.\\nAt that time, estate tax law allowed each person a $600,000 exemption during life or at death without taxes being due. There was also an unlimited marital deduction which permitted transfer of an unlimited amount of property between spouses, also without incurring any estate taxes. Therefore, if one spouse were to die and all the property went to the surviving spouse, there would be no estate tax due to the marital deduction. However, when the surviving spouse died in possession of all of the family assets, any monies over the $600,000 exemption would be taxed at a rate that began at about forty percent. In order to avoid this tax consequence, Ms. Chambers intended to fully utilize each spouse's $600,000 exemption. Therefore, upon Mr. Tuthill's death, rather than giving all of his assets to Mrs. Tuthill, up to $600,000 was put into a Family Trust so that the Family Trust's assets would not be considered part of Mrs. Tuthill's estate at her death, and assuming the assets in her trust were substantial, up to a maximum of $1,200,000 could pass tax free to their children, $600,000 through the estate of Mrs. Tuthill when she died under the exemption, and the $600,000 in the Family Trust created by Mr. Tuthill.\\nMr. Tuthill died on September 9, 1996, and was survived by his wife. At that time, the Trust contained assets of approximately $430,000. Accordingly, the entire amount funded the Family Trust, and the Marital Trust never came into existence. Soon after Mr. Tuthill's death, the Trustee and Ms: Chambers realized that the language of the Trust did not contain a provision that would allow the Trustee to make income and principal payments to Mrs. Tuthill for her support during her lifetime. The appellants assert that Mr. Tuthill intended for Mrs. Tuthill to enjoy all the income and, if necessary, part of the principal from the Family Trust during her lifetime. Although distributions of the principal carried some limitations, the Trustee, who was Mrs. Tuthill's sister, was supposed to have the authority to make such distributions. Appellants also assert that Mr. Tuthill decided to fund the Family Trust and create a spillover Marital Trust to maximize the amount of assets that could pass free from federal estate taxes, not to limit Mrs. Tuthill's access to the funds in the Family Trust that she needed for her support. No argument to the contrary was presented to the trial court.\\nIn support of their argument, the appellants presented the trial court with an affidavit by Ms. Chambers which stated that Mr.-Tuthill had told her that he wanted the assets in the Trust to be used primarily for the care and support of Mrs. Tuthill during her lifetime. The affidavit further stated-that Ms. Chambers had mistakenly omitted the necessary language in the trust document that would have allowed the Trustee to distribute the income and access funds for that purpose. Ms. Chambers' affidavit also supports the appellants' argument that the sole reason for creating the two-trust system with spillover was to allow for up to $1,200,000 to pass free from estate taxes. In addition to her affidavit, the appellants also presented the trial court with Ms. Chambers' advisory transmittal letter to the Tuthills regarding, inter alia, the trust documents. That advisory transmittal letter states in pertinent part that \\\"all of the income of the Family Trust [is] to be paid to the surviving spouse. The surviving spouse [is] also eligible to receive principal if needed for support 'and medical care.\\\" Thus, it was her understanding that the Trust was designed to allow the Trustee to make the described payments to the surviving spouse from the- Trust. The appellants also presented the affidavit of the decedent's sole surviving child and a beneficiary of the Family Trust, David Tuthill. He confirmed that his father told him that he intended to provide for Mrs. Tuthill upon his death. In addition to the evidence described above, the trust documents were also presented to the trial court as evidence that Mr. Tuthill intended, in creating the Trust, to provide for Mrs. Tuthill while minimizing the exposure of their estate to taxes upon their respective deaths. Finally, the omitted language was presented to show how the insertion of such language would facilitate the alleged actual intent of Mr. Tuthill.\\nDespite the evidence presented by appellant, the trial court found that the appellants' had failed to clearly and convincingly prove that Mr. Tuthill intended to provide for his wife with the funds in the Family Trust. The appellant thereafter filed a Motion for Reconsideration. The trial c\\u00f3urt also denied this motion. The trial court's stated reason for denying the Motion for Reconsideration was that the evidence provided by the appellants did not include a statement by Mr. Tuthill of his intent to provide for his wife through the Family Trust and that without such a statement, the appellants could not meet the clear and convincing standard required for reformation. See Roos v. Roos, 203 A.2d 140 (Del.Ch.1964) (where the court relied in part on a preamble of the trust), and Pond v. Pond, 424 Mass. 894, 678 N.E.2d 1321 (1997) (where a settlor's will provided additional evidence of intent).\\nII.\\nAs an initial matter, appropriate grounds must be established for reformation of a trust. The party seeking refor mation bears the burden of establishing the settlor's actual intent has been displaced by the error. See BogeRT & BogeRT, supra note 2, \\u00a7 991. In cases where a determination must be made as to whether a settlor has created a trust, we demand clear and convincing evidence. See Duggan v. Keto, 554 A.2d 1126, 1133 (D.C.1989) (determining that the test for proving an intent to create a trust is clear and convincing evidence). Furthermore, we have determined that \\\"[a]mong the extrinsic circumstances and evidentiary factors pertinent to a determination of a settlor's intention to create a trust [include] . the relationship between and the financial positions of the parties, the motives which may reasonably be supposed to have influenced the settlor in making the disposition, and whether the result reached in construing the transaction as a trust would be such as a person in the situation of the settlor would naturally desire to produce.\\\" Cabaniss v. Cabaniss, 464 A.2d 87, 91-92 (D.C.1983) (citing Restatement (Second) of TRUSTS \\u00a7 25 and comment B, \\u00a7 23 and comment (a), \\u00a7 24 and comment (b) (1959)). Determining the settlor's intent for reformation purposes must follow similar guides. Therefore, appellant has the burden of proving the settlor's intent by clear and convincing evidence for purposes of trust reformation. See George T. Bo-gert, Trusts \\u00a7 146 (6th ed.1987).\\nOther jurisdictions have reached similar conclusions. The respective courts in Pond v. Pond, Berman v. Sandler, and Roos v. Roos, have held that the settlor's intent must be proven with clear and convincing evidence and that, similar to the intent of the settlor in creating a trust, all pertinent, extrinsic circumstances must be taken into consideration and examined. See Pond, 678 N.E.2d at 1323; Berman v. Sandler, 379 Mass. 506, 399 N.E.2d 37, 20 (1980); Roos, 203 A.2d at 143. Although the settlor's intent for purposes of trust reformation must be proven by clear and convincing evidence, and \\\"extrinsic circumstances and evidentiary factors pertinent to a determination of a settlor's intention\\\" must be carefully examined, Cabaniss, 464 A.2d at 92, we recognize that these determinations are fact driven and that each piece of evidence presented to the court is only a factor in determining the overall intent of the settlor. Two of the previously cited cases are particularly illustrative. In Roos, the court granted a motion to reform a trust after determining that a supporting affidavit of the attorney who prepared the trust, the allegations of the complaint, the defendant's consent to reformation, and the preamble of the trust instrument constituted clear and convincing evidence of the actual intent of the settlor. See Roos, 203 A.2d at 143. The Pond court, in reaching a similar conclusion that refoimation was appropriate, determined that the settlor's will and the identification of the surviving wife as beneficiary in the trust constituted clear and convincing evidence to establish the actual intent of the settlor. See Pond, 678 N.E.2d at 1324.\\nin.\\nIn this case, the trial court, after correctly determining that the appellants were required to introduce clear and convincing evidence in order to prevail on their Motion to Reform Trust, was faced with the exceedingly difficult task of ascertaining the intent of Mr. Tuthill. Because clear and convincing evidence was required by law, the trial court ruled that without a clear statement of Mr. Tuthill's intentions, made by the decedent himself, the evidence presented could not meet the clear and convincing standard required by law. However, we do not read the authorities cited from other jurisdictions to demand a statement of intent by the settlor in order to grant reformation motions, and we do not hold so here. In those cases, like the present case, significant evidence was presented regarding the settlor's intent. The fact that those courts found certain other evidence, not found in this case, -to be compelling \\u2014 in Roos, the trust preamble and in Pond, the settlor's will \\u2014 does not mean that the evidence presented by appellants to establish Mr. Tuthill's intent in this case is not clear and convincing. Had either the Roos court or the Pond court been provided with extrinsic circumstances and evidence that did not include a statement by the settlor, we can only speculate as to whether their decisions to grant reformation would have been different. In dispensing its obligation, a trial court must \\\"ascertain the settlor's intent, [by] looking] to the trust . as a whole and in particular foeus[ing] on the circumstances known to the settlor upon execution of the [trust].\\\" Berman, 399 N.E.2d at 20; see also Pond, 678 N.E.2d at 1323.\\nIn this case, the appellants submitted the affidavit testimony of the attorney responsible for drafting the estate planning documents. Her testimony established that at the time the Trust was created it was her understanding that Mr. Tuthill wanted his wife to enjoy the assets in the Trust for her support. Appellants submitted the advisory transmittal letter from Ms. Chambers to1 the Tuthills in support of her affidavit. Ms. Chambers further admitted that, but for her mistake, the Trust would have accomplished that goal. In addition, David Tuthill, a named beneficiary of the Trust, stated unequivocally that it was Mr. Tuthill's stated intent to provide first for his wife and then for his family from the assets of his estate. The appellants also presented the trust documents that created the \\\"Family Trust\\\" and the potential spill over \\\"Marital Trust.\\\" While it is certainly appropriate for a court to view the evidence presented with a healthy skepticism, especially in the case of a Motion to Reform a Trust, the court still has an obligation to evaluate and weigh the evidence presented to determine whether it meets the requisite standard of proof.\\n'In rejecting the appellants' offer of proof, the trial court made no findings as to why this evidence was insufficient as a matter of law to satisfy appellants' burden other than to suggest that, in the absence of a clear statement by Mr. Tuthill of his intent, the appellants could not prevail. Because the law does not require a party to produce any particular evidence to support its obligation under the clear and convincing evidence standard for reformation of a trust, we find that the trial court should have determined from the evidence that was presented, whether appellants met their burden of proving that Mr. Tut-hill intended for his wife to have access to the funds in the Family Trust upon his death. The trial court's failure to do so was error. Because it is not clear that the trial court weighed the evidence presented given her reliance on the absence of other evidence, we reverse and remand the case for further consideration of the evidence presented in a manner not inconsistent with this opinion.\\nSo ordered.\\n. No brief has been filed on behalf of appel-lees. All parties to this case seek reformation of the trust.\\n. Mistake by the scrivener is one such ground. George G. Bogert & George T. Bo- gert. Trusts & Trustees 2nd ed. rev. (1933 & Supp.1999). Mistake must be proven by evidence presented at trial that is full, clear and decisive. See Pond, 678 N.E.2d at 1323. Here, the record indicates a scrivener's mistake through the substantiated affidavit of the scrivener.\\n. Other courts have found clear and convincing evidence of the settlor's intent without the necessity of a preamble, a will, or any other statement of and by the settlor. In Griffin v. Griffin, 832 P.2d 810, 814 (Okl.1992), the Oklahoma Supreme Court upheld a trial court's decision to grant a reformation motion based on (1) the undisputed testimony of the tax attorney, (2) a letter of an attorney whom grantor consulted, and (3) the admissions of the executor of the estate. Also, in Ike v. Doolittle, 61 Cal.App.4th 51, 70 Cal.Rptr.2d 887, 897 (1998), the California Court of Appe\\u00e1ls found clear and convincing evidence of a settlor's intent through (1) the testimony of the drafter, (2) expert testimony on tax savings, (3) five supporting witnesses, and (4) the trust.\\n. Based on the foregoing analysis, we are hard pressed to discern why the evidence in this case does not rise to the level of clear and convincing. However, we are mindful that as a reviewing court such a decision is not ours to make in the first instance.\"}"

dc/11249338.json

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+"{\"id\": \"11249338\", \"name\": \"Ralph W. MIDDLETON, Appellant, v. UNITED STATES, Appellee\", \"name_abbreviation\": \"Middleton v. United States\", \"decision_date\": \"1973-06-01\", \"docket_number\": \"No. 6784\", \"first_page\": \"259\", \"last_page\": \"262\", \"citations\": \"305 A.2d 259\", \"volume\": \"305\", \"reporter\": \"West's Atlantic Reporter, Second Series\", \"court\": \"District of Columbia Court of Appeals\", \"jurisdiction\": \"District of Columbia\", \"last_updated\": \"2021-08-10T21:31:04.985700+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before REILLY, C. J., and KERN and NEBEKER, JJ.\", \"parties\": \"Ralph W. MIDDLETON, Appellant, v. UNITED STATES, Appellee.\", \"head_matter\": \"Ralph W. MIDDLETON, Appellant, v. UNITED STATES, Appellee.\\nNo. 6784.\\nDistrict of Columbia Court of Appeals.\\nArgued April 24, 1973.\\nDecided June 1, 1973.\\nJerry Lee Dier, appointed by this court, for appellant.\\nPeter C. Schaumber, Asst. U. S. Atty., with whom Harold H. Titus, Jr., U. S. Atty., and John A. Terry, \\u00c1sst. U. S. Atty., were on the brief, for appellee.\\nBefore REILLY, C. J., and KERN and NEBEKER, JJ.\", \"word_count\": \"1499\", \"char_count\": \"9360\", \"text\": \"PER CURIAM:\\nThis is an appeal from a conviction of carrying a pistol without a license in violation of D.C.Code 1967, \\u00a7 22-3204.\\nAppellant was stopped by members of the Metropolitan Police for a traffic violation. Upon approaching appellant's car, one of the officers observed a loaded pistol lying in plain view on the front seat. Appellant was thereupon arrested and the pistol seized.\\nAt his nonjury trial appellant admitted ownership of the pistol. He testified that at the time of his arrest he was returning to Washington from Baltimore, where he had obtained the pistol at the home of a relative. His defense was that by virtue of his employment by the General Services Administration as a Federal Protective Officer he was within the exception to \\u00a7 22-3204, contained in D.C. Code 1967, \\u00a7 22-3205, applying to \\\"policemen and other duly appointed law-enforcement officers.\\\"\\nIn an extensive opinion the trial court rejected this contention and found appellant guilty. On appeal, virtually the same argument has been made. We believe the trial court correctly analyzed and applied the law, and include a substantial portion of Judge Daly's opinion, as reported, as an appendix to this decision. We find no error in the judgment of conviction. Cf. Franklin v. United States, D.C.App., 271 A.2d 784 (1970), aff'd, 148 U.S.App.D.C. 39, 458 F.2d 861 (1972); McKenzie v. United States, D.C.Mun.App., 158 A.2d 912 (1960).\\nAffirmed.\\nAPPENDIX\\n% j}j \\u2021 i{{\\nThe facts adduced during the course of the trial clearly establish each element of the crime charged. However, the defendant contends that his status as a member of the Federal Protective Service brings him within the statutory exception for \\\"policemen or other duly appointed law enforcement officers\\\" as found in D.C. Code \\u00a7 22-3205. Under the law in this jurisdiction where a defendant interposes an affirmative defense such as an exception in a statute, it is the burden of the defendant to bring himself within the exception rather than that of the prosecutor to negative it. Williams v. United States, 237 A.2d 539 (D.C.App.1968). In this connection, defendant states that United States Code \\u00a7 40-318, as amended by Public Law 91-665 (1971), has resulted in the creation of a new police force within the GSA, known as the Federal Protective Service. Defendant further states that by the provisions of the 1971 Act, officers in the Federal Protective Service no longer were subject to Civil Service guard classification series 085, but they came within the police series classification 083, the identical classification which applied to the Metropolitan Police Department and therefore, each of these police forces had the same official status and the same duties and responsibilities and each was exempt from the license requirements of D.C.Code \\u00a7 22-3204.\\nA review of the applicable statutes (United States Code \\u00a7 40-318 et seq.) indicates that the administrator or other delegated officials of the GSA may make needful rules and regulations for protecting federal property under their charge and control and may appoint uniformed officers to police public buildings and other areas under the exclusive or concurrent jurisdiction of the administrator. Under the authority invested in the administrator by this title of the United States Code, two forces of uniformed officers were established. One force referred to by its Civil Service Classification Code as GS-085 is a guard force, while the other is classified as GS-083 and is known as the Federal Protective Service. The primary functions of each of these forces differ inasmuch as the GS-085 officers protect Government buildings and property while the GS-083 officers protect not only buildings and property of the United States Government, but are also charged with the protection of the life, property and civil rights of individuals thereon by maintaining law and order. These forces are further distinguished by the fact that GS-083 officers are better paid and receive more advanced and more diversified training. By specific designation, the defendant Middleton, is classified as a GSA officer coming within Civil Service Code GS-083.\\nDefendant has attempted to extract from the above-described upgrading of the Federal Protective Service the status of a law enforcement officer who is exempt from prosecution under D.C.Code \\u00a7 22-3204 by virtue of \\u00a7 22-3205. However, this argument is without substance because defendant's only authority to carry a weapon is derived from the administrator of GSA and not from the Civil Service classification standards. United States Code \\u00a7 40-490 (a) (2) authorizes the administrator to arm GSA officers so as to effectively perform their protective and other law enforcement functions. It is the administrator of GSA who defines how those functions are to be carried out. Once GSA determines the functions it wants its officers to perform, and the qualifications that they should have, that \\\"job\\\" or \\\"position\\\" is then \\\"placed\\\" by GSA in its class and grade (GS schedule) in conformance with standards published by the Civil Service Commission. United States Code \\u00a7 5\\u2014 5105, 5106, 5107. Thus, it is clear that any and all authority exercised by Federal Protective officers is derived solely from the administrator of GSA.\\nDefendant's attempt to analogize his police status with that of the Metropolitan Police Department is not supported by law. While both forces may be classified as GS-083 the jurisdiction and law enforcement authority of the Metropolitan Police Department is derived from the applicable provisions of the D.C.Code and the common law and not from a Civil Service classification. It should be noted that the District of Columbia and United States statutes draw a clear and well-defined distinction of power and authority between and among the many police forces operating in the District of Columbia. For example, the Executive Protective Service (United States Code \\u00a7 3-202) and the United States Park Police (District of Columbia Code \\u00a7 4-201) have all of the same powers as those conferred on members of the Metropolitan Police, while other police forces including Supreme Court police, Capitol Police and GSA uniformed police have their power and authority limited to those areas under the jurisdiction of their parent agencies (United States Code \\u00a7 40-212a, 13n.). Obviously, the scope of jurisdiction and law enforcement power of the Metropolitan Police Department far exceeds that of the Federal Protective Service. While the Metropolitan Police patrol the entire city and are required to carry weapons at all times while in the city, whether on or off duty, Federal Protective Officers are concerned with protection of certain specific locations because their agency's jurisdiction extends only to those buildings and areas owned or occupied by the United States and which are either directly under the charge and control of GSA or are protected by GSA uniformed officers at the specific request of the heads of other United States agencies. A thorough search of the District of Columbia and United States statutes and regulations fails to disclose any authorization for Federal Protective Service officers to carry firearms other than while on duty or while in a travel status to and from duty assignments, wherever those assignments may be located. It should be noted that a legal opinion submitted to the administrator of GSA by his legal counsel on February 4, 1972, specifically stated that the administrator did not have authority to permit the carrying of weapons by Federal Protective Service officers in a non-duty status either by statute or by implication.\\nDefendant's trip to Baltimore on the night of his arrest was a personal one totally unrelated to his duties as a Federal Protective Service officer, and as such placed him outside the exemption provided for on duty law enforcement officers as contained in D.C.Code \\u00a7 22-3205. Further, undisputed evidence clearly establishes that defendant did not transport his weapon in the manner provided by law for persons not otherwise exempt. D.C.Code \\u00a7 22-3205 requires that weapons being transported from one place to another must be unloaded and securely wrapped. Obviously, defendant was transporting his pistol in violation of this requirement of the statute since it was not only unwrapped but was loaded and within easy reach.\\nFor these reasons, the Court concludes that the Government has carried its burden by proving beyond a reasonable doubt that defendant violated D.C.Code \\u00a7 22-3204 by openly carrying an unlicensed pistol on or about his person within the District of Columbia in the early morning hours of March 1, 1972. Defendant has failed to carry his burden of proving that his possession was legitimized by virtue of some statutory exemption. White v. United States, 283 A.2d 21 (D.C.App.1971); Roumel v. United States, 261 A.2d 240 (D.C.App.1970); Williams v. United States, supra.\"}"

dc/11475987.json

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+"{\"id\": \"11475987\", \"name\": \"Paul and Sheryl PUMA, Appellants, v. Ann SULLIVAN, Appellee\", \"name_abbreviation\": \"Puma v. Sullivan\", \"decision_date\": \"2000-02-24\", \"docket_number\": \"No. 97-CV-1479\", \"first_page\": \"871\", \"last_page\": \"876\", \"citations\": \"746 A.2d 871\", \"volume\": \"746\", \"reporter\": \"West's Atlantic Reporter, Second Series\", \"court\": \"District of Columbia Court of Appeals\", \"jurisdiction\": \"District of Columbia\", \"last_updated\": \"2021-08-10T18:05:56.183665+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before FARRELL and RUIZ, Associate Judges, and MACK, Senior Judge.\", \"parties\": \"Paul and Sheryl PUMA, Appellants, v. Ann SULLIVAN, Appellee.\", \"head_matter\": \"Paul and Sheryl PUMA, Appellants, v. Ann SULLIVAN, Appellee.\\nNo. 97-CV-1479.\\nDistrict of Columbia Court of Appeals.\\nSubmitted Dec. 10, 1998.\\nDecided Feb. 24, 2000.\\nEric M. Rome, Washington, DC, filed a brief for appellants.\\nSusan L. Schor, Washington, DC, filed a brief for appellee.\\nBefore FARRELL and RUIZ, Associate Judges, and MACK, Senior Judge.\", \"word_count\": \"2481\", \"char_count\": \"15524\", \"text\": \"MACK, Senior Judge:\\nOn March 31, 1997, appellants Paul and Sheryl Puma brought a claim against ap-pellee Ann Sullivan to recover Ms. Sullivan's share of a $15,000 promissory note consummated with the Pumas by her then-husband Eric Ewoldt. Appellants contest the motions court's granting of appellee's motion for summary judgment. Appellants argue that the three-year statute of limitations does not preclude recovery of the loan because the note's original May 25, 1984 maturity date (and thus the date of the breach) was orally extended to June 8, 1996, by Ewoldt during his marriage to Ms. Sullivan. We reverse and remand for trial.\\nI.\\nOn November 25, 1983, Eric Ewoldt, who at the time was appellee Ann Sullivan's husband, borrowed $15,000 from appellants Paul and Sheryl Puma. On the same day, Ewoldt and the Pumas, who were personal friends, created a handwritten promissory note requiring the $15,000 principal be paid in six monthly installments at twelve percent interest, for a total of $15,600. According to the Pumas, Ewoldt requested the loan on behalf of himself and his wife, Ms. Sullivan, in order to purchase a marital home. Notably, the handwritten promissory note does not indicate the purpose of the loan, nor does Ms. Sullivan's name or signature appear on it. Shortly after taking the loan, Ewoldt and Ms. Sullivan purchased a home as tenants by the entirety in the Northwest section of Washington, D.C.\\nIn an affidavit, Mr. Puma avers that after Ewoldt and Ms. Sullivan failed to make any of the agreed monthly payments, but before the May 25, 1984 maturity, Ewoldt indicated \\\"that while he and Sullivan could not repay the loan, in no event would it be paid later than such time as the [jointly owned] house was sold or transferred.\\\" In addition, Mr. Puma's affidavit recounts Ewoldt's repeated reassurances of repayment made many times over the years, which allegedly deterred Mr. Puma from taking any collection action against Ewoldt or Ms. Sullivan.\\nAccording to the Pumas, Ewoldt continued to guaranty repayment for the next ten years. On January 5, 1994, Ewoldt and Ms. Sullivan entered into a divorce agreement. The divorce agreement stipulated that the sale of the marital home would be used to satisfy\\nsettlement costs including pay-offs of the. existing Loyal F.S.B. first trust note, Bank of Baltimore home equity loan, [and] Puma loan (in an amount not to exceed $15,000), . and the net proceeds, after payment of all proper expenses and reductions, shall be distributed in equal (50-50) shares to the parties.\\nSometime after the divorce agreement was completed, the Pumas became aware of its existence and its reference to their loan. In addition, the Pumas contend that they continued to rely on Ewoldt's promise that they would be repaid by both himself and Ms. Sullivan when the house was transferred.\\nOn June 8, 1996, Ms. Sullivan purchased Ewoldt's interest in their home. Shortly thereafter, the Pumas allege Ewoldt repaid them $7,500 from an escrow account established jointly with Ms. Sullivan. On December 28, 1996, the Pumas asked Ms. Sullivan to pay the remaining $7,500 of principal. After Ms. Sullivan refused, on March 81, 1997, the Pumas filed a complaint alleging breach of contract and unjust enrichment. In response to the Pumas' complaint, Ms. Sullivan moved to dismiss, or in the alternative, for summary judgment on the basis that the Pumas' claim was barred by the three-year statute of limitations.\\nThe motions court granted Ms. Sullivan's motion for summary judgment holding: (1) Ms. Sullivan was initially liable for the Pumas' note under D.C.Code \\u00a7 30-201, which provides for spousal liability on a debt for \\\"necessaries,\\\" such as the purchase of a home; and (2) the Pumas' claim was barred by the three-year statute of limitations, because Ewoldt's repayment of the $7,500 following divorce could not renew his ex-wife's obligation under the note. The Pumas appeal the motions court's granting of summary judgment.\\nII.\\nSummary judgment \\\"is appropriate only when there are no material facts in issue and when it is clear that the moving party is entitled to judgment as a matter of law.\\\" Willis v. Cheek, 387 A.2d 716, 719 (D.C.1978) (citations omitted). In reviewing a trial court's order granting summary judgment, this court conducts an independent review of the record. Burt v. First Am. Bank, 490 A.2d 182, 184 (D.C.1985). \\\"If a movant has made a prima facie showing that there is no genuine issue of fact in dispute and it is clearly entitled to judgment as a matter of law, the opposing party may prevail only if he rebuts the showing with specific evidence.\\\" Spellman v. American Sec. Bank, N.A., 504 A.2d 1119, 1122 (D.C.1986) (quoting Wyman v. Roesner, 439 A.2d 516, 519 (D.C.1981)). \\\"[T]he evidence \\u2014 consisting of the pleadings and other material in the record \\u2014 must be construed in the light most favorable to the party opposing the motion.\\\" Burt, supra, 490 A.2d at 185 (citations omitted). All inferences which may be drawn from subsidiary facts must be resolved against the moving party. Willis, supra, 387 A.2d at 719 (citations omitted).\\nIn making her prima facie case for summary judgment, Ms. Sullivan relies on the hand-written promissory note in support of her contention that the statute of limitations began to run on May 25, 1984, the loan's original 'express maturity date. Therefore, - she contends, the three-year statute of limitations had long expired by the time the Pumas brought their claim in 1997.\\nIn rebutting Ms. Sullivan's prima facie case, the Pumas contend there exists a material factual dispute as to when the three-year statute of limitations began to run on their action to recover the loan amount. Specifically, the Pumas filed an affidavit asserting that prior to the original maturity date of May 25, 1984, Ewoldt orally offered to modify the note and extend the due date to such time as the house was sold or transferred, to which the Pumas agreed. According to the Pumas, this conversation and agreement served to extend the note's due date such that the breach did not occur until June 8,1996, the date the property was transferred to Ms. Sullivan. Consequently, the Pumas contend that their March 31, 1997 claim was filed within the three-year statute of limitations, thus rebutting Ms. Sullivan's prima facie case.\\nHowever, Ms. Sullivan disputes the admissibility of the statement made in the affidavit. Specifically, Ms. Sullivan argues that Mr. Puma's recitation of Ewoldt's out-of-court statement constitutes inadmissible hearsay, and thus cannot be considered on summary judgment. See Super. Ct. Civ. R. 56(e); O'Donnell v. Associated Gen. Contractors of Am., Inc., 645 A.2d 1084, 1089 (D.C.1994) (explaining hearsay cannot be relied upon by one opposing summary judgment). The Pumas, on the other hand, argue that Ewoldt's out-of-court statements are admissible as an exception to hearsay.\\nCertainly, the Pumas' evidence, if admissible, would create a genuine issue over significantly material facts. After all, the alleged oral modification surely would explain the timing of the Pumas' present action. See Nickel v. Scott, 59 A.2d 206, 207 (D.C.1948) (under contract law, it is well-settled that a written contract may be modified or rescinded by a subsequent oral agreement, even where the contract contains express language prohibiting oral modification); Gagnon v. Wright, 200 A.2d 196,198 (D.C.1964) (\\\"[Ajgreements may be modified by subsequent oral agreement, but the oral modification must be established by a preponderance of the evidence.\\\"). Moreover, Ms. Sullivan's subsequent divorce from Ewoldt cannot defeat the Pumas' modification theory, because it is based on statements made during the marriage. Nevertheless, the issue remains as to whether Mr. Puma's recitation of Ewoldt's statements is admissible evidence or inadmissible hearsay.\\nIdeally, Ewoldt himself would testify as to his alleged oral offer to modify the note, and be subject to cross-examination. However, because Ewoldt is unavailable to testify, the Pumas must rely on their recollection of Ewoldt's alleged statements. Nevertheless, in reviewing the statement that Mr. Puma attributes to Ewoldt, we see that it is admissible non-hearsay.\\n\\\"'Hearsay' is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.\\\" FED. R. EVID. 801(c). Although the Federal Rules of Evidence do not apply in the District of Columbia, \\\"the definition of hearsay in Rule 801(c) is consistent with well-settled law in the District of Columbia and elsewhere.\\\" Carter v. United States, 614 A.2d 542, 545 n. 9 (D.C.1992) (citing Jenkins v. United States, 415 A.2d 545, 547 (D.C.1980); Morris v. United States, 389 A.2d 1346, 1349-50 (D.C.1978)). \\\"From this definition it logically follows that if a statement is not offered to prove the truth of the matter asserted, it is not hearsay.\\\" Id. (citations omitted). For example, \\\"proof of oral utterances by the parties in a contract suit constituting the offer and acceptance which brought the contract into being are not evidence of assertions offered testimonially but rather verbal conduct to which the law attaches duties and liabilities.\\\" McCormick on Evidence, supra note 4, \\u00a7 249, at 100. See Hydrite Chem., Co. v. Calumet Lubricants Co., 47 F.3d 887, 892 (7th Cir.1995) (\\\"[I]t is direct evidence, not hearsay, when a party to a dispute over a contract testifies to the offer or the acceptance made by the other contracting party.\\\"). See, e.g., Taylor v. United States, 603 A.2d 451, 461 (D.C.1992) (holding that accusation that someone was a \\\"snitch\\\" was not hearsay because it was not offered for its truth, but to show that the accusation was in fact made), cert. denied sub nom. Jones v. United States, 506 U.S. 852, 113 S.Ct. 155, 121 L.Ed.2d 105 (1992).\\nMr. Puma's alleged hearsay statement, found in his affidavit, asserts that Ewoldt offered to modify the promissory note by extending its due date. Although the statement was made by an out-of-court declarant, it is not hearsay, because Ewoldt's offer is not an assertion; it is a verbal act. In other words, the offer is non-hearsay under the general definition, because it is not being used for the truth of the matter it asserts; it simply is being used to prove Ewoldt spoke the words of an offer. Accordingly, Mr. Puma's recitation of Ewoldt's out-of-court offer is admissible for consideration on summary judgment, and as mentioned raises a genuine issue of material fact.\\nTherefore, Ewoldt's out-of-court statements are admissible and they raise a genuine issue of material fact regarding when the note became due, and thus when it was breached. Ms. Sullivan points to the handwritten note as evidence that the note was breached when it matured on May 25, 1984. The Pumas recount the alleged oral offer by Ewoldt as evidence that the note would not mature until the sale or transfer of the house, which occurred on June 8, 1996. Thus, because there is admissible evidence on both sides of this materially factual dispute, summary judgment is improper.\\nReversed and remanded for trial.\\n. In reviewing Ms. Sullivan's brief and her motion for summary judgment, she seems to concede that initially she was obligated by her then-husband's agreement with the Pumas. Whether conceded or not, as the motions court properly concluded, Ms. Sullivan was statutorily obligated by D.C.Code \\u00a7 30-201, which provides that \\\"both spouses shall be liable on any debt, contract or engagement entered into by either of them during their marriage for necessaries .\\\" Therefore, the only remaining issue is whether the Pumas' action is barred by the three-year statute of limitations.\\n. See D.C.Code \\u00a7 12-301(7) (1995 Repl.).\\n. It is not clear from Mr. Puma's affidavit who first offered to extend the due date and who accepted. However, this distinction holds no import to our determination. Also, it should be noted that this oral modification does not fall within the statute of frauds, because the statute is not applicable to oral modifications which are capable of being performed within one year. Cooper v. Saunders-Hunt, 365 A.2d 626, 629 (D.C.1976). Presumably, the Ewoldt-Sullivan home could have been sold or transferred within one year of the oral modification.\\n.In their brief, the Pumas argue that Ewoldt's statements are admissible as an exception to hearsay, namely party admissions. In making this argument, the Pumas attempt to fashion an \\\"agency\\\" relationship between Ewoldt and Ms. Sullivan from the statutory obligation mandated between husband and wife by D.C.Code \\u00a7 30-201. However, we believe this obligation is more akin to privity than the principal-agent relationship required to invoke the party admission exception. In so far as this privity characterization holds, \\\"authorization to speak in furtherance of the common enterprise, as in the case of agency, partnership, or conspiracy, can hardly be spelled out from the mere relationship of joint obligors, and admissibility of declarations on this basis has been criticized.\\\" McCormick on Evidence \\u00a7 260, at 162 (5th ed.l999). Accordingly, courts generally have not admitted party admissions based solely on privity. See, e.g., Calhoun v. Baylor, 646 F.2d 1158, 1162-63 (6th Cir.1981).\\n. The D.C.Code does not address, and this court has yet to consider, whether the \\u00a7 30-201 spousal obligation survives divorce. Here, because the alleged modification occurred during the marriage, we do not have cause to address this issue.\\n. According to the Pumas' reply brief, Ewoldt is unavailable because he is outside the jurisdiction and cannot be compelled to testify against his former spouse pursuant to D.C.Code \\u00a7 14-306 (1995). We note that this court has not addressed whether the privilege embodied in \\u00a7 14-306(a) survives divorce. However, most courts view this privilege as ending on divorce. McCormick on Evidence, supra note 4, \\u00a7 66, at 282.\\n. In addition to the alleged oral modification, Mr. Puma's affidavit also quotes Ewoldt's reassurances of indebtedness and continued recognition of the note's revised maturity date, made subsequent to the oral modification. Presumably, the Pumas offer these statements in support of the alleged oral modification. Ms. Sullivan argues that these statements are also inadmissible hearsay. However, because we find Mr. Puma's recitation of Ewoldt's offer admissible and sufficiently material to survive summary judgment, we need not consider the admissibility of these subsequent reassurances. However, we note the possibility that Ewoldt's reassurances of his indebtedness and continued recognition of the note's revised maturity date may be admissible as declarations against pecuniary interest. See Gichner v. Antonio Troiano Tile & Marble Co., 133 U.S.App.D.C. 250, 254, 410 F.2d 238, 242 (1969) (noting that a statement is against pecuniary interest if it \\\"entails possible civil liability\\\"). See also Laumer v. United States, 409 A.2d 190, 199 (D.C.1979) (en banc) (establishing a three-step inquiry to determine the admissibility of a declaration against penal interest).\"}"

dc/11491594.json

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+"{\"id\": \"11491594\", \"name\": \"Janet CLARK, Petitioner, v. DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, Respondent. BMA Capitol Hill, Intervenor. CNA Insurance Companies, Intervenor\", \"name_abbreviation\": \"Clark v. District of Columbia Department of Employment Services\", \"decision_date\": \"2000-01-20\", \"docket_number\": \"No. 97-AA-1308\", \"first_page\": \"722\", \"last_page\": \"735\", \"citations\": \"743 A.2d 722\", \"volume\": \"743\", \"reporter\": \"West's Atlantic Reporter, Second Series\", \"court\": \"District of Columbia Court of Appeals\", \"jurisdiction\": \"District of Columbia\", \"last_updated\": \"2021-08-10T20:54:11.740001+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before REID and GLICKMAN, Associate Judges, and BELSON, Senior Judge.\", \"parties\": \"Janet CLARK, Petitioner, v. DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, Respondent. BMA Capitol Hill, Intervenor. CNA Insurance Companies, Intervenor.\", \"head_matter\": \"Janet CLARK, Petitioner, v. DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, Respondent. BMA Capitol Hill, Intervenor. CNA Insurance Companies, Intervenor.\\nNo. 97-AA-1308.\\nDistrict of Columbia Court of Appeals.\\nArgued Sept. 14, 1999.\\nDecided Jan. 20, 2000.\\nJeffrey W. Ochsman, with whom Alan D. Sundburg, Washington, DC, was on the brief, for petitioner.\\nMary G. Weidner, Baltimore, MD, with whom Stuart L. Plotnick, Silver Spring, MD, was on the brief, for intervenors.\\nJo Anne Robinson, Principal Deputy Corporation Counsel, and Charles L. Reis-chel, Deputy Corporation Counsel, filed a statement in lieu of brief for respondent.\\nBefore REID and GLICKMAN, Associate Judges, and BELSON, Senior Judge.\", \"word_count\": \"6877\", \"char_count\": \"42102\", \"text\": \"GLICKMAN, Associate Judge:\\nPetitioner, Janet Clark, seeks review of a decision of the Department of Employment Services (\\\"DOES\\\") denying her claim for compensation benefits under the District of Columbia Workers' Compensation Act of 1979, D.C.Code \\u00a7 36-301 et seq. (1997). Clark suffered the injuries that disabled her from work when an unknown assailant shot her for unknown reasons in the parking lot of her employer, Intervenor BMA Capitol Hill. A DOES hearing examiner concluded after an evi-dentiary hearing that Clark's injuries did not arise out of her employment, and ordered that her claim for relief be denied. The Director of DOES affirmed that order.\\nWe reverse. Clark was entitled to the benefit of a statutory presumption that the injuries she suffered when she was assaulted at work did arise out of her employment and were compensable. We hold that her employer did not present sufficient evidence to rebut that presumption, and that the hearing examiner's contrary determination was, therefore, not supported by substantial evidence.\\nI.\\nSUMMARY OF THE EVIDENCE\\nJanet Clark was employed by BMA Capitol Hill (\\\"BMA\\\") as a dialysis technician for thirteen years. She worked at BMA's clinic in Southeast Washington, D.C., assisting dialysis patients. On August 16,1991, Clark drove to work as usual and parked her car, a red Chevrolet, in the employees' parking lot adjacent to the clinic. The parking lot was owned by BMA. After parking her car, Clark went to work inside the clinic building.\\nLater that day, an unidentified man walked into the parking lot, looked around, and then asked Nathaniel Ford, another BMA employee who also happened to be in the lot, whether Ford knew \\\"the lady that drives the red car.\\\" Ford pointed to a car which was burgundy in color, and asked the man if he meant that particular car. The man responded by saying no, that he wanted \\\"the lady that drives this car,\\\" pointing to Clark's Chevrolet. Ford asked the man if he knew the name of the woman he was seeking, and the man said that he did not. Ford then took the man's name and phoned Clark, who was still inside the clinic building at the time. He informed her that a man in the parking lot wanted to speak with her. Clark told Ford that she did not recognize the name that the man had given. She looked out a clinic window and spotted the man, but did not recognize him then either. Nonetheless, Clark came downstairs and walked into the lot to speak with the stranger.\\nClark approached him and asked him what he wanted. The man asked if the car he had pointed out was hers. Clark asked \\\"why\\\" and the man covered his mouth with his hands and said, \\\"I'm tired of Terry and James.\\\" Clark responded to this cryptic statement that she did not know a Terry or James. The man then asked again if the car he identified was hers, and Clark said that it was. Without another word, the man thereupon took out a gun and shot Clark at point-blank range three times, in the head, the neck and the buttock.\\nClark's assailant turned and fled immediately after the shooting and was never arrested. His identity is unknown, as Ford and Clark were unable to recall the name he gave them. No evidence was presented regarding the motive for the shooting. Clark testified that she did not know her assailant or why he attacked her. Clark had speculated in an early conversation with police officers that her daughter's husband might have wanted to hurt her. Police investigation revealed no evidence that he was connected to the assault, however, and Clark testified that \\\"several detectives assured [her] that he did not do it.\\\" BMA did not present any evidence tying Clark's son-in-law to the shooting.\\nII.\\nDECISIONS OF THE HEARING EXAMINER AND THE DIRECTOR\\nHaving been seriously injured and disabled by her shooting, Clark sought temporary total disability benefits under the Workers' Compensation Act. BMA contested coverage. As the parties stipulated, the sole issue before the hearing examiner was whether Clark's shooting injuries arose out of and in the course of her employment. See D.C.Code \\u00a7 36-301(12) (1997).\\nIn addressing this issue, the hearing examiner accepted that Clark sustained her injuries on the premises of her employer while in the course of her employment. This, the examiner held, triggered the statutory presumption of a causal relationship between her injuries and her employment. See D.C.Code \\u00a7 36-321(1) (1997). The burden then shifted to BMA, as the employer seeking to defeat coverage under the Act, to produce \\\"specific comprehensive evidence\\\" sufficient to rebut the presumption.\\nBMA did not dispute that Clark sustained her injuries \\\"in the course of' her employment, but it did contend that its evidence rebutted the statutory presumption by demonstrating that Clark's injuries did not \\\"arise out of' that employment. The hearing examiner evaluated this contention under the so-called \\\"positional-risk\\\" test enunciated by the Director in Grayson v. Washington Metropolitan Area Transit Auth., H & AS No. 83-260 (May 23, 1985), aff'd sub nom. Grayson v. District of Columbia Dep't of Employment Servs., 516 A.2d 909 (D.C.1986): \\\"[f]or an employee's injury to have arisen out of the employment, the obligations or conditions of an employee's employment must have exposed the employee to the risks or dangers connected with the injury.\\\"\\nThe examiner found that Clark's assailant targeted her because she was the owner of a particular red automobile, and that he \\\"voiced what can only be construed as the grounds- of a personal vendetta\\\" of unknown origin. Concluding that the assailant's statements prior to the attack \\\"may reasonably be construed to denote a relationship predicated upon factors other than claimant's position as a dialysis technician with employer,\\\" the examiner held that BMA had presented sufficient evidence to rebut the presumption of a causal link between Clark's injury and her employment. The examiner did not discredit Clark's own testimony that she did not understand what her assailant said or why he attacked her. He concluded, however, that, deprived of the benefit of the statutory presumption of causation, Clark had faded to produce any evidence affirmatively linking the motive behind the assault to her employment. Furthermore, the examiner found that Clark did not establish any connection between the geographic location of her employment and the assault. The hearing examiner accordingly held that BMA had successfully established that Clark's injuries did not arise out of her employment, and denied her claim for worker's compensation.\\nThe Director affirmed this ruling on the ground that there was substantial evidence in the record for the hearing examiner to conclude that \\\"this was not a random act of violence, and that it was targeted specifically to the owner of the red car, namely claimant.\\\"\\nIII.\\nDISCUSSION\\nClark's principal claim in this court is that the hearing examiner and Director erred in finding that her assault did not arise out of her employment. She argues that this finding was invalid because it was speculative and not supported by substantial evidence. She further argues that, in the absence of substantial evidence establishing that her attack was not work-related, she was entitled to the statutory presumption of coverage.\\nStandard of Review\\nThis court \\\"will affirm an agency finding of fact or conclusion of law so long as it is supported by substantial evidence notwithstanding that there may be contrary evidence in the record, as is often the case.\\\" Davis-Dodson v. District of Columbia Dep't of Employment Servs., 697 A.2d 1214, 1218 (D.C.1997). \\\"In summary, the DCAPA 'substantial evidence' test requires (1) the agency to make written findings of 'basic facts' on all material contested issues; (2) thes\\u00e9 findings, taken together, must rationally lead to conclusions of law ('ultimate facts') which, under the governing statute, are legally sufficient to support the agency's decision; and (3) each basic finding must be supported by evidence sufficient to convince reasonable minds of its adequacy.\\\" Citizens Association of Georgetown, Inc. v. District of Columbia Zoning Comm'n, 402 A.2d 36, 42 (D.C.1979). \\\"Substantial evidence means 'more than a mere scintilla' and such that reasonable minds might accept it as adequate to support a conclusion.\\\" Dominique v. District of Columbia Dep't of Employment Servs., 574 A.2d 862, 866 n. 3 (D.C.1990) (quoting Vestry of Grace Parish v. District of Columbia Alcoholic Beverage Control Bd., 366 A.2d 1110, 1112 (D.C.1976)).\\nIn this case, the hearing examiner's findings of \\\"basic facts,\\\" i.e., the historical facts concerning who did what, when and where, were unquestionably supported by substantial evidence. They are not challenged. What is in question is the inference that the examiner drew from those \\\"basic facts,\\\" namely that Clark's assailant targeted her for reasons entirely unrelated to her employment. This inference was the linchpin of the examiner's conclusion that Clark's injuries were not covered because they did not \\\"arise out of' her employment. To appreciate why this case turns on the validity of that inference, it is necessary to review how injuries arising from third party assaults in the workplace are treated under the Workers' Compensation Act.\\nCompensable \\\"Injury\\\"\\nTo be compensable under the Act, an injury must both arise out of, and occur in the course of, the employment. D.C.Code \\u00a7 36-301(12); Grayson, 516 A.2d at 911. The definition of \\\"injury\\\" in D.C.Code \\u00a7 36-301(12) includes intentional assaults on employees by third parties (ie., persons other than the employer). Grillo v. National Bank of Washington, 540 A.2d 743, 748, 750-51 (D.C.1988). Although the assault is intentional, \\\"[f]rom the perspective of the employer, . the injury is still 'accidental' and the employer is liable so long as the injury arose out of and occurred in the course of employment.\\\" Id. at 748.\\nIn this case, as in many cases of assaults in the workplace, two doctrines that are particular to workers' compensation law govern the coverage determination. These doctrines, as the hearing examiner recognized, are the positional-risk test for whether an injury \\\"arises out of' employment, and the statutory presumption in favor of coverage.\\nThe Positional-Risk Test\\nIn evaluating whether an injury \\\"arises out of' employment, the District of Columbia has adopted the positional-risk standard articulated by the hearing examiner in this case. See Grayson, 516 A.2d at 911. As this court observed in Gray-son, this is a \\\"liberal\\\" standard which obviates any requirement of employer fault or of a causal relationship between the nature of the employment and the risk of injury. See id. at 912 & n. 6; accord, Harrington v. Moss, 407 A.2d 658, 662 (D.C.1979). Nor need the employee be engaged at the time of the injury in activity of benefit to the employer. See Harrington, 407 A.2d at 662. Pursuant to the positional-risk test, an injury arises out of employment so long as it would not have happened but for the fact that conditions and obligations of the employment placed claimant in a position where he was injured. See Grayson, at 911 & n. 4. \\\"This theory supports compensation, for example, in . cases of stray bullets, roving lunatics, and other situations in which the only connection of the employment with the injury is that its obligations placed the employee in the particular place at the particular time when he or she was injured by some neutral force, meaning by 'neutral' neither personal to the claimant nor distinctly associated with the employment.\\\" A. LaRson, 1 Laeson's WORKERS' COMPENSATION LAW, \\u00a7 3.05 (1999). On the other hand, \\\"when it is clear that the employment contributed nothing to the episode, whether by engendering or exacerbating the quarrel or facilitating the assault, the assault should be held noncompensable even in states fully accepting the positional risk test, since that test applies only when the risk is 'neutral.' \\\" Id. at \\u00a7 8.02[ l][ e].\\nThe Presumption of Coverage\\nD.C.Code \\u00a7 36-321(1) establishes a presumption in favor of compensability for employees injured on the job. The presumption is \\\"designed to effectuate the humanitarian purposes of the statute\\\" and \\\"reflects a 'strong legislative policy favoring awards in arguable cases.' \\\" Ferreira v. District of Columbia Dep't of Employment Servs., 531 A.2d 651, 655 (D.C.1987) (quoting Wheatley v. Adler, 132 U.S.App.D.C. 177, 183, 407 F.2d 307, 313 (1968) (en banc)). To invoke the presumption, a claimant must present some evidence of (1) a death or disability and (2) a work-related event, activity or requirement which has the potential to result in or contribute to the death or disability. See id. \\\"The presumption then operates to establish a causal connection between the disability and the work-related event, activity, or requirement.\\\" Id.\\nOnce the presumption is triggered, the burden shifts to the employer to produce \\\"substantial evidence\\\" that the disability did not arise out of and in the course of the employment. See id.; Brown v. District of Columbia Dep't of Employment Servs., 700 A.2d 787, 791 (D.C.1997). \\\" 'Stated otherwise, the statutory presumption may be dispelled by circumstantial evidence specific and comprehensive enough to sever the potential connection between a particular injury and a job-related event.' \\\" Ferreira, 531 A.2d at 655 (quoting Swinton v. J. Frank Kelly, Inc., 180 U.S.App.D.C. 216, 224, 554 F.2d 1075, 1083, cert. denied, 429 U.S. 820, 97 S.Ct. 67, 50 L.Ed.2d 81 (1976)). The substantial evidence test is intended to reflect the humanitarian purpose of workers' compensation. \\\"We have made it clear that we \\\"will not sustain the administrative findings merely because they are substantiated by some isolated evidence. Our review must also take account of the settled rule that the Act is to be construed with a view to its beneficent purposes.' \\\" Wheatley, 132 U.S.App.D.C. at 184, 407 F.2d at 314 (quoting Friend v. Britton, 95 U.S.App.D.C. 139, 141, 220 F.2d 820, 821 (1955)). Thus, we have said that \\\"[w]hen it is established that an injury or death occurs in the 'course of employment,' that fact strengthens the presumption that it 'arises out of the employment, and any doubts as to that fact should be resolved in the claimant's favor.\\\" Dunston v. District of Columbia Dep't of Employment Servs., 509 A.2d 109, 111 (D.C.1986) (emphasis in original); Baker v. District of Columbia Dep't of Employment Servs., 611 A.2d 548, 550 (D.C.1992).\\nThird-Party Assaults in the Workplace\\nApplying the statutory presumption of coverage together with the positional-risk standard to workplace assaults, where an employee is assaulted by a third party on the employer's premises or otherwise in the course of employment, the employee's resulting injuries are presumed covered under the Workers' Compensation Act unless the employer presents substantial evidence that the assault was motivated by something entirely personal to the employee and unrelated to the employment. For this reason, even if the assault remains unexplained, it is compensable under the Act. See 1 Lakson, \\u00a7 8.03[ 1], [ 3]. This policy comports with the humanitarian purpose of the Workers' Compensation Act; it results in compensation for those employees assaulted at work who simply do not know or cannot prove the motive behind the assault.\\nCase law in this jurisdiction reflects the foregoing analysis. In the paradigmatic case in this jurisdiction, Hartford Accident & Indem. Co. v. Hoage, 66 U.S.App.D.C. 160, 85 F.2d 417 (1936), the claimant was a chef who was in his employer's kitchen when an unknown assailant came into the kitchen, stuck a knife into the claimant's face, and then ran away. Id. The claimant had never seen his assailant before the incident and never saw him again. The court held \\\"that the claimant's injury arose out of his employment, because the terms and conditions of his employment placed the claimant in the position wherein he was assaulted by the assailant and sustained the injuries from which he suffered.\\\" 66 U.S.App.D.C. at 161, 85 F.2d at 418; accord, Hartford Accident & Indem. Co. v. Cardillo, 72 U.S.App.D.C. 52, 55,112 F.2d 11, 14 (1940). Similarly, in Kolson v. District of Columbia Dep't of Employment Servs., 699 A.2d 357, 361 (D.C.1997), the claimant was a bus driver who was walking to a hotel late at night after finishing his shift when he was struck from behind with a pipe by an unknown assailant. The motive for the assault was not discovered. This court held that so long as the claimant's walk to the hotel was related to or incidental to his employment, his injury from the unexplained assault on the way was compensable. Id. at 361-62. See also Tredway v. District of Columbia, 403 A.2d 732 (D.C.1979), where this court held that a teacher's injuries resulting from her assault, robbery and rape by two strangers in her classroom after class were covered by the Federal Employees' Compensation Act. \\\"[Coverage,\\\" we said, \\\"cannot be denied on the grounds that the injury was not an inherent risk or hazard of the type of job. All that is required is that injury result from a risk incidental to the environment in which the employment places the claimant.\\\" Id. at 736.\\nThe Assault on Clark\\nTurning to the present case, Clark established that she was at work, engaged in the course of her usual duties, when a co-worker summoned her to the employer-owned parking lot. There she was assaulted and seriously injured by an unknown assailant for unknown reasons. On these undisputed facts, the hearing examiner found, and we agree, that Clark presented enough evidence to invoke the \\u00a7 36-321(1) presumption that her injuries arose out of her employment and were compensable. We must consider, then, whether BMA presented substantial evidence \\\"specific and comprehensive enough\\\" to rebut the presumption, bearing in mind our obligation to resolve doubts in the claimant's favor. See Brown, 700 A.2d at 791; Baker, 611 A.2d at 550; Dunston, 509 A.2d at 111.\\nBMA's evidence, which the hearing examiner credited, showed that Clark was the victim of a targeted assault. Her assailant picked out a specific red car in the lot and asked for the lady who drove that car. He focused on that person to the exclusion of other BMA employees, including other employees present in the lot. The inference from these facts is obviously strong that Clark's assailant had prior knowledge of some sort concerning the driver of the red car and an animus toward that person, even if he did not know her name and could not recognize her on sight.\\nIn our view, however, this evidence was not \\\"specific and comprehensive\\\" enough to remove doubts and rebut the presumption of coverage, for the precise reason that the motive behind the assault remains unknown and speculative. A finding that Clark's assailant had some motive to target her specifically is not the same as a finding that he had a personal, non-work related motive to do so. It is possible to speculate about a multiplicity of motives for the assault, some having a relationship to Clark's employment and some not.\\nWe do not suggest that an employer must rule out every conceivable work-related hypothesis in order to shoulder the burden of producing substantial evidence to rebut the presumption that an unexplained workplace assault arises out of the claimant's employment. But the evidence before the hearing examiner in this case did not afford a reasonable basis to choose the \\\"personal vendetta\\\" hypothesis over other possible hypotheses that would link the attack on Clark to the obligations or conditions of her employment. For example, had the assailant said something to Clark that was clearly personal, rather than the incomprehensible mutterings he did make, this might be a different case because then the hearing examiner would have had a basis for finding a purely personal motive for the assault. On the record before us, however, there was simply no evidence which would have enabled the examiner to make a rational choice among the competing possible explanations for the assault. It is for this reason that we can find no substantial evidence to support the hearing examiner's inference. In fact, some of the evidence in this case casts doubt on the \\\"personal vendetta\\\" explanation. The assailant did not know Clark by face or name. He did not recognize her as being the driver of the car he pointed out. Clark did not know or recognize him or his name. And the assailant's unintelligible remark that he was \\\"tired of Terry and James\\\" lends no support to the \\\"personal vendetta\\\" theory. We cite these facts not because we think that they refute the \\\"personal vendetta\\\" explanation, but only to underscore the point that that explanation was not shown to be more likely than alternative explanations that incorporated a causal relationship to Clark's employment.\\nIn short, the finding that the assault on Clark was the product of a personal vendetta unrelated to her employment was not supported by substantial evidence. Hence that finding cannot stand. See Citizens Association of Georgetown, 402 A.2d at 42. This case is not, in our view, materially distinguishable from Hoage. As in Hoage, so too here \\\"the claimant's injury arose out of [her] employment, because the terms and conditions of [her] employment placed the claimant in the position wherein [she] was assaulted by the assailant and sustained the injuries from which [she] suffered.\\\" 66 U.S.App.D.C. at 161, 85 F.2d at 418. BMA did not, therefore, succeed in presenting sufficient evidence to rebut the statutory presumption of coverage.\\nAccordingly, we reverse the decision of the Department of Employment Services denying Clark's claim for relief on the ground that her injuries did not arise out of her employment, and we remand this case for a determination of the benefits to which Clark is entitled under the Act.\\nSo ordered.\\n. Our recitation of the facts tracks the hearing testimony, which was not materially disputed and which was accepted by the hearing examiner.\\n. Although Clark testified that she was aware of previous crimes committed on her work premises, she did not present evidence specific or substantial enough to support a claim of a dangerous work environment.\\n. \\\" 'Injury' means accidental injury or death arising out of and in the course of employment, and such occupational disease or infection as arises naturally out of such employment or as naturally or unavoidably results from such accidental injury, and includes an injury caused by the willful act of third persons directed against an employee because of his employment.\\\" D.C.Code# 36-301(12).\\n. \\\"In any proceeding for the enforcement of a claim for compensation under this chapter it shall be presumed, in the absence of evidence to the contrary: (1) That the claim comes within the provisions of this chapter . D.C.Code \\u00a7 36-321(1).\\n. The Federal Employees' Compensation Act uses the same causal test as the Longshoremen's and Harbor Workers' Compensation Act (LHWCA), see Tredway, 403 A.2d at 736, which was the predecessor to the District of Columbia Workers' Compensation Act \\\"and is similar [to it] in all relevant aspects,\\\" see Grillo, 540 A.2d at 749 n. 15.\\n. In comparison, in Fazio v. Cardillo, 71 App.D.C. 264, 109 F.2d 835 (1940), coverage was denied because the claimant sustained his injuries in what the court found was a purely \\\"personal altercation between the claimant and a co-employee, over a matter unrelated to the performance of their duties.\\\" 71 App.D.C. at 265, 109 F.2d at 836.\\n.The fact that Clark's injuries were sustained in the employer's parking lot during her break, rather than in the building while she was actually performing her duties, does not preclude compensation \\u2014 nor do the parties dispute the notion that injuries received in an employer parking lot may be compensable. See Blaw-Knox Foundry & Mill Machinery, Inc. v. Dacus, 505 N.E.2d 101 (Ind.App.1987); Motion Control Indus. v. Workmen's Compensation Appeal Bd., 145 Pa.Cmwlth. 399, 603 A.2d 675 (1992).\\n. The unsubstantiated speculation, offered by Clark herself to the police following her shooting, that her daughter's husband might have had a motive to hurt her, had no probative value. As noted above, there was no evidence that the son-in-law was connected to the shooting. Cf. Harris v. Henry's Auto Parts, Inc., 57 N.C.App. 90, 290 S.E.2d 716 (1982) (affirming an award of benefits to decedent's family where even though a previous girlfriend had shot Harris in the past, the police had no proof that she was involved).\\nSignificantly, too, the hearing examiner and the Director gave no weight to the suggestion that the son-in-law might have been involved. Even if there had been substantial evidence supporting the hypothesis that Clark's son-in-law was responsible for the attack on her, \\\" 'this court cannot uphold a DOES decision on grounds other than those actually relied on by the agency.' \\\" District of Columbia v. District of Columbia Dep't of Employment Servs., 734 A.2d 1112, 1115 n. 3 (D.C.1999) (quoting Jadallah v. District of Columbia Dep't of Employment Servs., 476 A.2d 671, 675 n. 3 (D.C.1984)). \\\"[A]n administrative order can be sustained only upon the basis relied upon by the agency\\\"; where facts \\\"do not form a part of the agency's decision . [w]e cannot substitute our judgment for that of the agency nor make findings on issues which the agency did not address.\\\" Cooper v. District of Columbia Dep't of Employment Servs., 588 A.2d 1172, 1176 (D.C.1991).\"}"

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+"{\"id\": \"11638636\", \"name\": \"WYETH LABORATORIES, INC., Appellant v. Cheleen JEFFERSON, et al., Appellees\", \"name_abbreviation\": \"Wyeth Laboratories, Inc. v. Jefferson\", \"decision_date\": \"1999-02-18\", \"docket_number\": \"Nos. 96-CV-1863, 97-CV-857\", \"first_page\": \"487\", \"last_page\": \"495\", \"citations\": \"725 A.2d 487\", \"volume\": \"725\", \"reporter\": \"West's Atlantic Reporter, Second Series\", \"court\": \"District of Columbia Court of Appeals\", \"jurisdiction\": \"District of Columbia\", \"last_updated\": \"2021-08-10T18:03:36.848757+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before TERRY and STEADMAN, Associate Judges, and BELSON, Senior Judge.\", \"parties\": \"WYETH LABORATORIES, INC., Appellant v. Cheleen JEFFERSON, et al., Appellees.\", \"head_matter\": \"WYETH LABORATORIES, INC., Appellant v. Cheleen JEFFERSON, et al., Appellees.\\nNos. 96-CV-1863, 97-CV-857.\\nDistrict of Columbia Court of Appeals.\\nArgued April 16, 1998.\\nDecided Feb. 18, 1999.\\nSteven M. Farina, Washington, DC, for appellant.\\nBrandon J. Levine, with whom Aaron M. Levine, Washington, DC, was on the brief, for appellees.\\nBefore TERRY and STEADMAN, Associate Judges, and BELSON, Senior Judge.\", \"word_count\": \"4120\", \"char_count\": \"25513\", \"text\": \"TERRY, Associate Judge:\\nAppellant, Wyeth Laboratories, Inc. (\\\"Wyeth\\\"), appeals from an order denying its motion to dismiss, on the ground of forum non conveniens, product liability claims filed by four Maryland residents. Wyeth contends that because none of the four appellees lives or works in the District of Columbia and none of the events giving rise to their claims occurred in the District of Columbia, there is no reason for this case to be tried in the District of Columbia courts. Appellees contend that because the parties have had \\\"contacts with the District of Columbia and its neighboring jurisdictions,\\\" and because Wyeth's motion was filed after the commencement of discovery, the trial court did not err in denying the motion. We agree with Wyeth, reverse the order denying the motion to dismiss, and remand the case for further proceedings.\\nI\\nOn December 31, 1994, twenty-five plaintiffs, each residing in Maryland, Virginia, or the District of Columbia, jointly filed suit in the Superior Court against Wyeth, a New York corporation with its principal place of business in Pennsylvania. The plaintiffs alleged that they had been injured by Wyeth's product Norplant and sought to recover damages under theories of negligence (failure to warn), strict liability, and breach of warranty.\\nAt a status conference on March 17, 1995, the trial court ordered the parties to meet and confer on the scheduling of discovery. On November 14, by agreement of the parties, the court entered a scheduling order which provided, among other things, that discovery would close on June 30, 1996. By agreement of the parties, the scheduling order was twice modified, and the deadline for closing discovery was eventually extended to October 21, 1996. No trial date was set.\\nDiscovery began, and on January 25, 1996, appellees provided answers to written interrogatories propounded by Wyeth. On March 27 Wyeth noticed the depositions of six plaintiffs, but at the request of plaintiffs' counsel these depositions were rescheduled. The first two plaintiffs were deposed on April 12. A third plaintiff, a resident of Maryland, who was also scheduled to be deposed on that day, instead dismissed her claim.\\nIn the course of the April 12 depositions, Wyeth's counsel questioned plaintiff Cheleen Jefferson about her contacts with the District of Columbia. At the conclusion of this line of questioning, plaintiffs' counsel asked Wyeth's counsel, \\\"Is it your intention to move to dismiss for forum?\\\" Wyeth's counsel responded, \\\"It may well be, depending on the result of my legal research and these depositions.\\\"\\nOn May 8 Wyeth noticed the depositions of six more plaintiffs. Again, plaintiffs' counsel canceled these depositions and indicated that many of the plaintiffs would probably be dismissing them claims. He also suggested that the depositions of the remaining plaintiffs should be deferred pending their decisions on whether to remain in the case. On July 2 Wyeth's counsel wrote to plaintiffs' counsel asking him to identify those plaintiffs who were still expecting to go forward with the lawsuit. Wyeth's counsel also said that Wyeth \\\"intend[s] to file a forum non conve-niens motion once we know which plaintiffs intend to continue with their claims.\\\"\\nOn September 14, 1996, sixteen plaintiffs from Maryland, Virginia, and the District voluntarily dismissed their claims against Wyeth, leaving only nine of the original twenty-five plaintiffs still in the case. On September 17 Wyeth filed a motion to dismiss the claims of four remaining Maryland plaintiffs \\u2014 Cheleen Jefferson, Sallie Epps, Donna Shepherd, and Robin McNair \\u2014 on the ground of forum non conveniens, Wyeth argued for dismissal because, as stipulated by both counsel, none of these plaintiffs lived in the District and none of the events giving rise to the action occurred in the District. On October 25, in a one-page order, the court denied the motion, noting that \\\"the untimeli ness of the motion . was a substantial factor in [its] decision.\\\" Wyeth moved for reconsideration, but the court denied the motion. These appeals followed.\\nII\\nThis court reviews a trial court ruling on a forum non conveniens motion for abuse of discretion but, at the same time, conducts an independent analysis of both the private and the public interests involved. See, e.g., Jimmerson v. Kaiser Foundation Health Plan of the Mid-Atlantic States, Inc., 663 A.2d 540, 542 (D.C.1995); Jenkins v. Smith, 535 A.2d 1367, 1369 (D.C.1987) (en banc). \\\"[Although only a 'clear showing' of abuse of discretion will suffice to reverse the trial court's decision, 'such rulings receive closer scrutiny than most exercises of trial court discretion,' and 'convincing circumstances' may demonstrate trial court error as a matter of law.\\\" Dunkwu v. Neville, 575 A.2d 293, 294 (D.C.1990) (citations omitted). That is what we find here.\\nThe need to consider both public and private factors is derived from the Supreme Court decision in Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508-509, 67 S.Ct. 839, 91 L.Ed. 1055 (1947).\\nThe private factors include potential obstacles to a fair trial, including the relative ease of access to proof, the availability and cost of compulsory process, the enforceability of any judgment obtained, and evidence of vexatiousness or harassment.... The public factors are those affecting the District's own interests, including the congestion of its court dockets with foreign litigation, the imposition of jury duty on District residents for litigation in which the District has no concern, and the inappropriateness of calling on District of Columbia courts to construe the law of another jurisdiction.\\nJenkins v. Smith, 535 A.2d at 1369 (citing Gilbert and other cases); see Kaiser Foundation Health Plan of the Mid-Atlantic States, Inc. v. Rose, 583 A.2d 156, 158 (D.C.1990). When all is said and done, however, the basic question to be resolved is \\\"whether the District has so little to do with [the] case that its courts should decline to hear it.\\\" Jenkins, 535 A.2d at 1371.\\nGenerally, a defendant invoking the doctrine of forum non conveniens bears the burden of establishing a basis for dismissal, Mills v. Aetna Fire Underwriters Insurance Co., 511 A.2d 8, 10 (D.C.1986), and \\\"unless the balance is strongly in favor of the defendant, the plaintiffs choice of forum should rarely be disturbed.\\\" Gulf Oil, supra, 330 U.S. at 508, 67 S.Ct. 839. However, \\\"[w]hen the plaintiff is from another jurisdiction . it is much less reasonable to assume that his choice of a District of Columbia forum is convenient,\\\" and therefore the plaintiffs choice deserves substantially less deference. Mills, supra, 511 A.2d at 10-11; see Eric T. v. National Medical Enterprises, Inc., 700 A.2d 749, 754 (D.C.1997); Kaiser Foundation Health Plan v. Rose, supra, 583 A.2d at 158. Moreover, when neither party resides in the District and the plaintiff's claim has arisen in another jurisdiction, the burden shifts to the plaintiff to justify bringing suit in the District rather than in a forum more significantly connected to the case. Eric T., supra, 700 A.2d at 754; Neale v. Arshad, 683 A.2d 160, 163 (D.C.1996); Dunkwu v. Neville, supra, 575 A.2d at 295.\\nIn this case it is undisputed that neither Wyeth nor any of the appellees are residents of the District and that none of the events giving rise to appellees' claims occurred in the District. Appellees justify their choice of forum by pointing out in their brief that \\\"[a]ll appellees reside or work either in the District or [in] counties contiguous to the District of Columbia\\\" and that Wyeth \\\"is a multinational conglomerate . [which] does massive business in the District of Columbia and derives millions of dollars per year from residents and inhabitants of the District.\\\" These assertions, even if true, are insufficient to sustain appellees' burden. See Neale v. Arshad, supra, 683 A.2d at 163. First, the \\\"counties contiguous to the District\\\" \\u2014 i.e., Montgomery and Prince George's Counties in Maryland \\u2014 are plainly not the District of Columbia. See 1 Stat. 139, ch. 28 (July 16, 1790) (congressional acceptance of territory ceded from Maryland to form the District of Columbia); Md. Acts, ch. 46 (December 23, 1788) (Maryland statute ceding territory to federal government). Second, although a defendant's presence in the District is not irrelevant, \\\"by itself, [it] is insufficient to withstand a motion to dismiss for forum non conveniens.\\\" Smith v. Alder Branch Realty Ltd. Partnership, 684 A.2d 1284, 1288 (D.C.1996) (emphasis in original); see Mills, supra, 511 A.2d at 12 (affirming dismissal when the only connection with the District was the fact that the defendant was licensed to do business in the District). Moreover, contacts with the District sufficient to establish jurisdiction over the defendant under our long-arm statute, D.C.Code \\u00a7 13-425 (1995), do not necessarily require adjudication of a particular claim or claims by the courts of the District of Columbia. See Pitts v. Woodward & Lothrop, 327 A.2d 816, 817 (D.C.1974), cert. denied, 420 U.S. 911, 95 S.Ct. 832, 42 L.Ed.2d 841 (1975).\\nComparison of this case with others involving motions to dismiss for forum non conveniens can be useful. See, e.g., Smith v. Alder Branch Realty, 684 A.2d at 1289; Jenkins v. Smith, 535 A.2d at 1370. Two cases from a few years ago are particularly instructive. In Dunkwu v. Neville, we held that the trial court had abused its discretion in denying a motion to dismiss a medical malpractice action brought by Virginia residents against a Virginia physician. Although the physician maintained offices both in Virginia and the District, he had never examined or treated the plaintiffs in the District. 575 A.2d at 294. In Kaiser Foundation Health Plan v. Rose, a Virginia resident brought a wrongful death action in the District of Columbia against a group of Virginia physicians, based on their allegedly negligent treatment of her husband at a medical center in a Virginia suburb of the District. The trial court denied a motion to dismiss, but on appeal we reversed, even though the health maintenance organization that employed the physicians was incorporated in the District. 583 A.2d at 158-159. These cases are essentially indistinguishable on their relevant facts from the instant case and, accordingly, support our conclusion that the trial court abused its discretion in denying Wyeth's motion to dismiss.\\nOur own review of the public and private factors fails to establish any justification for this case to be tried in the District of Columbia. See Dunkwu v. Neville, 575 A.2d at 295. With the exception of the plaintiffs' choice of forum \\u2014 a relatively minor item since the plaintiffs are not District residents \\u2014 the private factors favor Maryland as a forum because the plaintiffs, the doctors, and the medical records are all located in Maryland. Eric T., supra, 700 A.2d at 755; Kaiser Foundation Health Plan v. Rose, supra, 583 A.2d at 159. Likewise, the public factors favor Maryland as a proper forum for this case. Despite appellees' assertion to the contrary, this is \\\"foreign litigation,\\\" and the courts of the District of Columbia should not be burdened by it. See Mills v. Aetna Fire Underwriters Insurance Co., supra, 511 A.2d at 11 (in cases brought by non-resident plaintiffs, the public interest in reducing the volume of cases on overcrowded court calendars is decisive); see also Eric T. v. National Medical Enterprises, supra, 700 A.2d at 756; Dunkwu v. Neville, supra, 575 A.2d at 297.\\nAppellees argue that this is not \\\"foreign litigation\\\" because all four appellees suffered their injuries within twenty-five miles of the District and because Wyeth's liability expert practices exclusively in the District. These facts, however, do not alter our decision. First, although places within a twenty-five mile radius are close to the District, they are obviously not in the District; hence the situs of each appellee's injury lends no support to appellees' argument. Second, the location of a non-party witness, even a key witness, does not give the District an interest in the outcome of the suit. Moreover, it taxes our credulity for appellees to assert that the location of one of Wyeth's witnesses influenced their choice of forum; appellees themselves point out that Wyeth's witness is part of a national team. See Dunkwu v. Neville, supra, 575 A.2d at 295 (discussing plaintiffs burden).\\nFor all of these reasons, we find no merit in appellees' argument that this case should be tried in the District of Columbia rather than in Maryland.\\nIll\\nQuite apart from the public-and-private-factor analysis required by Gulf Oil, appel-lees' principal contention, both in the trial court and on appeal, has been that Wyeth's motion to dismiss was not \\\"timely.\\\" We disagree.\\nIt is true that once the parties and the court have expended considerable time, money, and effort preparing for trial, factors in addition to those articulated in Gulf Oil may affect a trial court's decision on whether to dismiss for forum non conveniens. See Arthur v. Arthur, 452 A.2d 160, 162 (D.C.1982); Cohane v. Arpeja-California, Inc., 385 A.2d 153, 157 (D.C.), cert. denied, 439 U.S. 980, 99 S.Ct. 567, 58 L.Ed.2d 651 (1978). The court \\\"will not be prompted to exercise its discretion in favor of a defendant who raises the objection to forum after the defendant has answered, taken depositions, proceeded to pretrial, and caused the plaintiff to incur expense in preparing for trial.\\\" Wilburn v. Wilburn, 192 A.2d 797, 801 (1963) (footnote omitted); see Creamer v. Creamer, 482 A.2d 346, 353 (D.C.1984) (affirming denial of motion to dismiss made on the morning of trial); Cohane v. Arpeja-California, Inc., supra, 385 A.2d at 157 (reversing order granting motion made after trial had begun). This does not mean, however, that there is a time limit within which a defendant may seek dismissal on the ground of forum non conveniens; on the contrary, an objection based on forum non conveniens may be made at any time. Creamer v. Creamer, 482 A.2d at 353. Although we agree that such an objection should be made \\\"with reasonable and appropriate promptness,\\\" Fifth & Walnut, Inc. v. Loew's, Inc., 76 F.Supp. 64, 67 (S.D.N.Y.1948), we also agree that delay in filing is just one factor to be considered by the court and, absent very unusual circumstances, should not be given controlling weight. See Bell v. Louisville & Nashville R.R., 106 Ill.2d 135, 146, 478 N.E.2d 384, 389, 88 Ill.Dec. 69, 74 (1985) (rejecting per se rule that defendant must move to dismiss within a specific time); see also Piper Aircraft Co. v. Reyno, 454 U.S. 235, 250-251, 102 S.Ct. 252, 70 L.Ed.2d 419 (1981) (no single factor is dispositive). Moreover, since forum non conveniens is an equitable doctrine based on considerations of fundamental fairness and justice, see Lee-Hy Paving Corp. v. O'Connor, 439 U.S. 1034, 1037, 99 S.Ct. 639, 58 L.Ed.2d 696 (1978) (Powell, J., dissenting from denial of certiorari), delay attributable to the plaintiff should not weigh against granting the defendant's motion. See Ussery v. Kaiser Foundation Health Plan, supra note 7, 647 A.2d at 783 (rejecting argument that delay required denial of defendant's motion to dismiss \\\"because the delay of which [plaintiff] complains was not [defendant's] fault\\\").\\nIn the instant case, the trial court ruled that Wyeth's motion was \\\"untimely.\\\" Arguably, this is a factual finding, at least to some extent, and unless clearly erroneous it must be accepted by this court. See D.C.Code \\u00a7 17-305(a) (1997). However, Wyeth provided the court with compelling evidence- \\u2014 i.e., extracts from depositions and correspondence between the two attorneys\\u2014 that the filing of Wyeth's motion was delayed by the actions of appellees' counsel. Appellees offered no countervailing evidence. Moreover, appellees' counsel was on notice no later than April 12, 1996, that Wyeth was considering a motion \\\"to dismiss for forum,\\\" see page 490, supra, so that appellees cannot reasonably claim that they were surprised by the motion filed five months later. Thus the trial court's finding of fact, assuming (without deciding) that that is what it was, is refuted by the record.\\nAppellees cite cases in which delay in filing has been a significant factor in the court's treatment of a forum non conveniens motion. E.g., Jimmerson v. Kaiser Foundation Health Plan, supra, 663 A.2d at 544; Deupree v. Le, 402 A.2d 428, 429 (D.C.1979). Those cases are inapposite here. In Jim-merson the motion to dismiss was not filed until after \\\"[discovery was complete, a detailed joint pre-trial statement filed, the pretrial conference completed, and a trial date selected.\\\" 663 A.2d at 545. In the instant case, the only discovery that took place was the exchange and answering of interrogatories and six half-day depositions of a handful of plaintiffs. In Deupree, a simple ear accident ease, a trial date had been set and the parties had exchanged and answered interrogatories. In affirming the denial of a motion to dismiss, the Deupree court noted that discovery was not necessary to develop facts to support the motion because the parties knew the situs of the accident and their respective residencies from the outset of the case. 402 A.2d at 429. Also, in both Jim-merson and Deupree, unlike the instant case, there were at least minimal contacts with the District. See Jimmerson, 663 A.2d at 543 (plaintiff lived in the District and received medical treatment in the District from the defendant, a District corporation); Deupree, 402 A.2d at 428 (defendant worked in the District).\\nThus examined in light of the record as a whole, appellees' claim that Wyeth's motion was \\\"untimely\\\" evaporates. Because the delay of which appellees complain was mainly attributable to them rather than to Wyeth, their argument is without merit. Ussery, supra note 7, 647 A.2d at 783.\\nIV\\nCases in which this court reverses a ruling on a motion to dismiss on the ground of forum non conveniens are, and should be, quite rare. See Dunkwu v. Neville, supra, 575 A.2d at 294 (\\\"we take the unusual step of reversing\\\"); Jenkins v. Smith, supra, 535 A.2d at 1370 (\\\"only rarely have we reversed rulings either way\\\"). \\\"[T]here is no set formula for determining when dismissal is warranted because the inquiry is highly fact-specific.\\\" Ussery, supra note 7, 647 A.2d at 780-781 (citation omitted). In this case, however, we can see no reason whatever for the District of Columbia courts to entertain appellees' suit against Wyeth. We therefore reverse the order of the trial court denying Wyeth's forum non conveniens motion and remand with instructions to dismiss the claims of these four appellees, subject to the procedures and conditions set forth in Mills v. Aetna Fire Underwriters Insurance Co., supra, 511 A.2d at 15-16.\\nReversed and remanded.\\n. D.C.Code \\u00a7 13-425 (1995) provides:\\nWhen any District of Columbia court finds that in the interest of substantial justice the action should be heard in another forum, the court may stay or dismiss such civil action in whole or in part on any conditions that may be just.\\n. According to the product literature included in the record, Norplant is a long-term reversible method of birth control sold as a prescription drug. \\\"The Norplant System consists of six thin, flexible capsules, made of a soft rubber-like material, that are inserted just under the skin on the inside of [the patient's] upper arm in a minor, outpatient surgical procedure.\\\"\\nIn their complaint, appellees alleged that Wyeth manufactures and distributes the Norplant contraceptive in the United States. In its answer, Wyeth admitted distributing Norplant pursuant to a license from the product's designer and developer, The Population Council, but denied manufacturing the product. In subsequent pleadings, Wyeth stated that a Finnish corporation, Leiras Oy, assembles the Norplant capsules in Finland pursuant to a license from The Population Council.\\n. Appellees state in their brief that it was clear at this point \\\"that none of the plaintiffs nor their physicians resided within the city limits.\\\" That statement is incorrect. At this juncture, none of the plaintiffs, some of whom were District residents, had yet dismissed their claims, and thus some District residents were still parties to the case.\\n.Wyeth's motion noted that, on the basis of representations made to its counsel, it expected four more plaintiffs to dismiss their claims within the coming weeks, and therefore the motion did not address those plaintiffs. The motion to dismiss also did not refer to the one remaining District resident.\\nOn October 10 four more plaintiffs did in fact dismiss their claims, leaving only four Maryland residents (Jefferson, Epps, Shepherd, and McNair, the four appellees here) and one District resident as plaintiffs.\\n. In the District of Columbia courts, the denial of a motion to dismiss on the ground of forum non conveniens is appealable as a collateral order. Frost v. Peoples Drug Store, Inc., 327 A.2d 810, 812-813 (D.C.1974); see also Jenkins v. Smith, 535 A.2d 1367 (D.C.1987) (en banc) (declining to overrule Frost). The rule is different in the federal courts, where the denial of a forum non conveniens motion to dismiss is not appealable. See Van Cauwenberghe v. Biard, 486 U.S. 517, 527-530, 108 S.Ct. 1945, 100 L.Ed.2d 517 (1988).\\n. Both in the trial court and on appeal, appellees have so stipulated. Moreover, the record shows that each appellee consulted a doctor outside of the District of Columbia, received her Norplant prescription outside of the District, had her surgical procedure to remove the Norplant device outside of the District, and received all medical treatment associated with her use of Norplant outside of the District.\\n.Any suggestion that any appellee resides in the District of Columbia is incorrect; all four appel-lees live in Maryland. Although Toye Jackson, the fifth remaining plaintiff in the case, resides in the District, her claim was not addressed by Wyeth's motion for dismissal, and she is not an appellee. Moreover, this court has \\\"reject[ed] any per se rule which would prohibit the application of the doctrine of forum non conveniens whenever one of the parties is a District of Columbia resident.\\\" Carr v. Bio-Medical Applications of Washington, Inc., 366 A.2d 1089, 1093 (D.C.1976).\\nThe record also does not contain any evidence that any appellee works in the District. In any event, \\\"[t]he fact that a plaintiff is employed in the District of Columbia, insofar as it is relevant to a motion to dismiss on the ground of forum non conveniens, carries very little weight when it is not related to the alleged injury.\\\" Ussery v. Kaiser Foundation Health Plan of the Mid-Atlantic States, Inc., 647 A.2d 778, 781 (D.C.1994).\\n. Appellees do not substantiate this latter claim.\\n. Given our standard of review, we normally \\\"pay particular attention to the reasons articulated by the trial court for its decision.\\\" Smith v. Alder Branch Realty, supra, 684 A.2d at 1287; cf. Beard v. South Main Bank, 615 A.2d 203, 205-206 (D.C.1992) (remanding when trial court failed to give reasons for its denial of forum non conveniens motion). In this case, however, the trial court did not articulate its reasons except to note that it considered the \\\"untimeliness\\\" of the motion to be a substantial factor. That part of the court's ruling will be addressed in part III of this opinion.\\n. Jenkins v. Smith, 535 A.2d at 1369.\\n. Wyeth asserted below, and continues to assert on appeal, that it did not file its motion until September 17, 1996, because it was waiting to gather enough evidence to support a forum non conveniens motion. See Super. Ct. Civ. R. 11(b) (attorney's signature affixed to a motion certifies to the court that \\\"the allegations and factual contentions have evidentiary support\\\"). This assertion is bolstered by the fact that the motion was filed four days after most of the plaintiffs dismissed their claims.\\n. Appellees also cite Group Health Ass'n v. Helmann, 672 A.2d 1089 (D.C.1996). That opinion, however, was later vacated, 675 A.2d 57 (D.C.1996), and was withdrawn from publication.\\n.Relying on Deupree, appellees argue that Wyeth had sufficient information to support its motion from the several sets of answers to interrogatories and therefore should have filed its motion much earlier. This argument ignores the fact that individual plaintiffs were continually dismissing their claims. Moreover, the deposition excerpts in the record demonstrate that Wyeth used this discovery mechanism to ascertain whether a forum non conveniens motion was viable and, if so, which plaintiffs it would affect. See In re Air Crash Disaster, 821 F.2d 1147, 1166 (5th Cir.1987) (en banc) (dismissal of parties has some bearing on the grant or denial of a forum non conveniens motion), vacated on other grounds, 490 U.S. 1032, 109 S.Ct. 1928, 104 L.Ed.2d 400 (1989).\\n. At oral argument, counsel for Wyeth agreed to waive the statute of limitations defense if appel-lees brought suit in Maryland.\"}"

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+"{\"id\": \"11689795\", \"name\": \"Troy P. JAMES, Appellant, v. UNITED STATES, Appellee\", \"name_abbreviation\": \"James v. United States\", \"decision_date\": \"1998-10-08\", \"docket_number\": \"Nos. 94-CF-1555, 96-CO-1792\", \"first_page\": \"1083\", \"last_page\": \"1091\", \"citations\": \"718 A.2d 1083\", \"volume\": \"718\", \"reporter\": \"West's Atlantic Reporter, Second Series\", \"court\": \"District of Columbia Court of Appeals\", \"jurisdiction\": \"District of Columbia\", \"last_updated\": \"2021-08-11T00:04:00.823705+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before FARRELL and RUIZ, Associate Judges, and KERN, Senior Judge..\", \"parties\": \"Troy P. JAMES, Appellant, v. UNITED STATES, Appellee.\", \"head_matter\": \"Troy P. JAMES, Appellant, v. UNITED STATES, Appellee.\\nNos. 94-CF-1555, 96-CO-1792.\\nDistrict of Columbia Court of Appeals.\\nArgued Feb. 3, 1998.\\nDecided Oct. 8, 1998.\\nJohn Thomas Kenney, appointed by the Court, for appellant.\\nDanny C. Onorato, Assistant United States Attorney, with whom Eric H. Holder, Jr., United States Attorney at the time the brief was filed, and John R. Fisher, Thomas J. Tourish, Jr., Gary M. Wheeler and Mary T. O\\u2019Connor, Assistant United States Attorneys, were on the brief, for appellee.\\nBefore FARRELL and RUIZ, Associate Judges, and KERN, Senior Judge..\", \"word_count\": \"4553\", \"char_count\": \"27585\", \"text\": \"RUIZ, Associate Judge:\\nAfter a three-day trial, a jury found appellant, Troy P. James, guilty of four counts of assault with a dangerous weapon (\\\"ADW\\\"), in violation of D.C.Code \\u00a7 22-502 (1996); one count of possession of a firearm during a crime of violence, in violation of D.C.Code \\u00a7 22-3204(b) (1996); and one count of destruction of property, in violation of D.C.Code \\u00a7 22-403 (1996). The trial court sentenced James to concurrent sentences of not less than forty months-and not more than ten years' incarceration for each of the ADW convictions, not less than five and not more than fifteen years' incarceration for the possession of a firearm during a crime of violence conviction, and imposed a fine of $300 for the destruction of property conviction. In his direct appeal (No. 94-CF-1555), James argues that 1) three of his ADW convictions should be vacated because they merge as a matter of law; and 2) the trial court erred when it denied his motion for judgment of acquittal because the evidence at trial was insufficient to support a guilty verdict. In his collateral appeal (No. 96-CO-1792), James contends that the trial court erred in denying, without a hearing, his \\u00a7 23-110 motion alleging ineffective assistance of counsel. With respect to the merger issue, we hold that two of James' four ADW convictions merge as a matter of law, and reverse and remand to the trial court for vacation of two of the ADW convictions. As to the remaining points of alleged error, we affirm.\\nThe Facts\\nEvidence presented at trial showed that on February 3,1994, at approximately 6:30 p.m.-, James phoned the complaining witness, Ms. Shannon Whitmire, an ex-girlfriend and the mother of his seven-month-old child, Stefone, to ask her why she had not called to invite him over to spend the night. She replied that she had made plans to take a friend out for her birthday. In addition, she declined his offer to baby-sit Stefone, stating that she \\\"had already made arrangements for the kids to be kept.\\\" Throughout the conversation, James insisted that she not go out.\\nLater that evening, at around 8:30 p.m., Whitmire heard someone calling her name from outside her apartment and \\\"little tapping noises\\\" caused by rocks being thrown at her window which she recognized as James' customary signal to her that he was waiting outside. She immediately called the police. Shortly thereafter, Whitmire heard \\\"bang ing\\\" and \\\"kicking\\\" noises at the back porch door. She again called the police. During both calls she identified James as the man outside her apartment causing the disturbance.\\nWhitmire called the police yet again when the rock throwing resumed. Upon completing her call, Whitmire received a call from James at a number she recognized as belonging to a pay-phone down the street. James threatened to \\\"come in front of [Whitmire's] house and drink bleach\\\" if she went out. When Whitmire informed him that the police were on their way, James said that he did not care and that he would sit there until they arrived.\\nThe rock throwing then resumed with greater intensity, breaking one of the windows in the living room. In response, Whit-mire again called the police \\u2014 her fourth call. She then looked out the window and saw James standing alone on the sidewalk by the gate of her building. At that point another rock came through the window. Fearing for the safety of her three children, four-year-old Shannika, two-year-old Shante, and seven-month-old Stefone, she moved them into the bedroom. From there, Whitmire heard James banging at the back door, calling out to her and demanding to be let in. After the door banging stopped, Whitmire heard James run down the steps. According to 'Whitmire, \\\"within a matter of seconds\\\" gunshots were fired, sending two bullets through the bedroom window right above her children's heads. The police arrived shortly thereafter.\\nI. Appeal No. 94-CF-1555\\nJames argues that his four ADW convictions should merge as a matter of law. The indictment charged four separate counts of ADW, one count for each of the four individuals in the apartment. At the conclusion of the case, James argued that the counts should be dismissed as to the children because there had been no evidence that James knew the children were in Whitmire's apartment. Although the trial judge- was \\\"troubled\\\" by a lack of evidence of a \\\"specific intent to cause any injury to any of the children,\\\" he concluded that \\\"behavior that is in conscious disregard to the life and safety\\\" of other people might suffice to cover all four counts. The trial court noted that ADW is a general intent crime, which would be supported by the evidence that appellant \\\"was aware that . other children were in the home.\\\"\\nJames argues that three of the four ADW convictions must be vacated as a matter of law because even concurrent sentences are prohibited for merging offenses. See Doepel v. United States, 434 A.2d 449, 459 (D.C.), cert. denied, 454 U.S. 1037, 102 S.Ct. 580, 70 L.Ed.2d 483 (1981). The government counters that this court should affirm two of the ADW convictions because James placed at least two victims at risk of serious injury by firing two bullets. The government relies on Ruffin v. United States, 642 A.2d 1288, 1295-96 (D.C.1994), for the proposition that where a defendant fires multiple shots at a group of persons, with the general intent to assault those persons, multiple convictions, equal to the number of shots putting persons at risk, are appropriate.\\nOur review of merger issues is \\\"limited to assuring that the sentencing court does not exceed its legislative mandate by imposing multiple punishments for the same offense.\\\" Ball v. United States, 429 A.2d 1353, 1358 (D.C.1981) (citing Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977)). While the plain language of D.C.Code \\u00a7 22-502 (1996) does not expressly indicate whether a single act of assault can support multiple convictions, we have held multiple convictions for ADW may be appropriate where the attacker had reason to know that the intended victim was not alone. See Ruffin, supra, 642 A.2d at 1296 (\\\"Knowledge of the [others'] presence rather than a particular intent to harm them is sufficient under the circumstances presented here.\\\"). We also have determined that \\\"the intentional firing of multiple [ten to fifteen] shots into [a] confined space . e[an] sustain an assault charge on each occupant . even if the assailant did not have actual knowledge that [other people] were present.\\\" Id. (emphasis added). Thus, we consider the factual circumstances of each case to determine whether a single act of assault supports multiple convictions.\\nIn this case, we conclude that the evidence at trial supports two of the four ADW convictions. Specifically, the evidence at trial proved that James knew that Whit-mire and her son Stefone were in the apartment. Before firing the shots, James spoke with Whitmire on the telephone at the apartment and called out her name on several occasions. There was also circumstantial evidence that James knew Stefone was in the apartment: James volunteered to baby-sit his son that evening, and Whitmire testified that the children were crying during the attack. Accordingly, two of James' four ADW convictions should be affirmed because he fired two shots and knew of the presence of at least Whitmire and Stefone. See Gray v. United States, 585 A.2d 164, 165 (D.C.1991) (affirming three assault with intent to kill convictions where three shots were fired at three children through a screen door twenty to thirty feet away). We reverse and remand for vacation of the two ADW convictions with respect to Whitmire's two other children, Shannika and Shante.\\nJames' second point of error in his direct appeal is that the trial court erred when it denied his motion for judgment of acquittal because the government did not present sufficient evidence to convict him of the charged offenses. Specifically, James argues that the evidence was insufficient because there was no eyewitness testimony that he fired the bullets into Whitmire's apartment or that he was even seen with a gun. We review the denial of such motions \\\"in the light most favorable to the government and overturn a conviction only if there is no evidence from which a jury could find guilt beyond a reasonable doubt.\\\" Curtis v. United States, 568 A.2d 1074, 1074-75 (D.C. 1990) (citations omitted) (emphasis added). In this analysis, \\\"[w]e do not distinguish between direct and circumstantial evidence.\\\" Ruffin, supra, 642 A.2d at 1291.\\nJames argues that the trial court erred in denying his MJOA because the evidence, viewed in the light most favorable to the government, establishes at most that James was banging on Whitmire's back door and asking to be let in, but not that he fired the two shots into her apartment. Appellant suggests that this court consider the line of constructive possession cases and apply the principle that mere presence without more is insufficient to establish guilt. He further argues that in order for the government to have met its burden, it had to present some evidence to suggest that no one else was in the alley, that only James had access to the alley, or that no one else had the opportunity to commit the offense.\\nAlthough James is correct in asserting that there was no direct evidence that he actually fired the shots into the apartment, there was significant circumstantial evidence presented by the government from which the jury could infer that James assaulted Whitmire and Stefone with a deadly weapon. The elements of intent-to-frighten assault are that 1) defendant committed a threatening act that reasonably would create in another person a fear of immediate injury; 2) when he committed the act, defendant had the present ability to injure another person; and 3) defendant had the intent to perform the act. See Smith v. United States, 593 A.2d 205, 206-07 (D.C.1991). The evidence adduced at trial 1) placed James at the scene of the assault; 2) established James' desire to frighten Whitmire so that she would not go out and let him spend the night; 3) demonstrated James' anger and distress at Whitmire's refusal to allow him entry; and 4) linked James spatially and temporally with the gunshots constituting the assault. James' analogy to constructive possession cases is inapposite because the government used circumstantial evidence to show that James' course of conduct indicated motive, opportunity and intent to carry out the assault.\\nContrary to appellant's argument, the government does not have to prove that no one else had the opportunity to commit the crime. It is enough if the evidence permitted the jury reasonably to infer, beyond a reasonable doubt, that James committed the assault. See Gray, supra, 585 A.2d at 165 (\\\"The evidence need not compel a finding of guilt beyond a reasonable doubt.\\\") (citation omitted). Appellant concedes that the evidence places him at the scene, banging on the door, demanding that he be allowed inside. The jury could have drawn a reasonable inference that James fired two shots into the apartment based on the evidence that earlier he threw rocks into the apartment and that he was adamant about getting into Whitmire's apartment and preventing her from going out. From the inference that James fired the two shots into the apartment it is clear that he had the present ability to injure the occupants of the apartment as the bullets were lodged in the wall of the bedroom where Whitmire and the children were located. Finally, the jury could have determined from the circumstantial evidence that James had the intent to perform the act. Accordingly, we affirm the trial court's denial of James' motion for judgment of acquittal.\\nII. Appeal No. 96-CO-1792\\nJames argues that the trial court erred in denying, without a hearing, the \\u00a7 23-110 motion to vacate his convictions on the ground that his trial attorney provided ineffective assistance of counsel. Ordinarily, we review the denial of \\u00a7 23-110 motions for abuse of discretion. See Johnson v. United States, 633 A.2d 828, 831 (D.C.1993). If, however, the trial court denied the motion without a hearing we \\\"must [be able to] conclude that under no circumstances could the movant establish facts warranting relief' in order to affirm the judgment below. See Ready v. United States, 620 A.2d 233, 237 (D.C.1993) (citation omitted).\\nOn September 16,1994, the trial court held a pre-sentencing hearing to consider James' request for new counsel on the ground that hig trial counsel was ineffective because he allegedly did not: 1) investigate, interview, or contact all defense witnesses; 2) regularly visit the jail to update James on the status of his case; 3) provide requested transcripts and motions until the day of trial; and 4) properly advise James of his rights, including the government's plea offer and James' right to testify. James appeared at the hearing pro se, and the trial court questioned James and trial counsel about James' allegations. The trial court concluded that there was \\\"no basis for the Court to find that trial counsel's performance was deficient in any way.\\\" The trial court also noted that there was no prejudice to James because the evidence against him was \\\"overwhelming\\\". However, the trial court appointed new counsel \\\"for sentencing and other post-sentencing purposes.\\\" When the trial court denied James' pro se motion claiming ineffective assistance of trial counsel, it did so \\\"without prejudice\\\" to any subsequent motion new counsel might file. James did not appeal the trial court's ruling in his direct appeal.\\nOn August 5, 1996, nearly two years later, James filed the \\u00a7 23-110 motion that is the subject of this appeal. In that motion, he argued that his trial counsel was ineffective because he failed to: 1) adequately consult with James before trial about his defense and the government's plea offer; 2) thoroughly investigate James' case, including contacting James' additional alibi witness, Keith Carter; 3) file a suppression motion and conduct appropriate discovery with respect to Deborah Walton's identification of James; 4) prepare James' alibi witness, Bonita Harper, for cross-examination; 5) discredit Whitmire's credibility by showing her bias, in particular, by offering into evidence the letters Whit-mire wrote James while he was incarcerated at Lorton prison; and 6) provide competent legal advice with respect to James' trial, his right to testify in his own defense, and the consequences of refusing the government's plea offer.\\nIn denying James' \\u00a7 23-110 motion without a hearing, the trial court relied on two principal grounds. First, the trial court concluded that the motion duplicated the issues that were resolved at the 1994 pre-sentencing healing. See Vaughn v. United States, 600 A.2d 96, 97 (D.C.1991) (\\\"[T]he trial court 'shall not be required to entertain a second or successive motion for similar relief on behalf of the same prisoner.' \\\") (quoting D.C.Code \\u00a7 23-110(e) (1996)). Second, the trial court concluded that the motion \\\"fail[ed] to shed new light on the issue of ineffective assistance of counsel.\\\"\\nA trial court's rulings with regal'd to allegations of ineffective assistance of counsel present a mixed question of law and fact. See Byrd v. United States, 614 A.2d 25, 30 (D.C.1992). We accept the trial court's factual findings unless they lack evidentiary support, but we review its legal conclusions de novo. See id. To prevail on a \\u00a7 23-110 motion alleging ineffective assistance of counsel, the movant must show that 1) trial counsel was deficient and 2) there is a reasonable probability that, but for such deficiency, the outcome of the trial would have been different. See Spencer v. United States, 688 A.2d 412, 419-20 (D.C.1997) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)).\\nAlthough the trial court previously had heard and denied during the pre-sentencing hearing James' pro se claims of ineffective assistance of counsel with respect to most of the issues raised in counsel's \\u00a7 23-110 motion, James was unrepresented at the hearing and the trial court's denial had been without prejudice to subsequent motions filed by new counsel. Thus, the \\u00a7 23-110 motion filed by new counsel should not have been denied as \\\"successive.\\\" Instead, we affirm the trial court's denial of James' \\u00a7 23-110 motion filed by counsel on the alternative ground, see Alston v. United States, 518 A.2d 439, 440 n. 2 (D.C.1986), that the motion was vague and conclusory and, even if its assertions were true, would not entitle James to a new trial. See Newman v. United States, 705 A.2d 246, 261 (D.C.1997) (\\\"[T]he trial court's denial of a \\u00a7 23-110 motion without a hearing [will be affirmed] only if the claims (1) are 'palpably incredible'; (2) are 'vague and conclusory'; or (3) even if true, do not entitle the movant to relief.\\\") (quoting Gregg v. United States, 395 A.2d 36, 39 (D.C.1978)).\\nJames complains that trial counsel failed in not communicating \\\"sufficiently\\\" with James before trial. As a result, counsel did not understand James' relationship with the complaining witness, did not communicate or explain the government's plea offer until the day of trial and did not advise James of the possible sentence he could receive if he were convicted. James' contention that his counsel provided him with insufficient plea information is not supported by the record. Not only is this allegation \\\"vague and conclusory,\\\" it also fails to specify how James' defense was prejudiced by the delayed communication. In order to claim prejudice, James must show that there is a reasonable probability that he would have pled guilty instead of proceeding to trial if his attorney had properly presented the government's offer. Cf. Hill v. Lockhart, 474 U.S. 52, 58, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). James admits that his attorney notified him of the plea agreement and advised him that a guilty plea would violate the conditions of his probation. James does not claim that had he learned of the plea offer earlier, he would have accepted it. Therefore, the trial court did not err in denying James' motion on this ground.\\nJames contends that trial counsel was deficient in his investigation of the case, including his investigation of Keith Carter as a potential alibi witness. We reject this allegation as vague and conelusory.\\nJames also argues that defense counsel was deficient in not requesting discovery and filing a suppression motion with respect to the identification by Deborah Walton, Whitmire's neighbor across the street, of James at the crime scene. James offers no reason why Walton's identification should have been suppressed, other than to suggest \\\"the possibility of police suggestivity at the time the witness was located approximately five months after the event.\\\" In addition to the conelusory nature of the allegation, we are not persuaded that the failure to file a motion to suppress this identification unduly prejudiced the defense in light of the other substantial evidence that placed James at the crime scene, in particular, Whitmire's unequivocal testimony that James was outside her window and at her back door.\\nJames next alleges that trial counsel was deficient because he did not adequately prepare his alibi witness, Bonita Harper, for cross-examination. In particular, James complains that trial counsel was surprised by a calendar produced at trial by Ms. Harper, which became the subject of the government's cross-examination. In light of the trial court's express and supported finding that, even after cross-examination, Ms. Harper remained \\\"a very, very credible witness,\\\" we conclude that James suffered no prejudice by this alleged deficiency.\\nLastly, James contends that trial counsel was deficient because he failed to discredit Whitmire's testimony as biased and to introduce into evidence the allegedly bias-evoking letters that Whitmire sent to James while he was incarcerated at Lorton prison. James complains that counsel had \\\"no theory or evidence as to why [Whitmire] would make a false accusation against him,\\\" and that counsel referred to the civil protection order \\\"on his own\\\" and against James' wishes. . The record shows that trial counsel attempted to impeach Whitmire's testimony as vindictive, referring to her unhappiness that James was going out with another woman and her action in seeking claims that counsel failed to consult him before trial about the reasons for Whitmire's bias, James fails to point out how any additional information he would have provided on the subject would have led trial counsel to address the bias issue differently. Without determining whether the failure to introduce the letters into evidence was a reasonable tactical choice, see Parker v. United States, 601 A.2d 45, 58 (D.C.1991), we conclude that James effectively waived this issue during trial.\\nJames makes various other conclusory allegations that trial counsel failed to advise him of his rights, including the right to testify. Specifically, James claims that it was counsel's decision, not James', that he not testify. This claim is belied by the record, which shows that, after trial counsel notified the court that James had changed his mind and wished to testify, the trial court conducted a colloquy with James advising him of his \\\"personal\\\" right to testify, which James expressly turned down.\\nWe conclude that James' \\u00a7 23-110 motion alleged no circumstance which warranted relief and accordingly affirm the trial court's denial of the motion for new trial. See Ready, supra, 620 A.2d at 237.\\nAffirmed in part; reversed and remanded in part.\\n. D.C.Code \\u00a7 23-110(1996).\\n. James' previous interactions with Whitmire had resulted in her obtaining a civil protection order against him. Whitmire testified that she had renewed the order on the day she testified at trial out of fear for herself and her children.\\n. There is some discrepancy in the record as to whether two or three gunshots were fired; the police recovered only two bullets from Whit-mire's bedroom wall.\\n. It appears that at the outset of trial, the government expressed its intention to submit one count of ADW, including all four victims, to the jury. At the conclusion of trial, when James had renewed his motion for judgment of acquittal, the government argued that the case should go to the jury on all four counts to limit potential jury confusion, and avoid unanimity issues. On appeal, James argues that all but one of the ADW convictions should be vacated \\\"as a matter of fairness\\\" because that had been,the understanding of the parties and the trial court. Our review of the record indicates that, although the trial court was inclined to believe that all the ADW counts would merge at sentencing, the trial court also indicated that there was sufficient evidence to go to the jury with respect to each of the victims when it denied James'. MJOA. Thus, we perceive no \\\"agreement\\\" that would prevent our addressing the matter as a legal issue.\\n. D.C.Code \\u00a7 22-502 (1996) reads:\\nEvery person convicted of an assault with intent to commit mayhem, or of an assault with a dangerous weapon, shall be sentenced to imprisonment for not more than 10 years.\\n. As all sentences for the ADW convictions were identical and concurrent, there is no need for resentencing on the convictions that remain.\\n. The gun was not submitted into evidence. Thus, constructive possession cases are inapplicable here because the government is not making James' proximity to the gun a factor in this case. The prosecutor relied on evidence other than the gun or James' mere presence to establish the government's prima facie case.\\n. See discussion infra.\\n. James did not submit an affidavit in support of his \\u00a7 23-110 motion.\\n. At the pre-sentence hearing, the trial court learned that it had been difficult to reach Mr. Carter before trial, because, according to James, \\\"he was on the run from the police.\\\" We note that, at no time, has James filed an affidavit detailing the substance of Carter's testimony. From the record it does not appear that Carter's testimony would support James' alibi defense at the time of the assault, although it would have corroborated Bonita Harper's testimony that James had been at her home earlier in the evening. See Reaves v. United States, 694 A.2d 52, 57 n. 6 (D.C.1997). James alleges that counsel was also deficient in failing to investigate the crime scene and to order a copy of the preventive detention hearing statement, without elaborating on how these actions, even if we assume that they are advisable, would have impacted his trial.\\n. Ms. Harper testified on redirect that she and defense counsel had never discussed what her testimony would be at trial.\\n. According to the \\u00a7 23-110 motion, James would have informed counsel that Whitmire and James had more contact than she admitted and that she felt scorned because she had been planning to marry him.\\n. The trial court, concerned about the \\\"late-breaking\\\" existence of the letters, conducted an ex parte inquiry to determine whether James approved defense counsel's trial strategy. The following excerpt highlights James' waiver:\\nCOURT: Now, . these late breaks in developments cause me some concern. I just wonder if there is any question, Mr. James, in your mind about whether or not Mr. Stow has represented you to the best of his ability.\\nJAMES: Yes, I feel like he has represented me to the best of his ability. Yes.\\nCOURT: If you wish to voice any complaints at this time I will listen to them, otherwise we will get in gear and get back to trial.\\nJAMES: You mean complaints as far as my case?\\nCOURT: Yes.\\nJAMES: The only complaint I have is Shannon Whitmire states that I am the father of the child....\\n. Apparently, James was ambivalent about whether he should testify. When he met with counsel on a Sunday, he felt he should testify, but, according to the \\u00a7 23-110 motion, felt \\\"overwhelmed by counsel\\\" who \\\"threw his file on the table and said that if he was the defendant, he would not testify.\\\" Early the next morning, counsel received a call from Ms. Harper that James had decided he would testify. Counsel discussed the matter with him later that day at the holding cell, at which time, according to the \\u00a7 23-110 motion, James was again \\\"pressured\\\" by counsel not to testify.\\n.\\nCOURT: In this case you presented evidence, but if you choose not to present any testimony, that is your right. But it is a personal right. It is not a decision [defense counsel] can make. He can only advise you of matters of tactic and strategy. You have to make your own decision whether you wish to testify or not.\\nDo you have any questions about this?\\nJAMES: No.\\nCOURT: Then would you tell me what your decision is?\\nJAMES: No, I am not going to testify.\\nCOURT: Is this your decision or is this something you feel you are being forced to do?\\nJAMES: No, it is my decision.\\nCOURT: All right.\"}"

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+"{\"id\": \"11921955\", \"name\": \"Kevin A. WHITE, Appellant, v. UNITED STATES, Appellee\", \"name_abbreviation\": \"White v. United States\", \"decision_date\": \"1997-04-24\", \"docket_number\": \"No. 94-CF-1593\", \"first_page\": \"1365\", \"last_page\": \"1370\", \"citations\": \"692 A.2d 1365\", \"volume\": \"692\", \"reporter\": \"West's Atlantic Reporter, Second Series\", \"court\": \"District of Columbia Court of Appeals\", \"jurisdiction\": \"District of Columbia\", \"last_updated\": \"2021-08-10T19:06:38.132201+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before WAGNER, Chief Judge, and SCHWELB, Associate Judge, and PRYOR, Senior Judge.\", \"parties\": \"Kevin A. WHITE, Appellant, v. UNITED STATES, Appellee.\", \"head_matter\": \"Kevin A. WHITE, Appellant, v. UNITED STATES, Appellee.\\nNo. 94-CF-1593.\\nDistrict of Columbia Court of Appeals.\\nArgued March 20, 1996.\\nDecided April 24, 1997.\\nM.L. Armstrong, Public Defender Service, with whom James Klein, Public Defender Service, was on the brief, for appellant.\\nAnjali Chaturvedi, Assistant United States Attorney, with whom Eric H. Holder, Jr., United States Attorney, and John R. Fisher, Roy W. McLeese, III, and Ronald Walutes, Assistant United States Attorneys, were on the brief, for appellee.\\nBefore WAGNER, Chief Judge, and SCHWELB, Associate Judge, and PRYOR, Senior Judge.\", \"word_count\": \"2690\", \"char_count\": \"16189\", \"text\": \"WAGNER, Chief Judge:\\nAppellant, Kevin White, a sixteen-year-old at the time of the offense in this case, was charged as an adult pursuant to D.C.Code \\u00a7 16-2301(3) (1981), with second degree murder while armed (D.C.Code \\u00a7 22-2403, - 3202 (1981)), possession of a firearm during a crime of violence or dangerous offense (D.C.Code \\u00a7 22-3204(b) (1981)) (PFCV), and carrying a pistol without a license (D.C.Code \\u00a7 22-3204(a) (1981)) (CPWL). A jury returned a verdict of not guilty on the counts of second degree murder while armed and PFCV. The jury found White guilty of involuntary manslaughter, the lesser included offense of second degree murder, as well as CPWL. The principal issue raised by this appeal is whether the trial court erred in declining to instruct the jury that the accused's age is a factor for consideration in determining culpability for involuntary manslaughter. We conclude that the error, if any, was harmless, and affirm.\\nI. Factual Background\\nA. The Government's Case\\nIt was undisputed that White and Cedric Johnson, Jr. were friends. On the night of June 1, 1993, Johnson was visiting White at White's grandmother's home. About 12:15 a.m., on June 2, 1993, White was talking on the telephone with his girlfriend, Katrina Edwards, and Johnson's friend, Oprah Gad-sen, in a three-way telephone call. Gadsen testified that during the conversation, she heard Johnson say, \\\"get that gun away from me, get that gun out of my face.\\\" White told Johnson that the gun was not loaded, and Johnson repeated \\\"get [the gun] out of my face.\\\" Gadsen then heard a click followed by a gunshot. After the gunshot, she overheard White call to his grandmother and tell her that he had shot Johnson. White returned to the telephone and told Edwards and Gadsen that he had to call an ambulance.\\nLater, White went to police headquarters with his mother where Sergeant Guy Middleton interviewed him. White told Middleton that he shot Johnson accidentally. He explained that he obtained the handgun from his brother and that he thought he had emptied all of the bullets; however, the weapon fell to the floor and discharged, striking Johnson in the eye and killing him. White agreed to take the sergeant to the place where he had secreted the gun and bullets. Subsequently, a police technician, at Sergeant Middleton's request, went to the two locations. He recovered the gun and one bullet casing near 6816 Foot Street in Seat Pleasant, Maryland. He recovered three live rounds of ammunition at 5747 East Capitol Street.\\nWhite returned to the police station where he was questioned further. Sergeant Middleton characterized White's demeanor as \\\"insincere\\\" and unremorseful. White asked for his mother, and the sergeant terminated the interview.\\nB. White's Evidentiary Presentation\\nWhite's brother, Donnell Petty, testified that he found the gun alongside his house at 5747 East Capitol Street, and he hid it under his sister's mattress. According to White, who testified on his own behalf, he discovered the gun while looking for money, which he usually kept under that mattress, and left it there. That afternoon, Johnson came to White's house between 4:00 p.m. or 4:80 p.m., and they went to play basketball. White confided to Johnson that he had found the gun. Later that evening, during the three-way telephone call, according to White, Johnson asked repeatedly to see the gun. White retrieved the gun, freed the cylinder, turned it upside down, and shook it in order to unload it. White said that he believed that the weapon was not loaded at that point. However, he admitted that he did not check to see whether all the bullets had been expelled because he thought that once turned upside down, the weapon would empty. White testified that while watching television, and apparently still talking on the telephone, he pulled the trigger and heard a clicking noise. He testified that he was not looking where the gun was pointed. When he pulled the trigger a second or third time, the weapon fired, striking Johnson.\\nWhite's grandmother, Lucille Nelson, and his aunt and uncle, who had been upstairs, came to see what had happened. White told his aunt and uncle that Johnson had been shot. Nelson observed Johnson lying in a \\\"puddle of blood,\\\" and she said that White appeared to be scared and paced about before leaving the house.\\nWhite said that he called for an ambulance and took off his shirt to wrap Johnson's head. He told his family that Johnson had been shot accidentally. White said that he left the house in a panic and went to his mother's home, located at 6016 Martin Luther King Street in Seat Pleasant, Maryland, and he discarded the gun and ammunition along the way. When White reached his mother's home, he told her that he shot Johnson and asked her to take him to the hospital. White's mother went to the hospital, and when she returned, she accompanied White to police headquarters.\\nWhite admitted that he did not tell the truth initially because he was fearful. In addition to the version which White gave to the police about the gun discharging accidentally when he dropped it, he admitted telling his aunt and uncle that someone from outside had killed Johnson.\\nII. Jury Instructions\\nDuring the court's discussion with counsel of proposed jury instructions, the government requested an instruction on involuntary manslaughter while armed, as a lesser offense of second degree murder while armed, based on a theory of criminal negligence, and the defense interposed no objection. The standard instruction, as given by the court, is reprinted in the margin. However, defense counsel requested a modification of the third element with the highlighted additions which follow:\\nThat the conduct which caused the death was a gross deviation from a reasonable standard of care, or in other words, that Mr. White unreasonably failed to \\u2022perceive the risk of harm to Mr. Johnson. In considering the reasonableness of Mr. White's actions, you may consider all of the circumstances surrounding those actions, including Mr. White's age.\\nThe government objected, and the trial court declined to instruct in accordance with the requested modification.\\nIII.\\nWhite argues that the trial court erred in failing to instruct the jury to consider his age as a factor in determining his criminal culpability for involuntary manslaughter. He contends that the standard of care enunciated in the second element for the offense is a gross negligence standard, which like its civil counterpart, requires consideration of the age of the accused in determining the standard of care to which the minor should conform. He argues that the minor accused can be held only to that standard of care which a youth of the same age, intelligence and experience would exercise under similar circumstances. The government argues that the applicable standard is an objective one and that the subjective characteristics of the accused are irrelevant in determining the standard of care for involuntary manslaughter. We consider first the general principles governing involuntary manslaughter in this jurisdiction.\\nInvoluntary manslaughter, the offense for which White was convicted, is \\\"the unintentional killing of another as a result of a noncriminal act which 'creates an extreme risk of death or serious bodily injury' or is a misdemeanor committed in such a way that is particularly dangerous to others.\\\" Reed v. United States, 584 A.2d 585, 588 (D.C.1990) (quoting Comber/Haywood v. United States, 584 A.2d 26, 47-48 (D.C.1990) (en banc)). The government proceeded in this case on the theory of criminal negligence. The element which separates involuntary manslaughter from second degree murder is the level of awareness of the actor of the risk involved in the reckless conduct which causes death. Comber, 584 A.2d at 49. \\\"One who acts in conscious disregard of an extreme risk of death or serious bodily injury is guilty of murder, but if he or she is only unreasonably unaware of such a risk, the crime is involuntary manslaughter.\\\" Id. at 52; United States v. Bradford, 344 A.2d 208, 215 (D.C.1975). \\\"The essence of involuntary manslaughter . is the defendant's lack of awareness of the risk to others from Ms conduct when he should have been aware of the risk.\\\" Reed, 584 A.2d at 588 (citing Comber, 584 A.2d at 48-49).\\nWMte requested the trial court to submit for the jury's determination whether he \\\"unreasonably failed to perceive the risk of harm to the decedent,\\\" considering in that connection \\\"the surrounding circumstances, including Ms age.\\\" Although proposed as an explication of the second element of the involuntary manslaughter (i.e., whether the conduct was a gross deviation from the standard of care), the requested instruction actually focuses on awareness of the risk. In the trial court, White did not take the position, wMch he does in tMs court, that minors should be held to a lesser standard of care by reason of their age as they are in cases involving civil negligence. Therefore, we do not consider that aspect of his claim. The question which remains is whether it constituted reversible error for the trial court to fail to instruct the jury that it could consider White's age and the other circumstances in determining whether he should have been aware of the risk involved in his conduct.\\nWe conclude that, even assuming error in this regard, the error was harmless. See Kotteakos v. United States, 328 U.S. 750, 765, 66 S.Ct. 1289, 1248, 90 L.Ed. 1557 (1946). The critical factors to our determination are \\\" 'the closeness of the case, the centrality of the issue affected by the error, and the steps taken to mitigate the effects of the error.' \\\" Dyson v. United States, 418 A.2d 127, 132 (D.C.1980) (citing Gaither v. United States, 134 U.S.App. D.C. 154, 172, 413 F.2d 1061, 1079 (1969)). The issue affected by the claimed error was not central to the case. Although the government was required to prove that White should have been aware of the risk involved in his conduct, there was no evidence tending to show that White's age caused him to be unaware of the risk involved in pointing a gun at a person and pulling the trigger. The theory of the defense, as developed by the evidence, was not that White could not appreciate the risk of danger because of his age, but that he took every precaution to assure that the weapon was unloaded, and failed in that attempt because of a defect in the weapon.\\nThe government's evidence was strong. A witness testified that she heard the decedent ask White more than once to keep the gun away from him and out of his face, and White persisted in spite of the warning. White admitted failing to look to see whether all of the bullets had fallen from the weapon after he turned the gun upside down and allowed some of the bullets to fall out. He also admitted that he knew that guns cause death. There was also evidence of flight and concealment, and there were inconsistencies in White's version of the incident. On this record, we are satisfied \\\"with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error.\\\" Kotteakos, supra, 328 U.S. at 765, 66 S.Ct. at 1248.\\nMoreover, White was not a child of tender years for whom age might be a significant factor. He was charged as an adult pursuant to D.C.Code \\u00a7 16-2301(3). This section of the Code states that a person sixteen years of age or older is not considered a \\\"child\\\" when he has been charged by the United States Attorney with murder. White was charged with second degree murder while armed, possession of a firearm during a crime of violence or dangerous offense, and carrying a pistol without a license. For these charges, White could be prosecuted in the Criminal Division, thereby removing him from the definition of \\\"child.\\\" This court has held that \\\" 'once an individual who is sixteen years of age or older has been charged by the United States Attorney with a crime [under this statute], that individual shall be deemed transferred for criminal prosecution within the meaning of \\u00a7 16-2307(h), with the resulting termination of Family Division jurisdiction.'\\\" In re M.R., 525 A.2d 614, 615 (D.C.1987) (quoting In re C.S., 384 A.2d 407, 411 (D.C.1977)). If not a circumstance which makes age irrelevant, the fact that White was charged as an adult is one more factor which supports our conclusion that any error was harmless.\\nFor the foregoing reasons, the judgment of conviction appealed from hereby is\\nAffirmed.\\n. White was sentenced under the Youth Rehabilitation Act, D.C.Code \\u00a7 24-803(b) (1981) to concurrent prison terms not to exceed five years for involuntary manslaughter while armed and not to exceed 180 days for carrying a pistol without a license.\\n. Officer Curtis, a ballistics expert, testified that the gun would not fire if dropped to the ground. However, he also testified that the gun had a piece of metal that partially blocked a chamber in the cylinder, preventing one bullet from falling out with the rest of the bullets. Officer Curtis testified that only one trained in firearms would know to use the ejector button to insure that the chambers were empfy, but one should also check visually.\\n. In accordance with the standard criminal jury instruction, the court instructed as follows:\\nWith regard to involuntary manslaughter while armed with a pistol, the essential elements of this offense each of which the government must prove to you beyond a reasonable doubt are, as follows:\\n1. that the defendant caused the death of the decedent;\\n2. that the conduct which caused the death was a gross deviation from a reasonable standard of care;\\n3. that the conduct which caused the death, created an extreme risk of death or serious bodily injury; and\\n4. that at the time of the conduct, the defendant was armed with a pistol.\\nThe gist of the difference between second degree murder while armed with a pistol and involuntary manslaughter while armed with a pistol is in whether the defendant is aware of the risk.\\nTo show guilt of second degree murder while armed with a pistol, the government must prove that the defendant was aware of the extreme risk of death or serious bodily injury.\\nFor involuntary manslaughter, the government must prove, not that the defendant was aware of the risk, but that he should have been aware of it.\\nSee Criminal Jury Instructions for the District of Columbia, No. 4.25 (second degree murder and criminal negligence involuntary manslaughter) and No. 4.03 (added armed element) (4th ed.1993).\\n. In civil negligence cases, a child is not held to the same standard of conduct as an adult, but rather \\\"is required to exercise that degree of care which is ordinarily exercised, by children of like age, education, knowledge and experience.\\\" See Standard Civil Jury Instructions for the District of Columbia, No. 5-7 (Revised ed.1985).\\n. White claims that the asserted error should be reviewed under the constitutional harmless error standard of Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). We disagree. The trial court instructed on all elements of the offense charged and the standard required for conviction. What White claims is that the trial court failed to explain some of the factors which could be considered in determining whether the required elements had been proven. The jury was not left without guidance on the elements. Therefore, we deem the Kotteakos harmless error standard to be appropriate. See Jackson v. United States, 645 A.2d 1099, 1102 (D.C.1994).\"}"

dc/12119978.json

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+"{\"id\": \"12119978\", \"name\": \"Joseph A. MOORE, Jr., Appellant, Phillip K. Moore, Appellant, William K. Bates, Appellant, v. UNITED STATES, Appellee\", \"name_abbreviation\": \"Moore v. United States\", \"decision_date\": \"1992-07-02\", \"docket_number\": \"Nos. 91-CM-742, 91-CM-758, 91-CM-760\", \"first_page\": \"1133\", \"last_page\": \"1136\", \"citations\": \"609 A.2d 1133\", \"volume\": \"609\", \"reporter\": \"West's Atlantic Reporter, Second Series\", \"court\": \"District of Columbia Court of Appeals\", \"jurisdiction\": \"District of Columbia\", \"last_updated\": \"2021-08-11T00:06:31.114976+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before TERRY, STEADMAN and SULLIVAN, Associate Judges.\", \"parties\": \"Joseph A. MOORE, Jr., Appellant, Phillip K. Moore, Appellant, William K. Bates, Appellant, v. UNITED STATES, Appellee.\", \"head_matter\": \"Joseph A. MOORE, Jr., Appellant, Phillip K. Moore, Appellant, William K. Bates, Appellant, v. UNITED STATES, Appellee.\\nNos. 91-CM-742, 91-CM-758, 91-CM-760.\\nDistrict of Columbia Court of Appeals.\\nSubmitted April 10, 1992.\\nDecided July 2, 1992.\\nMartin W. Rosendorf, Silver Spring, Md., appointed by this court, was on the brief for appellant Joseph A. Moore, Jr.\\nBernadette V. Armani, Riverdale, Md., appointed by this court, was on the brief for appellant Phillip K. Moore.\\nBruce E. Denslow, Washington, D.C., appointed by this court, was on the brief for appellant William K. Bates.\\nJay B. Stephens, U.S. Atty., and John R. Fisher, Elizabeth Trosman and Peter R. Zeidenberg, Asst. U.S. Attys., Washington, D.C., were on the brief for appellee.\\nBefore TERRY, STEADMAN and SULLIVAN, Associate Judges.\", \"word_count\": \"2231\", \"char_count\": \"14219\", \"text\": \"SULLIVAN, Associate Judge:\\nThese cases, consolidated on appeal, present the primary issue of whether corroboration is required to prove solicitation for the purpose of homosexual prostitution in the District of Columbia. We hold that it is not. Gary v. United, States, 499 A.2d 815 (D.C.1985) (en banc), cert. denied, 477 U.S. 906, 106 S.Ct. 3279, 91 L.Ed.2d 568 (1986).\\nJoseph Moore also challenges his conviction on the ground that the trial court erred by admitting hearsay statements as substantive evidence against him. In addition, Phillip Moore challenges the sufficiency of the evidence to sustain his conviction. We hold that both arguments are devoid of merit.\\nAccordingly, we affirm the trial court's conviction of each defendant following a consolidated bench trial for soliciting money in exchange for sex in violation of D.C.Code \\u00a7 22-2701(a) (1989). Since we hold, however, that the government was not required to prove corroboration, we affirm on grounds other than those on which the trial court relied in its memorandum opinion dated June 11, 1991. See Craig v. United States, 551 A.2d 440 n. 4 (D.C.1988).\\nI.\\nThe evidence adduced at trial is set forth in the trial court's memorandum opinion as follows: On February 11, 1991, Metropolitan Police officers investigating a suspected male prostitution ring were working undercover in a homosexual bar. Officer Matthew Earls approached Paul Gardner and told him that his friend, Officer Anthony Cesaro, who was posing as a visiting businessman, was looking for male prostitutes. Officer Earls then introduced the two men. Although he walked away from Gardner and Cesaro, Earls remained in the bar with at least one other undercover officer. Officer Cesaro discussed with Gardner the type and cost of sexual services available. Officer Cesaro then observed Gardner make several telephone calls, but he did not overhear the conversations.\\nSubsequently, each of the appellants and two other men entered the bar and spoke separately with Gardner, who then introduced each, in turn, to Officer Cesaro. Officer Earls testified that he observed appellants and the two other men separately approach Cesaro and briefly converse with him. Cesaro testified that his conversation with each appellant was essentially the same. That is, he asked each if seventy-five dollars was sufficient payment and then determined whether each appellant's preference was for \\\"top or bottom.\\\" According to Officer Cesaro's testimony, Bates said his services were restricted to \\\"[t]op only;\\\" Phillip Moore offered \\\"[a]ny-thing you want;\\\" and Joseph Moore said he was \\\"versatile.\\\"\\nAfter the conversations, Officer Cesaro gave a prearranged signal indicating that the \\\"cases had been made.\\\" Officer Earls and other undercover officers in the bar then arrested the five men who had spoken with Officer Cesaro, including appellants.\\nDetective Mark A. Gilkey, the government's expert witness in terminology and modus operandi used by homosexual prostitutes in the District of Columbia, testified that the expression \\\"top or bottom\\\" refers to the respective positions of inserter and receptor in anal intercourse and is widely known among homosexual prostitutes.\\nII.\\nAppellants argue that the government did not corroborate Officer Cesaro's testimony and, therefore, failed to meet its burden of proof for conviction. They cite the testimony of Officers Earls and Cesaro, who stated that none of the appellants' separate conversations with the police officers or with Gardner were overheard.\\nThe trial court ruled, however, that the testimony of Officer Cesaro was sufficient because it was corroborated by the testimony of Officer Earls. Earls testified that after he introduced Officer Cesaro to Gardner, he \\\"maintained [his] presence [at a table] in the lower bar area....\\\" From there, he said, he \\\"saw several individuals [including the three appellants, Gardner and Phillips] approach the officer....\\\" Earls testified that each appellant approached Cesaro at \\\"individual, different times\\\" and that \\\"each conversation . took a few minutes.\\\" He added that Gardner was not present when each of the ap-. pellants approached Officer Cesaro.\\nThe court relied, as do the appellants, on Kelly v. United States, 90 U.S.App.D.C. 125, 130, 194 F.2d 150, 155 (1952), which required corroboration for proof of homosexual solicitation, and Griffin v. United States, 396 A.2d 211 (D.C.1978), which relied on Kelly. The Court held: \\\"Officer Earls' eye-witness testimony provides the necessary corroboration because it affirmed 'the circumstances surrounding the parties at the time [of the encounter] such as presence at the alleged time and place and similar provable circumstances' \\\" (cit ing Kelly, supra, 90 U.S.App.D.C. at 130, 194 F.2d at 155).\\nIn our view, the court and the appellants incorrectly relied on Kelly and Griffin with regard to the corroboration requirement. The controlling law is set forth in this court's en banc decision in Gary, supra, 499 A.2d at 833, which decisively and prospectively \\\"abolish[ed] the [corroboration] requirement entirely\\\" in prosecution of \\\"all sex offenses\\\" without regard to the sex or age of the victim or perpetrator (emphasis added). Solicitation for homosexual prostitution is manifestly a sex offense. Kelly, supra, 90 U.S.App.D.C. at 128, 194 F.2d at 153, states: \\\"The [homosexual solicitation] case before us lies in a field in which our courts have traditionally been unusually skeptical toward the accusation. This has been true of all the so-called sex-offenses.\\\" (emphasis added). See also Wilson v. United States, 106 U.S.App.D.C. 226, 271 F.2d 492 (1959) (quoting the same language).\\nHistorically, the courts' skepticism toward accusations of sex offenses \\u2014 spanning the gamut from rape to sodomy \\u2014 can be traced back to late 17th-century England. Kelly, supra, 90 U.S.App.D.C. at 128, 194 F.2d at 153. Prior District of Columbia law was in accord with the traditional doctrine requiring corroboration for conviction in sex offense cases (\\\"the corroboration doctrine\\\"). See, e.g., Kidwell v. United States, 38 App.D.C. 566, 573 (1912) (the earliest sex offense case we have been able to find which discusses the corroboration requirement in this jurisdiction). See also Ewing v. United States, 77 U.S.App. D.C. 14, 16-17,135 F.2d 633, 635-36, (1942), cert. denied, 318 U.S. 776, 63 S.Ct. 829, 87 L.Ed. 1145 (1943).\\nIn recent years, however, the corroboration doctrine in the District of Columbia, and in general, has gradually eroded. See Arnold v. United States, 358 A.2d 335, 342-43 (D.C.1976) (en banc). In 1976, this court carved out a major exception by abrogating the rule that the testimony of a mature female victim of rape or its lesser included offenses must be corroborated. Id. at 344. Thereafter, in 1982, we held that our decision in Arnold extended to cases involving the crime of assault with intent to commit sodomy perpetrated against a mature female. Sweet v. United States, 449 A.2d 315 (D.C.1982). In 1985, the Council of the District of Columbia created another major exception to the corroboration requirement in sexual assault cases where the complainant was a child. D.C.Code \\u00a7 23-114 (1989). Finally, in Gary, supra, 499 A.2d at 833-34, we completely eliminated the corroboration requirement for prosecution of all sex offenses, which, as stated previously, encompasses the offense of solicitation for homosexual prostitution. Kelly, supra, 90 U.S.App.D.C. at 128, 194 F.2d at 153.\\nThus, we hold that the government had no burden to corroborate Officer Cesaro's testimony, because the corroboration requirement no longer exists in this jurisdiction.\\nIII.\\nAppellant Joseph Moore argues that the introduction, over objection, of hearsay testimony by Officer Earls concerning his conversation with Paul Gardner denied him a fair trial. Specifically, Officer Earls testified: \\\"I met Mr. Gardner in the bar . I approached him and told him that I had a friend of mine who was looking for these prostitutes. He stated that it would be no problem, let me meet [him]. I introduced him to the officer[ ] and that was it.\\\" Although the trial judge allowed this testimony by Officer Earls, he, nevertheless, recognized it as hearsay, and stated repeatedly in open court and in his memorandum that he did not consider it in finding appellants guilty. Therefore, the judge's actions were consistent with the well-recognized \\\"presumption that a trial judge, in deciding a case without a jury, will disregard any inadmissible evidence and any improper argument_\\\" Singletary v. United States, 519 A.2d 701, 702 (D.C.1987); see Harris v. Rivera, 454 U.S. 339, 346, 102 S.Ct. 460, 464, 70 L.Ed.2d 530 (1981) (\\\"In bench trials, judges routinely hear inadmissible evidence that they are presumed to ignore when making decisions.\\\"). We find no error.\\nWhat the judge relied on was evidence that\\nlate at night in a bar, each of the co-defendants, shortly after his arrival, was hurriedly introduced by Gardner to a stranger appreciably older than himself. In addition, . a kind of stichomythia . then occurred between each defendant and the stranger. An offer of money was bluntly made by the undercover agent and unhesitatingly accepted by each co-defendant. Elliptical reference was then made to \\\"top\\\" or \\\"top or bottom.\\\" In each instance, the reference was immediately understood....\\nUnder the circumstances of this case the meretricious nature of the transaction, as well as that of the consideration contemplated, cannot be reasonably disputed. All facets of the encounters indicate[d] that only sexual services were what was being negotiated for money. In blunt, businesslike fashion, an offer of [seventy-five dollars] was, without discussion or inquiry, accepted as a satisfactory amount and a range of services was plainly identified.\\nIV.\\nAppellant Phillip Moore challenges the sufficiency of the evidence to support a finding that he knew the phrase \\\"top or bottom\\\" meant sexual acts as required by D.C.Code \\u00a7 22-2701(a). The record reveals that Officer Cesaro testified that he asked appellant Phillip Moore whether he \\\"liked top or bottom,\\\" to which appellant replied, \\\"anything [you] want.\\\" Moore testified that he interpreted the phrase \\\"top or bottom\\\" to refer to whether an individual is a passive or aggressive person in the context of a homosexual relationship; on the contrary, Detective Gilkey, the government's expert, testified that the phrase, which is widely known among homosexual prostitutes, refers to the respective positions of inserter and receptor in anal intercourse. Moore argues on appeal that while this particular phrase may be familiar to homosexual prostitutes, there is no evidence to suggest that it is known to homosexuals who are not prostitutes. He also contends that the government presented no evidence that he was a homosexual prostitute.\\nAs the trier of fact, the court resolved the conflicting testimony, credited the testimony of both officers, and found that Phillip Moore knew what the phrase \\\"top or bottom\\\" meant. The court's findings are neither plainly wrong nor unsupported by the record, and we will not disturb them. D.C.Code \\u00a7 17-305(a) (1989); Grogan v. United States, 435 A.2d 1069, 1071 (D.C. 1981); see also Blyther v. United States, 511 A.2d 1154, 1158 n. 3 (D.C.1990).\\nFor the foregoing reasons, the judgments appealed from hereby are\\nAffirmed.\\n. Corroboration is not required to sustain a conviction for heterosexual prostitution in the District of Columbia. See Garrett v. United States, 339 A.2d 372, 373 (D.C.1975); Wajer v. United States, 222 A.2d 68, 69 (D.C.1966); Parker v. United States, 143 A.2d 98, 99 (D.C.1958); Price v. United States, 135 A.2d 854, 855-56 (D.C.1957). See also Caminetti v. United States, 242 U.S. 470, 495, 37 S.Ct. 192, 198, 61 L.Ed. 442 (1917).\\n. D.C.Code \\u00a7 22-2701(a) (1989) states in relevant part:\\nIt shall not be lawful for any person to invite, entice, persuade, or address for the purpose of inviting, enticing, or persuading, any person or persons in the District of Columbia for the purpose of prostitution [which is defined as involving the exchange of sexual acts for a fee in D.C.Code \\u00a7 22-2701.1(1) ] or any other immoral or lewd purpose....\\n. Paul Gardner, a/k/a Paul Herrington, another defendant in this case, failed to appear for trial. The fifth co-defendant, Edward Phillips, was also absent from the trial.\\n. While the facts in Gary differ from those in the instant case, we are persuaded that the rationale of Gary applies to the offense of homosexual prostitution. Cf. Sweet v. United States, 449 A.2d 315, 321 (D.C.1982).\\n. Gary further abolished the corroboration requirement in cases \\\"where the sexual nature of the touching makes it an assault.\\\" 499 A.2d at 834. See Beausoliel v. United States, 71 App.D.C. 111, 107 F.2d 292 (1939).\\n. D.C.Code \\u00a7 23-114 (1989) states: \\\"For purposes of prosecutions brought under title 22 of the D.C.Code, independent corroboration of the testimony of a child victim is not required to warrant a conviction.\\\"\\n. As we stated in Gary, 499 A.2d at 834, the District of Columbia now has \\\"an homogeneous rule with respect to corroboration in sex offenses.\\\" See United States v. Sheppard, 186 U.S.App.D.C. 283, 569 F.2d 114 (1977).\\n. According to Webster's Third New International Dictionary 2240 (1986), \\\"stichomythia\\\" is defined as \\\"dialogue . delivered in alternate lines.\\\"\"}"

dc/12257288.json

@@ -0,0 +1 @@
+"{\"id\": \"12257288\", \"name\": \"Sied B. MAHDAVI, Petitioner, v. DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, OFFICE OF CRIME VICTIMS COMPENSATION, Respondent\", \"name_abbreviation\": \"Mahdavi v. District of Columbia Department of Employment Services, Office of Crime Victims Compensation\", \"decision_date\": \"1994-12-08\", \"docket_number\": \"No. 93-AA-1448\", \"first_page\": \"793\", \"last_page\": \"794\", \"citations\": \"651 A.2d 793\", \"volume\": \"651\", \"reporter\": \"West's Atlantic Reporter, Second Series\", \"court\": \"District of Columbia Court of Appeals\", \"jurisdiction\": \"District of Columbia\", \"last_updated\": \"2021-08-10T23:36:28.148618+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before FERREN and FARRELL, Associate Judges, and REILLY, Senior Judge.\", \"parties\": \"Sied B. MAHDAVI, Petitioner, v. DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, OFFICE OF CRIME VICTIMS COMPENSATION, Respondent.\", \"head_matter\": \"Sied B. MAHDAVI, Petitioner, v. DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, OFFICE OF CRIME VICTIMS COMPENSATION, Respondent.\\nNo. 93-AA-1448.\\nDistrict of Columbia Court of Appeals.\\nSubmitted Nov. 10, 1994.\\nDecided Dec. 8, 1994.\\nDouglas M. Gross, Bethesda, MD, was on the brief, for petitioner.\\nVanessa Ruiz, Corp. Counsel at the time the brief was filed, and Charles L. Reischel, Deputy Corp. Counsel, and Rosalyn Calbert Groce, Asst. Corp. Counsel, Washington, DC, were on the brief, for respondent.\\nBefore FERREN and FARRELL, Associate Judges, and REILLY, Senior Judge.\", \"word_count\": \"652\", \"char_count\": \"4138\", \"text\": \"PER CURIAM:\\nOn October 18,1993, the District of Columbia Department of Employment Services (DOES), Office of Crime Victims Compensation, issued a Notice of Final Determination terminating the Protracted Claim Award that petitioner was receiving under the Victims of Violent Crime Compensation Act of 1981 (the Act), D.C.Code \\u00a7 3-401 et seq. (1994). The reason for the termination was that petitioner had not complied with the condition of the award that he submit quarterly documentation of his continuing need for compensation benefits. Petitioner challenges this decision, but we find no error in the agency's application of the governing regulation.\\nI.\\nTitle 28 DCMR \\u00a7 2309.12 (1987) requires the recipient of a protracted disability award (see id., \\u00a7 2309.11) to submit quarterly documentation \\\"of additional medical and out-of-poeket expenses or los[s] of earnings,\\\" so that the Office of Crime Victims Compensation can \\\"verify that the victim had not in fact earned any income and/or that treatment for the injuries has been rendered to the victim within the preceding three (3) months period.\\\" If such verification cannot be made, \\\"the Office may deny further awards of compensation.\\\" In keeping with this regulation, the recipient of a protracted disability award is informed in writing at the time of the award that he or she is \\\"required to submit documentation which will verify your continuing need for assistance to this Office on a quarterly basis (every 90 days),\\\" and that upon failure to provide this documentation in timely fashion, \\\"the Protracted Claim Award will no longer be in effect....\\\"\\nPetitioner does not dispute having received the written notice. He also does not dispute that the last item of documentation he furnished the Office prior to the October 18, 1993, termination was a report from his treating physician, Dr. Joseph, dated June 24,1993, which was more than 90 days before October 18. The fact that petitioner submitted additional bills after the termination date cannot resurrect his claim given the requirement of quarterly submission of documentation. Similarly, petitioner provided the Office with no documentation of continued economic loss during the 90-day period before the October 18 termination. Because petitioner failed to comply with the regulation, the validity of which he does not challenge, the decision of DOES terminating his award was proper.\\nII.\\nPetitioner also contends that DOES stopped paying him benefits for lost earnings in April, 1993, while he was concededly still eligible for compensation, and that he is at least entitled to those economic benefits up to the October termination date. DOES points out that since appellant never presented this claim to the agency, we have no record basis on which to evaluate it. We agree. Assuming that the premise of petitioner's argument is correct, the premature cessation of payments may be a result of administrative error correctable without intervention by the court. Our decision is thus without prejudice to petitioner's seeking relief on this point before the agency.\\nAffirmed.\\n. Petitioner refers to bills he submitted covering treatment by Dr. Joseph on October 15 and November 8, 1993, and February 14, 1994. However, the bill for the October treatment was submitted to the Office for the first time as part of a Statement of Dr. Joseph bearing a \\\"closing date\\\" of November 17, 1993; hence neither that bill, nor obviously the bills for the November and February treatment, could have been considered by the Office before October 18.\"}"

dc/12324526.json

@@ -0,0 +1 @@
+"{\"id\": \"12324526\", \"name\": \"Mills v. Mills\", \"name_abbreviation\": \"Mills v. Mills\", \"decision_date\": \"2017-08-04\", \"docket_number\": \"16-FM-792\", \"first_page\": \"459\", \"last_page\": \"459\", \"citations\": \"172 A.3d 459\", \"volume\": \"172\", \"reporter\": \"West's Atlantic Reporter, Third Series\", \"court\": \"District of Columbia Court of Appeals\", \"jurisdiction\": \"District of Columbia\", \"last_updated\": \"2021-08-11T02:18:47.280797+00:00\", \"provenance\": \"CAP\", \"judges\": \"Williams\", \"parties\": \"Mills v. Mills\", \"head_matter\": \"Mills v. Mills\\n16-FM-792\\n08/04/2017\", \"word_count\": \"9\", \"char_count\": \"66\", \"text\": \"Vacated and Remanded\\nWilliams\"}"

dc/12349276.json

@@ -0,0 +1 @@
+"{\"id\": \"12349276\", \"name\": \"McMillian v. U.S.\", \"name_abbreviation\": \"McMillian v. U.S.\", \"decision_date\": \"2017-12-12\", \"docket_number\": \"16-CO-54\", \"first_page\": \"174\", \"last_page\": \"174\", \"citations\": \"176 A.3d 174\", \"volume\": \"176\", \"reporter\": \"West's Atlantic Reporter, Third Series\", \"court\": \"District of Columbia Court of Appeals\", \"jurisdiction\": \"District of Columbia\", \"last_updated\": \"2021-08-11T02:18:39.632703+00:00\", \"provenance\": \"CAP\", \"judges\": \"Rankin\", \"parties\": \"McMillian v. U.S.\", \"head_matter\": \"McMillian v. U.S.\\n16-CO-54\\n12/12/2017\", \"word_count\": \"7\", \"char_count\": \"54\", \"text\": \"Affirmed\\nRankin\"}"

dc/12507624.json

@@ -0,0 +1 @@
+"{\"id\": \"12507624\", \"name\": \"Marquell GREENE v. U.S.\", \"name_abbreviation\": \"Greene v. United States\", \"decision_date\": \"2019-02-15\", \"docket_number\": \"17-CF-810\", \"first_page\": \"769\", \"last_page\": \"769\", \"citations\": \"203 A.3d 769\", \"volume\": \"203\", \"reporter\": \"West's Atlantic Reporter, Third Series\", \"court\": \"District of Columbia Court of Appeals\", \"jurisdiction\": \"District of Columbia\", \"last_updated\": \"2021-08-27T20:57:45.555050+00:00\", \"provenance\": \"Fastcase\", \"judges\": \"\", \"parties\": \"Marquell GREENE\\nv.\\nU.S.\", \"head_matter\": \"Marquell GREENE\\nv.\\nU.S.\\n17-CF-810\\nDistrict of Columbia Court of Appeals.\\nFebruary 15, 2019\\nDECISION WITHOUT PUBLISHED OPINION\", \"word_count\": \"21\", \"char_count\": \"148\", \"text\": \"Vacated and Remanded.\"}"

dc/12517019.json

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+"{\"id\": \"12517019\", \"name\": \"COLORADO FIRE SPRINKLER, INC., Petitioner v. NATIONAL LABOR RELATIONS BOARD, Respondent Road Sprinkler Fitters Local Union No. 669, U.A., AFL-CIO, Intervenor\", \"name_abbreviation\": \"Colo. Fire Sprinkler, Inc. v. Nat'l Labor Relations Bd.\", \"decision_date\": \"2018-06-08\", \"docket_number\": \"No. 16-1261; C/w 16-1319\", \"first_page\": \"1031\", \"last_page\": \"1041\", \"citations\": \"891 F.3d 1031\", \"volume\": \"891\", \"reporter\": \"Federal Reporter 3d Series\", \"court\": \"Court of Appeals of the District of Columbia\", \"jurisdiction\": \"District of Columbia\", \"last_updated\": \"2021-09-08T21:16:17.237805+00:00\", \"provenance\": \"Fastcase\", \"judges\": \"Before: Rogers and Millett, Circuit Judges, and Randolph, Senior Circuit Judge.\", \"parties\": \"COLORADO FIRE SPRINKLER, INC., Petitioner\\nv.\\nNATIONAL LABOR RELATIONS BOARD, Respondent\", \"head_matter\": \"COLORADO FIRE SPRINKLER, INC., Petitioner\\nv.\\nNATIONAL LABOR RELATIONS BOARD, Respondent\\nRoad Sprinkler Fitters Local Union No. 669, U.A., AFL-CIO, Intervenor\\nNo. 16-1261\\nC/w 16-1319\\nUnited States Court of Appeals, District of Columbia Circuit.\\nArgued September 7, 2017\\nDecided June 8, 2018\\nThomas A. Lenz argued the cause for petitioner. With him on the briefs was L. Brent Garrett.\\nJohn N. Raudabaugh and Glenn M. Taubman were on the brief for amicus curiae Robert Blackwell in support of Colorado Fire Sprinkler, Inc.\\nJeffrey W. Burritt, Attorney, National Labor Relations Board, argued the cause for respondent. With him on the brief were Richard F. Griffin, Jr., General Counsel at the time the brief was filed, Jennifer Abruzzo, Deputy General Counsel at the time the brief was filed, John H. Ferguson, Associate Deputy Counsel, Linda Dreeben, Deputy Associate General Counsel, and Usha Dheenan, Supervisory Attorney.\\nWilliam W. Osborne Jr. argued the cause and filed the brief for intervenor, Road Sprinkler Fitters Local Union 669, U.A., AFL-CIO.\\nBefore: Rogers and Millett, Circuit Judges, and Randolph, Senior Circuit Judge.\", \"word_count\": \"4243\", \"char_count\": \"26742\", \"text\": \"Millett, Circuit Judge\\nWhen the Colorado Fire Sprinkler company's labor agreement with the Road Sprinkler Fitters Union expired, the Company announced that it would no longer recognize or negotiate with the Union as a representative of the Company's employees. The Company asserted a right under Section 8(f) of the National Labor Relations Act, 29 U.S.C. \\u00a7 158(f) (which applies to labor agreements in the construction and building industries), to walk away from the union relationship. The Union begged to differ, contending that a different provision of the National Labor Relations Act, Section 9(a), 29 U.S.C. \\u00a7 159(a), obligated the Company to continue negotiating in good faith with the Union. The Union filed a grievance, and the National Labor Relations Board sided with the Union. Because the Board's decision rested on insubstantial evidence and failed to address important evidence supporting the Company, we grant the Company's petition for review, deny the Board's cross-application for enforcement, vacate the Board's decision, and remand.\\nI\\nA\\nThis is a tale of two statutory provisions, and of a Union's effort to move between them.\\nUnder the more commonly employed Section 9(a) of the National Labor Relations Act, a union that obtains the support of \\\"the majority of the employees in a unit\\\" will become the recognized representative of those employees, and the employer will be obligated to communicate and negotiate with it on the terms and conditions of employment. 29 U.S.C. \\u00a7 159(a). A union recognized under Section 9(a) \\\"enjoys numerous benefits, including a conclusive presumption of majority status during the term of any collective-bargaining agreement, up to three years.\\\" Raymond F. Kravis Center for the Performing Arts, Inc. v. NLRB , 550 F.3d 1183, 1188 (D.C. Cir. 2008) (citation omitted). An employer's refusal to bargain with a union recognized as the employees' Section 9(a) representative is an unfair labor practice. See 29 U.S.C. \\u00a7 158(a)(5).\\nA different rule operates in the building and construction industries. For those businesses, labor costs need to be known in advance so that companies can bid for work. In addition, union organization is difficult because projects can be relatively short-lived and employees migrate between jobs. See Nova Plumbing, Inc. v. NLRB , 330 F.3d 531, 534 (D.C. Cir. 2003) (explaining that Section 8(f) addresses \\\"the unique nature\\\" of industries that \\\"need to draw on a pool of skilled workers and to know their labor costs up front in order to generate accurate bids,\\\" and in which employees often \\\"work for multiple companies over short, sporadic periods\\\").\\nTo address those challenges, Section 8(f) of the National Labor Relations Act allows employers and unions in the building and construction industries to enter into what is known as a \\\"pre-hire agreement.\\\" Nova Plumbing , 330 F.3d at 534 (citation omitted). Under such an agreement, the business and union agree in advance that a particular union will represent employees, and they may even negotiate the initial terms and conditions of employment directly between themselves. That can all occur without any vote by the employees, or even before a single employee is hired. See 29 U.S.C. \\u00a7 158(f).\\nA pre-hire agreement in the construction and building industries is presumed to be governed by Section 8(f) rather than Section 9(a). Allied Mechanical Services, Inc. v. NLRB , 668 F.3d 758, 766 (D.C. Cir. 2012). A Section 8(f) relationship can convert into a Section 9(a) relationship only if the union \\\"either petition[s] for a representation election or demand[s] recognition from the employer by providing proof of majority support.\\\" M & M Backhoe Service, Inc. v. NLRB , 469 F.3d 1047, 1050 (D.C. Cir. 2006).\\nUnder the more commonplace Section 9(a) union representation, when a collective bargaining agreement expires, the employer generally must continue to negotiate with the union in good faith and preserve the status quo in employment terms and conditions. See , e.g. , NLRB v. Katz , 369 U.S. 736, 743, 82 S.Ct. 1107, 8 L.Ed.2d 230 (1962) (holding that \\\"an employer's unilateral change in conditions of employment under negotiation\\\" is a violation of the National Labor Relations Act because \\\"it is a circumvention of the duty to negotiate\\\"); Nova Plumbing , 330 F.3d at 534 (noting that, under Section 9(a), when a collective bargaining agreement expires, an employer must \\\"continue bargaining * unless the company can demonstrate either that the union has in fact lost majority support or that the employer has a good faith uncertainty as to the union's status\\\").\\nNot so for Section 8(f) agreements. For them, the employer (or the union) \\\"may repudiate the terms of a pre-hire agreement when it expires,\\\" and the employer has \\\"no obligation to bargain with the union\\\" upon expiration. M & M Backhoe , 469 F.3d at 1048.\\nThat is all a long way of saying that, when a labor agreement expires, an employer's rights and obligations under Section 8(f) and Section 9(a) of the National Labor Relations Act are substantially different. And therein lies the rub in this case.\\nB\\nColorado Fire Sprinkler, Inc., installs, services, and inspects fire sprinkler systems across commercial properties in Southern Colorado. Ken Stringer founded the Company in 1991 and still serves as its sole owner. At the time of the Company's founding, Stringer entered into a Section 8(f) pre-hire agreement with the Road Sprinkler Fitters Local Union No. 669, a national union. In that Agreement, the Company agreed to recognize the Union as the representative of its employees, to comply with the terms and conditions for employees' work set by the Union, and to make monthly payments to the Union's national Health and Welfare, Education, and Pension Funds to cover its future employees' health insurance, retirement, and ongoing training requirements.\\nThe Section 8(f) pre-hire agreement was actually a form agreement the terms of which were predetermined by the National Fire Sprinkler Association (an outside association of sprinkler installation companies of which the Company was not a member) and the national Union. The Company did not negotiate or have any input concerning the terms of the agreement. Illustrating the cookie-cutter nature of the terms, the first agreement that Stringer signed was in 1991, three years before the Company hired a single sprinkler fitter. Yet that 1991 Agreement included a provision labeled \\\"Acknowledgement of the Representative Status of Road Sprinkler Fitters Local Union No. 669,\\\" purportedly certifying that \\\"on the basis of objective and reliable information,\\\" the Company had \\\"confirmed that a clear majority of the sprinkler fitters in its employ\\\"-of which it had none-\\\"have designated, are members of, and are represented by [the Union] for purposes of collective bargaining.\\\" J.A. 93. The 1991 Agreement went on to have the Company \\\"unconditionally acknowledge[ ] and confirm[ ]\\\" that the national Union \\\"is the exclusive bargaining representative of its sprinkler fitter employees pursuant to Section 9(a) of the National Labor Relations Act.\\\" J.A. 93.\\nIn 1994, the Company hired its first employees. Over the next two decades, the Company continued to hire employees primarily through the Union's apprenticeship program, and entered into successive multi-year representation Agreements with the Union. The next three Agreements-in 1994, 1997, and 2000-likewise said that the Company acknowledged \\\"the Union's status as the exclusive bargaining representative of its employees pursuant to Section 9(a) of the National Labor Relations Act.\\\" J.A. 85; 87; 89.\\nIn 2005, the Company signed its fifth Agreement with the Union, which again was a nationwide form contract. The 2005 Agreement included a similar acknowledgement of representative status, and then added the additional statement \\\"that the Union has offered to provide the Employer with confirmation of its support by a majority of such employees.\\\" J.A. 83. The subsequent two Agreements retained that same language.\\nIn 2010, Stringer told the Union that the Company was in serious financial straits, and that he was concerned that he would be unable to continue meeting the same contractual obligations, especially the payments into the Union's Health and Welfare, Education, and Pension Funds. After some convincing, Stringer chose to renew the Agreement. Stringer's predictions came true, however, and the Company became delinquent on fund payments three months before the contract's expiration in March 2013. Stringer met with the Union several times over the next few months, and eventually reached a settlement agreement under which, in June 2013, the Company paid back the three missed contributions.\\nAt that same time, Stringer and the Union were also attempting to hammer out a new collective bargaining agreement. Stringer told the Union's business agent that he wanted to remain a Union contractor, but could not afford fund payments because of increased competition from non-union sprinkler installation companies. The Union responded that the Company was obligated to honor the existing terms and to negotiate a new contract. After several efforts to reach an agreement failed, Stringer informed the Union in October 2013 that he had gone ahead and offered his employees a non-union health insurance plan. The Union claimed that was a violation of their Agreement because it was the employees' exclusive bargaining representative.\\nThe Union then filed two unfair labor practice charges with the National Labor Relations Board against the Company. The charges alleged that the Company had violated the National Labor Relations Act by (i) \\\"discontinuing contributions to the [Union's] benefit funds,\\\" J.A. 55, and (ii) unilaterally implementing a change in the employees' terms of employment in breach of its obligation to negotiate with the Union in good faith and to preserve the existing employment terms in the interim, all in violation of 29 U.S.C. \\u00a7 158(a)(1) and (a)(5). The Company in turn contended that the Union's charges were time-barred and that, in any event, it had lawfully implemented its own healthcare plan because its contractual relationship with the Union was governed by Section 8(f), which imposed no duty to continue bargaining once the contract expired.\\nAn administrative law judge concluded that the Company was at fault, reasoning that the 2005 Agreement had converted the Section 8(f) Agreement into one governed by Section 9(a) and its general prohibition against unilaterally altering employment terms during collective bargaining negotiations. The administrative law judge also concluded that the unfair labor practice charges related to the cessation of payments to the Union's benefit funds were time-barred.\\nThe National Labor Relations Board affirmed in part and reversed in part. Pointing to the added language in the 2005 and subsequent Agreements about the Union's offer of proof of its representative status, the Board agreed that the Company's and Union's relationship had become one governed by Section 9(a) because \\\"clear and unequivocal contract language can establish a 9(a) relationship in the construction industry.\\\" Colorado Fire Sprinkler Inc. and Road Sprinkler Fitters Local Union No. 669, U.A., AFL-CIO , 364 N.L.R.B. No. 55, at 1 (2016) (citing Staunton Fuel , 335 N.L.R.B. 717 (2001) ). The Board then disagreed with the administrative law judge's timeliness finding, and ordered the Company to bargain with the Union, to make up any outstanding contributions to the benefit funds, and to reimburse its employees for any expenses they incurred as a result of the missed contributions.\\nThe Company filed a timely petition for review of the Board's decision, and the Board filed a cross-petition for enforcement.\\nII\\nA\\nRecognizing the Board's substantial expertise in evaluating unfair labor practices, we will affirm the Board's order as long as its factual findings are supported by substantial evidence. Nova Plumbing , 330 F.3d at 536. The Board's analysis, however, must be grounded in the complete record and must grapple with evidence that \\\"fairly detracts from the weight of the evidence supporting [its] conclusion.\\\" Reno Hilton Resorts v. NLRB , 196 F.3d 1275, 1282 (D.C. Cir. 1999) (citation omitted); see also Fred Meyer Stores, Inc. v. NLRB , 865 F.3d 630, 638 (D.C. Cir. 2017). We will also reverse a Board decision if the Board \\\"acted arbitrarily or otherwise erred in applying established law to the facts.\\\" Nova Plumbing , 330 F.3d at 536. Specifically, in reviewing the Board's determination whether a Section 8(f) or 9(a) relationship existed between the parties, \\\"our inquiry is whether the Board's conclusion was reasonable\\\" under existing law. Allied Mechanical Services , 668 F.3d at 772 (citation omitted).\\nAll that means that, in reviewing the Board's decision, we will defer to the reasonable, but will not green light the unreasoned.\\nB\\n1\\nIn deciding whether the relationship between the Union and the Company was governed by Section 8(f), 29 U.S.C. \\u00a7 158(f), or Section 9(a), 29 U.S.C. \\u00a7 159(a), at the time their agreement expired in 2010, we are guided by settled precedent and labor-law principles.\\nTo start, \\\"a construction-industry contract will be presumed to be governed by section 8(f) unless the employer and union clearly intended to create a section 9(a) agreement.\\\" Nova Plumbing , 330 F.3d at 537 (citing J&R Tile, Inc. , 291 N.L.R.B. 1034, 1037 (1988) ) (emphasis added). That presumption attached here. When the Union's and Company's relationship first started, it was governed by Section 8(f), and the 1991 Agreement was a pre-hire contract. It could not be otherwise because, at the time the 1991 Agreement was adopted, the Company had no employees at all-there was no one to vote the Union in as labor's representative under Section 9(a).\\nGiven that Section 8(f) starting point, the General Counsel bore the burden of proof to overcome the presumption of continued Section 8(f) status with \\\"clear[ ]\\\" evidence that both the Union and the Company intended to transition to a Section 9(a) relationship. Nova Plumbing , 330 F.3d at 537.\\nThose burdens of proof matter. The raison d'\\u00eatre of the National Labor Relations Act's protections for union representation is to vindicate the employee s' right to engage in collective activity and to empower employees to freely choose their own labor representatives. See International Ladies' Garment Workers' Union v. NLRB , 366 U.S. 731, 738-739, 81 S.Ct. 1603, 6 L.Ed.2d 762 (1961) (\\\"[T]he premise of the [National Labor Relations] Act * [is] to assure freedom of choice and majority rule in employee selection of representatives.\\\"); see also Skyline Distributors v. NLRB , 99 F.3d 403, 411 (D.C. Cir. 1996) (\\\"One of the principal protections of the [National Labor Relations Act] is the right of employees to bargain collectively through representatives of their own choosing or to refrain from such activity.\\\"). So under Section 9(a), the rule is that the employees pick the union; the union does not pick the employees.\\nThe unusual Section 8(f) exception is meant not to cede all employee choice to the employer or union, but to provide employees in the inconstant and fluid construction and building industries some opportunity for collective representation. See Raymond Interior Systems, Inc. v. NLRB , 812 F.3d 168, 176-177 (D.C. Cir. 2016). A pre-hire arrangement still is ultimately meant to benefit the employees and to promote harmonious labor relations in those industries; it is not meant to force the employees' choices any further than the statutory scheme allows. See NLRB v. Local Union No. 103 , 434 U.S. 335, 346, 98 S.Ct. 651, 54 L.Ed.2d 586 (1978) (stating that the \\\"major purpose\\\" of Section 8(f), in conjunction with other statutory provisions, is \\\"to implement one of the [National Labor Relations] Act's principal goals-to ensure the employees were free to make an uncoerced choice of bargaining agent\\\"); see also Jim McNeff, Inc. v. Todd , 461 U.S. 260, 268-270, 103 S.Ct. 1753, 75 L.Ed.2d 830 (1983).\\nBecause the statutory objective is to ensure that only unions chosen by a majority of employees enjoy Section 9(a)'s enhanced protections, the Board must faithfully police the presumption of Section 8(f) status and the strict burden of proof to overcome it. Specifically, the Board must demand clear evidence that the employees-not the union and not the employer-have independently chosen to transition away from a Section 8(f) pre-hire arrangement by affirmatively choosing a union as their Section 9(a) representative.\\n2\\nThis court's decisions in Nova Plumbing and Allied Mechanical provide two goalposts guiding the analysis of what evidence is required for a union to score a Section 9(a) relationship.\\nIn Nova Plumbing , a construction contractor and union entered into a labor agreement. The contract included a \\\"recognition clause\\\" stating that \\\"independently verified\\\" evidence had been presented to the company \\\"demonstrat[ing] that the Union represents an uncoerced majority of the employees .\\\" 330 F.3d at 535. Despite that language, the record was devoid of any actual evidence of employee support submitted by the union to Nova Plumbing or to anyone else. Even more damning, \\\"uncontradicted testimony\\\" in the record indicated that senior employees actually opposed union representation. Id. at 537.\\nWe held that \\\"contract language\\\" and the \\\"intent\\\" of the union and company alone generally cannot overcome the Section 8(f) presumption, and certainly not when \\\"the record contains strong indications that the parties had only a section 8(f) relationship.\\\" Nova Plumbing , 330 F.3d at 537. While such language could be a relevant factor, the \\\"proposition that contract language alone can establish the existence of a section 9(a) relationship runs roughshod over the principles\\\" of employee choice \\\"established in\\\" Supreme Court precedent. Nova Plumbing , 330 F.3d at 536-537 (citing Garment Workers' Union , 366 U.S. at 738-739, 81 S.Ct. 1603 ). In particular, language crafted solely by the union and employer \\\"completely fails to account for employee rights,\\\" and creates a risk of the union and employer \\\"colluding at the expense of employees and rival unions.\\\" Nova Plumbing , 330 F.3d at 537. For those reasons, an \\\"agreement between an employer and union is void and unenforceable if it purports to recognize a union that actually lacks majority support as the employees' exclusive representative.\\\" Id .\\nConversely, Allied Mechanical established that, when there is strong evidence of employee majority support in the record, such as authorization cards signed by employees, then a union's offer to provide concrete evidence of its majority status can convert a Section 8(f) relationship into a Section 9(a) one. 668 F.3d at 768. Whether the employer viewed that evidence is beside the point; what matters is that the affirmative evidence of majority support exists in the record. Id . ; see M&M Backhoe Service , 469 F.3d at 1050-1051 (union had collected authorization cards).\\nThis case falls in the middle. The record is bereft of evidence either confirming or controverting majority support. In the Company's twenty-year history, there were no petitions, authorization cards, or votes confirming or denying the Union's majority status. No anecdotal evidence was offered either. The only evidence the Union points to is the rote language repeated in a series of contracts purporting to acknowledge the Union's status as \\\"the exclusive bargaining representative of its employees pursuant to Section 9(a) of the National Labor Relations Act.\\\" J.A. 89; 87; 85; 83; see also J.A. 93.\\nThe Board concluded that contract language was enough, invoking past Board precedent holding that a written agreement can \\\"establish a 9(a) relationship if its language unequivocally indicates that the union requested recognition as majority representative, the employer recognized the union as majority representative, and the employer's recognition was based on the union's having shown, or having offered to show, an evidentiary basis of its majority support.\\\" Staunton Fuel , 335 N.L.R.B. at 717 ; see Colorado Fire Sprinkler Inc. , 364 N.L.R.B. at 1 n.3 (\\\"Here, it is undisputed that the Staunton Fuel requirements are met.\\\").\\nThat approach by the Board will not do. The first two prongs of the Staunton test do nothing more than document the union's and employer's views on Section 9(a) status. They say nothing about the pivotal question of employee support for the union. It is the \\\"employees['] freedom of choice and majority rule\\\" that Section 9(a) \\\"guarantees.\\\" Garment Workers' Union , 366 U.S. at 737, 81 S.Ct. 1603. That choice cannot be arrogated by a union or an employer.\\nAs for the third prong, the Board's reliance in this case on a mere offer of evidence in a form contract-the language of which has been proven demonstrably false in at least one prior iteration-would reduce the requirement of affirmative employee support to a word game controlled entirely by the union and employer. Which is precisely what the law forbids. For what Garment Workers' Union , Nova Plumbing , and Allied Mechanical collectively teach is that, while an employer and a union can get together to create a Section 8(f) pre-hire agreement, only the employees , through majority choice, can confer Section 9(a) status on a union. So to rebut the presumption of Section 8(f) status, actual evidence that a majority of employees have thrown their support to the union must exist and, in Board proceedings, that evidence must be reflected in the administrative record.\\nThe Board could point to no such evidence here. None of the usual indicia of majority support-authorization cards or votes-was introduced; it apparently does not exist. And the contract language on which the Board hung its hat defied reality. The very first 1991 Agreement between the Union and the Company recited that the Company had \\\"confirmed that a clear majority of the sprinkler fitters in its employ have designated [the Union] for purposes of collective bargaining,\\\" and that the Union was the \\\"exclusive bargaining representative pursuant to Section 9(a) of the National Labor Relations Act.\\\" J.A. 93. That contract language was objectively false. There is no dispute that the Company had zero employees at the time it signed onto that contract language.\\nNor is there any dispute that every Agreement signed by the Company was a carbon-copy contract proffered by the Union without any input from the Company or its employees. The 1991 Agreement, for example, was sent to Stringer, and \\\"all [he] had to do was sign the agreement.\\\" J.A. 26:13. He did not discuss with the Union what the Agreement contained, and there was no negotiation over its terms.\\nInstead, the union-recognition clauses in the Agreements Stringer signed simply bound him to the terms and conditions of the general agreement between the National Fire Sprinkler Association and the national Union. None of its terms were specific to the Company or its employees.\\nThat same pattern continued for each successive Agreement. They were all just mailed to Stringer, who signed them without any \\\"back and forth on the contents.\\\" J.A. 27:10-11. The resulting union-recognition clauses were boilerplate. Apparently, they were never fact-checked either.\\nThe Board points to the addition of language in the 2005 Agreement stating that the Union \\\"offered to provide the Employer with confirmation of its support.\\\" J.A. 83. But nothing in the record provided the Board any reasonable basis for finding this cut-and-paste language from the national contract any more accurate than the previous empty representations. Tellingly, at no point in the administrative record did the Union even explain, let alone proffer, what evidence it claimed to have collected. Given the central importance of honoring employees' organizational rights and the risks of employer-union collusion, the Board must identify something more than truth-challenged form language before it can confer exclusive bargaining rights on a union under Section 9(a).\\n\\nBy blinking away record evidence undermining the credibility or meaningfulness of the recognition clauses, the Board \\\"entirely failed to consider an important aspect of the problem.\\\" Motor Vehicle Mfrs. Ass'n of U.S. v. State Farm Mut. Auto. Ins. Co. , 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983). Although actual employee support for the Union was the dispositive issue in the case, the record lacks any affirmative evidence-let alone substantial evidence-of the employees' views.\\nThe Board's decision was also arbitrary and capricious. By making demonstrably untrustworthy contractual language the be-all and end-all of Section 9(a) status, the Board adopted a rule of law that would leave in potentially \\\"careless employer and union hands the power to completely frustrate employee realization of freedom of choice and majority rule in employee selection of representatives.\\\" Garment Workers' Union , 366 U.S. at 738-739, 81 S.Ct. 1603.\\nAccordingly, we grant the Company's petition for review, deny the Board's cross-application for enforcement, vacate the Board's decision, and remand.\\nSo ordered .\\nBecause the record does not support the Board's conclusion that the Union was the employees' Section 9(a) representative, we have no need to address the Company's remaining challenges to the timeliness of the Union's unfair labor practice charges or to the remedy imposed by the Board.\"}"

dc/1320117.json

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+"{\"id\": \"1320117\", \"name\": \"GLENN v. ADAMS\", \"name_abbreviation\": \"Glenn v. Adams\", \"decision_date\": \"1898-02-08\", \"docket_number\": \"No. 77\", \"first_page\": \"175\", \"last_page\": \"179\", \"citations\": \"12 App. D.C. 175\", \"volume\": \"12\", \"reporter\": \"Reports of Cases Adjudged in the Court of Appeals of the District of Columbia\", \"court\": \"Court of Appeals of the District of Columbia\", \"jurisdiction\": \"District of Columbia\", \"last_updated\": \"2021-08-10T19:05:06.904362+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"GLENN v. ADAMS.\", \"head_matter\": \"GLENN v. ADAMS.\\nPatents ; Interferences.\\n1. Where in an interference case, there are concurrent findings by all of the tribunals of the Patent Office in respect to mere matters of fact about which the testimony is conflicting, this court will not reverse those findings unless it be shown clearly and beyond reasonable doubt that there has been error committed in comparing and weighing the evidence.\\n2. The facts in such a case, involving the priority of invention of a drilling cable comprising a wire section and a rope section spliced together, considered, and the decision of the Commissioner of Patents affirmed.\\nPatent Appeals.\\nNo. 77.\\nSubmitted November 10,1897.\\nDecided February 8,1898.\\nHearing on an appeal from a decision of the Commissioner of Patents in an interference proceeding.\\nAffirmed.\\nThe facts are sufficiently stated in the opinion.\\nMessrs. Dodge & Sons for the appellants.\\nMessrs. Kay & Totten for the appellees.\", \"word_count\": \"1313\", \"char_count\": \"7709\", \"text\": \"Mr.' Chief Justice Alvey\\ndelivered the opinion of the Court:\\nThis is an appeal from a decision of the Commissioner of Patents in an interference proceeding in the Patent Office instituted and declared between the joint application of Harvey S. Glenn and Coulter E. Glenn and a pending application of Samuel Adams for the same or a similar invention. The application of the Glenns was filed on the 22d of March, 1895, and that of Adams was filed on the 11th of February, 1895. The subject-matter of the invention is a supposed new and useful improvement in the mode of constructing cables, ropes, etc., used for drilling oil, gas, and water wells, and for all other drilling purposes, etc. The issue declared is as follows:\\n\\\"As an improved article of manufacture, a drilling cable comprising a wire section and a rope section spliced together.\\\"\\nThe structure of the article of the alleged invention would seem to be very simple, though its improvement and utility may be very considerable. The object of the splicing is to secure elastic and springing action in the use of the cable, which is not obtainable from an entire wire cable.\\nUnder the preliminary statements of the parties, a considerable volume o'f testimony was taken, and the whole con troversy resolves itself into a few facts, and the testimony in regard to which is exceedingly conflicting. Indeed, the question involved mainly depends upon the credibility of the parties and their witnesses.\\nAdams alleges in his preliminary statement that he conceived the invention about December 1, 1887, and that he disclosed it to others about December 1887, or January, 1888; that he made a drawing of it about December, 1887, and at different times since; that he made experimental tests in drilling with the spliced or combined rope about January, 1888, and at different times since, and that he found by such experiments that the invention was practicable; that in the summer of 1894 he gave permission for the use of the combined cable in controversy in the drilling of a well in which the Glenns were employed, and that the invention was, during the progress of the work in drilling of that well, disclosed to the Glenns, and the use of the invention proved to bo successful.\\nIn the preliminary statement by the Glenns, they allege that they conceived the invention involved in the issue on or about the 18th of October, 1894, and that they communicated such invention to one or more persons on or about the same date, and that Samuel Adams was one of such persons; that the invention was embodied in a full-sized operative form on or about the 25th of October, 1894, and practically operated at that time; that the device lias been in public use from October 25, 1894, and on sale since November, 1894; that drawings or sketches wore made in November, 1894.\\nThese respective preliminary statements wore sworn to by the parties, and the facts stated therein were substantially testified to by the respective parties when they were examined as witnesses.\\nThe case was carefully considered, and the conflicting evidence compared by the examiner of interferences, and he awarded priority to Adams. An appeal was taken by the Glenns to the Board of Examiners in Chief, and that tribunal, upon going over the evidence carefully, affirmed the judgment of the examiner of interferences; and from the latter ruling an appeal was takfen to the Commissioner in person, and he affirmed the previous findings and conclusions.\\nAfter these several concurrent findings in the Patent Office in respect to a mere matter of fact, about which the testimony is conflicting, there could be no reasonable ground to suppose that this court would reverse those findings unless it be shown clearly and beyond reasonable doubt that there had been error committed in comparing and weighing the evidence.\\nWe have examined all the testimony with great care\\u2014 that given by the parties themselves, as well as that given by the disinterested witnesses \\u2014 and we cannot perceive how the officials of the Patent Office could, upon any fair construction of the evidence, have made their findings different from those they have made. If we allow that the circumstantial and apparent candid history of the conception, and the practical experiments made of it, As furnished in the testimony of Adams, is fairly countervailed by that furnished in the testimony of the Glenns, yet the other witnesses in the case, to say nothing of the onus of proof, would seem to make it clear beyond reasonable doubt that Adams was the first to conceive and to make disclosure to others, and was first to make practical experiments of the invention, or, rather, illustrations of it. It is clear, also, that the conception of the invention was disclosed to the Glenns by Nevin, by authority of Adams; and while the Glenns were the first to apply the invention or device in the actual operation of drilling an oil well, yet they did so' upon the suggestion and urgent request of Nevin, and rather against their own judgment as to the practical working of what was to them, at the time, a doubtful invention of anything useful.\\nIt being made clear by the evidence in the case that the conception of the invention was that of Adams, and that he made full disclosure thereof, and that among those to whom disclosure was made was Nevin, who disclosed it to the Glenns, who had not known of the invention before, it would seem to be but a reasonable conclusion that the application of the invention or device in the drilling of the well, upon the suggestion of Nevin, should in reason and justice, inure to the benefit of Adams, as a reduction to practice of his invention. It is immaterial, as said by the examiner of interferences, that the cable was made without any instruction or supervision by either Adams or Nevin. The suggestion or request of Nevin that the cable should be made and used, was a sufficient disclosure of the invention, and, as said by the examiner, \\\"the splicing of wire cables and of manilla cables is old and well known, and and any skilled workman could, it is believed, readily splice a wire cable to a manilla cable without being instructed as to the the manner of doing so, as the mere suggestion would be sufficient for him, and he would exercise no inventive faculty in carrying out the suggestion.\\\"\\nTherefore, Adams being the first to conceive, the first to disclose, the first to reduce to practice and the first to apply to the office for a patent, he is entitled to priority on the present issue.\\nWe must therefore order and direct that the proceedings in this case and this decision he certified to the Commissioner of Patents, to be entered of record in the Patent Office, as directed by law; and it is so ordered.\\nRulings affirmed.\"}"

dc/1328042.json

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+"{\"id\": \"1328042\", \"name\": \"HISEY v. PETERS\", \"name_abbreviation\": \"Hisey v. Peters\", \"decision_date\": \"1895-04-01\", \"docket_number\": \"No. 17\", \"first_page\": \"68\", \"last_page\": \"75\", \"citations\": \"6 App. D.C. 68\", \"volume\": \"6\", \"reporter\": \"Reports of Cases Adjudged in the Court of Appeals of the District of Columbia\", \"court\": \"Court of Appeals of the District of Columbia\", \"jurisdiction\": \"District of Columbia\", \"last_updated\": \"2021-08-10T17:09:48.613244+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"HISEY v. PETERS.\", \"head_matter\": \"HISEY v. PETERS.\\nPatents; Interferences; Priority of Invention ; Appeals in Patent Cases ; Patent Office, Effect of Ruling of ; Evidence, Weight of.\\n2. An interference is a proceeding conducted in the Patent Office for the purpose of determining the question of priority of invention between two or more parties, each of whom is seeking a patent for some invention, or between two or more parties, one of whom is seeking a patent for an invention covered by a prior patent not yet expired.\\n2. Only the question of priority of invention is involved in an interference proceeding; and no party to it can properly raise the question that the issues of the interference do not cover patentable inventions.\\n3. The rights of appeal in the case ol the refusal of a patent upon the ground of non-patentability of the claim, and refusal of a patent because of interference with a prior right of invention, are distinct rights, and the latter does not involve the former; construing R. S. U. S., sec. 4911, and sec. 9 of the act of Congress of February 9, 1893.\\n4. Where the question of priority of invention has been passed upon by the various officials of the Patent Office, the rulings of that office must on appeal be allowed to stand unless the appellant is shown by the evidence beyond any reasonable doubt to have been the first inventor.\\n3. Where the proof of prior conception in an interference proceeding rests virtually upon the imperfectly supported testimony of the party alleging it, such evidence is not sufficient to show priority, especially where there are circumstances throwing doubt upon the testimony.\\nNo. 17.\\nPatent Appeals.\\nSubmitted November 14, 1894.\\nDecided April 1, 1895.\\nHearing on an appeal from a decision of the Commissioner of Patents in a patent interference proceeding.\\nAffirmed.\\nThe facts are sufficiently stated in the opinion.\\nMr. E. M. Marble for the appellant.\\nMr. Frank T. Brown for the appellee.\", \"word_count\": \"2742\", \"char_count\": \"16305\", \"text\": \"Mr. Chief Justice Alvey\\ndelivered the opinion of the Court:\\nThis case is brought into this court on appeal from the rulings of the Commissioner of Patents, on issues of interference declared in the Patent Office, as to priority of invention as between the respective claims of the appellant, Charles S. Hisey, and the appellee, Gershom Moore Peters, for patents for an improvement in cartridge-loading machines. The issues of interference were ruled in favor of the claim of the appellee, and from such ruling the appellant, Hisey, has taken this appeal.\\nThe issues as declared are the following:\\n\\\" i. In a cartridge-loading machine, the combination, with the shell-carrier, of the reciprocating tool-holder, and a constantly revolving crimper located in the path of the tool-holder, whereby the tool-holder on its descent depresses the crimper.\\n\\\" 2. In a cartridge-loading machine, the combination, with a shell-carrier, of the reciprocating tool-holder, a constantly revolving crimper located in the path of the tool-holder for depressing said crimper, and a spring for raising said crimper.\\\"\\nThe invention involved in this alleged interference respects alone the mechanism and combination of the crimping device, instead of the former device in use on cartridge-loading machines, of an indenter of the cartridge.\\nIt appears that, on June 24th, 1889, Hisey, the appellant, made application to' the Patent Office for a patent for his alleged invention of an automatic cartridge-loading machine of the endless-belt type, for loading shot-gun or sporting cartridges, and this application comprehended or embraced the crimping mechanism or appliance.\\nIt also appears that, on July 31, 1891, the appellee, Peters, made application to the Patent Office for a patent for improvement in crimpers for cartridge-loading machines. This application is alleged to be a division of a previous application filed by him on September 28, 1889.\\nThese applications thus pending in the office, the Commissioner of Patents, on December 21, 1891, declared an interference between the applications of the parties, and framed the issues of interference that we have just stated.\\nThe well known and defined meaning of an interference is, that it is a proceeding conducted in the Patent Office for the purpose of determining the question of priority of invention between two or more parties, each of whom is seeking a patent for some invention, or between two or more parties, one of whom is seeking a patent for an invention covered by a prior patent not yet expired. This is a question most generally of pure fact, and involves only the consideration of priority of invention.\\nIn this case the appellant has assigned many reasons for the appeal, but these he reduces to two principal propositions or questions:\\nFirst, Do the issues of this interference cover patentable inventions ?\\nSecond, If so, which of the parties to this interference is entitled to be adjudged the prior inventor of said inventions ?\\n1. With respect to the first of these questions we do not think it is properly presented on this appeal. This appeal presents a question of interference simply. The question of patentability of the claim for invention was referred to and passed upon by the primary examiner in the Patent Office, who is the expert as to the state of the art involved, and it was not until that examination was had and favorably reported, that the interference was or could be declared. The appellant making claim for an alleged patentable invention, is not to be heard to urge non-patentability of his claim after it had been placed in interference with another claim. He is effectually estopped on that question by reason of his own affirmative assertion that his claim is patentable; and if his own claim is patentable that with which it would interfere may be equally so, if priority of invention be shown. Moreover, the rights of appeal in case of the refusal of a patent upon the ground of non-patent-ability of the claim, and refusal of a patent because of interference with a prior right of invention, are distinct rights and the latter does not involve the former. This is clearly indicated in the Revised Statutes of the United States, sec. 4911, and in section 9 of the act of Congress of February 9, 1893, providing for the organization of this court.\\n2. Then, with respect to the second question, that of priority of invention. This question, being one of fact, has been very fully considered by the officials of the Patent Office. The examiner of interferences, the board of examiners in chief, and the Commissioner of Patents, on successive appeals, have all concurred in their findings that the appellee is entitled to priority of invention.\\nThe appellant alleges that he conceived the invention involved in this controversy in April, 1888, and the appellee alleges that he conceived the invention in August, 1888, and that he, without delay, proceeded to put the invention into practical form and operation, and thus demonstrated its utility. He swears, and he is supported in his testimony, that in November, 1888, he had constructed two completed machines, with the crimper improvement, and had operated them successfully.\\nUpon a case thus presented on appeal, upon whom is the onus of proof imposed to establish the priority of invention? In other words, upon the case coming into this court on appeal, after the question of fact has been examined and ruled upon as in this case, what is the rational presumption to be indulged as to the conclusion of fact? We think it is established beyond controversy, that, in a case so presented, the decision of the Patent Office must stand unless the evidence shows beyond any reasonable doubt that the appellant was the first inventor. Coffin v. Ogden, 18 Wall. 120. This principle is stated with great clearness by the Supreme Court of the United States, in the recent case of Morgan v. Daniels, 153 U. S. 120, 123, 124. That was an interf\\u00e9rence proceeding taken into a court of equity, under section 4915, Revised Statutes of the United States, by the party against whom the Patent Office officials had ruled, on his application for a patent as the sole and first inventor of an improvement in machines for coiling wire. In that case, the examiners and the Commissioner of Patents, with some diversity of views, held that the applicant was not the first inventor. Whereupon he filed his bill, and asked the court of equity to reverse the rulings of the Patent Office, and to direct the Commissioner of Patents to issue to him a patent for the invention as specified in his claim. In disposing of the case, and denying the relief prayed, the Supreme Court held, that when a question between contending parties, as to priority of invention, has been decided in the Patent Office, the decision there made must be accepted as controlling, iipon that question of fact, in any subsequent suit or proceeding between the same parties, unless the contrary be established by testimony which, in character and amount, carries thorough conviction. The court said, \\\" There is always a presumption in favor of that which has once been decided, and that presumption is often relied upon to justify an appellate court in sustaining the decision below. Thus, in Crawford v. Neal, 144 U. S. 585, 596, it was said : ' The cause was referred to a master to take testimony therein and to report to the court his findings of fact and his conclusions of law thereon. This he did, and the court, after a review of the evidence, concurred in his findings and conclusions. Clearly, then, they are to be taken as presumptively correct, and unless some obvious error has intervened in the application of the law, or some serious or important mistake has been made in the consideration of the evidence, the decree should be permitted to stand.' \\\" See, also, case of Furrer v. Ferris, 145 U. S. 132.\\nBut, irrespective of this onus cast upon the appellant of showing clearly the existence of error in the conclusions arrived at by the officials in the Patent Office, as to the facts of the case, we have no difficulty in arriving at the same conclusion on the question of priority of invention, upon the evidence in this record.\\nIt is not controverted that the original application of the appellee, Peters, was filed September 28th, 1889, of which the application in the present interference is a division. Nor is it controverted that he conceived the invention in September, 1888, and that he reduced it to practice in November, 1888, and that he made public use of it, and continued such use, resulting in successful product of the invention, down to the time of the evidence taken in this case. Of these facts the evidence is abundant.\\nHisey, the appellant, claims to have conceived the invention in April, 1888, though he did not reduce it to practice until September, 1889 ; but because the invention was conceived by him in April, 1888, he claims priority over the claim of the appellee. The proof of the fact of this prior conception of the invention rests, virtually, upon the imperfectly supported assertion of Hisey himself; and this, according to the repeated rulings by the Commissioners of Patents, is not deemed sufficient evidence of the fact of priority in a case of interference ; and especially not, where there are circumstances that throw doubt upon the accuracy of the allegation or statement. Bering v. Howorth, C. D. 1878, p. 84; Slade v. Blair, C. D. 1880, p. 25; Stevens v. Putnam, C. D. 1880, p. 164. The witnesses to whom Hisey refers to corroborate his statement, as to the date of his invention, and to whom, he says, he explained the invention before he left for Europe in June, 1888, do not bear him out, as to the crimper device; and the testimony of Stickney and Siegel, as to the explanation of Hisey, and the exhibition of the drawing or sketch of the invention in the pass-book, which occurred on board of the German steamship \\\"Aller,\\\" at sea, can hardly be accepted as conclusive of the fact that the drawing shown did embrace the crimper mechanism as now set forth in the claim involved in this interference. While it is the impression of Mr. Stickney, the most important of these witnesses, that the sketch in the pass-book embraced the crimper mechanism, his testimony must be considered with reference to the circumstances under which he testified. We entirely agree with the Commissioner of Patents in his estimate of the value of Stickney's testimony. He testified to the details of the conversation four years and a half after it occurred, and but one day after inspecting the four sheets of drawings which contain the illustration of the crimper and cartridge-loading machine combined. His cross-examination reveals the circumstance that he paid but slight attention to the tracing exhibited to him on board the ship, and that his attention was particularly directed to the peculiar chain and wheel, and that he was not a close observer of the other parts of the sketch. The whole matter between the witnesses and Hisey rested in mere oral discourse ; and it subjects the recollection of these witnesses to great doubt of its accuracy after such lapse of time. The only thing that could render this matter certain and definite would be the pass-book, containing the sketch or drawing said to have been exhibited to Stickney ; but this, though most important and material on this question, as a medium of evidence, has not been produced, and is said to have been lost. This, of itself, gives rise to a strong adverse inference, in the absence of a full and satisfactory account of the loss or destruction of the book. There does not appear to have been any special care taken of this book, containing what is now said to have been the drawing or sketch of the invention ; and hence we may infer but little importance was attached to its preservation.\\nBut in addition to this, Hisey claims to have brought drawings and tracings of the invention with him from Germ\\u00e1ny, on his return to this country about April ist, 1889, but they are not produced, and it is not shown what they contain, except by way of inference from secondary evidence. Why were the originals of these drawings and tracings not produced ? There is no sufficient reason shown for their absence; and their non-production can give rise to but one inference, and that is adverse to the claim of the appellant. But the still more significant fact is the contract made in Germany, with Tenner, on the nth of July, 1888, months after the alleged conception of the invention, and after the alleged drawing shown to Stickney on the ship \\\" Aller,\\\" on his voyage to Germany. That contract recited that Hisey had invented a certain novel and useful automatic cartridge-loading machine, the principal feature of which consisted in an endless chain, and which was adapted alike for pasteboard or metallic shells, regardless of gauge and size, and for which invention he was desirous of securing patents in the United States of America, and the European countries ; and yet no reference is made to the combined cartridge-loading machine and crimper, although Hisey claims to have fully completed the invention now in controversy, before that contract was executed. He did take out a patent in Great Britain, and other foreign patents, in 1888, on cartridge-loading machines for shot cartridges, but none of which combined the crimper device, but all had indenters. And it appears, according to the statement of the Commissioner of Patents, that Hisey, on the 8th of September, 1888, made application to the Patent Office here in Washington for a patent upon his endless chain cartridge-loading machine, but the drawings failed to disclose a crimper or crimper mechanism as part of the combined machine, such as is now claimed. These facts are not reconcilable with the present claim of Hisey to priority of invention; and we think the fact of priority of invention was properly found by the examiners and Commissioner of Patents in favor of the appellee, Peters ; and we shall therefore affirm the decision of the. Commissioner of Patents, and direct that a certificate of the proceedings and decision of the case in this court to be returned to the Commissioner of Patents, to be entered of record in the Patent Office, as directed by the statute; and it is so ordered.\\nAffirmed.\"}"

dc/1329218.json

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+"{\"id\": \"1329218\", \"name\": \"BOOGHER v. ROACH\", \"name_abbreviation\": \"Boogher v. Roach\", \"decision_date\": \"1905-04-04\", \"docket_number\": \"No. 1494\", \"first_page\": \"324\", \"last_page\": \"333\", \"citations\": \"25 App. D.C. 324\", \"volume\": \"25\", \"reporter\": \"Reports of Cases Adjudged in the Court of Appeals of the District of Columbia\", \"court\": \"Court of Appeals of the District of Columbia\", \"jurisdiction\": \"District of Columbia\", \"last_updated\": \"2021-08-10T23:27:36.336958+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"BOOGHER v. ROACH.\", \"head_matter\": \"BOOGHER v. ROACH.\\nPleading; Joinder of Parties; Contracts; Statute of Limitations; Quantum Meruit; Appellate Practice.\\n1. The joinder of two or more defendants in a suit at common law, based upon-contract, express or implied, can only be upheld upon the theory of joint liabilty.\\n2. A statement by one of two alleged joint promisors in an action for services, that the plaintiff ought to be paid for his services whenever they had money to pay with, and the use by such alleged promisor of material prepared by the plaintiff upon the promise of the other promisor that he would pay for his work, afford insufficient evidence of an implied or an express promise on the part of the first promisor to pay for such services, unless the use is under circumstances from which a promise from himself can be implied.\\n3. A suit for services is barred after the expiration of three years from the time the right of action accrued, in the absence of an acknowledgo ment and new promise within the statutory period.\\n4. A suit upon a quantum meruit, or an implied contract, resulting from the acceptance or use of the plaintiff\\u2019s work with the understanding that it should be paid for by the defendants at its proper value, is not supported by proof of an express contract to pay a contingent fee for such services.\\n5 An assignment of error based upon the exclusion by the trial court of the records \\u201cof other chancery suits\\u201d relating to the subject-matter, is too vague and indefinite to be considered.\\n6. In order to' meet the objection that his claim was barred by the statute of limitations at ithe time his suit was brought, it cannot properly be urged by an appellant in this court, whose claim was for payment for services to be paid for upon the collection of certain money by the appellees, that if the record of a certain chancery suit offered by him in the court below had been admitted in evidence it would have shown that the appellees collected such money within the statutory period, 'where such record was offered at the trial court generally, and not for that specific purpose.\\n7. While an implied contract on a quantum meruit may be made to depend upon a contingency, as well as an express contract, yet, in the absence of such agreement or understanding, services rendered under an implied contract are entitled to compensation immediately upon their conclusion. (Distinguishing Hughes v. Eschback, 7 D. C. 66.)\\nNo. 1494.\\nSubmitted March 21, 1905.\\nDecided April 4, 1905.\\nHearing on an appeal by the plaintiff from a judgment of the Supreme Court of the District of Columbia upon a verdict directed by the Court in an action to recover compensation for services.\\nAffirmed.\\nThe Court in the opinion stated the case as follows:\\nThis is a suit at common law instituted in the supreme court of the District of Columbia by the appellant, William H. Boogher, as plaintiff to recover compensation for \\u201cspecial services\\u201d alleged to have been rendered by the plaintiff to the de fendants, as \\u201cgenealogist, examiner, and conveyancer, rendered in looking up, investigating, identifying, and locating the real estate belonging to the estate of Abraham Young, briefing the titles thereof, and in tracing, locating, and establishing the heirs of said Ahraham Young, ascertaining their names, residences, degree of relationship, their respective interests, rights, etc., in and to said estate, and in the procuring of the necessary information to prepare the same, and in the preparation of deeds and contracts between the said heirs and the said trustees or defendants, or those preceding them, of great value to and made use of by said defendants; said services being rendered from, to wit, November 1, 1888, to 1892,\\u2014 $2,500\\u201d- \\u2014 as stated in the particulars of demand annexed to the plaintiff\\u2019s declaration, which itself is in the common counts.\\nThe same subject-matter of controversy was before us on a former occasion, in an equity suit instituted in the supremo court of the District by the appellant here, as complainant, against the appellees here and one other person, John L. Weaver, as defendant, to charge a certain trust fund for the payment of these same services. Boogher v. Roach, 12 App. D. C. 477. There the bill of complaint was dismissed by the court below, and this court affirmed the decree of dismissal. In the opinion then rendered by this court it was said: \\u201cWhilst the acceptance of these services might have entitled him [Boogher] to an action of assumpsit against Roach, and even against Denver and Walter, we entirely agree with the learned justice who presided at the hearing, that his claim therefor cannot be made a charge against the trust estate or fund.\\u201d\\nActing upon what he assumed to be the intimation contained in this clause of the opinion, the appellant forthwith instituted the present suit at common law against Roach and Walter, General Denver having been dead for some time before. Roach and Walter severed in their pleadings; but their pleas, however, are substantially the same. They are the general issue, the statute of limitations, and former adjudication (in the equity suit mentioned), upon which the parties went to trial. At the trial it seems that the plaintiff alone offered testimony. That testi mony, in the main, was substantially tbe same that was adduced in the equity suit, and which was set forth at some length in the opinion of this court in 12 App. D. C. 477. It need not therefore be here repeated. In addition to that, however, there was \\u2022some additional testimony as to the value of the plaintiffs services, which certainly involved very great labor and research, and must have been exceedingly useful to those who availed themselves of them.\\nThe bill of exceptions taken in the case thereupon showed the following proceedings:\\n\\u201cThe plaintiff to further maintain the issue joined upon his part offered to introduce in evidence before the jury the record in the chancery cause No. 21,842 in the name of Franklin H. Mackey et al. v. John H. Walter et al., to show that in the management of the estate the defendant Walter and those who are acting with him would receive 50 per cent of said estate, and so much of the record as showed that the said John II. Walter as surviving trustee of Gen. J. W. Denver and John II. TValter, trustees in the original deed of trust, realized upon a large part \\u2022of the real estate belonging to the heirs of said estates, and had received various amounts, which the complainant offered to prove by the record in said chancery cause and in other chancery causes relating to the subject-matter, and to which proffer the defendants objected on the ground that said testimony was irxelevant and immaterial, and also upon the ground of the former adjudication pleaded in this case; and the court refused to admit this testimony to be introduced before the jury; and the plaintiff by his counsel excepted to this action of the court.\\n\\u201cThereupon both the defendants moved the court to instruct the jury to find a verdict for the defendants upon the testimony introduced by the plaintiff, upon the ground that the statute of limitations applied thereto and constitutes a bar to the plaintiff\\u2019s right of action, which motion the court sustained, and thereupon the plaintiff excepted to this action of the court, and the jury thereupon rendered their verdict in favor of the defendant.\\u201d\\nA motion for a new trial was made and overruled, and judg ment was entered for the defendants; from which the plaintiff' has appealed.\\nMr. John E. Roller and Mr. D. S. Mackall for the appellant.\\nMr. Walter C. Clephane and Mr. Alan O. Clephane for the appellee.\", \"word_count\": \"3436\", \"char_count\": \"19581\", \"text\": \"Mr. Justice Morris\\ndelivered the opinion of the Court:\\nThere are four assignments of error. One of them based upon the refusal of the court to grant a new trial need not be. considered. The other three are, in effect\\u2014\\n(1) That it was error to refuse to permit the plaintiff to introduce in evidence the record of the chancery suit of Mackey and others v. Walter and others, for the purpose of showing-that Walter and those acting with him would receive 50 per cent: of the entire estate.\\n(2) That it was error to exclude from the evidence the records of other chancery suits which would show that Walter had realized upon a large part of the real estate, and had received various amounts out of the same.\\n(3) That it was error to rule that the plaintiff's claim was barred by the statute of limitations.\\nWe do not regard any of these assignments of error as well founded in law.\\nIt is sought by the suit to enforce a joint liability; for the joinder of two or more defendants in a suit at common law,, based upon contract, express or implied, can only be upheld upon the theory of joint liability. But there is no evidence whatever in the record before us of any joint liability on the part of the defendants. Between the appellant and the defendant Walter the record fails to disclose even the semblance of a. contract. All that the record shows bearing upon Walter's liability is a part of the testimony of the plaintiff testifying as a witness on his own behalf, in which he says that in July or-August of 1889, \\\"at the request of Roach he turned all the papers over to General Denver, who turned them over to Walter, upon the promise that he was to be paid for his work;\\\" and again, that \\\"he had never gotten any information from Walter, and indeed had never talked with him until after he had surrendered all the papers to General Denver, his cotrustee, and that he afterwards went to see Walter, and Walter said to witness that he ought to be paid when they had the money to pay with.\\\" This further statement from his testimony may also be cited: \\\"Witness also said that Walter had produced the papers prepared by witness in the equity cause of William F. Boogher v. J. L. Weaver, etc., and admitted that he got them from Roach; he also admitted that they had used them, and were still using them. The names in the recitals of the deed drawn hy the attorneys for these trustees, Denver and Walter, are the same as shown by the work of witness.\\\"\\nHow far the statement in this last cited portion of the plaintiff's testimony has any bearing on the present controversy we are not advised. We are not advised of the nature and purpose of the suit of Boogher v. Weaver, etc., or what bearing that suit had on the present case. The natural inference from its title would be that it was a controversy merely between Boogher and Weaver as to their respective rights under the contract between them, and in no way involved the rights of any of the heirs of Abraham Young. If it did involve more than this it should have been set forth. This court cannot ascertain from this record the contents of that suit. Apparently the papers referred to are papers prepared by the plaintiff for his own suit against Weaver, and it is not apparent why he should have compensation for them from Walter or from anyone else. If we were permitted to indulge in conjecture, we might assume that this suit and the papers used therein, and to which reference is made, were part of the general scheme to recover property claimed by the heirs of Abraham Young, but we cannot determine cases upon conjecture.\\nThe other statements cited are no sufficient evidence on the part of Walter to pay the plaintiff for anything. The witness states that Walter said to him that he (witness) \\\"ought to be paid when they had the money to pay withand we may well \\u2022assume that this statement was true, and that the plaintiff should be paid. But it does not show that Walter promised to pay, or in any manner bound himself to pay, even if he used the material prepared by the plaintiff. There is no reason why he should not have used that material without liability on his part to anyone, after it had been delivered to him, or to General Denver, by Thomas W. Boach, unless the use was under circumstances from which a promise from himself could have been implied. But there are no such circumstances.\\nIt is true that the plaintiff also testified that \\\"at the request of Boach he turned over all the papers to General Denver, who turned them over to Walter, upon the promise that he (plaintiff) was to be paid for his work.\\\" This promise evidently was the promise of Boach, and not the promise either of Denver or of Walter. Indeed it is very evident from all the testimony that there was no promise whatever, so far as this record discloses, from either Denver or Walter, to pay the plaintiff for the material furnished by him. If the testimony implicates anyone in such a promise, it is only the appellee, Thomas W. Boach.\\nBut if we assume that Boach made such a promise, of which, perhaps, no doubt need be entertained, and if we assume also that the circumstances of the case will imply a promise by Walter to pay, yet the plaintiff's cause of action on either or both promises has long since been barred by the statute of limitations. The services for which compensation is claimed are stated to have been rendered from November 1, 1888, to 1892, and the plaintiff states that he turned over his papers to General Denver in May of 1890. The promise of Boach for payment and the alleged implied promise of AValter were both made at or about the same time. This suit was not instituted until April of 1898, nearly eight years afterwards. Plainly therefore the statute of limitations had intervened to bar the plaintiff's claim, however well founded it may have been in its origin. There is nothing whatever in the record from which a promise can be implied to keep the claim alive, or to make its payment contingent upon the realization of funds from the estate of Abraham Young. As we have seen, there was no promise whatever by Walter, but \\u2022only an expression of opinion that the plaintiff ought to be paid whenever there was money wherewith to pay him, which cannot reasonably be construed as a promise; and the promise of Roach was unconditional that the plaintiff should be paid for his work, which of course became barred in three years thereafter.\\nIt is true that in the record there appears a contract in writing between Thomas W. Roach and others, and John L. Weaver, in which the latter was to do the work for which, or for part of which, the appellant was afterwards employed, and was to receive a compensation of 10 per cent of the value of the property to be recovered, which was \\\"to be paid in cash, or as may be otherwise agreed upon, upon the amounts as fast as obtained and disposed of at the value of the property when disposed of,\\\" and that afterwards, for an alleged consideration of $1,000, Boogher and Weaver contracted with each other that Boogher \\u2022should do some of the work which Weaver had undertaken, and that he should receive therefor one half of Weaver's fee. And this contract was ratified by Thomas W. Roach as trustee for himself and the other heirs. But this contract, even if it were not infected with the vice of champerty, as we intimated in the \\u2022opinion in the case of Boogher v. Roach, 12 App. D. C. 477, is not the contract upon which the plaintiff sues. That contract was abandoned by Weaver in 1889, and renounced by the plaintiff himself soon afterwards. The-suit is upon a quantum meruit, or an implied contract, resulting from the acceptance and use of the plaintiff's work, with the understanding that it should be paid for by the defendants at its proper value, not at the percentage stipulated in the Weaver contract.\\nIt is very clear, therefore, that the plaintiff has no good and sufficient ground of action against Walter, and that his claim against Roach is barred by the statute of limitations.\\nIt is argued, however, on behalf of the appellant that while the ruling of the trial court may have been right, as we here hold it was, upon the application of the statute of limitations as the record stood with the testimony excluded which he sought to introduce, yet, as that testimony would show when the property had been disposed of, the value of such property, and when the sums realized therefrom by the trustee had been realized, its. exclusion was error. This assumption of what the excluded testimony would show is not supported by anything that appears, in the record. The evidence which was excluded was that of a. certain chancery suit between Franklin H. Mackey and John II. Walter and others, No. 21,842 in the supreme court of the District, and other chancery causes relating to the subject-matter. Of course, it is unnecessary to expend argument upon the-proposition that there was error in the exclusion of \\\"other chancery causes relating to the subject-matter.\\\" Such a statement as to proposed testimony is too vague and indefinite to be-considered by an appellate court.\\nWith-reference to the record of the chancery cause which is more specifically mentioned, that of Mackey v. Walter, the offer was to show by it that Walter and those who were acting with him would receive 50 per cent of the estate, and that Walter had received various amounts from the estate. Assuming that this record was otherwise admissible, yet the offer was of testimony that was wholly irrelevant. The crucial difficulty in the-plaintiff's case as to Roach is the statute of limitations; and there was no offer here to show anything that would take the case out of the operation of the statute. Under the plaintiff's-theory of the case, that his claim became payable only when there was money realized from the Young estate which should be applied to its payment, yet there was no offer to show when such money was realized. It is now argued that the record, if admitted, would have shown the time when such sums were realized. But this is mere assumption; nor would it have been, of any consequence when such sums were received, unless the time of receipt was within the period of limitations. The proffer at the trial should have been to show by the record that these sums had been received at a time which would have taken the ease out of the operation of the statute.\\nBut even this proffer would properly have been rejected, for-it would have been as irrelevant as that which was actually made. It would have been based on the Weaver-Boach contract \\u2022or the Weaver-Boogher-Boach contract of 1889, which is not in this case, and not upon the implied contract upon which the plaintiff has brought his suit. There is not a scintilla of evidence in connection with the latter contract, that it was to be performed only upon the realization of funds by the Young estate. Such may have been the intention perhaps, for an implied contract upon a quantum meruit may be made to depend upon a contingency, as well as an express contract; but there is no proof here of any such agreement or understanding; and in the absence of such agreement or understanding, services rendered under an implied contract are entitled to compensation immediately upon their conclusion.\\nThe case of Hughes v. Eschback, 1 D. C. 66, cited on behalf \\u2022of the appellant, is not antagonistic to the views here stated. In that case it was held by the supreme court of the District of Columbia in general term that, under the common counts of a declaration, a contract in writing under seal could be given in evidence. But that is a very different thing from importing into a suit on the common counts one part of a discarded, abandoned, and champertous contract under which no compensation is claimed.\\nWe are of opinion that there was no error in the rulings of the trial court, and that the judgment appealed from should be affirmed, with costs. And it is so ordered. Affirmed.\"}"

dc/1329253.json

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+"{\"id\": \"1329253\", \"name\": \"TRAVERS v. REINHARDT\", \"name_abbreviation\": \"Travers v. Reinhardt\", \"decision_date\": \"1905-05-23\", \"docket_number\": \"No. 1525\", \"first_page\": \"567\", \"last_page\": \"582\", \"citations\": \"25 App. D.C. 567\", \"volume\": \"25\", \"reporter\": \"Reports of Cases Adjudged in the Court of Appeals of the District of Columbia\", \"court\": \"Court of Appeals of the District of Columbia\", \"jurisdiction\": \"District of Columbia\", \"last_updated\": \"2021-08-10T23:27:36.336958+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"TRAVERS v. REINHARDT.\", \"head_matter\": \"TRAVERS v. REINHARDT.\\nWills; Substitution of Words in Construing a Will; Determinable Fees ; Witnesses ; Falsus in Uno Falsus in Omnibus ; Marriages ; Conflict of Laws ; Evidence.\\n1. In construing the expression in a will \\u2014 \\u201cwithout leaving a wife, or a child, or children\\u201d \\u2014 the word \\u201cand\\u201d will not be substituted for the disjunctive \\u201cor,\\u201d where the dominant intention of the testator in the disposal of his estate, as appears from his will, does not require such substitution, and especially where the repetition of the same expression in another part of the will shows deliberation and care by the testator in the selection of words. Under such circumstances, the words used, being plain and unambiguous, must be given their ordinary and usual meaning, and cannot be controlled by conjecture.\\n2. Where a testator having several sons and three daughters, after devising the greater portion of his estate to his sons in two classes of devises, in one of which he used the words \\u201cin fee simple,\\u201d while in the other he omitted these words, directed, as a general provision, that, \\u201cif any of my sons should die without leaving a wife, or a child, or children, living at his death, then his estate herein devised to him, saving and excepting those portions thereof expressly granted and so named to be \\u2018in fee simple,\\u2019 * * * shall go, and be invested in fee, to my surviving sons, and the child or children of such as may be dead, such child or children representing the share of the father; but if either of my sons shall, at his death, leave a wife, either with or without a child or children, such wife shall be entitled to her dower rights and privileges,\\u201d \\u2014 on the death of two of the sons, each leaving a wife, but no child or children, surviving him, the real estate devised to them, and coming within the limitation of such general provision, will go to their heirs or devisees, and not to the heirs of a brother who survived them.\\n3. Where a witness, having no interest in the subject-matter of the litigation, on cross-examination admitted having made a false statement on her direct examination, it was held, upon a review of her evidence, which showed that the statement related to a matter not material in the determination of the case, that it was made upon a strong temptation to shield the reputation of another person, and that its falsity was admitted by the witness under no apparent fear of contradiction or penalty; and where it also appeared that no attempt was made to contradict her other testimony, which was corroborated by documentary evidence in all respects but one, and that consisted of a statement not incredible and of no practical importance, \\u2014 that the conditions presented did not compel the application to her evidence of the maxim, Falsus in uno, falsus in omnibus.\\n4. An informal marriage in or about 1865 by contract per verba de prwsenti constituted a valid marriage by the common law, which then, at least, prevailed in this District.\\n5. Whether a man who was domiciled and died in New Jersey was lawfully married will depend upon the law of that State; and, if the marriage was lawful there, it will be deemed lawful here.\\n6. In New Jersey a valid marriage may be entered into by contract per verba de prwsenti. No particular ceremony is necessary; nor is it of any consequence that the original relations of the parties may have been illicit, provided there be sufficient evidence that a contract of marriage was thereafter made.\\n7. Where a man, after going through a fictitious marriage ceremony in Virginia with a woman, in 1865, lived with her in Maryland and New Jersey until his death, in the latter State, in 1883, during which time he publicly recognized her as his wife, and she joined with him in the execution of a mortgage in which she was named as his wife, and was described as such in an unattested will, and also by his last will, which was admitted to probate in New Jersey, by which latter will he devised the residue of his estate to her \\u201cwhile she remains my wife,\\u201d it was held that she was his lawful wife under the law of* New Jersey, his last domicil, and that the marriage, being lawful there, would be recognized as lawful here.\\nNo. 1525.\\nSubmitted May 5, 1905.\\nDecided May 23, 1905.\\nHearing on an appeal by complainants and certain of tbe defendants (wbo severed from tbeir codefendants) from a decree of the Supreme Court of the District of Columbia, overruling exceptions to and confirming a report of the auditor in a suit for partition, in which the property had been sold by consent of the parties, and the proceeds held to await the final determination of the cause.\\nAffirmed.\\nThe Court in the opinion stated the case as follows:\\nThis suit was begun by a bill filed by Amelia C. Travers and her husband, Charles E. Travers, whose assignee she is, for the partition of certain real estate in the District of Columbia formerly belonging to Nicholas Travers, who died testate in January, 1849. The defendants are heirs at law or claimants under certain devisees of the said Nicholas Travers. The property has been sold by order of the court, all parties consenting thereto, and the distribution of the proceeds of the sale awaits the final determination of the interests of the several claimants thereof.\\nNicholas Travers devised a large estate in unequal proportions to his four sons and three daughters, \\u2014 Elias, Nicholas, Joseph, James, Mary, Elizabeth, and Sidney Virginia. The greater portion was devised among the sons named in two classes of devises. In those of the first class he used the words \\u201cin fee simple.\\u201d In the second class these words are omitted; The distinction made between the two is expressly recognized and referred to in the following general provision: \\u201cWith regard to the several estates hereinbefore devised to my several sons, it is hereby declared to be my will, and I do order and direct, as a general provision, that if any of my sons should die without leaving a wife, or a child, or children living at his death, then his estate herein devised to him, saving and excepting those portions thereof expressly granted and so named to be \\u2018in fee simple,\\u2019 and which they can sell and dispose of as they think fit, shall go, and be invested in fee, to my surviving sons, and the child or children of such as may be dead, such child or children representing the share of the father; but, if either of my sons shall, at his death, leave a wife, either with or without a child or children, such wife shall be entitled to her dower rights and privileges.\\u201d The property involved in this controversy is the real estate (and now the proceeds thereof), coming within the limitations of the foregoing general provisi\\u00f3n, that was devised to Joseph Travers and James Travers. Joseph Travers died intestate in September, 1882, leaving a widow since deceased, but no child or children, or descendants of such. His heirs at law were his brothers Elias and James and his three sisters before mentioned. James Travers died in October, 1883, leaving a will devising his real estate in the District of Columbia to his surviving brothers and sisters, and all property elsewhere to his wife. Whether he was ever lawfully married to the person named in the will as his wife is one of the questions to be determined.\\nElias Travers died intestate on April 29, 1887, and his heirs at law are his children, Charles E. Travers and the defendants John H. Travers, Joseph Travers, James W. Travers, Sidney Travers, and Hate M. M. Owens. These last claim the entire interest in the real estate devised to Joseph and James Travers that comes within the limitations of the provision of the will of Nicholas Travers before quoted. The auditor, to whom the settlement of the account of sales and the settlement of the interests of the parties had been referred, found against this contention. He found, also, that James Travers had been married to the wife named in his will, who survived him.\\nHis report was confirmed, and a decree entered for the distribution of the proceeds of the sale in accordance therewith, from which this appeal has been prosecuted by the heirs of Elias Travers.\\n[The further material facts will be found stated in the opinion.]\\nMr. A. A. Birney, Mr. C. H. Stanley, Mr. Edward A. Newman, and Mr. Fillmore Beall, for the appellants:\\n1. If, under the will of his father, Joseph Travers took an estate in fee, which, upon his marriage, became indefeasible and descended to his heirs, it is conceded by the appellants that, as to the Joseph Travers part of the property in question, the decree below is right. If, to render his estate indefeasible, it was essential that he should leave a child surviving him, it was wrong. The language of the devises was, without more, ample to create a fee simple. Qualified by the general provision, each of the devises affected thereby became a determinable fee in the first taker, with an executory devise over to the surviving sons and the child or children of such as might be dead. Abbott v. Essex Co. 18 How. 202 ; Richardson v. Noyes, 2 Mass. 56; Underhill, Wills, pp. 1272, 1274. It is a rule in construing wills that, where a general intent is apparent upon the face of the will, and a particular intent is also expressed which conflicts with such general intent, the latter will prevail. 2 Wms. Exrs. 7th Am. ed. p. 333; Chase v. Lockerman, 11 Gill & J. 286; Thompson v. Young, 25 Md. 459; Taylor v. Watson, 35 Md. 524; Smith v. Bell, 6 Pet. 68; Re Banks, 87 Md. 425. The construction of the will is to be made from the entire instrument, including the codicil, and the intent of the testator, thus ascertained, be permitted to govern. Jones v. Wright, 2 Bligh, 49; White v. Crenshaw, 5 Mackey, 115. Where two clauses in a will operate on the same property, devising it differently, giving it to different devisees, or showing a different technical intention, the latter clause will prevail. Dugan v. Hollins, 13 Md. 149; Manning v. Thurs- ton, 59 Md. 226. To apply these general principles to the will in question: The general intent of the testator was that his real estate should descend only through his sons, and that his daughters and their descendants should not have share therein. The general intent of the testator being, to keep his real estate within the male line of descent to the exclusion of the female, is it to be supposed that he was willing that this intent should be defeated by the mere marriage of a son ? He might be willing measurably to provide for a widow, through an allowance equal to dower, but the existence of the widow affords no reason for letting in the daughters to heir. Courts will change or mold language so as to give effect to the intention. Schouler, Wills, 3d ed. sec. 477; Jarman, Wills, 505, 507; Doe v. Watson, 8 How., 263, 272; Hance v. Noble, 172 U. S. 383, 389; Shugloff v. Johns, 87 Md. 273; Scarlett v. Montell, 95 Md. 157; Ward v. Barrows, 2 Ohio St. 242. The words \\u201cwife, or child, or children\\u201d should be read \\u201cwife and child or children.\\u201d The cases cited and many others justify such change.\\n2. If the will be construed as we contend, the proceeds of the devises to James, affected by the general provision, and the unsold property similarly affected, must be awarded to the appellants, fot it will not be claimed that he left a child surviving him; if, however, this point be ruled against the appellants, they must yet succeed, unless it has been shown, either, first, that James Travers married and his wife survived him, or, second, that he and his brother Elias (the last survivor of the brothers) entered into a binding agreement with their sisters that they should share as heirs in the property thus devised to James. No such marriage was proved, and the alleged agreement or estoppel was not established.\\n3. Both the auditor and the judge found that a ceremony of marriage between James Travers and his alleged wife was performed by an unauthorized person. This was error. This finding is made upon the unsupported testimony of the woman. She admittedly made a false statement in her testimony. The maxim, Falsus in uno, falsus in omnibus, applies. In her desperate attempt to show that James Travers left a child surviving him, she swore falsely to matters as to which she could not be mistaken, and confessed the truth only when it became apparent to her that it was known and could be proved. See The Santissima Trinidad, 7 Wheat. 339; Dunlop v. Patterson, 5 Cow. 243; Huber v. Teuber, 3 MacArth. 484; 2 Elliott, Ev. sec. 955.\\n4. The deed and the wills. \\u2014 We concede that a marriage may be proved by testimony of general reputation of the parties as husband and wife. Here was no such testimony. No witness was produced but the woman, who certainly could not prove her own reputation. The mortgage and the wills are papers which might have afforded a basis for reputation; by themselves they are only statements made by James Travers. Without supplemental proof of reputation among neighbors and friends, the mortgage and the wills do not even tend to prove marriage. Barnum v. Barnum, 42 Md. 251. The auditor and the court should have found there was no marriage in fact. Reading F. Ins. Co\\u2019s Appeal, 113 Pa. 204; Arnold v. Cheeseborough, 46 Fed. 701, Affirmed in 58 Fed. 840.\\n5. If the woman\\u2019s story be true, yet there was no marriage, for no license to marry was issued to them, and without such license there could be no valid marriage. Virginia Statute 1849, secs. 1-7, regulating marriages in that State, and in force in August, 1865. This statute required that in all cases a license should issue, and without it there could be no valid marriage. Offield v. Davis, 100 Va. 250; Beverlin v. Beverlin, 29 W. Va. 732. The Virginia decisions are conclusive that without a license there could be no marriage in that state. Leffingwell v. Warren, 2 Black, 599, 603; Green v. Neal, 6 Pet. 291; Bauserman v. Blunt, 147 U. S. 652; Meister v. Moore, 96 U. S. 82. See citations in Rose\\u2019s Notes on U. S. Rep. vol. 12, p. 323. State courts adopt a similar rule, and hold the construction placed upon the statute of another State, by the supreme court of that State, to be binding upon them. Bloodgood v. Grasey, 31 Ala. 575; Thrift v. Hannah, 2 Leigh, 300; Sanborn v. Perry, 86 Wis. 367. So far is this rule carried, that if the highest tribunal of a State adopts new views as to the proper construction of such a statute, and reverses its former decisions, the Federal courts and courts of other States will follow the latest adjudication. United States v. Morrison, 4 Pet. 124, 137; Green v. Neal, 6 Pet. 291; Leffingwell v. Blunt, 147 U. S. 652. And the weight or authority of the decision is not affected by the fact that it was made after the supposed marriage, and after the persons affected by it had left the State. Bloodgood v. Grasey, 31 Ala. 575.\\n6. A marriage void where celebrated is void everywhere. Bishop, Marr., Div. & Sep. sec. 886; Story, Confl. L. pp. 215-217, secs. 93, 106; Patterson v. Gaines, 6 How. 550, 587; Phillips v. Gregg, 10 Watts, 168; McDeed v. McDeed, 67 Ill. 545; Hutchins v. Kimmell, 31 Mich. 126; Dalrymple v. Dalrymple, 12 Hagg. Consist. Rep. 58; Mauro v. Saunders, 6 Bligh, 468; Rose v. Rose, 4 Wilson & S. 289.\\n7. Atlantic City R. Co. v. Goodwin, 62 N. J. L. 394, decides no more than that in New Jersey no statute has changed the common-law rule governing the validity of marriages, and that a contract of marriage per verba de prcesenti, made in New Jersey, is valid. But that court has also held that the validity of a marriage is governed by the lex loci contractus (Clark v. Clark, 52 N. J. Eq. 650; Smith v. Smith, 52 N. J. L. 208), and that, where it is shown that there was no ceremony, proof of cohabitation as man and wife will not prove marriage. Goldbeck v. Goldbeck, 18 N. J. Eq. 42. That court also holds that, if there be proof of a ceremonial marriage, the validity of that ceremony must determine if there was or was not a marriage; and that subsequent cohabitation and reputation as husband and wife must be regarded as having their origin in such marriage, and will not justify a presumption that the parties contracted a subsequent marriage. Voorhees v. Voorhees, 46 N. J. Eq. 411; Wallace\\u2019s Case, 49 N. J. L. 535; Pearson v. Howey, 11 N. J. L. 12. To the same effect are the decisions elsewhere. Barnum v. Barnum, 42 Md. 251; Cartwright v. McGown, 121 Ill. 388; O\\u2019Gara v. Eisenlohr, 38 N. Y. 296; Blackburn v. Crawford, 3 Wall. 175. The true doctrine is that cohabitation and reputation do not constitute marriage, but are evidence upon which in proper cases a presumption of marriage may be founded. Smith v. Smith, 52 N. J. L. 208.\\n8. There was no change of status through change of domicil. The sojourn for a few days in the District of Columbia did not marry the parties. This was like their sojourn on Shrewsbury river, the additional feature being that James Travers had formerly been domiciled here, and the land in question lies here. But the lex rei sitae has no application in determining the status of persons. This must be decided by reference to the law of the State or country where such status or condition had its origin, and the status so ascertained adheres to the party everywhere. Ross v. Ross, 129 Mass. 243; Smith v. Kelly, 23 Miss. 167.\\n9. The only domicil of the parties after their connection began was in Maryland. The Maryland decisions settle this .question in the negative. The \\u201ccommon-law marriage\\u201d is unknown to the law of that State. Denison v. Denison, 35 Md. 297; McLaughlin v. Barnum, 42 Md. 297; Richardson v. Smith, 80 Md. 89.\\n10. The cohabitation of the parties did not marry them. The defendants having attempted to prove a ceremonial marriage in Virginia at a fixed time and place, they will not \\u201cbe permitted to rely upon other facts and circumstances as a ground of presumption that a marriage may have taken place at some different time and place.\\u201d Barnum v. Barnum, 42 Md. 251; Blackburn v. Crawford, 3 Wall. 175. See also Reading F. Ins. Co\\u2019s Appeal, 113 Pa. 204; Arnold v. Cheeseborough, 46 Fed. 701, Affirmed in 58 Fed. 840; Rose v. Rose, 67 Mich. 619; Williams v. Williams, 46 Wis. 464; Jones v. Jones, 45 Md. 144; Foster v. Hawley, 8 Hun, 68; Harbeck v. Harbeck, 102 N. Y. 714; Brown v. Beckett, 6 D. C. 253; Hunt\\u2019s Appeal, 86 Pa. 294; Goldbeck v. Goldbeck, 18 N. J. Eq. 42; Cartwright v. McGown, 121 Ill. 388; Cargile v. Wood, 63 Mo. 501; Williams v. State, 44 Ala. 24.\\n11. There was no evidence of reputation. No witness was called to show that the parties were reputed to be man and wife. There was no testimony except that of the alleged wife on the subject. This was wholly insufficient. Com. v. Stump, 53 Pa. 132, Cited in 112 U. S. 459; 24 Am. & Eng. Enc. Law, 2d ed. p. 599; Jones v. Hunter, 2 La. Ann. 254; Taylor v. Swett, 22 Am. Dec. 159, note; Arnold v. Cheeseborough, 46 Fed. 701, Affirmed in 58 Fed. 833. There must be proof of public recognition. Maryland v. Baldwin, 112 U. S. 495; Nathan\\u2019s Case, 2 Brewst. (Pa.) 149.\\nMr. William A. Gordon, Mr. George E. Hamilton, Mr. M. J. Colbert, and Mr. J. Holdsworth Gordon for the appellees.\\nValidity of Marriage \\u2014 Conflict of Loaos. \\u2014 The authorities determining what law governs as to the validity of a marriage are fully presented in editorial note to Hills v. State, 57 L. R. A. 155.\", \"word_count\": \"5766\", \"char_count\": \"32822\", \"text\": \"Mr. Chief Justice Shepard\\ndelivered the opinion of the Court:\\nUpon the admitted fact that Joseph Travers, who died intestate, had been lawfully married to a wife who survived him, and assuming, for the time being, that James Travers, who devised all of his estate in the District to his surviving brothers and sisters, left a surviving wife also, the question to be determined is, whether their interests in the real estate embraced within the terms of the general provision of the will of Nicholas Travers passed to the heirs at law of the one, and the devisees of the other, or became vested in the surviving brother, Elias.\\nThe answer involves the ascertainment of the intention of the testator as expressed in the language of the general provision, which, having been set out above, need not be repeated.\\nThe claim that the entire estate became vested in Elias Travers. upon the death of his brothers Joseph and James, respectively, without leaving a child or children, rests upon the contention that the dominant intention of the testator was to retain the succession, as regards the property embraced in the limitations of the general provision, in the direct line of his male heirs; and that this dominant intention compels a construction of the general provision that would substitute the word \\\"and\\\" for the disjunctive \\\"or\\\" where it first occurs in the line \\\"without leaving a wife, or a child, or children.\\\" We agree with the opinion expressed by the auditor and the learned trial justice, that there is no expression of such a controlling intention as to require this substitution. The words used are plain and unambiguous. This being so, they must be given their ordinary and usual meaning, and cannot be controlled by conjecture. The same words are repeated in another part of the general provision itself; and at the end of the first item of disposition in the will it is provided that certain of the devises therein \\\"shall he subject to the general provision hereinafter made in ease of any of my sons dying without having a wife, or a child, or children.\\\" This repetition of the phrase tends to show deliberation and care in the selection of words expressive of the testator's intention.\\nThat Elias Travers himself, and after his death his heirs, took an entirely different view of the testator's intention from that now maintained on their hehalf, is conclusively shown by the testimony introduced by the appellants in support of an allegation in their answers setting up an agreement by way of family settlement. It was alleged that in December, 1882 (after the death of Joseph), Elias and James Travers entered into a written agreement with their three sisters, by which it was provided that the interest of Joseph in the property under the operation of the general provision aforesaid should be treated as the joint and equal property of all of the said parties, which said agreement was carried into effect by intrusting the property to a joint agent, who distributed the revenues thereof in accordance with its terms; that after the death of James Travers the same agreement was extended to his interest; and that after the death of Elias Travers the revenues of the undivided property were collected and distributed by the same agent among the heirs of all in their proper proportion until a short time before the filing of the amended bill in this suit.\\nNo such written agreement could be found, nor could direct proof of it be made, because all of the parties who would have had any actual knowledge of the same had departed this life before the controversy began. In the view that we have taken of the proper disposition of the case, it is not necessary to determine whether the circumstantial evidence is sufficient to show that such an agreement was in fact executed as alleged. Whether so or not, Elias Travers certainly acquiesced in the claim of his sisters. The evidence shows beyond question that after Joseph's death the rents of his portion were distributed equally between Elias, James, and the three sisters. On January 1, 1886, Elias joined his sisters in the lease of a parcel of the property now in question to one Smith, in which the lessors are recited as \\\"the only heirs at law of the late James Travers, deceased,\\\" and which provided that the rent should be paid to the lessors and surrendered to them and their heirs. After Elias's death the same distribution of the rents of the parts of the property devised to Joseph and James was continued.\\nThe only material question that remains for determination is whether James H. Travers was survived, as alleged, by a lawful wife. The only evidence of the marriage consists of the testimony of the alleged wife, since married to another person. She testified to the following facts, substantially: She was an orphan seventeen years old when she met James H. Travers, and her domicil was in West Virginia. James H. Travers lived in the District of Columbia. She went with him to Alexandria, Virginia, in August, 1865, where what she supposed to be a regular marriage ceremony was celebrated between them. There was no marriage license in fact, and the person who performed the pretended marriage ceremony was not a minister, though she believed him to be one at the time. They cohabited thereafter until James Travers's death at Point Pleasant, New Jersey, on November 1, 1883. They first took a trip to New Jersey; were in New York on several visits, and spent about three weeks in the city of Washington, boarding with a tenant of Travers. She believed that she had been lawfully married until she learned the truth about six years afterwards. He always said \\\"that it was all right, and we were just as much married as if we had been married before a priest or a minister.\\\" In 1867 he bought a farm in Talbot county, Maryland, where they lived together nearly sixteen years. During the whole time he called her and introduced her as his-wife, and she was so recognized in the community generally. They removed to Point Pleasant, New Jersey, in 1883, and she was there recognized and reputed to be his wife until his death. She had two children by James Travers, both of whom were stillborn. By way of corroboration, a mortgage, executed on September 27, 1867, to secure the purchase money of the Talbot county farm, by James Travers and his wife, Sophia V. Travers, was read in evidence. She was named therein as his wife, and her acknowledgment was so taken and certified to by a justice of the peace. The instrument was duly recorded. An unattested will purporting to have been executed by James Travers in Talbot county, Maryland, on February 8, 1881, in which the bulk of his estate is devised and bequeathed to \\\"my wife, Sophy Virginia Travers,\\\" was also produced. Another will was read in evidence, that was made at Point Pleasant, New Jersey, October 5, 1883. This was duly executed and attested by three witnesses. It was probated in the proper court in New Jersey, and letters testamentary were issued to said Sophia V. Travers. Later it was registered in the District of Columbia. By this will the testator devised all of his estate in the District of Columbia to his brothers and sisters. The remainder of his property of every description he devised and bequeathed, as recited, \\\"to my wife while she remains my widow,\\\" with full power of alienation, etc., with remainder over to a daughter of such as may remain undisposed of at her decease. It is further recited: \\\"In the event of my wife's contracting another marriage then it is my will that she shall possess and enjoy as of her own right only one third of the property remaining.\\\" By the last clause his wife is appointed sole executrix.\\nIt is contended that no weight whatever should be given to the oral testimony above summarized, because on cross-examination the witness admitted that she had testified falsely in one particular. It appears that on her first examination she became greatly excited and abruptly left the examiner's office. Later her cross-examination was resumed in Philadelphia, where she had her residence. She then confessed to having made a false statement relating to a matter not hereinbefore stated. We can not agree with the contention that the conditions presented compel the application to this evidence of the maxim, Falsus in uno, falsus in omnibus. The witness had no interest whatever in the subject-matter of the litigation. The single false statement re lated to a matter not material in the determination of the case. Its recital is unnecessary, it being sufficient to say that it involved the reputation of another person, and that the temptation to shield that reputation was a strong one indeed. Having made the statement, she subsequently admitted its falsity under no apparent fear of contradiction or penalty. No withdrawal was made of any statement concerning her relations with James Travers, and no attempt was made to contradict any one of them, although the cross-examination shows that inquiry had been made in the community in which she lived so long in Maryland concerning his representations that she was his wife. Moreover, the documentary evidence before recited corroborates every statement made by her save that relating to the pretended marriage ceremony. That statement does not appear to be incredible, but whether it be true or false is, in our view of the case, of no practical importance.\\nThe legal status of the said Sophia V., as the wife of James Travers at the time of his decease, does not depend upon the law of Virginia where the pretended marriage ceremony was performed. And it may be conceded that the pretended marriage was absolutely void in that State for the want of the statutory license. Offield v. Davis, 100 Va. 250, 40 S. E. 910. Nor does it depend upon the law of Maryland wherein so many years of the alleged married life of the parties were spent. Consequently it is unnecessary to determine whether, in that State, though a valid marriage will be presumed upon proof of cohabitation, general reputation, and acknowledgment of the existence of the relation, it will so be in a ease where it is shown that cohabitation began without the requisite ceremony. See Barnum v. Barnum, 42 Md. 251, 296; Richardson v. Smith, 80 Md. 89, 93, 30 Atl. 568.\\nThat an informal marriage by contract per verba de prcesenti constitutes a valid marriage by the common law, which then, at least, prevailed in the District of Columbia, there can be no doubt. Meister v. Moore, 96 U. S. 76, 78, 24 L. ed. 826. But whether a lawful marriage has been shown in this case depends upon the law of New Jersey; where the parties had their domicil at the time of the death of James Travers. If lawful there it will be recognized here. It seems well settled in that State that a valid marriage may be entered into by contract per verba de prcesenti; no particular ceremony is necessary. Nor is it of any consequence that the original relations of the parties may have been illicit, provided there be sufficient evidence that a contract of marriage was thereafter made. Atlantic City R. Co. v. Goodin, 62 N. J. L. 394, 401, 45 L. R A. 671, 72 Am. St. Rep. 652, 42 Atl. 333.\\nThat was an action for damages for an injury resulting in death, brought by the alleged widow of the deceased. There had been a ceremonious marriage between the parties many years before, but at that time Goodin had a lawful living wife from whom he had separated. After obtaining knowledge of that fact, plaintiff continued to cohabit with him. About 1892, the real wife died. Presumption of marriage, it was said, could not he indulged from the mere fact of cohabitation illicit in its commencement. The plaintiff testified, however, to a contract with Goodin, made verbally after the death of his first wife. There was no other evidence tending to show such a contract save a declaration made by Goodin sometime in 1892 or 1893, to a niece of plaintiff, and testified to by her alone, that, \\\"your aunt now is my lawful wife.\\\" Upon this evidence plaintiff was held to be his lawful wife.\\nThe testimony in this case is far stronger. The alleged wife testified to statements made to her by J ames Travers, after her discovery of the fact of the unlawfulness of the marriage, tending in some degree to warrant an inference of contract. This was followed by his public recognition of her as his wife, testified to by her, and shown in the recitals of the mortgage and of the unprobated will written by himself. After taking up residence in New Jersey, he continued to recognize her publicly as his wife. Whatever doubt there might be of the sufficiency of this evidence alone is settled by the recitals of the will made in New Jersey. Therein he devised and bequeathed certain of his estate to her as his wife, without giving her name, the amount thereof dependent upon her remaining his widow. And by another recital, whether so intended or not, he met the very condition of a previous actual contract of marriage by the words, \\\"in the event of my wife's contracting another marriage.\\\" She could not contract another marriage unless she had first contracted one with him.\\nWe are of the opinion that the evidence is sufficient to show that James Travers had a lawful wife at the time of his decease. In accordance with the foregoing conclusions, the decree must be affirmed with costs; and it is so ordered. Affirmed.\\nAn appeal to the Supreme Court of the United States was allowed June 6, 1905.\"}"

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+"{\"id\": \"1352061\", \"name\": \"UNITED STATES v. DAVIS\", \"name_abbreviation\": \"United States v. Davis\", \"decision_date\": \"1901-05-22\", \"docket_number\": \"No. 1056\", \"first_page\": \"280\", \"last_page\": \"287\", \"citations\": \"18 App. D.C. 280\", \"volume\": \"18\", \"reporter\": \"Reports of Cases Adjudged in the Court of Appeals of the District of Columbia\", \"court\": \"Court of Appeals of the District of Columbia\", \"jurisdiction\": \"District of Columbia\", \"last_updated\": \"2021-08-10T21:27:55.469872+00:00\", \"provenance\": \"CAP\", \"judges\": \"Mr. Justice Shepard dissented.\", \"parties\": \"UNITED STATES v. DAVIS.\", \"head_matter\": \"UNITED STATES v. DAVIS.\\nHabeas Corpus; Criminal Law; Information; Police Court; Collateral Attack.\\n1. The writ of habeas corpus cannot be made to perform the office of a writ of error, and where a party by such means seeks to be discharged from imprisonment under a judgment of conviction of a court of competent jurisdiction, he -must clearly show that the judgment, for causes apparent upon its face, is an absolute nullity, as the question of errors or defects in the proceeding upon which the conviction is founded will not be entertained in a collateral proceeding by habeas corpus.\\n2. A judgment of conviction of the police court of this District based upon an information alleging that the defendant is charged upon the oath of a person named therein, is not a nullity, under the act of Congress of June 17, 1870, requiring the information to be under oath, although there is no separate affidavit made by the prosecuting witness or some other person possessing knowledge of the facts, and a defendant in custody under such a judgment is not entitled to be released upon habeas corpus proceedings; following Latney v. United States, ante, p. 265; Associate Justice Shepard dissenting.\\nNo. 1056.\\nSubmitted April 9,1901.\\nDecided May 22, 1901.\\nHearing on an appeal by tbe United States, from an order of tbe Supreme Court of tbe District of Columbia, in a habeas corpus proceeding, discharging tbe petitioner from custody of tbe warden of tbe jail.\\nReversed.\\nThe facts are sufficiently stated in the opinion.\\nMr. T. II. Anderson, United States Attorney, for the District of Columbia, and Mr. Ashley M. Qould, Assistant United States Attorney, for the United States.\\nMr. A. S. Oolyer for the appellee filed no brief.\", \"word_count\": \"2565\", \"char_count\": \"14818\", \"text\": \"Mr. Chief Justice Alyey\\ndelivered the opinion of the Court:\\nThis is an appeal from the Supreme Court of the District of Columbia, in matter of habeas corpus, wherein the petitioner for the writ, the present appellee, was discharged, and the United States have appealed.\\nThe petitioner for the writ alleged that he was arrested, tried, convicted, and sentenced to prison on November 1, 1900, by the police court of this District, for an assault, and that he was sentenced to jail for 11 months and 29 days. He alleged that he was illegally and unlawfully restrained of his liberty and held in jail by the warden thereof, by virtue of a commitment issued by the said police court. The only ground alleged as constituting illegality in the proceedings, is that the information upon which he was tried was not an information such as is required under section 1064 of the Revised Statutes of the District of Columbia, and was also in violation of the Fourth Amendment to the Constitution of the United States.\\nThe proceeding in the police court is not exhibited as part of the petition, nor was there issued a writ of certiorari as ancillary to the writ of habeas corpus to have the record of conviction in the police court produced. But a copy of the information upon which the party was tried appears filed in the case; and we shall assume that it was properly filed.\\nThe information filed in the police court, upon which trial and conviction were had, recites and states that the attorney of the United States for the District of Columbia \\\" comes here into court, at the District aforesaid, on the 15th day of October, 1900, and for tbe United States gives tbe court hereto understand and be informed on the oath of one William J. Quinlan, made on the 15th day of October, in the year-aforesaid, at, etc., before the said Alexander E. Mullowny,. one of the assistants to the said attorney of the United States, that one Lewis Davis, on the 13th day of October, 1900, with force, etc., at said District, and within the jurisr diction of this court, in and upon William Young did make an assault, and him the said' Young then and there did beat, wound,\\\" etc.\\nThe writ of habeas corpus was issued as prayed, and in the return thereto, the warden of the jail certified that Davis was received by him and since held in prison by virtue of a commitment by the judges of the police court, the said commitment reciting the sentence of the said court of Davis to-imprisonment for the period of 364 days from said date, in the jail of the District, and to which return was annexed a-copy of said commitment.\\nIt was upon this return that the case was heard, and upon the hearing the petitioner was discharged. And the sole, question in the case is, whether the police court had power and jurisdiction to try, convict, and sentence the accused for the crime of assault and battery? If such jurisdiction existed, and the judgment rendered was not in excess of the jurisdiction, to an extent to render the judgment absolutely void, clearly the petitioner was not entitled to be discharged on writ of habeas corpus.\\nThat the police court had full and complete jurisdiction over the subject-matter of the crime charged against the accused, with power to try and convict therefor, on information, can admit of no question. It is only necessary to refer to the act of Congress of March 3, 1891, entitled \\\" An act to define the jurisdiction of the police court of the District of Columbia; \\\" and, by the second section of that act it is provided, \\\" that prosecutions in the police court shall be on information by the proper prosecuting officer.\\\" It is equally clear that the court had jurisdiction of the person of the accused, as he appeared in court, pleaded to the information, and submitted to trial thereon, without showing or attempting to show, for aught that appears in this case, that he made any objection to the legality of the proceeding against him.\\nThe question of the jurisdiction of the police court, and the binding effect of the judgment thereof, and the principle of presumption in support of such judgment, when, sought to be attacked in a collateral proceeding, has been fully considered in the preceding case of Julius Latney v. United States, in an opinion delivered in that case. This case could well be rested on the principles stated in that case, and which are conclusive of everything involved in the present case. But as that case was not one of habeas corpus, but involved the question of the admissibility of the record of conviction of a first offense on the trial of a charge of a second offense of like character, we deem it proper to refer to some authorities, in addition to those referred to in that case, of special and direct application.\\nThat a writ of habeas corpus cannot be made to perform the office of a writ of error, is a principle in regard to which all authorities agree in holding. When a party is in prison in execution of a judgment or sentence of a court of competent jurisdiction, he cannot be released on habeas corpus, unless he can clearly show, that the judgment, for causes apparent upon its face, is an absolute nullity. The question of errors or defects in the proceeding upon which the conviction is founded will not be entertained, in a collateral proceeding by habeas corpus. This doctrine is nowhere more clearly stated than by Chief Justice Marshall, in the leading case of Ex parte Watkins, 3 Pet. 193.\\nIn that ease, Watkins petitioned the Supreme Court of the United States for the writ of habeas corpus for the purpose of inquiring into the legality of his confinement in the jail of the District of Columbia, by virtue of a judgment of the circuit court of this District, rendered in a criminal prosecution instituted against him in that court. He alleged in his petition that the indictment under which he was convicted and sentenced to imprisonment charged no offense for which the prisoner was punishable in that court, or of which that court could take cognizance; and, consequently, the proceedings were coram non judice. But the Supreme Court held that it was not shown that the judgment was a mere nullity, and that it had no power to examine the record and determine whether there were errors or defects 'in the indictment or not. The Chief Justice said: \\u2014 \\\"'But with what .propriety can this court look into the indictment? We have no power to examine the proceedings on writ of error, and it would seem strange if, under color of a writ to liberate an individual from unlawful imprisonment, we could substantially reverse a judgment which the law has placed beyond our control. An imprisonment under a judgment cannot be unlawful, unless that judgment be an absolute nullity; and it is not a nullity if the court has general jurisdiction of the subject, although it should be erroneous.\\\" And again the court said: \\\"If the offense be punishable by law, that court is competent to inflict the punishment. The judgment of such a tribunal has all the obligation which the judgment of any tribunal can have. To determine whether the offense charged in the indictment be legally punishable \\u2022or not, is among the most unquestionable of its powers and duties. The decision of this question is the exercise of jurisdiction, whether the judgment be for or against the prisoner. The judgment is equally binding in the one case and in the other; and must remain in full force unless reversed regularly by a superior court capable of reversing it. If the judgment be obligatory, no court can look behind it. If it be a nullity, the officer who obeys it is guilty of false imprisonment. Would,\\\" asked the Chief Justice, \\\" the counsel for the prisoner attempt to maintain such position ? \\\"\\nThe case of Ex parte Lange, 18 Wall. 163, was an application to the Supreme Court of the United States for the writ of habeas corpus, wherein the petitioner alleged that he was detained in prison by an illegal judgment of the Circuit Court of the United States. The writ was granted, and, upon the return, it was held by a majority of the court, against a strong dissent, that the judgment in the Circuit Court showed upon its face and by its terms that it was an utter nullity, and consequently the party was entitled to his discharge.\\nIn the recent case of the United States v. Pridgeon, 153 U. S. 48, the application was for a writ of habeas corpus, founded upon a wrong description in the indictment of the territorial jurisdiction of the court that tried and convicted the party. The indictment was found in the district court of the United States within and for Logan County in Oklahoma Territory, and for the Indian country attached thereto, charging the offense of horse stealing, and laying the venue of the offense, \\\" at and within that part of the Territory of Oklahoma attached for judicial purposes- to Logan County,\\\" with a description of territory which included part of Oklahoma and part of the Cherokee Outlet not in Oklahoma, and which averred the same to be \\\" then and there Indian country, and a place then and there under the sole and exclusive jurisdiction of the United States.\\\" The party was arraigned, pleaded, tried, and convicted on this indictment, and was sentenced to the penitentiary. In his petition for the writ of habeas corpus it was alleged that the party was wrongfully restrained of his liberty, because the court that tried and convicted him had no jurisdiction in the premises, and that its judgment was void. The writ of habeas corpus was issued, and, upon hearing, the party, as in the present case, was discharged; but that ruling was by the Supreme Court of the United States adjudged to be erroneous. That court, by a unanimous opinion, held that the indictment was not so radically defective, when attacked collaterally by writ of habeas corpus, as to justify the court in holding that the district court had no jurisdiction over the person and the offense tried, and consequently the party was not entitled to be discharged. It was- there said by the court, that under a writ of habeas corpus the inquiry is not addressed to errors, but to the question whether the proceedings and judgment are nullities-; and unless it appear that the judgment or sentence under which the prisoner is confined is void, he is not entitled to his discharge.\\nIn the opinion of the court, delivered by Mr. Justice Jackson, it is said: \\\"If the indictment does not fairly and sufficiently aver that the offense in question was committed in the Cherokee Outlet, it certainly does not show affirmatively upon its face that it was committed elsewhere, and without the jurisdiction of the court. It may be that upon demurrer or writ of error, the indictment might have been found defective in not alleging with greater certainty the particular locality in which the offense was committed, within the rule laid down in McBride v. The State, 10 Humph. 615, but it cannot be properly held that the indictment is so fatally defective on its face as to be open to collateral attack after trial and conviction, or that the sentence of the court pronounced thereon was void. The habeas corpus proceeding being a collateral attack of a civil nature, it must clearly and affirmatively appear that the indictment charged an offense of which the court had no jurisdiction, so that its sentence was void. This does not appear in the present case, and the second question certified must, therefore, be answered in the negative.\\\"\\nThe principles of the cases to which we have referred are laid down in numerous cases, both State and Federal, but we deem it unnecessary to refer to others than those to which we have called attention. These latter would seem to be entirely conclusive of the present case. As we have seen, the ground of objection to the information here is, that it is not alleged that there was a separate and independent affidavit made by the prosecuting witness or some other person possessing knowledge of the facts, upon which the information should be founded. But, if it be conceded that the provision of the act of Congress of 1810, requiring the information to he upon oath, was not repealed by the subsequent act of Congress of March 3, 1891, the allegation in the present information would seem to be all that was necessary to gratify the terms of the statute \\u2014 certainly after trial and conviction, and upon collateral attack. The allegation in' the information is that the party is charged \\\" upon the oath of one William <T. Quinlan, made on the 15th day of October, in the year 1900, before one of the assistants to the district attorney of the United. States.\\\" No greater certainty than this could be required in proceeding on habeas corpus after conviction.\\nWe are clearly of opinion that there was jurisdiction in the court to try and convict the accused, and that there is nothing apparent to show that the conviction and sentence were nullities. We must, therefore, reverse the order of the court below discharging the petitioner, and remand the cause; And it is so ordered. Order reversed.\\nMr. Justice Shepard dissented.\"}"

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+"{\"id\": \"1352105\", \"name\": \"FONTANO v. ROBBINS\", \"name_abbreviation\": \"Fontano v. Robbins\", \"decision_date\": \"1901-06-07\", \"docket_number\": \"No. 1049\", \"first_page\": \"402\", \"last_page\": \"419\", \"citations\": \"18 App. D.C. 402\", \"volume\": \"18\", \"reporter\": \"Reports of Cases Adjudged in the Court of Appeals of the District of Columbia\", \"court\": \"Court of Appeals of the District of Columbia\", \"jurisdiction\": \"District of Columbia\", \"last_updated\": \"2021-08-10T21:27:55.469872+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"FONTANO v. ROBBINS.\", \"head_matter\": \"FONTANO v. ROBBINS.\\nBuilding Contracts ; Arbitration ; Guaranty.\\n1. Where one article of a building contract provides, that in ease of dissent by either party from the award of the architects as to allowances for alterations, submission shall be had to arbitrators, and another article provides that the owner shall provide all labor and materials not included in the contract in such manner as not to delay the material progress of the work and, in event of failure so to do, thereby causing loss to the contractor, that he will reimburse the contractor for such loss, and that the amount of such loss shall be fixed and determined by the architects or by arbitration, as provided for in the first-named article, an award by the architects or by arbitrators is not a condition precedent to the maintenance by the contractor of an action against the owner for a breach of the provisions of the second article.\\n2. One who, with the approval of church authorities engaged in the construction of a church building, undertakes to provide the interior construction of a chapel to be connected with the church, and who, in furtherance of such undertaking, enters into a contract with another for such work, which contract provides that \\u201c the owner agrees to provide all labor and materials not included in this contract in such manner as not to delay the material progress of the work, and in event of the failure so to do, thereby causing loss to the contractor, agrees that he will reimburse the contractor for such loss;\\u201d thereby takes the place of the real owner for the purposes of the contract, and becomes an absolute guarantor of the necessary construction preliminary to the commencement of the other\\u2019s work.\\nNo. 1049.\\nSubmitted May 14,1901.\\nDecided June 7, 1901.\\nHearing oil an appeal by tbe plaintiff from a judgment of tbe Supreme Court of tbe District of Columbia, entered upon a verdict directed by tbe court in an action of covenant.\\n\\u2019Reversed.\\nTbe Court in its opinion stated tbe case as follows:\\nThis is an action upon a contract under seal to recover tbe sum of $3,888.10 on account of time lost and extra ex penses incurred through delay caused the plaintiff in the performance of his undertaking. The contract' was entered into on August 19, 1895, by the plaintiff, Primo Pontano, of 'Carrara, Italy, party of the first part, with the defendant, Mary Helen Carroll, now Robbins, of Howard County, Maryland, party of the second part. In consideration of the sum of $28,500, promised to be paid by the defendant, the plaintiff undertook, under the direction and to the satisfaction of certain architects, to provide all the materials and perform all the work shown in the drawings and specifications of said architects \\u201c for the interior marble finish of the Chapel of St. Anthony of Padua, in the Church of St. Matthew, Washington, D. 0., including the ceiling of decorative plasterwork and the three windows of transparent alabaster all set up in place complete.\\u201d The work was to be completed on or before October 1, 1896. Provision was made for the extension of the time set for completion upon certain contingencies ; among them \\u201c the neglect, delay or default of the owner, or the architects, or of any other contractor,\\u201d and so forth. The case turns upon the construction and application of the following articles of the contract:\\n\\u201c Article 3. No alterations shall be made in the work shown or described by the drawings and specifications, except upon a written order of the architects, and when so made, the value, of the work added or omitted shall be computed by the architects, and the amount so ascertained shall be added to or deducted from the contract price. In the case of dissent from such award by either party hereto, the valuation of the work added or omitted shall be referred to three (3) disinterested arbitrators, one to be appointed by each of the parties to this contract, and the third by the two thus chosen; the decision of any two of whom shall be final .and binding, and each of the parties hereto shall pay one-half of the expenses of such reference.\\n*******\\n\\u201c Article 8. The owner agrees to provide all labor and materials not included in this contract in such manner as not to delay the material progress of the work, and in the event of failure so to do, thereby causing loss to the contractor, agrees that he will reimburse the contractor for such loss; and the contractor agrees that if he shall delay the material progress of the work so as to cause damage for which the owner shall become liable (as above stated) then he shall make good to the owner any such damage. The' amount of such loss- or damage to either party hereto shall,, in every case, be fixed and determined by the architects or by arbitration, as provided in art. 3 of this contract.\\u201d\\nDefendant\\u2019s single plea denied causing delay to the plaintiff, and alleged full performance on her part, including the full payment of the price stipulated.\\nOariolano Fontano, a brother of the plaintiff, proved the-execution of the contract and admitted the payment of the sum stipulated therein. As recited in the bill of exceptions:\\nThe witness further testified that upon his return to Italy in 1895, and after the signing of the contract, his brother-immediately began the work on the stone preparatory to having the same ready to be set up in the chapel and completed within the time provided in the contract; that about March, 1896, a considerable portion of the cut stone was shipped to America, and that in June, 1896, practically all of the marble was cut and ready to be shipped to America, but, owing to the fact the plaintiff learned at that time that the walls of the chapel had not been completed, and that the roof had not been begun, the plaintiff did not forward the balance of the-stone to America, as he was about to do; that as soon as plaintiff thus learned that said walls and roof were not completed he wrote at once to the architects requesting them to complete the same immediately, as he was ready to put up the' marble, but no answer was received from the architects; that the plaintiff thereafter, between June and October, 1896, and afterwards wrote repeatedly to the architects urging-them to complete the walls and the roof in order that he might complete the work as provided in the contract, but the plaintiff did not hear from the architects; that plaintiff was ready to begin the setting of the marble in June, 1896, and could have completed his part of the contract before October 1,, 1896, had the walls of the chapel been put up and the roof put on; that marble can be set quicker in summer than in winter; that if he could have begun the setting of the marble in June, 1897, he could have completed the same within from two to three months; that the specifications which were made a part of the contract provided that the work of setting the marble should not begin until the walls were up and the roof on.\\nThe witness was here handed the specifications and identified the same as the specifications furnished the plaintiff as a part of the contract. The specifications, which were introduced in evidence with the consent of the defendant and read to the jury, provide, among other things, as follows:\\n\\u201c The outside walls will be built, rough concrete floor finished and the chapel will be roofed in when the contractor commences to set marble-work. All brickwork supported on the columns of chapel will be done by owner\\u2019s brickmasons at such times and in such manner as the contractor may require; the contractor must, however, keep these brickmasons under his supervision and so arrange that they shall do no \\u2022damage to his finished work or materials on the ground.\\u201d\\n\\u201c Should any dispute arise respecting the true construction or meaning of the drawings or specifications, the sa\\u00edne shall be decided by the architects, and their decision being just and impartial, shall be final and conclusive.\\u201d\\n\\u201c The contractor is to furnish all necessary materials, labor and transportations, and is to provide all tools, derricks, scaffolding, and all other necessary means, utensils, and appliances for properly prosecuting his work.\\u201d\\n\\u201c Particular care must be taken by the contractor as the building progresses of all finished work, which work must at all times be covered up and thoroughly protected from injury or defacement.\\u201d\\nThe witness further testified that this incomplete condition of the walls and roof continued, and that by direction of the plaintiff he came to America on June 11, 1897, and went immediately to see the architects, Heins and La Farge, and told them that his brother has been delayed for nearly a year in the erecting of the marble-work, owing to the walls not being np and the roof not being on, as provided in the contract and specifications, and urged the architects to put the walls up and the roof on immediately, so that he could begin his setting of the marble, and stated that a considerable part of the marble had been in Washington for oyer a year, and that the whole of it was now there ready to be put up; but the architects told him that there was no reason for his not commencing and performing his work as provided in the contract. The witness' then told the architects that it was impracticable and impossible for him to do the work in the then condition of the walls and roof of the chapel without subjecting the marble-work to injury from breakage and stains; that the architects thereupon told the plaintiff to go down and try to set the marble to please Father Lee; that Father Lee had marble-work to give him if he would please in the performance of this contract. The witness thereupon informed the architects that he would come to Washington, and that he would see what he could do; that he came to Washington and examined the chapel and found that the level of the floor was two inches too low for the setting of his marble; that he thereupon notified the architects and shortly thereafter the witness was himself compelled to raise the steps and platform of the altar; that he found the walls, which were to be thirty-eight feet high, were only twenty-two feet up, and there was no roof on the chapel, as provided in the specifications. Witness was here shown a letter which he identified. The same was introduced and read to the jury. The letter is as follows:\\n\\u201c725 19th St. N. W.\\n\\u201c Washington, D. C., 13th July, 1897.\\n\\u201c Messrs. Heins & La Farge, architects, Temple court, 7 Beekman street, New York.\\n\\u201c Gentlemen : Bef erring to my contract with Miss Mary Helen Carroll, under date of August 19th, 1895, relating to the interior marble finish of the chapel of St. Anthony of Padua in the church of St. Matthew, Washington, D. 0., I take the liberty to call your attention, as Miss Carroll\\u2019s architects, to the fact that it is impracticable for me to put up any of the work in said chapel in its present incomplete condition, which I am required by said contract to do, and it is utterly impossible for me to complete said contract until the walls of said chapel shall have been completed and the chapel placed under roof.\\n\\u201c I take the liberty to notify you that I have had all my material here for more than a month, ready to put up according to contract, and that I have been in Washington one month at heavy expense, waiting to perform my part of said contract, but have been delayed on account of the incomplete condition of the chapel.\\n\\u201c Very respectfully,\\n\\u201c Primo Fontano,\\n\\u201c p. C. Fontano.\\u201d\\nWitness further testified that he had received a reply to his letter of July 13th, and the same was identified by him, introduced in evidence, and read to the jury. The letter is as follows:\\n\\u201c Heins \\u2022& La Farge, architects, Temple court, 7 Beekman St., New York.\\n\\u201c July 16, 1897.\\n\\u201c Mr. O. Fontano, 1725 19th St. N. W., Washington, D. C.\\n\\u201c Dear Sir : We have your note of July 13th, in which you notify us that you can not go on with the marble-work of the chapel until the roof is on. We venture to difier with you in regard to your interpretation of the clause in the contract to which you refer, for two reasons:\\n\\u201c 1st. That it is entirely practicable to set your marble-work, so much of it, at least, as is necessary to support the masonry above which rests upon the marble.\\n\\u201c 2nd. When I visited Washington a week or so ago, at your request, we had agreed that you were to go ahead on this basis.\\n\\u201cWe have, therefore, to request of you that you will carry out this understanding and commence to set the marble-work upon the outside walls, so far as may be necessary to support the brickwork above.\\n\\u201c Our interpretation of the clause in the contract which relates to setting the marble after the roof is on refers to the arcade between the chapel and the church and to the slabs lining the walls.\\n\\u201cWe wish to call your attention to the fact that the general conditions printed on the specifications provide that the architects are to decide disputes arising respecting the true construction or meaning of the drawings or specifications. We are distinctly of the opinion that it will make a better piece of work to have the columns along the wall and the arches above them set in place before the wall is carried up any higher, as the inside lining wall can then be properly bonded to the outside wall, and the columns themselves' can be anchored firmly in place. If you do not proceed as above, you will have to hold youself answerable for any damages which may occur through your refusal so to do.\\n\\u201c Tours very truly,\\n\\u201c Heins & La Large,\\n\\u201cper G. L. Heins.\\u201d\\nWitness further testified that he attempted to do the work and set in place several pieces of marble and some of the skirting, but that after working a day or two there was a heavy rainstorm which prevented him from further carrying on his work, for the reason that the water poured into the space between the marble and the brick walls, thereby damaging the cement and staining the marble; that he thereupon immediately notified the architects that it was impracticable for him to do the work until the walls were up and the roof on.\\nWitness further testified that he went to see Mr. George E. Hamilton, the attorney for the defendant, but found him out of the city, and that he was at the same time informed that the defendant was in Europe; that upon Mr. Hamilton\\u2019s return from Europe he called upon him at his office in this city and told him the condition of the walls and the roof, and that he had been here some time at heavy expense and urged him, as the attorney of the defendant, to have the walls erected and the roof put on, in order that he might go on with his work; that Mr. Hamilton told him that he did not know where the defendant was, but that he would write to her father and ascertain, and further told the witness that the plaintiff should suffer no loss on account of the delay; that he was compelled to wait around doing nothing until the latter part of August, 1897, when the witness was informed by Mr. Hamilton that the defendant was in New York; that on the 31st of August he saw the defendant at Coney Island, and that he told her that he was unable to set the marble, owing to the walls of the chapel not being up and the roof not being on, and that he had been here for \\u2022some time at heavy expense, and urged her to have the walls put up and the roof put on so that he might go on with his work; that the defendant said that she could do nothing, that she had nothing to do with the walls or the roof, and \\u25a0disclaimed all responsibility for anything connected with the building of the walls or the roof of the chapel, and that witness would have to wait until the chapel was ready to receive the marble-work, and advised the witness to return to Italy until the chapel was ready, and that she further told witness that the plaintiff knew that she had nothing to do with the walls or the roof; that he told the defendant that he could not go back to Italy, as all his brother\\u2019s capital was \\u25a0sunk in this job; that some time in September the work of \\u25a0completing the walls was begun, and that some time about the middle of October the work of putting on the roof was begun; that on the 18th day of October, the earliest day practicable, the witness began the setting of the marble in the chapel, and at that time a part of the roof was on \\u2014 \\u25a0 that part immediately above the point where he was. setting his marble. Witness further testified that he was further delayed by the architects about a month in furnishing him with a diagram of the ceiling and the size of rosettes for the doing of the decorative plaster-work on the ceiling of the roof; that on October 6, 189 Y, the witness wrote to the architects and requested the diagram of the ceiling, but did not receive the diagram as requested, and on December 9, 189Y, again wrote to the architects for the diagram; the said letter, which was introduced in evidence and read to the jury, is as follows:\\n\\u201c 1201 20th St. N. W.,\\n\\u201c Washington, D. 0., 9th Dec., 189Y. \\u201cMessrs. Iieins & La Large, architects, Temple court, Y Beekman St., New York.\\n\\u201c Gentlemen : The work on the contract of Prof. Prime Pontano in the chapel of St. Anthony of Padua, at St. Matthew\\u2019s church, Washington, D. 0., has progressed so far that it'becomes necessary to request that you forward at once to me the plans for the ceiling. Any delay in furnishing these plans will cause me considerable unnecessary expense, which I wish to avoid. You will recall that the price of this work was agreed to be $250.00.\\n\\u201c You will oblige me greatly by a prompt compliance with my request. \\u201c Respectfully yours,\\n\\u201c Primo Fontano,\\n\\u201c p. O. Fontano.\\u201d\\nThat he again wrote to the architects on December 31st, calling their attention to the failure to provide the framework, including the lath to receive the decorative plasterwork. Said letter, which was introduced in evidence and read to the jury, is as follows:\\n\\u201c 1201 20th St. N. W.,\\n\\u201c Washington, D. C., 31st Dec., 189Y.\\n\\u201c Messrs. Heins & La Farge, architects, Temple court, Y Beekman St., New York city, N. Y.\\n\\u201c Gentlemen : I have to inform you that I am now ready to put up in the chapel in the church of St. Matthew\\u2019s the' ceiling of decorative plaster-work called for in my contract with Miss Mary Helen Carroll under date of August 19th, 1895, and I have further to inform you that nothing has been done towards putting in place the frame-work, including the lath, to receive said decorative plaster-work, which you on the 16th instant promised me you would have done right away.\\n\\u201c You are hereby respectfully notified to have said framework and lathing put in at once and thereby save the expense to Miss Carroll that may result from my having to wait to have said framework and lathing put in.\\n\\u201c Respectfully, Primo Eontano,\\n\\u201c p. C. Eontano.\\u201d\\nThat on January 19, 1898, witness received the diagram for the decorative ceiling, and was also informed by the architects that the plaintiff would have to provide the framework and laths for receiving the decorative plaster; that, although witness did not consider that plaintiff had to provide the framework and laths to receive the plaster, yet witness did purchase .and have put up the frame for this purpose in order to prevent further delays.\\nThat the contract work was completed March 15, 1898.\\nHe further testified to bringing a skilled workman from Italy to help him set the marble, and to the charges for his and witness\\u2019s time and expenses while waiting; to extra custom-house storage charges upon the marble, and so forth, in support of the itemized statement of the plaintiff\\u2019s demand. He further said that about the time of the institution of the suit he was told hy defendant\\u2019s attorney that she would not pay- any damages or expenses sustained; but was not sure whether this was before or after the institution of the suit. He also testified, that it was impossible to set the marble in the chapel until the walls were up and the roof on; that the drippings of mortar and cement from the walls and ceilings would have stained and probably ruined his marble-work; that rain water on marble tends to discolor it, and that it is impossible to remove the same; that cement and lead are used in setting marble, and these likewise have a tendency to discolor it if rain water comes in contact; that when he began setting marble in October, 1897, he found it necessary to take up and reset the pieces of marble he had set some months before, because rain had caused the cement to rot. On cross-examination, he~ testified that he knew Father Lee was building the chapel and church, and got from him a contract for putting two marble columns in the church; that he had never notified defendant personally about his claim, and that he had never consulted the architects or the defendant in regard to arbitrating his claim. \\u2022 He further said:\\n\\u201c That there was an inner and outside wall to said chapel, according to the plans; that the inner wall was to be built thirty-two feet high; that on top of the marble columns was to be brick masonry up to the roof; that the marble-work had to be carried up together for the reason that if the columns had been set in place it would have been impossible to set the marble slabs which lined the wall behind the columns, owing to the columns being required to be set very close to the walls; that he did not have room to work behind the .columns.\\u201d\\nTwo witnesses, called for the plaintiff, testified that the' walls of the chapel were not begun until some time during the latter part of September, 1897, and that plaintiff began setting the marble in October; that the roof was only partly on and was begun about the middle of October; that rain water tends to discolor marble and the stains cannot be removed. One of these witnesses had the contract for the brickwork of chapel and church, and the other was his employee.\\nOn cross-examination, the contractor testified that his contract was with Father Lee, and the work was done under his directions and those of Heins & La Farge, his architects. Payments were made by Father Lee; that Miss Carroll was not known in the matter by the contractor, and gave no directions to him; that the work upon the brick walls would not interfere with or prevent the marble man from working, but it was not practicable to put in the marble-work before the roof was on.\\nOn the conclusion of the plaintiff\\u2019s evidence, the defendant moved the court to direct a verdict for the defendant, because :\\n1. The plaintiff\\u2019s proof did not make out a case.\\n2. The plaintiff had failed to prove a reference to arbitration before bringing suit, which is a condition precedent to the right of action.\\nThe motion was granted generally, and from judgment on the verdict so returned the plaintiff has appealed.\\nMr. Benjamin S. Minor, Mr. Joseph F. Collins and Mr. O. D. Barrett for the appellant.\\nMr. G. E. Hamilton and Mr. M. J. Colbert for the appellee :\\n1. The plaintiff\\u2019s whole case rests upon the assumption that the defendant undertook and contracted to have the main structure and the chapel walls ready to receive the plaintiff\\u2019s work and that she, the defendant, must be held to have agreed to do all the balance of the work upon the church building. Certainly Mrs. Robbins never intended to assume such a large responsibility, and certainly Mr. Eontano never so understood the extent of her responsibility. In June, 1896, when he learned that the walls of the building had not sufficiently progressed to receive his work, he made no complaint to her, but wrote to the architects who were employed and paid by the building owner. When, in August, 1897, he was informed by the defendant that she had nothing to do with the erection of the walls, he acquiesced in her statement, and made no claim at that time that he would hold her responsible for any damage which he might sustain by reason of being delayed in the prosecution of work under his contract. Even if we ignore the circumstances, and the plain understanding and conduct of the parties, and even if we ignore the conduct of the plaintiff in receiving from the defendant the full amount which she agreed to pay him without making a single claim against her for anything more, and if we confine onrselves to the bald language of the contract itself, it would seem clear that the plaintiff\\u2019s contention must fail. \\u201c The owner agrees to provide all labor and materials not included in this contract in such manner as not to delay the material progress of the work.\\u201d What labor and materials ? Can it be said that by this vague and meaningless language the defendant bound herself to the plaintiff to have this entire building erected at her own cost and expense? We submit that from the terms of the contract itself no such conclusion is justified. W\\u00e9 submit that the parties never so understood the contract, and that the plaintiff was expressly advised by the defendant that she assumed no such responsibility, and the plaintiff, by his silence, and by his subsequent conduct, acquiesced in this statement, and that he is now estopped from setting up the present claim against the appellee when she is powerless to protect herself.\\n2. It is not pretended that the plaintiff demanded or was refused any reference to arbitrators, and, under the decisions of this court and of the Supreme Court of the United States, it is too late to dispute the validity of such provisions requiring the submission of disputes of this kind to arbitration. Bailey v. The District of Columbia, 9 App. D. C. 360; Wood v. Hartshorn, 100 Mass. 17; Kihlberg v. United States, 97 U. S. 398; Hamilton v. Insurance Co., 136 U. S. 242. See also Railroad Co. v. Price, 138 U. S. 185; Avery v. Scott, 8 Exch. 500; Scammon v. Denio, 72 Cal. 393; Weggner v. Greenstine, 72 N. W. 170; Insurance Co. v. Long, 73 Ill. App. 663. Hamilton v. Insurance Co., 137 U. S. 0387, relied on by appellant, is not antagonistic to the contention now made.\\n3. The only remaining contention on the part of the appellant is that, by refusing to submit to arbitration, the appellee has waived her right to demand it as a condition precedent to the bringing of suit. This contention is based upon a misconception of the proof in the record. According to the plaintiff\\u2019s own showing, he did not arrive in this country until June, 1897. In August, 1897, long before he had begun any work under his contract, he called on Mrs. Bobbins and urged her to put up the walls, so that he could go on with his work, but Mrs. Bobbins insisted that she had nothing to do with the walls or the' roof, and that plaintiff knew that she had nothing to do with the walls or roof, and that was all that there was of the interview. In other words, the defendant insisted then, as she insists now, that, under a proper construction of her contract, she was not required to build tbe walls or roof of tbe chapel, but this was not a refusal on ber part to ascertain and fix tbe amount of tbe plaintiff\\u2019s loss by tbe mode pointed out in tbe contract after tbe plaintiff bad completed \\u25a0 bis work. On tbe contrary, tbe plaintiff\\u2019s brother and agent says tbat be does not know whether it was before or after the institution of this suit that be was informed by Mr. Hamilton, Mrs. Bobbins\\u2019 attorney, tbat sbe would not jtay for any loss or damage sustained by tbe plaintiff in consequence of the delay caused in finishing tbe walls and roof of tbe chapel.\", \"word_count\": \"6412\", \"char_count\": \"36577\", \"text\": \"Mr. Iustice Shepard\\ndelivered tbe opinion of tbe Court:\\n1. If the concluding clause of article 8 [of tbe contract] contained no reference to the action of any one but tbe arbitrators to be selected as provided in the last clause of article 3, for tbe ascertainment of tbe amount of loss and damage sustained by tbe plaintiff through tbe imposed delay, we could have no possible doubt of tbe plaintiff's right to maintain tbe action without precedent demand for arbitration. Hamilton v. Home Ins. Co., 137 U. S. 370, 385. Tbe provision for arbitration in that case was substantially like tbe one in tbe contract upon which this action depends. Hnlike tbat in tbe prior ease of Hamilton v. Liverpool, etc., Ins. Co., 136 U. S. 242, it did not expressly declare tbat the award should be a condition precedent to tbe maintenance of an action upon tbe contract. It was, therefore, held, tbat the refusal of tbe plaintiff to submit tbe amount of bis loss to arbitration, though promptly demanded, was no defense to bis action. Tbe distinction between tbe two cases is thus stated by Mr. Justice Gray, who delivered tbe opinion in each:\\n\\\"A provision, in a contract for the payment of money upon a contingency, that the amount to be paid shall be submitted to arbitrators, whose award shall be final as to that amount, but shall not determine the general question of liability, is undoubtedly valid. If the contract further provides that no action upon it shall be. maintained until after such an award, then, as was adjudged in Hamilton v. Liverpool, etc., Ins. Co., above cited (136 U. S. 242), and in many cases therein referred to, the award is a condition precedent to the right of action. But when no such condition is expressed in the contract, or necessarily to be implied from its terms, it is equally well settled that the agreement for submitting the amount to arbitration is collateral and independent; and that a breach of this agreement, while it will support a separate action, cannot be pleaded in bar to an action on the principal contract.\\\" 13Y U. S. 385.\\nThe language of article 8, however, is that the amount of loss or damage shall be fixed and determined \\\" by the architects or by arbitration as provided in article 3.\\\" Turning; to article 3, quoted above, it will be observed that it relates to alterations that may be made by direction of the architects, and the ascertainment of allowances therefor by them. In case of dissent from their award, submission shall be had to arbitrators whose selection and powers are provided for.\\nIt is a well-settled doctrine that, in contracts of this general character, the parties may specially provide for the final ascertainment of the quantity of work done, materials furnished and so forth, by reference to the engineer, architect or party having supervision of the performance of the contract; and that his estimates and reports when so made wilbind all concerned unless actual fraud can be shown, or the commission of gross mistakes from which bad faith might be inferred. Kihlberg v. United States, 97 U. S. 398; Chicago, etc., RR. Co. v. Price, 138 U. S. 185.\\nIt is manifest that work and materials to be furnished in addition, or to be omitted, under the power given to the- architects, to make alterations from time to time, were, for special reasons, to be estimated by them. But instead of making their estimate final and binding, either party was at liberty, if not satisfied, to demand arbitration, and final settlement thereby.\\nIt is contended on behalf of the appellee, that the provision of article 8 referring to this mode of ascertainment by the architects is a distinct and separate condition and binds the plaintiff, in accordance with the doctrine stated, without regard to the effect of the additional stipulation for arbitration in event of dissatisfaction; in other words, the architects are the sole primary judges of the amount to be paid, and the reference to arbitration is only by way of appeal from their judgment.\\nWhilst this contention is plausible and may be sound in application to demands arising under the alterations stipulated for in article 3, we are unable to agree with it.\\nThe particular reasons for referring demands made by either party, growing out of alterations which the architects were empowered to direct, to what is called, in article 3, their award, do not exist in the case of demands made under article 8. The former demands accrue as part and parcel of the work to be done in the performance of the contract, in case of probable contingencies that might call for the correction of the plans and specifications in some minor particulars. The latter are by way of damages sustained through nonperformance of the entire contract within time. The recital of article 8, providing for determination by the architects or by arbitration, would seem to call, with certainty, for no more than a reference to the architects as arbitrators merely. So considered, the reference is no more a condition precedent to the right of action than is that to the other mode of ascertainment through arbitration. Special stipulations submitting the demands of a contractor to the adjudication of supervising architects and engineers, though enforceable as we have seen, are in derogation of common right and the ordinary freedom of action, and must clearly appear to be within the intention of the contract. Construction, in case of doubt, is in favor of one resisting 'enforcement.\\nThe conclusion reached renders it unnecessary to consider whether, assuming the correctness of the contention, the defense thereunder would be waived by denial of all liability before the institution of suit, or loss by failure to plead it.\\n2. It appears from the evidence submitted that the defendant was not in fact the owner or builder of the church or the chapel attached thereto. The pastor of the church had contracted for its construction according to the plans and under the supervision of the architects, Heins & La Large.\\nThe defendant, with knowledge of the situation and the approval of the church authorities, undertook to provide the interior construction of the chapel, and employed the same architects to plan and supervise the work for the execution of which she contracted with the plaintiff. The plaintiff's action is founded on the provision of article 8, to this effect: \\\" The owner agrees to provide all labor and materials not included in this contract in such manner as not to delay the material progress of the work, and in the event of failure so to do, thereby causing loss to the contractor, agrees that he will reimburse the contractor for such loss.\\\" This is reinforced by the following clause of the specifications referred to in the contract: \\\" The outside walls will be built, rough concrete floor finished, and the chapel will be roofed in when the contractor Commences to set the marble-work.\\\" That the defendant was not the real owner of the exterior building \\u2022and as such obliged to construct the same and furnish all labor and materials not included in the plaintiff's special undertaking, is a fact that has no material bearing upon the controversy. She is the person referred to as \\\" owner \\\" in the contract with plaintiff and as to him she assumed that relation for the special purposes of that contract. She took the place of the real owner, and, at least, became an absolute guarantor of the necessary construction prelimi\\u00fcary to the commencement of plaintiff's work. He was not bound to inquire into her relation to the general construction of the building, or her obligation to the contractors therefor. The argument that the plaintiff did not contemplate or understand this extent of responsibility on the part of the defendant, because he made no complaint to her in person of delay in the construction of the outer walls and roof, but complained, instead, to the architects who represented the real owner, is without substantial foundation. The architects of the building were also the architects, under the direction and to the satisfaction of whom, the plaintiff was to perform his part of the contract. They were to furnish the plans and specifications, interpret the same, supervise the work, direct changes, and certify to completion before final payment. They were the representatives of the defendant, and the correspondence between the plaintiff's agent and them shows on its face that his complaints were to, and his demands against them as such.\\n3. From the views expressed the conclusion necessarily follows that there was error in the direction to the jury to return a verdict for the defendant.\\nAs the case must be remanded for new trial before a jury, we are not to be understood as expressing any opinion, whatever, in respect of the merits of the several items of plaintiff's claim of loss and damage.\\nAll that we hold is, that under the interpretation given the contract between the parties, the evidence offered by the plaintiff was sufficient to require the submission of the issue to the jury.\\nThe judgment will be reversed, with costs, and the cause remanded with direction to set aside the verdict, and award a new trial. It is so ordered. Reversed.\"}"

dc/1354211.json

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+"{\"id\": \"1354211\", \"name\": \"WICKERS v. ALBERT\", \"name_abbreviation\": \"Wickers v. Albert\", \"decision_date\": \"1907-02-05\", \"docket_number\": \"No. 390\", \"first_page\": \"23\", \"last_page\": \"25\", \"citations\": \"29 App. D.C. 23\", \"volume\": \"29\", \"reporter\": \"Reports of Cases Adjudged in the Court of Appeals of the District of Columbia\", \"court\": \"District of Columbia Court of Appeals\", \"jurisdiction\": \"District of Columbia\", \"last_updated\": \"2021-08-10T22:36:40.661195+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"WICKERS v. ALBERT.\", \"head_matter\": \"WICKERS v. ALBERT.\\nPatents ; Interferences.\\n1. Wickers v. McKee, ante. 4, applied and followed.\\n2. Failure by one of the parties to an interference to reduce to practice the invention of the issue until after the filing date of his adversary, and lack of diligence at the time the latter entered the field, are fatal to an award of priority. Following Wickers V. McKee, ante, 4.)\\nNo. 390.\\nPatent Appeals.\\nSubmitted November 24, 1906.\\nDecided February 5, 1907.\\nHearing on an appeal from a decision of the Commissioner of Patents in an interference proceeding.\\nAffirmed.\\nMessrs. Griffin & Bernhard for the appellants.\\nMr. Walter F. Rogers and Mr. -Jacob Felbel for the appellee.\", \"word_count\": \"585\", \"char_count\": \"3544\", \"text\": \"Mr. Justice McComas\\n'delivered the opinion of the Court:\\nA like stipulation with that made in No. 387 Patent Appeal Docket [ante, 21] respecting such parts of the record of the companion interference No. 22,400 (No. 386 Patent Appeal Docket) [ante, 4] as are common to the two interferences, was entered into between the parties to this interference. The issue of this interference is as follows:\\n\\\"The process of 'making ready' the printing surface of a printing block, which consists in applying to the back of the printing block a 'relief' form having raised parts corresponding to the darkly shaded parts of the subject to be printed, covering the printing surface of the printing block with yielding material, and then subjecting the printing block and the 'relief' form to pressure, thereby raising the level of those parts of the printing surface of the printing block which correspond to the light shaded parts,of the subject to be printed so as to obtain a correctly shaded impression in a single printing operation.\\\"\\nIn this case the three tribunals of the Patent Office concurred in awarding priority of invention in favor of Albert. The Examiner of Interferences held that Wickers and Eurlong conceived this invention in 1897, but did not reduce to practice prior to their filing date, January 22, 1902, while Albert filed his application involved in this interference on June 15, 1901, at which time,and for several months thereafter Wickers and Furlong were not exercising diligence; and he awarded priority of invention of the issue of this interference to Eugen Albert, the senior -party.' The Examiners-in-Chief and the Commissioner of Patents concurred in holding that Wickers and Furlong did not establish a date of conception prior to June 15, 1901, when Albert's application was filed, and that Albert was the first to conceive and the first to reduce to practice. The three tribunals therefore awarded priority to Albert, and from such decision by the Commissioner of Patents Wickers and Furlong appealed to this court.\\nWe have so fully stated our reason for concurring with the Commissioner of Patents, and for concluding that Wickers and Furlong did not reduce to practice the invention of this issue until after the filing date of Albert's application, June 15, 1901, and that they were lacking in diligence at the time Albert entered the field, that we content ourselves by referring to the opinion of this court in the companion interference, No. 386 Patent Appeal Docket, where we have discussed the matters, which lead us to such conclusion, [ante, 4].\\nA petition by the appellants for a rehearing, filed February-25, 1907, was denied March 6, 1907.\\nThe decision of the Commissioner of Patents is affirmed, and the clerk of this court will certify this opinion and decision to the Commissioner of Patents in accordance with law.\\nAffirmed.\"}"

dc/1362878.json

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+"{\"id\": \"1362878\", \"name\": \"SOUTHERN RAILWAY COMPANY v. HAWKINS\", \"name_abbreviation\": \"Southern Railway Co. v. Hawkins\", \"decision_date\": \"1910-05-26\", \"docket_number\": \"No. 2131\", \"first_page\": \"313\", \"last_page\": \"323\", \"citations\": \"35 App. D.C. 313\", \"volume\": \"35\", \"reporter\": \"Reports of Cases Adjudged in the Court of Appeals of the District of Columbia\", \"court\": \"District of Columbia Court of Appeals\", \"jurisdiction\": \"District of Columbia\", \"last_updated\": \"2021-08-11T00:15:11.975168+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"SOUTHERN RAILWAY COMPANY v. HAWKINS.\", \"head_matter\": \"SOUTHERN RAILWAY COMPANY v. HAWKINS.\\nDeath; Executors and Administrators; Damages; Next of Kin.\\n1. The expression \\u201cpersonal representatives,\\u201d used in see. 1302, D. C. Code, 31 Stat. at L. 1394, chap. 854, providing that suits for the death of a person caused by wrongful act shall be brought by the personal representative of the deceased, means either the executor or administrator. (Following Verguson v. Washington & G-. R. Go. 6 App. D. C. 525.)\\n2. Where a person domiciled in another jurisdiction is killed in this District, and letters testamentary are granted in the place of domicil, an administrator who is a person other than the executor in that jurisdiction, appointed in this District for the purpose of bringing suit here for damages for the death of the decedent, may maintain such suit over the objection of the defendant, \\u2014 especially where the foreign executor does not claim the right to bring the suit in his name, and his actions indicate a waiver of such right, if it exists. (Construing D. C. Code, sees. 329 and 1301-1303, 31 Stat. at L. 1242, 1394, 1395, chap. 854, and citing Washington Asphalt Block & Tile Go. v. Mackey, 15 App. D. C. 410.)\\n3. An action for death by wrongful act is maintainable in this District by an administrator for the benefit of the illegitimate brother of the half blood of the decedent, a woman, under see. 1301, D. C. Code, 31 Stat. at L. 1394, chap. 854, providing that damages recovered in such actions shall be assessed with reference to the injury to the widow and \\u201cnext of kin\\u201d of the decedent; sec. 387, 31 Stat. at L. 1250, chap. 854, providing that illegitimate children may in this District inherit from their mother and from each other, and that when any illegitimate child shall die, leaving no descendants, or brothers or sisters, or descendants of such, the mother of such illegitimate child shall be entitled \\u201cas next of kin\\u201d to take from such child; and sec. 386, providing that in the distribution of personal estate there shall be no distinction between the whole and the half blood.\\nNo. 2131.\\nSubmitted April 13, 1910.\\nDecided May 26, 1910.\\nHearing on an appeal (specially allowed) by tbe defendant from an order of tbe Supreme Court of tbe District of Columbia, sustaining a demurrer to pleas of tbe defendant to a declaration to recover damages for tbe death of the plaintiff\\u2019s intestate, and overruling tbe defendant\\u2019s demurrers to tbe plaintiff\\u2019s replication, .\\nAffirmed.\\nTbe facts are stated in tbe opinion.\\nMr. Samuel Maddox and Mr. II. Prescott Gatley for tbe appellant, the Pullman Company and Mr. George E. Hamilton, for the appellant, tbe Southern Railway Company:\\n1. Appellee, as administrator, has no right to maintain this action. D. O. Code, secs. 1301, 1303. Tbe executor would have power to compromise a cause of action of this character before suit brought. Parker v. Providence & S. S. S. Go. 14 L.R.A. 414; Rogers v. Hand, 39 N. J. Eq. 270-275; Meeker v. Vandoweer, 15 N. J. L. 392; Sykora v. Case Threshing Mach. Co. 59 Minn. 130. This court held in Ferguson v. Railroad Go. 6 App. D. C. 525, 534, that \\u201cthe right of action is purely statutory, and recovery can only be bad by the personal representative of the deceased perspn. Tbe personal representative is either the executor or administrator of tbe deceased. That is tbe legal and accepted definition of those terms; and no other person can maintain tbe action under tbe statute.\\u201d See also Copeland v. Seattle, 65 L.E.A. 333. In view of the foregoing decisions, it would appear to be definitely determined that where a cause of action arises because of the negligent killing of a person, and that person dies testate, the executor of the estate is the \\u201cpersonal representative\\u201d of such deceased person. This being so, no other person can maintain the action under the statute (Ferguson v. Railroad Co. supra).\\n2. The Probate Court was without jurisdiction to grant letters of administration to appellee.\\nVellma V. Jones at the time of her death was a resident of and domiciled in the State of Louisiana. She died unmarried and without issue, leaving a last will and testament, which last will and testament appointed an executor thereof. Her last will and testament was duly admitted to probate and record in the State of Louisiana, and letters testamentary thereunder issued to said executor, who duly qualified as such, and is now living, and whose letters have never been revoked. All of the property of the deceased in this District at the time of her death was turned over to and received by the executor. Appellee was not such executor.\\nThis was the situation when appellee came into this jurisdiction and secured his appointment as administrator of the estate of said deceased.\\nThe two essential prerequisites of administration were lack-in, viz., local assets and the intestacy of the deceased (Code, sec. 273).\\nSo far as we have been able to ascertain, under the present state of our law the only jurisdiction which the probate court has over the estate of nonresident decedents is to administer such local assets as may be necessary to satisfy local creditors (sec. 260, Code).\\nThere were no local assets or local creditors at the time of appellee\\u2019s appointment.\\nNor was there any occasion for the appointment of an administrator of her estate. There was a duly qualified executor in existence, capable of managing the estate and of handling any claim for damages in respect to her death.\\nThis executor could have maintained an action in the State of Louisiana, or he could have brought suit in this jurisdiction if he so desired under sec. 329, Code, D. C.\\nThe action of the probate court in granting letters of administration upon the estate of the deceased, when there was in existence a duly qualified executor of such estate, was absolutely void. Kane v. Paul, 14 Pet. 33. We are not unmindful of the decisions of this court in Asphalt Co. v. Mackey, 15 App. D. C. 410, and in Western U. Teleg. Co. v. Lipscomb, 22 App. D. C. 104. They are not in conflict with the contentions in this case. In both of these cases the person killed died intestate, and there was no \\u201cpersonal representative\\u201d authorized to maintain the action; hence the necessity for the appointment of one for that purpose. In the latter case the decedent was a resident of Virginia at the time of his death.\\n3. An action cannot be maintained for the benefit of an illegitimate brother of the half blood, because of the death of his illegitimate sister of the half blood, under the provisions of chap. 45 of the Code.\\nAppellee instituted and seeks to maintain this action for his own benefit as the sole next of kin of the deceased.\\nIt is a well-recognized rule of construction that when legislative acts enabling survivors to sue for damages for death by wrongful act use the words \\u201cnext of kin,\\u201d \\u201cfather,\\u201d or \\u201cmother,\\u201d \\u201cchildren,\\u201d \\u201cbrothers,\\u201d or \\u201csisters,\\u201d they mean only legitimate next of kin, father, mother, children, brothers, or sisters. Dickinson v. North Eastern B. Co. 2 H. & C. Y35; Clarke v. Car-fin Coal Co. [1891] 1A. C. 412; Gibson v. Midland B. Co. 2 Ont. Rep. 658; Citizens Street B. Co. v. Cooper, 22 Ind. App. 459; Marshall v. Wabash B. Co. 46 Fed. 269; McDonald v. Southern B. Co. 11 S. C. 352, 2 L.R.A.(N.S.) 640; Lynch v. Knoop, 118 La. 611; Landry v. American Creosote Works, 119 La. 231; McDonald v. Pittsburg C. C. & St. L. B. Co. 144 Ind. 459, 43 L.R.A. 309; Thornburg v. American Strawboard Co. 141 Ind. 443; Good v. Towns, 56 Vt.' 410; Alabama & V. B. Co. v. Williams, 51 L.R.A. 836; Harkins v. Philadelphia, B. B. Co. 15 Phila. 286; Bobinson v. Georgia B. & Bkg. Co. 60 L.B.A. 555; Illinois G. B. Go. v. Johnson, II Miss. 727, 51 L.R.A. 837.\\nMr. Lorenzo A. Bailey for the appellee.\\nAs to right to recover for negligent killing of illegitimate, or to maintain action for benefit of illegitimate for negligent killing of relative, see note to McDonald, v. Southern R. Co. 2 L.R.A. (N.S.) 640.\", \"word_count\": \"4088\", \"char_count\": \"23425\", \"text\": \"Mr. Justice Robb\\ndelivered the opinion of the Court:\\nThis is a special appeal from an order of the Supreme Court of the District of Columbia sustaining the demurrers of the plaintiff, Nyanza Hawkins, administrator of the estate of Vellma V. Jones, deceased, appellee here, to the pleas of the defendants, the Southern Railway Company and the Pullman Company, corporations, appellants here, and overruling the defendants' demurrers to the plaintiff's replication.\\nThe suit was brought by Nyanza Hawkins as administrator of the estate of Vellma V. Jones, deceased, for the recovery of damages for the alleged negligent killing of said decedent while the train upon which she was a passenger was passing through a tunnel near the Union Station in this District. The declaration avers that said decedent \\\"left her surviving as her sole next of kin her brother, the said Nyanza Hawkins, for whose benefit this suit is brought under the provisions of the Code of Law for the District of Columbia.\\\"\\nTo the declaration appellants plead: First, that the domicil of the decedent at the time of her death was in the State of Louisiana; that she died unmarried and without issue, leaving a last will and testament in which an executor was named: that said last will and testament was admitted to probate and record in the State of Louisiana, and letters testamentary thereunder issued to said executor, who duly qualified thereunder, and who is now living and still qualified to act; that said executor is not Nyanza Hawkins; that all the property of said Vellma V. Jones in this District, consisting of money and jewelry, was turned over to said executor; and, second, that said Nyanza Hawkins is an illegitimate brother or i half blood of said decedent, and not next of kin, and that he has no interest in this suit.\\nIt will be seen that two questions are raised by the pleadings: First, did the probate court of the District of Columbia have jurisdiction to appoint an administrator for the prosecution of this suit? and, second, is appellee next of kin within the meaning of sec. 1301 of the Code [31 Stat. at L. 1394, chap. 854].\\nSec. 329 of the Code [31 Stat. at L. 1242, chap. 854] provides: \\\"It shall be lawful for any person or persons to whom letters testamentary or of administration have been granted by the proper authority in any of the United States or the Territories thereof, to maintain any suit or action and to prosecute and recover any claim in the District, in. the same manner as if the letters testamentary or of administration had been granted to such person or persons by the proper authority in the said District; and the letters testamentary or of administration, or a copy thereof certified under the seal of the authority granting the same, shall be sufficient evidence to prove the granting thereof, and that the person or persons, as the case may be, hath or have administration.\\\" The effect of this provision, it has been held, is that letters testamentary obtained in the jurisdiction of the domicil of the decedent prevail over letters of administration de bonis non granted in this District, and that the statute confers upon such foreign administrator the right \\\"to recover from any individual within the District of Columbia, effects or money belonging to the testator or intestate, and that letters testamentary or of administration obtained in either of the States or Territories of this Union give a right to the person having them, to receive or give discharges for assets, without suit, which may be in the hands of any person in the District of Columbia.\\\" Kane v. Paul, 14 Pet. 33, 10 L. ed. 341. If, therefore, the amount that may be recovered in this action will constitute an asset of the estate of the decedent, it is clear that upon the facts pleaded the court was without jurisdiction to appoint the appellee, administrator.\\nSaid sec. 1301 provides that the damages occasioned by the death of the person killed by the wrongful act, neglect, or default, etc., \\\"shall be assessed with reference to the injury re- suiting from such act, neglect, or default causing such death, to the widow and next of kin of such deceased person.\\\" Section 1302 requires that suit shall be brought \\\"by and in the name of the personal representative of such deceased person.\\\" This has been held to mean either the executor or administrator of the deceased. Ferguson v. Washington & G. R. Co. 6 App. D. C. 525.\\nSec. 1303 ordains: \\\"The damages recovered in such action shall not be appropriated to the payment of the debts or liabilities of such deceased person, but shall inure to the benefit of his or her family, and be distributed according to the provisions of the statute of distribution in force in the said District of Columbia.\\\"\\nSec. 1301, therefore, in effect provides that the measure of damages shall be the injury resulting to the widow and next of kin. While sec. 1302 requires the action to be brought in the name of the personal representative, sec. 1303 in terms sets aside the damages recovered for the benefit of the family of the decedent. It will thus be seen that the duty of the administrator is simply to bring the stiit allowed by the statute, and, in the event of a recovery, distribute the damages according to the provisions of the statute of distributions in force in this District. In Washington Asphalt Block & Tile Co. v. Mackey, 15 App. D. C. 410, Mr. Chief Justice Alvey, speaking for the court, said: \\\"It is true, the damages that are recoverable in such case as this may not be assets of the estate of the deceased, in any proper sense of the term. Dut the recovery, whatever it may be, is distributable to the family of the deceased, according to the provisions of the statute of distributions for intestate's personal estate. If, however, as seems to be the case, the recovery be had by the administrator simply as a nominal plaintiff, the statute confers the right to recover for the use of the beneficiaries designated, and the giving of such right to sue would seem necessarily to imply the right in the probate court to grant letters of administration to enforce the right conferred by the statute. Otherwise, those most in need of the benefit of the remedy afforded by the statute might be wholly denied the right of recovery, for the want of a nominal plaintiff to sue, however just their claim, or however flagrant might be the circumstances of their case. We think such construction ought to he placed upon the statute as will preserve the right conferred thereby, and which will promote the policy of the statute, and not defeat it.\\\" The question before the court in that case was as to the power to grant letters of administration where the party dies leaving no property here to be administered, but the language quoted is pertinent to the question now under consideration. In Jeffersonville R. Co. v. Swayne, 26 Ind. 477, the court, in construing a statute similar to ours, said: \\\"The right of action created by the statute is founded bn a new grievance, namely, causing the death, and is for the injury sustained thereby by the widow and children or next of kin of the deceased, for the damages must inure to their exclusive benefit. They are recovered in the name of the personal representative of the deceased, but do not become assets of the estate. The relation of the administrator to the fund when recovered is not that of the representative of the deceased, but of a trustee for the benefit of the widow and next of kin. The action is for their exclusive benefit, and if no such person existed, it could not be maintained. Upon a careful examination of the statute, and of the decisions of other states under statutes substantially the same, we are satisfied that the construction we have here given to it is the only consistent and correct one, and that the right of action created by it does not constitute assets of the deceased, within the provision of the 8th section of the act relating to the settlement of decedents' estates.\\\" In speaking of a similar statute the supreme court of New Jersey, in Pisano v. B. M. & J. F. Shanley Co. 66 N. J. L. 7, 48 Atl. 618, said: \\\"By the statute the amount recovered in this suit does not go into the personal estate of the deceased, to be applied to the payment of his debts. It is brought for the benefit of the widow and next of kin, and is a suit wholly for the benefit of those persons. Cooper v. Shore Electric Co. 63 N. J. L. 558, 44 Atl. 633. The administrator upon the record, whoever he is, is a formal party for the maintenance of the action.\\\" It is, we think, clear that the amount recoverable in this suit will not, in the generally accepted meaning of the term, be assets of the estate of the decedent, and that the personal representative mentioned in the statute is a mere trustee for those entitled, under the law, to the amount recovered. The reasons for avoiding conflicts between foreign and local administrators, therefore, did not exist in this case. The foreign executor did not attempt to bring this suit, and is not here complaining because it was brought by appellee. In such a situation, we think, he may be presumed to have waived any right conferred upon him by the local statute, and that such waiver may be taken advantage of by the real party in interest. This presumption is supported by the conduct of the Louisiana executor in collecting the actual assets of the decedent within the District, and in failing either to bring suit under the statute, or to object to its prosecution by appellee. Of course, upon the waiver or renunciation by the Louisiana executor of his rights in the premises, there could be no question as to the authority of the probate court to appoint a local administrator to represent the next of kin in this suit. It is not necessary to determine the question whether, had the Louisiana executor asserted his right to represent the next of kin, the court would have had authority to appoint another as such representative.\\nSec. 387 of the Code [31 Stat. at L. 1250, chap. 854] reads as follows: \\\"The illegitimate child or children of any female, and the issue of any such illegitimate child or children, shall be capable to take from their mother, or from each other, or from the descendants of each other, in like manner as if born in lawful wedlock. When an illegitimate child or children shall die, leaving no descendants, or brothers or sisters, or the descendants of such brothers or sisters, then and in that case the mother of such illegitimate child or children, if living shall be entitled as next of kin; and if the mother be dead, the next of kin of the mother shall take in like manner as if such illegitimate child or children had been born in lawful wedlock.\\\" Substantially the same provision is contained in sec. 958 of the Code [31 Stat. at L. 1344, chap. 854], in reference to the de scent of real estate. It is contended by appellants that the words \\\"next of kin\\\" in said sec. 1301, mean only legitimate next of kin, and hence that Nyanza Hawkins, being the illegitimate half brother of the decedent, is not entitled to the benefit of the statute. It may be readily conceded that, in the absence of statute changing the rule of the common law, the words \\\"next of kin, father, mother, brother, or sister,\\\" refer only to legitimates. Such is the force of the decisions cited by appellants; but that is not the question before this court. The question here is whether a remedial statute for the benefit of those dependent upon a person brought to an untimely end by the negligence of another person or corporation is extended by the above provisions of the Code to \\\"the illegitimate child or children of any female, and the issue of any such illegitimate child or children.\\\" Sec. 387 provides that such children \\\"shall be capable to take from their mother, or from each other, or from the descendants of each other, in like manner as if born in lawful wedlock.\\\" The section further provides that if the illegitimate child shall die leaving no descendants, etc., the mother of such illegitimate child, if living, \\\"shall be entitled as next of kin, and if the mother be dead the next of kin of the mother shall take in like manner as if such illegitimate child or children had been born in lawful wedlock.\\\" It was evidently the intent of Congress, in enacting this statute, to remove the common-law disability of inheritance through the maternal line, and to that extent place illegitimates upon the same basis as legitimates. This amounted to a declaration of public policy by the lawmaking power,, which declaration, being found in the same Code that provides for the recovery of damages in favor of next of kin of persons whose deaths occur under the conditions mentioned, ought to receive great consideration in determining what was meant by \\\"next of kin\\\" as used in sec. 1301. In other words, Congress having ordained that illegitimate children may inherit from their mother and from each other, and that when any illegitimate child shall die leaving no descendants, etc., the mother of such illegitimate child \\\"shall be entitled as next of kin\\\" to take from such child, \\u2014 this amounts to a legislative declaration that the mother of illegitimate children may be their next of kin, and that illegitimate children of any female are next of kin to each other. Is it reasonable to assume that Congress, having so declared, should have intended to use the words \\\"next of kin,\\\" in said sec. 1301, in a more restricted sense? We think not. The Code is one harmonious whole, and, in the absence of language clearly indicating such intent, we are not at liberty to assume that \\\"next of kin\\\" means one thing in one section, and a different thing in another.\\nIn Security Title & T. Co. v. West Chicago Street R. Co. 91 Ill. App. 333, it was held that, inasmuch as the statute of inheritance of that State removed the common-law disability of illegitimate children, an action could be maintained for the benefit of the mother of an illegitimate child as the next of kin of such child, under a statute providing compensation for causing death by wrongful act, neglect, or default. We are satisfied with the reasoning of the court in that case, although the intent of the legislature was not as clear in that case as the intent of Congress in this.\\nCounsel for appellants have cited Robinson v. Georgia R. & Bkg. Co. 117 Ga. 168, 60 L.R.A. 555, 97 Am. St. Rep. 156, 43 S. E. 452, and Illinois C. R. Co. v. Johnson, 77 Miss. 727, 51 L.R.A. 837, 28 So. 753. In neither of these cases, however, was the statute involved identical with ours. We are certainly not prepared, on the strength of these two decisions, to adopt a view which we are convinced would do violence to the intent of Congress.\\nThe question is raised by appellants that there is a distinction between an illegitimate brother of the half blood and one of the whole blood. Sec. 386 of the Code ordains that in the distribution of the personal estate there shall be no distinction between the whole and the half blood. Moreover, under sec. 387 illegitimates derive their inheritable blood from their mother, the statute taking no account of the father. It would be an anomalous situation, indeed, to hold illegitimate children capable of inheriting from their mother, but not from each other. Such was not the intent of the statute.\\nEor the reasons stated, we affirm the judgment, of tlie trial court, Avith costs. . Affirmed.\"}"

dc/1779597.json

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+"{\"id\": \"1779597\", \"name\": \"GOODRICH DRUG COMPANY v. CASSADA MANUFACTURING COMPANY\", \"name_abbreviation\": \"Goodrich Drug Co. v. Cassada Manufacturing Co.\", \"decision_date\": \"1917-02-05\", \"docket_number\": \"No. 1078\", \"first_page\": \"146\", \"last_page\": \"148\", \"citations\": \"46 App. D.C. 146\", \"volume\": \"46\", \"reporter\": \"Reports of Cases Adjudged in the Court of Appeals of the District of Columbia\", \"court\": \"Court of Appeals of the District of Columbia\", \"jurisdiction\": \"District of Columbia\", \"last_updated\": \"2021-08-10T19:04:12.874265+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"GOODRICH DRUG COMPANY v. CASSADA MANUFACTURING COMPANY.\", \"head_matter\": \"GOODRICH DRUG COMPANY v. CASSADA MANUFACTURING COMPANY.\\nTrademarks; Similarity of Marks.\\n1. In a trademark case involving the question whether two marks are so similar as to cause confusion in trade, any doubt existing should be resolved for the protection of the public, in whose interest the prohibition of the statute as to the registration of trademarks likely to create such a confusion was enacted.\\n2. The word \\u201cVelvetina\\u201d as a trademark applied to' face powder is so similar to \\u201cVelvelite\\u201d as applied to the same goods as to be likely to, cause confusion in trade.\\n3. In determining whether there is such a similarity between words used as trademarks on the same class of goods as to be likely to 'cause confusion in trade, the dissimilarity of the labels used by the parties, and of the boxes used by them in packing the goods, is of little, if any, consequence, as they may be changed at the will of the useq.\\nNo. 1078.\\nPatent Appeals.\\nSubmitted January 9, 1917.\\nDecided February 5, 1917.\\nHeading on an appeal from a decision of the Commissioner of Patents denying a petition for the cancelation of a registered trademark.\\nReversed.\\nThe facts are stated in the opinion.\\nMr. Charles E. Roster and Mr. Walter A. Johnston for the appellant.\\nMr. H. N. Paul, Jr., and Mr. Theodore S. Paul for the appellee.\", \"word_count\": \"654\", \"char_count\": \"3808\", \"text\": \"Mr. Justice Van Orsdel\\ndelivered the opinion of the Court:\\nThis appeal is from the decision of the Commissioner of Pat- cuts denying the petition of appellant, Goodrich Drug-Company, for cancelation of a trademark registered by appellee, Cassada Manufacturing Company. The Commissioner reversed the decision of the Examiner of Interferences.\\nThe registered trademark of appellee company is the word \\\"Velvelite.\\\" The mark of appellant company, upon which the request for cancelation is based, is the word \\\"Velvetina.\\\" Both marks are used on face powder. That appellant company adopted and used its mark long prior to the date of the adoption of its mark by appellee company is conceded. \\\"We have, therefore, the single question of similarity of marks, no existence of actual confusion in trade having been proven.\\nIn this sort of a case, little aid is to be secured from the decisions of the courts in similar cases. The decision, after all, must he based largely upon the impression conveyed to the mind of the court as to the probable result of the use of these marks upon the same kind of goods. That it would he likely to lead to confusion we have no doubt. But if a doubt existed, it should he resolved for the protection of the public, in whose interest the prohibition of the statute as to the registration of trademarks likely to create confusion in trade was enacted.\\nWe think the Assistant Commissioner fell into error in turning his decision upon the following ground: \\\"There have been two points brought out by the record that are decisive of this case: .First, the dissimilarity of registrant's entire label as compared with that of the Goodrich Drug Company, the labels of the Cassada Manufacturing Company being all gilt labels; and even the shape of the box in which the powder is put up is so unlike that of the Goodrich Company that there is evidently no intention of the Cassada Manufacturing Company to mislead purchasers by the general appearance of its packages and labels.\\\"\\nThese matters of dissimilarity should be of little concern in determining the actual conflict between the marks. The label and box are no part of the mark and can he changed at the will of the user. Hence, instead of being a distinction, they may become an inducement to deception and an aid in accomplishing the very thing which the statute aims to prevent.\\nThe decision of the Commissioner of Patents is reversed, and the clerk is directed to certify these proceedings as by law required. Reversed.\"}"

dc/2463525.json

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+"{\"id\": \"2463525\", \"name\": \"MORRIS v. WHEAT\", \"name_abbreviation\": \"Morris v. Wheat\", \"decision_date\": \"1893-10-02\", \"docket_number\": \"No. 64\", \"first_page\": \"237\", \"last_page\": \"240\", \"citations\": \"1 App. D.C. 237\", \"volume\": \"1\", \"reporter\": \"Reports of Cases Adjudged in the Court of Appeals of the District of Columbia\", \"court\": \"Court of Appeals of the District of Columbia\", \"jurisdiction\": \"District of Columbia\", \"last_updated\": \"2021-08-10T21:24:04.515585+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"MORRIS v. WHEAT.\", \"head_matter\": \"MORRIS v. WHEAT.\\nAppealable Orders ; Pleading ; Ejectment.\\n1. An order striking out a plea of the Statute of Limitations to a declaration in ejectment, does not involve the merits of the action, and is, therefore, not an appealable order within the mearring of R. S. D. C., Sec. 772.\\n2. It is not necessary in ejectment to plead the Statute of Limitations, so as to have the benefit of it, when the general issue is pleaded, as evidence of adverse possession is admissible under the general issue, the reason being that adverse possession for the statutory period of limitation not only bars such an action but creates a title in the possessor.\\nNo. 64.\\nSubmitted September 21, 1893.\\nDecided October 2, 1893.\\nHearing on appeal by the defendant from an order of the Supreme Court of the District of Columbia, holding a law term, striking out a plea of the Statute of Limitations to a declaration in ejectment.\\nAppeal dismissed.\\nThe Court in its opinion stated the case as follows:\\nThis is a suit in ejectment, instituted by the appellees, Wheat, Baker, and Parker, claiming as tenants in common in fee simple, to recover the possession of a part of lot 21, in square 117, in the city of Washington from which they allege themselves to have been unlawfully ousted by the defendants in 1879. After a demurrer filed by the defendants, sustained by the special term, but overruled by the general term on appeal, the defendants interposed two pleas to the declaration \\u2014one the general issue, \\u201c not guilty,\\u201d and the other a special plea of the Statute of Limitations. Upon motion of the complainants, this second plea was stricken out; and from the order striking it out the present appeal was taken to the general term, and was transferred to this court under the seventh section of the act of Congress creating this court.\\nMr. Frank W. Hackett for the appellant:\\nThe \\u201c consent rule \\u201d required of a defendant that he should plead in ejectment the general issue only. Our statute of 1870, abolishing fictions, has swept away the consent rule and its technical requirements. By abolishing fictions, and giving to the judgment a conclusive effect that it never before had, legislation has put ejectment on a footing with other actions, so far as the rights of a defendant are concerned.\\nMr. H. O. Clatighton for the appellee:\\nA plea of the Statute of Limitations to .a declaration in ejectment, is equivalent to the general issue, and is therefore bad, and the motion to strike out must prevail. 2 Chitty\\u2019s Pleading, 16th ed., 209, 214; Tyler on Ejectment, p. 463 ; Greer v. Meses, 24 How., 268 ; Hogan v. Kurtz, 94 U. S., 773.\", \"word_count\": \"1118\", \"char_count\": \"6333\", \"text\": \"Mr. Justice Morris\\ndelivered the opinion of the court:\\nThe decision on the demurrer is not before us, but only the action of the special term in striking out the defendant's plea of the Statute of Limitations. The defendants, who are the appellants, claim that they are entitled of right to their plea of the statute; and that this plea would tend to elicit an issue on the question of any existing disability that might be claimed to remove the bar of the statute. On the part of the appellees it is claimed that the plea of the Statute of Limitations is unnecessary, and that the only proper plea in ejectment is the general issue, \\\" not guilty.\\\"\\nIt is not apparent to us that the order of the special term, from which this appeal has been taken, is one that involves the merits of the action, and from which, under Section 772 of the Revised Statutes of the United States for the District of Columbia, an appeal would lie to the general term. It is true that in ejectment, equally as in other cases, a defendant is entitled to the benefit of the Statute of Limitations, whenever he chooses to avail himself of it. But differently from other cases, it is not necessary in ejectment to plead the statute, so as to have the benefit of it. This was decided as long ago as the time of Lord Mansfield, 1 Burrow, 113. And the rule has been universally adopted in this country. In the case of Hogan v. Kurtz, 94 U. S., 773, which went up from this District, the Supreme Court of the United States said:\\n\\\" Evidence of adverse possession in an action of ejectment is admissible, though the Statute of Limitations is not pleaded in defense.\\\"\\nThe reason of this is that adverse possession of real estate for the statutory period of limitation not only bars an action of ejectment, but by the terms of the statute creates a title in the possessor.\\nIt seems to be unnecessary, therefore, to plead the Statute of Limitations in ejectment, when the general issue has been interposed. That the pleading of it might possibly have some beneficial results, as claimed by the appellants, is an argument that addresses itself to the discretion of the court, and is based upon no legal right. It might not have been at all improper to permit this plea to stand; but the defendants are deprived of no right by its elimination. They are not precluded by this action of the court from making any defense under the general issue which they might have made under the plea of the Statute of Limitations. Their rights are in no manner whatever affected.\\nIt necessarily follows that this order does not involve, or even affect, the merits of the action; and that the order is not an appealable order. The appeal, therefore, must be dismissed, with costs.\\nThe appellant moved for a re-hearing upon the ground that Section 7 of the act creating this court (27 Stats., 435) made it the duty of the court to hear all causes pending at the date of the act, in the General Term of the Supreme Court of the District of Columbia, irrespective of the question of whether the order from which an appeal had been taken to the General Term, was an appealable order or not; that the appellate jurisdiction of the General Term having been abolished, the only inquiry which this court could make, in determining its right to assume jurisdiction, was to ascertain whether this cause was, at the date of the act in question, pending in the General Term; that this court is not called upon to determine questions of the jurisdiction of the General Term, since such a decision could no longer be of any consequence; and that Congress intended that all appeals pending in the General Term should be heard on their merits.\\nThe motion for a re-hearing was' denied.\"}"

dc/2493156.json

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+"{\"id\": \"2493156\", \"name\": \"Michael A. French vs. William H. Campbell et al.\", \"name_abbreviation\": \"French v. Campbell\", \"decision_date\": \"1883-03-26\", \"docket_number\": \"Equity. No. 6,628\", \"first_page\": \"321\", \"last_page\": \"331\", \"citations\": \"2 Mackey 321\", \"volume\": \"13\", \"reporter\": \"Reports of cases argued and determined in the Supreme Court of the District of Columbia (District of Columbia - reported by Mackey)\", \"court\": \"Supreme Court of the District of Columbia\", \"jurisdiction\": \"District of Columbia\", \"last_updated\": \"2021-08-10T23:55:03.691134+00:00\", \"provenance\": \"CAP\", \"judges\": \"i The Chief Justice and Justices Hagner and Cox sitting.\", \"parties\": \"Michael A. French vs. William H. Campbell et al.\", \"head_matter\": \"Michael A. French vs. William H. Campbell et al.\\nEquity. No. 6,628.\\n( Decided March 26, 1883.\\ni The Chief Justice and Justices Hagner and Cox sitting.\\nA general devise over after the creation, of a life estate in the same property will pass the fee.\\nSTATEMENT OE THE'CASE.\\nThe bill'in this case was filed to remove a cloud upon the -complainant\\u2019s title and obtain a construction of the will of Mary French. At the hearing below a decree was passed . divesting the defendants of all claim or title to the property in question, and investing Michael A. French with the title in fee simple. The question before the court was whether the complainant took a life estate or a fee simple, under the following will:\\n\\u201c I, Mary French, of the city of Washington and District of Columbia, being of sound mind and disposing memory, calling to mind the uncertainty of life and the certainty of death, and wishing to make proper arrangements with reference to the property of which I am possessed, do make, \\u2022ordain and publish this as my last will and testament.\\n\\u201c I request that my executor, hereinafter named, shall have my body decently, though plainly, interred, and that a plain marble headstone be placed at the head of my grave, with a suitable inscription thereon, to mark the place where my mortal remains repose.\\n\\u201c I request that my funeral expenses and just debts be paid \\u25a0so soon after my decease as possible.\\n\\u201c 1 give and bequeath into Michael A. French, the house and lot on 8th street, being part of lot No. 4, in square No. 425, the same I purchased from Aza Gladman.\\n\\u201cI give and bequeath unto my husband, Thomas French, during his natural life, the houses and lot numbered 7, in \\u25a0square 403, being the same that was conveyed by Clement Cox and wife to Lewis Edwards, as trustee for Mary French, by deed bearing date the 7th day of May, 1838, the said property aforesaid lying and being in the city of Washington.\\n\\u201cThis bequest to my husband, Thomas French, is.with this limitation and restriction ; that is, if the said Thomas French shall again intermarry, then his interest in said property is to cease, and the benefits and interest thereof are to-go to Michael A. French.\\n\\u201c Upon the decease of the said Thomas French, or if he shall marry again, I give and bequeath the said lot No. 7 in square 403 to the said Michael A. French.\\n\\u201cI hereby appoint my friend, French S. Evans, executor of this, my last will and testament.\\u201d\\nBradley & Duvall for complainants :\\nIt is a fundamental maxim upon which the construction of every will must depend that the intention of the testator,, as disclosed by the will, shall be fully carried into effect if it be not in contradiction of some established rule of law. This intention must be drawn from the whole context of the will. And it is not necessary to look alone at the words of the gift itself to ascertain the intention as to the quantum of the estate devised, if it can be gathered from expressions used in any part of it, what he supposed or intended to be the nature and extent of it. That words of inheritance are necessary to convey a fee is certainly a good, general rule of the common law ; but, in the case of wills, it is entirely subordinate to expressions of the testator\\u2019s intention. The statute respecting wills allows men to dispose of their lands not by any technical terms, but at their will and pleasure. Abbot vs. Essex Co., 18 How., 202, 215; Smith vs. Bell, 6 Pet., 68, 75; Lambert\\u2019s Lessee vs. Paine, 3 Cr., 47.\\nThe intention is to be gathered.from the \\u201cwhole context,\\u201d the \\u201c four corners,\\u201d of the will. The introductory clause, or preamble, as it is sometimes called, has always been considered in manifesting the intention, it has been designated the key of that intention ; and from the earliest reported cases, where the introductory clause expresses an intention to dispose of the whole of testator\\u2019s estate, the courts have brought this clause down and coupled it with the devise, where the words of the devise admit of passing a greater estate than for life, to assist in ascertaining the intention. Kennon vs. McRoberts, 1 Wash., 96, 100; Wright vs. Dunn, 10 Wheat., 204; Burwell vs. Mandeville\\u2019s Execr., 2 How., 560, 577; Finley vs. King, 3 Pet., 346, 378; McConn vs. Lay, 5 Cr. C. C., 548; Schriver vs. Meyer, 19 Pa. St., 87; Fogg vs. Clark, 1 N. H., 163; Doe vs. Haiter, 7 Blackf\\u2019d, 488.\\nThe language used by the testatrix in the case at bar in the introductory clause of her will is : \\u201c Wishing to make proper arrangements with reference to the property of which I am possessed ; \\u201d and in the devise itself, after limiting a life estate to her husband, Thomas : \\u201c If the said Thomas French shall again intermarry, then his interest in said property is to cease, and the benefits and interest thereof are to-go to Michael A. French. Upon the decease of said Thomas,, or if he shall marry again, I give and bequeath the said lot No. 7, in square 403, to the said Michael A. French.\\u201d It will be observed that the testatrix knew how to give a life-estate if she intended only that estate to pass to complainant.\\nThe words \\u201cpr-operty \\u201d and \\u201cinterest,\\u201d like the \\u2018-'estate,\\u201d' will pass a fee. 2 Jarman (4th edition), 133, note, 140-41; Pitman vs. Stevens, 15 East, 505; Pearson vs. Housel, 17 Johns., 281; Burwell vs. Mandeville\\u2019s Ex\\u2019r, 2 How., at 577, 578; Andrew vs. Southouse, 5 Term R., 292.\\nAgain, it is very common to construe what seems a life estate in terms, to create a fee in remainder, because of a prior life estate having been expressly created in another in regard to the same property. Chief Justice Shaw denominates this a rule of construction, and says the presumption'' is that such devise was, in the mind of the testator, a final-disposition of that part of his estate, and to effect that purpose it must be a fee. Plimpton vs. Plimpton, 12 Cush., 458, 463; Motzer vs. Cassin, 2310 Equity, S. C. D. C.; 1 Redf. Wills, 466; Butler vs. Little, 3 Greenlf., 239; Cook vs. Holmes, 11 Mass., 528; Butler vs. Butler, Wash. Law Reporter, Dec, 8, 1882, Vol. X, No. 49; 2 Jarman on Wills, (4th edition) 189; 2 Washburne Real Prop., 752.\\n'We submit, then, that the court below properly construed this devise to carry the fee to complainant ; that such was the intention of the testatrix, and that such intention can not only be extracted from her words with reasonable certainty in view of the whole will, and that no other reasonable intention can be imputed to her.\\nWm. F. Mattingly and J. J. Johnson for defendants:\\nThe introductory words of this will are relied upon to enlarge the estate of the devisee from a life estate to a fee.\\nIn the first place, it is to be noted that the introductory words in this will do not manifest any intention on the part of the testatrix to dispose of her entire estate ; and the language of the will itself shows that she did not dispose of her personal estate. It is to be presumed from the face of the will that she had personal estate, for she directs her executor to have her buried, and to place a marble headstone at the head of her grave, and directs that her funeral\\\"expenses and just debts be paid as soon as possible.\\nThe introductory words are : \\u201c And wishing to make proper arrangements with reference to the property of which I am possessed.\\u201d\\nThe devisee, Michael A. French, was her step-son, being the son of her husband by a previous wife.\\nIs any one to say that testatrix did not consider it proper arrangement to give her husband an estate for life in this lot. or so long as he remained unmarried, and upon his death or marriage that his son should have it during his life ?\\nThe law favors the heir-at-law, and he is to be disinherited only by an express devise with words of limitation, or by necessary implication. The conceded rule of interpretation is that a general devise, without words of limitation, passes but a life estate, notwithstanding a previous devise of a life estate in the same property.\\nThe rule as to the office of introductory words in a will is as stated by Chancellor Kent, [4 Kent, 541, n. 1]. He says :\\n\\u201c Introductory words to a will cannot vary the construction so as to enlarge the estate to a fee, unless there be words in the devise itself sufficient to carry the interest; such introductory words are like a preamble to a statute, to be used only as a key to disclose the testator\\u2019s meaning.\\u201d\\nSee also Wright vs. Denn, 10 Wh., 204; Jackson vs. Wells, 9 John., 222; Jackson vs. Bull, 10 John., 148; Beall vs. Holmes, 6 H. & J., 205. [The court in this case refers to all preceding leading cases, and lays down the rule in Maryland. It.is cited and approved by Kent.] 2 Jarman on Wills, 125 [171], 138 [187-8].\", \"word_count\": \"4065\", \"char_count\": \"22989\", \"text\": \"Mr. Chief Justice Cartter\\ndelivered the opinion of the court.\\nIn this case the court have come to the conclusion to affirm the decree below. The case involves the construction of a will, and the question is, whether the complainant takes a fee-simple or a life estate only. The question is not novel in this court. The issue has been once made and determined in an essentially parallel case, in which we came to the conclusion that the language used here conveyed an estate of inheritance. It is contended, however', that our decision is in conflict with early and repeated decisions both in Great Britain and this country, which have always held that a general devise over, without words of inheritance, after the creation of a prior life estate in the property devised, will pass but a life estate. But, while this may be so, we are constrained to. believe that our judgment is in thorough consonance with good sense and with that principle which pronounces the intention of the testator the supreme and overruling consideration governing the construction of wills. The construction put upon this class of devises in the cases alluded to appears to be in contravention of the rule of construction adopted by the courts in ascertaining the will of the testator, and, marvellously enough, the courts confess it. We might just as well say, following that line of decisions, \\\"although we believe the testatrix designed in this instance to devise an estate of inheritance, we never theless decide that the devisee shall not have it because the technical terms of the conveyance do not import it: and although a will, unlike all other conveyances, is not dependent upon technical terms, but such terms are overruled by the intention of the testator, nevertheless we determine that these technical terms shall rule to the suppression of the purpose of the testatrix.\\\" That is what we would be saying if we followed these decisions. Of course it is important that established rules of construction should be preserved, even though it be at the cost of sometimes sacrificing the intention of a testator. But it has always been held that where a rule of judicial interpretation obviously fails to answer the purpose for which it was created and plainly operates in contravention of the intention of the testator, then the rule loses its application. What was the intention of testatrix here ? Did she intend to pass a life estate or an estate of inheritance ? Here is the language :\\n\\\" I give and bequeath unto my husband, Thomas French, dui'ing his natural life, the houses and lot numbered 7, in square 403, being the same that was conveyed by Clement Cox and wife to Lewis Edwards, as trustee for Mary French, by deed bearing date the 7th day of May, 1838, the said property aforesaid lying and being in the city of Washington.\\n\\\" This bequest to my husband is with this limitation and restriction; that is if the said Thomas French shall again intermarry, then his interest in said property is to cease and the benefits and interests thereof are to go to Michael A. French.\\\"\\nShe put two unmistakable qualifications to the title of Thomas French, one was marriage, and the other death. There can be no mistake about the estate created in his case. It was less than an estate of inheritance, and it left the remainder of the property to pass on to somebody and in some way. Then she proceeds to say that upon the decease of the said Thomas French, or if he shall marry again, she gives and bequeaths the said lot No. 7, in square 403, to Michael A. French.\\nNow, in an ordinary reading of the English language as estimated by those who speak and write it, the conclusion would be spontaneous that this testatrix intended to give alife estate to Thomas French and an estate of inheritance to Michael A. French. That is the way it would be understood by all laymen. Nobody would hesitate about it a single moment. And still it is claimed that, read in the light of the law, this language means another life estate. Where was it to go then when that had expired ? She had no children. In the ascending line it was to go to collaterals, or their descendants. Now, did she contemplate such a disposition of her property as that ? In our opinion she never intended any such thing. 'That would be simply leaving the disposition of her estate to accident, and would be a mark of want of intention. Whereas the very making of a last will and testament is an evidence, of the testator having an intention. We think that this language means that, after.the determination of Thomas French's life estate in this property, Michael French is to take whatever remains of the estate the testatrix possessed. That is what this court held in a case similar to this, and it has been so held in a like case in Massachusetts, in a very learned and able decision, reported in 12 Cushing. Plimpton vs. Plimpton, 458. That decision alone, if there were no others, ought in my opinion to consecrate so self-evident a rule of reason, especially as against a line of authorities which do not profess that they are following reason but simply precedent.\"}"

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+"{\"id\": \"2494053\", \"name\": \"THE UNITED STATES, ON PETITION OF COMMISSIONERS TO SELECT SITES FOR THE ROCK CREEK PARK vs. GLEN W. COOPER AND CORNELIA O. TRUESDELL ET AL.\", \"name_abbreviation\": \"United States v. Cooper\", \"decision_date\": \"1893-01-16\", \"docket_number\": \"No. 366\", \"first_page\": \"491\", \"last_page\": \"498\", \"citations\": \"1 Tuck. & Cl. 491\", \"volume\": \"21\", \"reporter\": \"Reports of cases argued and determined in the Supreme Court of the District of Columbia (District of Columbia - reported by Mackey)\", \"court\": \"Supreme Court of the District of Columbia\", \"jurisdiction\": \"District of Columbia\", \"last_updated\": \"2021-08-10T23:18:16.815692+00:00\", \"provenance\": \"CAP\", \"judges\": \"The Chief Justice and Justices Hagner and Cox sitting.\", \"parties\": \"THE UNITED STATES, ON PETITION OF COMMISSIONERS TO SELECT SITES FOR THE ROCK CREEK PARK vs. GLEN W. COOPER AND CORNELIA O. TRUESDELL ET AL.\", \"head_matter\": \"THE UNITED STATES, ON PETITION OF COMMISSIONERS TO SELECT SITES FOR THE ROCK CREEK PARK vs. GLEN W. COOPER AND CORNELIA O. TRUESDELL ET AL.\\nRock Creek Park Act; Expert Witnesses ; Witness Fees.\\n1. Any person who has knowledge of a fact important to a party litigant, may be obliged to appear and testify to that fact.\\n2. When a person is summoned to testify, not as to a fact, but to give the result of his scientific knowledge, he is obliged to do so where his reasonable fees, beyond the common witness fees, have been tendered him.\\n3. Under the statute relating to the condemnation of land for Rock Creek Park (26 Stat. 492), a reasonable number of expert witnesses who testified before the Commission on behalf of the . property owners, in reference to gold deposits, should be paid a fair compensation by the United States in addition to ordinary witness fees, such compensation to' include reasonable mileage for traveling expenses actually incurred for attendance upon the Commission alone.\\n4. \\u00abPractical miners who testified before Such Commission as to gold deposits, and who, from long, careful observation, have derived special knowledge upon the subject, are expert witnesses and entitled to compensation as such.\\nDistrict Court Docket.\\nNo. 366.\\nDecided January 16, 1893.\\nThe Chief Justice and Justices Hagner and Cox sitting.\\nHearing on an application for the allowance of additional compensation to expert witnesses, who testified as to gold deposits, to be paid by the United States.\\nGranted, and referred to auditor.\\nThe facts are stated in the opinion.\\nMr. James Coleman for petitioner.\\nMessrs. R. R. Perry and C. C. Cole for the Commissioners.\", \"word_count\": \"2806\", \"char_count\": \"16194\", \"text\": \"Mr. Justice Hagner\\ndelivered the opinion of the Court:\\nThis is an application by Mrs. Truesdell, who was one of the lot owners in what is called the territory condemned for the Rock Creek Park. Her petition sets forth that in her attempts to. prove the true value of her property, she summoned certain persons who were examined as experts to prove there was a gold deposit upon it, and that the United States examined witnesses as experts in opposition to that claim; that the property has been condemned and the money awarded has been received; that several of these witnesses have been paid at the rate of $1.25 per day, although those remunerated in this way are really expert witnesses and their services were worth much' more than those of ordinary witnesses; that they should be compensated on a different principle, and that according to law, and particularly under the proper construction of the statute under which the condemnation was made, it is proper the United States should make a sufficient allowance to enable her to pay them such compensation as should be properly paid to expert witnesses.\\nThe last section of the Rock Creek Park statute declares the marshal shall provide suitable accommodations and summon such witnesses as may be desired by any party to these proceedings, and that the expense of service of summons, as well as the clerk's fee for issuing subpoenas and the attendance fees of witnesses, shall be paid by the United States as a cost incident to the condemnation.\\nIt is stated the United States is willing to pay to all these witnesses, and has already paid some of them, the ordinary witness fees; but declines to pay this claim for their charges as experts: although some witnesses summoned as experts by the United States have been already paid at the rate of $25 per day for their services, and in addition have received compensation for mileage; and the application insists a similar allowance should be made- to these witnesses on behalf of the petitioner, to be paid by the United States out of the fund appropriated by the statute.\\nThe question is a novel one here, .and its examination has involved a good deal of trouble and research. We find the law to be this:\\nThe well settled rule is that any person who has knowledge of any fact important to a party litigant, may be obliged to appear and testify to that fact, whether he desires to do so or not. Bentham's illustration is, that if the Prince of Wales, the Archbishop of Canterbury and the Lord Chancellor when riding together should witness an altercation between a costermonger and an apple-woman, upon the summons of either party to bear witness as to what they had seen and heard of the transaction, they would be obliged to appear and testify as to the facts upon the same terms as ordinary witnesses. But the case is different where a person is summoned, to testify not as to facts, but to give the result of his knowledge upon a question of a scientific character involved in the suit. That is sc*mething which such person is no more obliged to communicate without compensation to a court or jury, than he is to give gratuitously to the general public the result of his erudition upon any subject involving research; for this is his own property,-his stock in ^rade, which he can no mor\\u00e9 be required to present as a free gift to the public, than the merchant can be forced to surrender his goods at the bidding of a court, for the public benefit. Whether such a witness could be compelled to testify at all on such subjects, was at first a question of difficulty; but that was solved in favor of his obligation to do so, where his reasonable fees, beyond the common witness fees, had been tendered him. In re Roelker, 1 Sprague, Circuit Court U. S., 276. The next inquiry, whether the compensation was to be taxed as a part of the legal costs, has been settled in England, where special allowances are made as part of the costs, each party paying his own fees and then having them taxed as costs in the case. We have found no case in England where the losing party has been called upon to pay as- part of -the costs incurred by the victorious party, the moneys laid out by the latter in compensating his expert witnesses.\\nIn this country, the entire subject seems to be unsettled; and in view of the conflicting decisions,' it may be said to be undecided'whether witnesses testifying as experts are generally entitled to have their compensation taxed as part of the costs. In some States there are statutes requiring such taxation, subject to the control of the court as to the amount; while in others there is an entire absence of legislation on the subject.\\nIn Indiana such taxation is forbidden by a statute, passed apparently in consequence of a decision of its appellate court in a case where a physician, duly summoned, when required to give his opinion as to the probable course of a ball; being an anatomical question involved in a case of homicide, objected upon the ground that he had not been paid such compensation as was reasonable for his services as an expert, and payment not being made, he positively declined to testify. Having been committed for contempt of court, the Court .of Appeals decided the committal was wrong and that he had the right to remain silent. Buchman vs. State, 59 Ind., 1; U. S. vs. Howe, Dist. Court of Arkansas, 12 Cent. L. J., 193.\\nIn other States, as in Alabama (53 Ala., 389, Ex parte Dement), and in Texas (5 Texas App., 374; Summers vs. State), an opposite view is held. In a case reported in 104 Mass., 537, in the matter of Clark and the Attorney-General, two witnesses were summoned in behalf of a criminal, in a capital case, one of whom was examined as an expert and the other was not. The Court of Appeals there decided to allo-yv a reasonable compensation to be paid out of the funds of the State, to be approved by the Attorney-General, holding that such witnesses ought to be placed in a different category from ordinary witnesses as to the amount of their compensation; and that, under the circumstances of the case (the Attorney-General submitting the whole Question for the d\\u00e9cision of the court), they were as much entitled to be paid a proper exceptional sum, as ordinary witnesses were to receive the usual per diem allowance.\\nIn this jurisdiction and in Maryland, there is neither a statute, nor is there any decision on the subject.\\nThe solution of the inquiry must be governed in a great degree by the Rock Creek Park statute itself.\\nThat the United States has already paid its expert witnesses such extra compensation cannot be held to be conclusive on this subject. But we think that giving a reasonably fair and equitable construction to this statute, and bearing in mind that the United States cannot be supposed to be willing to take the property of the citizen without just and equitable compensation; that it is necessary its agents should be fully informed of all the constituents of value before it can be ascertained what would be such just and equitable compensation; there should be an allowance made for a reasonable number of such expert witnesses, summoned on the part of the owners of the land, in good faith;, and that such allowance should include reasonable mileage for traveling expenses actually incurred for attendance on this commission alone. That is to say, if a man from Kansas, who had come to Washington on other business, were summoned before tire\\\" commission, of course his mileage from Kansas should not be charged against the commission.\\nWe think we ought to refer this matter to the auditor to take testimony on this, subject and report to this court, and we will pass an order to this effect. We desire it to be understood that this ruling is so far governed by the terms of the Rock Creek Park statute that it is not to be considered as a decision on the general subject, apart from that statute. This reservation is important, as only the ordinary cotapensation of witnesses in this jurisdiction is provided for by law.\\nWe also intend to be understood as speaking only of such experts as testified here in reference to gold deposits; and to none others. Such witnesses as testified only with reference to the general value of the land we conceive are not to be considered as experts.\\nThe question of the proficiency and qualification of such of the witnesses as are claimed to have been experts, is one with reference to which testimony will be taken before the auditor; and that will be reported for our decision with' the other evidence he may take.\\nUpon the foregoing reference to the auditor, testimony was taken before him, and his report filed, to which exceptions were taken, and argued before the same Justices sitting in General Term as heard the original application. On April 1st, 1893, the following opinion was delivered. \\u2014 Reporters.\\nMr. Justice Hagner delivered the opinion of the Court:\\nAn application was made to us in behalf of Mrs. Truesdell to authorize payment out of the fund in court of certain amounts claimed to have been expended by her and of indebtedness incurred by her, in the employment of expert witnesses, to testify before the commission.\\nThe particular point of inquiry before the appraisers at the time was whether or no there was an underlying stratum of gold on Truesdell's land; and if such was the case, what was its value. We passed the following order, which subsequently was enlarged so as to embrace a similar claim presented by Mr. Shoemaker: \\\" Ordered, that the matters of said applications be and the same are referred to the auditor of this court, to ascertain and report to this court the names of any witnesses who were produced and properly testified as experts before said commission with respect to the existence or value of any gold-bearing quartz on said designated lots of land; that in making such ascertainment the auditor shall examine the record of the testimony of such alleged experts, as given before said commission and now existing among the papers of said commission, together with such other testimony bearing on this inquiiy as may be produced before the auditor by said applicants or by the United States; but no compensation shall be made to any witness, called as an expert, who testified only to the general value of said land, or who was not qualified to speak as an expert by reason of special or scientific knowledge respect ing gold-bearing quartz or auriferous earth or gold-mining explorations; the competency of said witnesses to testify as experts to be hereafter considered by the court; that where any such witness testified on one day for one of said applicants or for any other person with respect to said subjects, he shall not be allowed for attendance as witness on such_day for any other person; that the auditor shall ascertain by testimony to be taken by him what would be a reasonable compensation for the services of such expert witnesses per diem ; that the auditor shall also ascertain and report to the court what would be a reasonable allowance by way of mileage or traveling expenses for any such expert witness in addition to the per diem allowance; but no such witness shall be entitled to such allowance for mileage or traveling expenses, unless he came on to Washington City expressly for the purpose of testifying as such witness in the Rock Creek cases, for the said applicants or one of them.\\\"\\nThe auditor took testimony on these points in behalf of the claimants and of the United States; circumscribing the range of the examination within the lines laid down by the court in its order.\\nAmong the witnesses adduced by the claimants before the commission were several practical miners, who, it was insisted, should be regarded as experts, although they made no claim to be ranked as scientists. One or two of the witnesses examined before the auditor, classed themselves as scientists. We think such practical miners are quite as likely to be correct in their opinions as to the value of \\\" prospects,\\\" and perhaps more so, than the scholars, whose knowledge is exclusively or chiefly derived from books.\\nRather an unsavory scandal in our public history resulted from people relying too much upon the testimony of scientists, as to the existence and value of deposits of precious metals in what was called the Emma Mine. In that case the promoters of the speculation relied with great confidence upon the opinion of Mr. Silliman, who bore a deservedly great n'ame in the scientific world. There was no reason to believe he was not acting honestly when he declared the mine was undoubtedly very rich; and yet the scientist proved to be in error, and the mine turned out to be practically worthless. On the other hand, the history of mining shows that gold and silver mines have been repeatedly discovered and their value accurately predicted, by men who could scarcely read and probably knew little or nothing of scientific metallurgy beyond the familiar names of the substances with which they were dealing! The discovery of gold in New South Wales in 1851 by an illiterate California miner, which added more than a million of gold to the world's supply, is an instance in point. Recently, instances are said to have occurred, where skilled miners have again and again, in the course of their explorations in our western country, found great treasures. Such \\\" special knowledge,\\\" derived from long, careful observation, certainly rises far above the ordinary ability of the average of mankind, and marks its possessor as an expert, within the proper limitations of the rules of law on the subject.\\nThe auditor, in a very painstaking way, has gone into a comparison of the pretensions of two of the claimants with' the testimony on the part of the United States and of the claimants themselves, and has pointed out that the two claims conflict with each other, and that each is greatly in excess of what it ought justly to be. He has therefore reduced them to what seems to us to be reasonable limits, and we think his action is correct!\\nThis case differs from the two cases just disposed of, inasmuch as the lands of the claimants in the present case were actually taken by the Government; and in such cases only the act provides for the payment of \\\"the expenses,\\\" which includes fees of witnesses; and we therefore have a right to assign a portion of the money in court for their payment. The auditor's report will therefore be affirmed.\\nApplications of Wm. IT. Hayden and Samuel P. Lee, reported herein at page 605.\"}"

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+"{\"id\": \"2610087\", \"name\": \"GEORGE CANDY Et Ux. vs. CHARLES H. SMITH\", \"name_abbreviation\": \"Candy v. Smith\", \"decision_date\": \"1888-03-12\", \"docket_number\": \"No. 26,116\", \"first_page\": \"303\", \"last_page\": \"308\", \"citations\": \"6 Mackey 303\", \"volume\": \"17\", \"reporter\": \"Reports of cases argued and determined in the Supreme Court of the District of Columbia (District of Columbia - reported by Mackey)\", \"court\": \"Supreme Court of the District of Columbia\", \"jurisdiction\": \"District of Columbia\", \"last_updated\": \"2021-08-10T23:59:41.815763+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"GEORGE CANDY Et Ux. vs. CHARLES H. SMITH.\", \"head_matter\": \"GEORGE CANDY Et Ux. vs. CHARLES H. SMITH.\\n1. The wife alone must sue upon a promise made to her in a matter having relation to her separate estate.\\n2. Parties cannot' be joined as plaintiffs in a suit at law, unless each is interested in the entire cause of action. Thus, where the wife is the owner of but part of the cause of action she cannot be joined with her husband in a suit for the whole.\\n3. But the wife may be joined with her husband'in a suit where the wife is the meritorious cause of action \\u2014 as, where she has rendered personal services; or the husband may sue alone for such services.\\nAt Law.\\nNo. 26,116.\\nMarch 12,1888.\\nThe Chief Justice and Justices Cox and James sitting.\\nOn demurrer certified to the General Term to be heard in the first instance.\\nThe Case is stated in the opinion.\\nMr. L. Cabell Williamson, for defendant.\\nMessrs. Edwards & Barnard, for plaintiffs:\\nDicey states, in his work on Parties (p. 200, Rule 31), that a husband may sue either alone or jointly with his wife in three cases, to wit: on negotiable paper made to the wife before marriage, on contracts made with the wife alone after marriage, and on contracts made with himself and his wife after marriage. If this contract could be separated it might be held that the same was made with the wife, partly in her own right and partly as agent of her husband; but as it cannot, in its very nature, be divided, it should be treated as a contract made with both husband and wife, and therefore they may be joined as plaintiffs.\\nIf the account sued on was only for the rent of a room in a house belonging to Mrs. Candy,, as her separate estate, the husband need not be joined as plaintiff. She would alone be entitled to the money when recovered. 24 Am. Law Reg., 354; Aldridge vs. Muirhead, 101 U. S., 397 ; Stout vs. Perry, 70 Ind., 501; Russell vs. Long, 52 Iowa, 250.\\nAs to the second point of the demurrer we submit that it is the duty of the defendant-to provide his wife with the necessaries of life; and if he has not done so his wife can pledge his credit therefor, -and nothing further need appear in the declaration than the fact that he has declined to furnish the same and that the plaintiffs have supplied them. Schouler, Husband & W., secs. 69, 101, 111, 117; Ross vs. Ross, 69 Ill., 569.\\nA recovery could be had on the common counts, in the absence of a defense; and if circumstances exist to rebut the legal presumption of liability they must appear by a plea, and the point cannot be raised by demurrer. 1 Bishop, Mar. & Div., secs.556,568,578; Walker vs. Laighton, 31 N. H., 111.\", \"word_count\": \"1854\", \"char_count\": \"10021\", \"text\": \"Mr. Justice Cox\\ndelivered the opinion of the Court:\\nThis case presents a legal puzzle. The plaintiffs sue the defendant and say that the plaintiffs are husband and wife and reside in the District of Columbia; that the plaintiff, Mary Candy, has a separate estate, which is invested in furniture and fixtures and the hiring of house No. 929 E Street northwest, in Washington City, where the plaintiffs reside and where said Mary Candy carries on the business of renting rooms and keeping boarders; that, in the course of her said business, the said Mary Candy undertook to and did board and lodge Malvina W. Smith, then and now the lawful wife of the defendant, for about one year, to wit, from about July 12, 1882, to July 12, 1883, at and for the sum of $35 per month; that during the said time the defendant failed and refused to provide for his said wife, and such board and lodging furnished her by said plaintiffs were necessary to her life and comfort, and were furnished her on the defendant's credit, and that by reason of the premises the defendant is justly indebted to the plaintiffs in the sum of $420, for which they bring suit.\\nThere are also the common counts.\\nTo this declaration a general demurrer was filed.\\nThe matters of law intended to be argued were \\u2014 first, a misjoinder of the parties plaintiff; second, that in a suit against the husband for necessaries furnished his wife the plaintiff must aver all the special facts which render the husband liable.\\nThe plaintiffs filed a joinder in demurrer, and, the issue coming on for hearing, the Court, of its own motion, certified the case to be heard in the General Term in the first instance.\\nThe argument for the defendant is this: here is an alleged entire promise to pay $35 a month. The consideration for that promise consists of several elements. The first is the use of the furniture and room, which was the separate estate of the wife. The wife alone can sue upon a promise of that kind. The husband cannot be joined with her. Another element in the consideration is the work, labor, attendance and personal service of the wife. The husband alone can sue foi that. The husband cannot join in suing upon this promise, so far as it relates to the use and occupation of the wife's separate estate. The wife cannot join with the husband in suing upon it so far as it is a promise to pay the wife for personal services; and, inasmuch as the promise is an entire promise and cannot be apportioned, neither party can sue for any part of the consideration, and, therefore, neither husband nor wife nor both jointly can sue for the whole or any part of the amount claimed under this contract.\\nIf that is so, it is a very hard case; but if the rules of law require it, they cannot be strained in order to serve the purpose even of a meritorious claim. We first speak of the special count. With regard to the wife's separate estate, as we all know, the law is that her right to any property, personal or real, which belonged to her at the time of marriage, or which was acquired after marriage in any other way than by gift or conveyance from her husband, is as absolute as if she were not married; and she may contract and sue and be sued in matters having relation to her separate estate as if she were unmarried.\\nIn the ease of an unmarried woman it is perfectly apparent that nobody could be joined with her in a suit for any consideration furnished by her upon an implied or express assumpsit, and quoad the separate estate of a married woman, her husband is as much a stranger to her as anybody else. If he could join in a suit in a matter having relation to her separate property, he could control the suit; and in case of her death it would survive to him. Such a result would be entirely foreign to the spirit and intent of the Married Woman's Act, so that there does seem to be an insuperable difficulty in the way of the husband joining with his wife in a suit upon a promise made to her in a matter having relation to her separate estate. It is contended, to be sure, on the part of the plaintiffs, that the wife may join with the husband in suing upon a promise made to her during marriage, where she is the meritorious cause of action, as she is alleged to be in this case; but that will not help the matter. No one can she unless he can be a plaintiff as to the entire cause of action. If two parties have distinct interests in an entire cause of action, each one being entitled only to a portion of it, they can no more join in a suit than if they have separate promissory notes payable to them respectively.\\nOn the part of the defendant it is further maintained that the wife cannot join with her husband in.suing upon a promise made to her during marriage in consideration of her personal labor and services; and if that be true, it is equally fatal to the special count with the objection I have already considered. The husband cannot join the wife in suing upon a matter relating to her separate estate; and it is also contended that she cannot join with her husband in a suit for the fruits of her own labor.\\nWe are not inclined to agree with the defendant, however, in this position. It was held a long time ago, in a case cited with approval in Chitty's Pleadings, as follows: \\\"In general, the wife cannot join in an action upon a contract made during the marriage, as for her work and labor, goods sold, or money lent by her during .that time, for the husband is entitled to her earnings, and they shall not survive to her, but go to the personal representatives of the husband, and she could have no property in the money lent or the goods sold; but when the wife can be considered as the meritorious cause of action, as if a bond or other contract under seal, or a promissory note, be made to her separately or with her husband, or if she bestow her personal labor and skill in curing a wound, etc., she may join with her husband or he may sue alone.\\\" 1 Chitty, Pl., 30.\\nThis is qualified a little further on in the same book, as follows: \\\"But care should be taken that the declaration does not embrace a cause of action which affords the husband only a right to sue. Therefore, where husband and wife declared for a debt due for a cure effected by the wife during their marriage and the declaration also contained a charge for medicines supplied, upon general demurrer it was objected that the wife could not join, for that she was not the sole cause of action, because the medicines were the husband's own property, and the damages could not be severed ; and of that opinion was the Court.\\\"\\nThis difficulty is suggested in this case. If the suit should be brought for the board alone, that consists of food, which, may be supplied by the husband instead of the wife, as well as of the personal services of the wife in preparing and serving it, etc., so that even that branch of the case is not without difficulty.\\nHowever, there are common counts in the declaration, and we are not prepared to say that under them the plaintiffs may not establish a case from which the law would imply a promise to pay the wife, on which the husband could sue \\u2014 a case in which her special skill in housekeeping, etc., might be the meritorious cause of action, and in which she might be joined with her husband.\\nWe, therefore, sustain the demurrer to the special count and overrule it as to the common counts, and send the case hade for further proceedings.\"}"

dc/2632169.json

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+"{\"id\": \"2632169\", \"name\": \"HARPER v. CUNNINGHAM\", \"name_abbreviation\": \"Harper v. Cunningham\", \"decision_date\": \"1895-01-16\", \"docket_number\": \"No. 378\", \"first_page\": \"203\", \"last_page\": \"208\", \"citations\": \"5 App. D.C. 203\", \"volume\": \"5\", \"reporter\": \"Reports of Cases Adjudged in the Court of Appeals of the District of Columbia\", \"court\": \"Court of Appeals of the District of Columbia\", \"jurisdiction\": \"District of Columbia\", \"last_updated\": \"2021-08-10T21:48:24.503550+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"HARPER v. CUNNINGHAM.\", \"head_matter\": \"HARPER v. CUNNINGHAM.\\nJudgment Becord ; Effect of Power of Attorney to Confess Judgment.\\n1. Where the record, on the trial of an issue raised by the plea of nul tiel record to a sci. fa. shows that appearance was entered by an attorney of the court and judgment confessed, the record will bind the defendant until it is shown that the attorney acted without authority.\\n2. The courts of this District have jurisdiction to render judgment upon confession either upon the appearance of the party in person or through a warrant of attorney for that purpose, except in cases within the meaning of the act of Maryland of 1747, prohibiting the exacting of bonds with power of attorney to confess judgment thereon.\\nNo. 378.\\nSubmitted December 10, 1894.\\nDecided January 16, 1895.\\nHearing on an appeal by the plaintiff from a judgment in a proceeding by sci. fa. to revive a judgment.\\nReversed.\\nThe Court in its opinion stated the case as follows :\\nOn June 1, 1878, Stephen V. Harper, the appellant, filed a declaration in the Supreme Court of the District against Samuel T. Brown and William Cunningham, trading as Brown & Cunningham, to recover the sum of $149.10, for services performed as pilot on a steam canal boat. The record does not show any service of process in this suit upon either Brown or Cunningham, but the following warrant of attorney to Joseph J. Waters to confess judgment, appears therein:\\n\\u201c Know all men by these presents, that we, Brown & Cunningham, of Georgetown, District of Columbia, have made, constituted and appointed, and by these presents do make, constitute and appoint, Joseph J. Waters our true and lawful attorney for us and in our names to confess judgment against us in the two suits of John Reaves against Brown & Cunningham; also Stephen V. Harper v. Brown & Cunningham, the one being for 149.10 dollars, and the other for 185.50 dollars, and hereby ratify whatever our said attorney may lawfully do in the premises.\\n\\u201c Witness our hands this 1st day of June, 1878.\\n\\u201c Brown and Cunningham.\\u201d\\nThis was, on the same day, acknowledged by Brown before a notary public \\u201c to be the act of the firm.\\u201d\\nOn June 3, 1878, a judgment was rendered against the defendants as partners trading under the name of Brown & Cunningham, for the amount of the claim, by confession, reciting that the \\u201c defendants came here by their attorney, Mr. Waters, who enters the appearance of the defendants herein, and consents that judgment be entered herein against them for one hundred and forty-nine dollars and ten cents, with interest thereon from May 27, 1878, besides costs.\\u201d\\nScire facias issued on this judgment June 2,1890, and was served upon both defendants.\\nCunningham pleaded nul tiel record and issued was joined thereon. This was submitted to the court, who found for the defendant and entered judgment accordingly. There was another plea denying service of process in the original suit, and that anyone was authorized to appear for and confess judgment against him therein. This plea seems to have been waived, and the cause submitted upon the first.\\nMr. J. J. Waters for the appellant.\\nMr. John Ridout for the appellee.\", \"word_count\": \"1904\", \"char_count\": \"10854\", \"text\": \"Mr. Justice Shepard\\ndelivered the opinion of the Court:\\nThe questions presented by the plea of nul tiel record are: 1. Is the record valid upon its face? 2. Did the court have jurisdiction ? The plea put in issue simply the fact of the existence of the record, and was met by its production. \\\" Defects appearing on the face of the record may be taken advantage of upon its production under a plea of nul tiel record; but those which require extrinsic evidence to make them apparent must be formally alleged before they can he proven. This we believe to be in accordance with the practice of all courts in which such defenses have been allowed, and it is certainly the logical deduction from the elementary principles of pleading.\\\" Hill v. Mendenhall, 21 Wall. 453, 455.\\nThis record cannot be said to be invalid upon its face. It is not necessary here to decide the question whether one partner, either before or after dissolution of the partnership, can, without special authority, appear and confess judgment against all the partners, or can empower any one else to do so. Nor do we undertake to decide whether, under a proceeding like this, the defendant can show that the warrant of attorney under which Waters appeared and confessed the judgment was without his authority or knowledge.\\nWaters was an attorney of the court, and the judgment recites that he entered the appearance and confessed the judgment for both defendants. \\\"A record which shows such an appearance will bind the party until it is proven that the attorney acted without authority.\\\" Hill v. Mendenhall, 21 Wall. 453, 454; Hall v. Lanning, 91 U. S. 160, 167; Electric Lighting Co. v. Leiter, 19 D. C. 575, 582; Munnikuyson v. Dorsett, 2 H. & G. 374; Henck v. Todhunter, 7 H. & J. 275, 278; McCauley v. State, 21 Md. 556, 569.\\nThis brings us to the consideration of the second question raised by the plea.\\nThe appellee's contention is that the judgment was void for want of power in the court to render it, and is founded on the provisions of the Maryland Act of 1747 (1 Kilty, Ch. 23) which reads as follows:\\n\\\"An act to prevent evils arising from the entering up judgments upon bonds, commonly called judgment bonds, to direct the manner of issuing executions on loan office bonds, and to regulate certain fees therein mentioned.\\n\\\"Whereas it has been the practice to take bonds, with power contained in the condition of such bonds upon non\\u00bb payment, to any attorneys practicing in any court of record within the dominion of Great Britain, to confess judgment, and thereupon, without any previous process, judgments have not only been confessed in the provincial and county courts of this province, but also out of court, before a single magistrate, and executions have issued thereon, to the great damage of many people, who in case capias had issued, and they had time to plead to such bonds, many good reasons might have been pleaded against the same; for prevention of which evils for the future, it is humbly prayed that it may be enacted:\\n\\\"Sec. 2. And be it enacted by the right honorable the Lord Proprietary, by and with the advice and consent of his Lordship's Governor and the Upper and Lower Houses of Assembly and the authority of the same, That from and after the end of this session of assembly, it shall not be lawful for any attorney practicing now, or who shall hereafter practice the law in any court of record within this province, or any other person whatever, to confess a judgment, either in court or before one or more justices of such court or courts out of court, for any sum or sums of money or tobacco, or other matter, by virtue of any power or powers of attorney, either separate or contained in any such bonds, commonly called judgment bonds, which shall be taken or executed after the end of this session of assembly; nor shall it be lawful for any justices of any court of record within this province to give judgment upon any such bonds, by virtue of any such power or powers.\\\"\\nThe second section aforesaid is published by itself in some compilations of the laws in force in this District, and, so considered, its meaning is not plain. The meaning is aided, however, by the title and preamble of the act, both of which we have quoted. We think it evident that the mischief intended to be remedied was the practice of exacting bonds with a power of attorney, either expressed in the bond itself or in an instrument to accompany and operate with it, whereby any attorney who might be selected by the holder of the bond could appear for the maker and confess judgment against him before a justice, in or out of court, and at any time.\\nIt seems, too, that this has been the generally accepted interpretation of the act in Maryland. In 1796 an act was passed by the legislature of that State, reorganizing courts and regulating proceedings therein, under the title of \\\"An act for the better administration of justice in the several counties in this State.\\\" 2 Kilty, Ch. 43.\\nSection 5 of this act reorganizes the county courts, and among powers conferred on the chief justice and other justices, declares that \\\"he may direct judgments to be entered on confession, or non sum informatus,\\\" etc. Section 20 provides: \\\"That the said chief justice, or either of the associate justices, may, out of court, direct the clerk to enter judgments by confession, or non sum informatus, and such judgments shall be as legal and valid as if entered in court during its sitting.\\\"\\nThe appellant contends that the effect of this act was to repeal the act of 1747, and to confer full power to enter judgment by confession in all cases.\\nTo this we cannot assent. There is certainly no express clause of repeal; and it is a well established rule that repeals by implication are not favored. We see no inconsistency between the two statutes when the restricted operation of the older one is recognized, and nothing to prevent their standing together. Where this is the case, there is no repeal. State v. Stoll, 17 Wall. 425, 430; Chew Heong v. United States, 112 U. S. 530, 550.\\nThe question of repeal is of no importance, however, to appellant's case. The claim upon which his judgment was confessed is not of the character prohibited by the act of 1747, as we construe that act.\\nThe right to render judgments by confession upon demands of the same general nature as that of appellant in this case has been recognized in Maryland in many cases since the act of 1796, and in no one of them, so far as we have observed, has reference been made to any statute. The right seems to have been unquestioned. Evans' Practice, 339; McMechen v. Mayor, 2 H. & J. 41; Turner v. Plowden, 5 G. & J. 52; Munnikuyson v. Dorsett, 2 H. & G. 374; Harris v. Alcock, 12 Md. 226; Huston v. Ditto, 20 Md. 305. Many other cases could be cited. The practice seems to have been the same in the District. McNeil v. Cannon, 1 Cr. C. C. 127 (decided June 1, 1803); Electric Lighting Co. v. Leiter, 19 D. C. 575 (1886).\\nWe think, therefore, that save in cases within the meaning of the act of 1747, the courts of this District have full power to render judgments upon confession either upon the appearance of the party in person, or through a warrant of attorney for that purpose.\\nIt is proper to add that there was some looseness in the preparation of the record for appeal in this case which might have seriously affected the appellant, had a point been made thereon; but as the defect has been waived by the appellee, we have treated the record as correctly presenting the points raised on the argument, and none other.\\nFor the reasons given above, the judgment must be reversed, with costs to the appellee, and the cause remanded for new trial; and it is so ordered.\"}"

dc/307419.json

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+"{\"id\": \"307419\", \"name\": \"The United States vs. John F. Lee\", \"name_abbreviation\": \"United States v. Lee\", \"decision_date\": \"1844-12-21\", \"docket_number\": \"\", \"first_page\": \"208\", \"last_page\": \"210\", \"citations\": \"1 Hay. & Haz. 208\", \"volume\": \"1\", \"reporter\": \"Reports of cases, civil and criminal, argued and adjudged in the Circuit court of the District of Columbia for the county of Washington\", \"court\": \"United States Court of Appeals for the District of Columbia Circuit\", \"jurisdiction\": \"District of Columbia\", \"last_updated\": \"2021-08-10T23:41:10.768289+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"The United States vs. John F. Lee.\", \"head_matter\": \"The United States vs. John F. Lee.\\nAt Law.\\nDecided December 21, 1844.\\nOn a Case Stated.\\nAn officer of the regular arm}' of the United States, was ordered . during the Florida War, to command a company of Indians and was commissioned as Captain of Volunteers for which he received pay as such Captain. On his return to his regiment, he received full pay for the time he was absent in command of the Indians. He refunded all but the difference between his pay as a regular army officer and the pay he received as an officer of volunteers. The United States claimed that he was only entitled to this pay as a Volunteer officer. Held, that he was not barred from claiming the pay proper annexed by law to his commission in the. regular army,\\nP. R. Fendall for the United States.\\nJ. M. Carlisle for the defendant.\", \"word_count\": \"772\", \"char_count\": \"4247\", \"text\": \"This suit is docketed by consent, to try the right of the defendant to certain pay claimed by him as hereinafter set forth.\\nThe said claim of army pay is agreed to depend upon the following facts, to-wit.\\n1st. On and prior to the 1st day of December, 1836, the defendant was a 2d Lieut, in the 1st Regiment of Artillery in the Army of the United States and was serving with his said regiment in Florida in the Indian War.\\n2d. Qn the 22d day of February, 1837, he received a commission of 1st Lieut, of said regiment, making him such 1st Lieut, by relation from the 17th day of December, 1836, provi the said commission exhibited.\\n3d, On the 23d day of August, 1842, he received the brevet exhibited, conferring on him as such 1st Lieut, the brevet rank of Captain to take rank as such from the 27th day of January, 1837, for gallantry and good conduct in the War against the Florida Indians.\\n4th. He has received no pay as an officer of the army from December 1, 1836, to September 17, 1837, nor any pay, whatever, for that period out of the army appropriations, or out .of any fund applicable to pay of the army.\\n5th. On the said 1st day of December, 1836, he was permitted by the Commanding General in the field to leave his company and to join a regiment of Creek Indians under the circumstances and in the manner stated by the said Commanding General and of the Adjutant General of the Army. That such absence from his company was of the nature and under the circumstances set forth in such statement and continued the same from said 1st day of December, 1836, to said 17th day of September, 1837, at which latter date he was recalled to his regiment and served therein as 1st Lieut., he having been in the meantime promoted as aforesaid to be such 1st Lieut. *\\n6th. That he was paid from said 1st of December, 1836, to the 17th day of September, 1837, with the Indians, and Volunteers according to the rank which he temporarily exercised there as a Volunteer Captain of Creek Indians, which special pay was allowed to him by the executive and which said special appropriation was not applicable to the pay of the army proper, and that he also for the same period drew in the regular way his army pay, but he refunded the same, holding the sum of $55-^- upon the account .filed to try in this action his right to said army pay, the same having been disallowed by the accounting officers of the Treasury.\\n7th, And it is agreed that during the said period, from 1st December, 1836, to 17th September, 1837, he was not under suspension or other legal disability, but continued on the rolls of the regular army, and held the said commissions hereinbefore referred to respectively and none other, but rendered no actual service under such commissions, and that he is entitled to the pay annexed by law thereto respectively unless the court shall be of opinion that by reason of his absence from his regiment under the circumstances stated, and his having earned and received the special pay aforesaid by the said voluntary duty, he is legally barred from claiming the pay proper, annexed by law to his said commissions respectively in the Army of the United States.\\nIt is agreed that judgment be entered for the United States for the sum of |55\\\"--, if the Court shall be of the opinion that the defendant is not legally entitled to the army pay claimed by him, otherwise, judgment for the defendant.\\nJudgment for defendant on case stated.\"}"

dc/3440506.json

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+"{\"id\": \"3440506\", \"name\": \"UNITED STATES of America, Appellee v. Terence COLES, Appellant\", \"name_abbreviation\": \"United States v. Coles\", \"decision_date\": \"2005-04-08\", \"docket_number\": \"No. 03-3113\", \"first_page\": \"280\", \"last_page\": \"287\", \"citations\": \"365 U.S. App. D.C. 280\", \"volume\": \"365\", \"reporter\": \"United States Court of Appeals for the District of Columbia Circuit\", \"court\": \"United States Court of Appeals for the District of Columbia Circuit\", \"jurisdiction\": \"District of Columbia\", \"last_updated\": \"2021-08-10T22:40:05.965161+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before: EDWARDS, SENTELLE, and GARLAND, Circuit Judges.\", \"parties\": \"UNITED STATES of America, Appellee v. Terence COLES, Appellant\", \"head_matter\": \"403 F.3d 764\\nUNITED STATES of America, Appellee v. Terence COLES, Appellant\\nNo. 03-3113.\\nUnited States Court of Appeals, District of Columbia Circuit.\\nApril 8, 2005.\\nJenifer Wicks and Bernard S. Grimm were on the brief for appellant.\\nKenneth L. Wainstein, U.S. Attorney, John R. Fisher, Roy W. McLeese, III, Anthony M. Alexis, and SuzAnne C. Nyland, Assistant U.S. Attorneys, were on the brief for appellee.\\nBefore: EDWARDS, SENTELLE, and GARLAND, Circuit Judges.\\nOpinion for the Court filed Per Curiam.\", \"word_count\": \"3729\", \"char_count\": \"23047\", \"text\": \"PER CURIAM:\\nThis case raises an important issue left open by the Supreme Court's decision in United States v. Booker, \\u2014 U.S. \\u2014, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), concerning the application of the plain-error doctrine to appeals from sentences rendered under the Federal Sentencing Guidelines before the Supreme Court ruled that they are advisory rather than mandatory. In addressing this issue, we align ourselves generally with the decisions of the Second Circuit in United States v. Crosby, 397 F.3d 103 (2d Cir. 2005), and the Seventh Circuit in United States v. Paladino, 401 F.3d 471 (7th Cir. 2005), reh'g en banc denied, id. (7th Cir. Feb. 25, 2005), and most particularly with the approach adopted by the Seventh Circuit. Because the record is insufficient for us to determine with confidence whether the defendant suffered prejudice from the Booker error in this case, we hereby remand the record to the District Court so that it may determine whether it would have imposed a different sentence, materially more favorable to the defendant, if sentencing had taken place under the post-Booker sentencing regime.\\nI.\\nTerence Coles was convicted of conspiracy, two counts of bribery, and two counts of fraud, in violation of federal and District of Columbia law, for his participation in a scheme to obtain grant money fraudulently from the District of Columbia's Escheated Estates Fund while he was the Special Assistant to the Secretary of the District of Columbia. See 18 U.S.C. \\u00a7 201(b)(2) (2000) (bribery); D.C. Code Ann. \\u00a7 22-1805a (2001) (conspiracy); id. \\u00a7 22-3221(a) (fraud in the first degree). The District Court sentenced Coles on the bribery counts pursuant to the Sentencing Guidelines, under which Coles was assigned a base offense level of 10 and a criminal history category of I. See United States Sentencing Commission, Guidelines Manual \\u00a7 2C1.1(a), 4A1.1 (2001). The District Court added two levels to the base offense level, because \\\"the offense involved more than one bribe,\\\" id. \\u00a7 2Cl.l(b)(1), and it added eight additional levels, because \\\"the offense involved a payment for the purpose of influencing . any official holding a high-level decision-making or sensitive position,\\\" id. \\u00a7 2C1.1(b)(2)(B). These adjustments raised Coles' offense level from 10 to 20, increasing the applicable sentencing range from 6-to-12 months to 33-to-41 months. Id. ch. 5, pt. A (sentencing table).\\nThe District Court sentenced Coles to 36 months' imprisonment for each of the federal bribery counts, to run concurrently. The trial court also imposed 36-month prison sentences for each of the three D.C.Code convictions for conspiracy and fraud, all to run concurrently with the bribery sentences.\\nColes appealed to this court, challenging both his conviction and his sentence. We affirmed Coles' conviction, but held the challenge to his sentence in abeyance pending the Supreme Court's decision in Booker. See United States v. Coles, No. 03-3113, 2004 WL 2862212 (D.C.Cir. Dec.13, 2004) (per curiam). Following the Court's decision in Booker, the parties submitted supplemental briefs addressing the impact of that decision on the sentence in this case. We now address Coles' challenge to his sentence.\\nII.\\nThe Court's decision in Booker is cogently summarized in Crosby:\\nSince November 1, 1987, sentences in federal criminal cases have been determined pursuant to the Sentencing Reform Act of 1984 (\\\"SRA\\\"), Pub.L. 98-473, Title II, \\u00a7 211-238, 98 Stat.1987 (1984), and the Guidelines issued by the United States Sentencing Commission, see U.S.S.G. \\u00a7 1A1.1-8F1.1.\\nThe Supreme Court's decision in Booker/Fanfan significantly altered the sentencing regime that has existed [under] the Guidelines - The Court's two-part decision consists of an opinion by Justice Stevens adjudicating the merits of the Sixth Amendment issue (\\\"Substantive Opinion\\\"), and an opinion by Justice Breyer setting forth the remedy (\\\"Remedy Opinion\\\")....\\n. In the Substantive Opinion, the Court ruled that \\\"[a]ny fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt.\\\" Substantive Opinion, [\\u2014 U.S. at \\u2014, 125 S.Ct. at 756]. This ruling, the Court explained, was required for \\\"enforcement of the Sixth Amendment's guarantee of a jury trial in today's world.\\\" Id. at [751]....\\nThe Substantive Opinion emphasized that it was the mandatory aspect of these determinate sentencing regimes that implicated the Sixth Amendment's requirement of a jury trial:\\nWe have never doubted the authority of a judge to exercise broad discretion in imposing a sentence within a statutory range. Indeed, everyone agrees that the constitutional issues presented by these cases would have been avoided entirely if Congress had omitted from the SRA the provisions that make the Guidelines binding on district judges . For when a trial judge exercises his discretion to select a specific sentence within a defined range, the defendant has no right to a jury determination of the facts that the judge deems relevant.\\nId. at [750] (internal citations omitted).\\nIn the Remedy Opinion, the Court ruled that implementation of the Substantive Opinion required that two provisions of the SRA be \\\"sever[ed] and excise[d].\\\" Remedy Opinion, \\u2014 U.S. at \\u2014, 125 S.Ct. at 764. These are subsection 3553(b)(1), mandating use of the Guidelines, and section 3742(e), which \\\"sets forth standards of review on appeal.\\\" Remedy Opinion, id.\\nHaving severed and excised the SRA's standards governing review of sentences, the Court in the Remedy Opinion replaced them with \\\"a practical standard of review already familiar to appellate courts: review for 'unreasonable[ness].' \\\" Id. at 765 (quoting subsection 3742(e)(3))....\\nAlthough the most significant aspect of the Remedy Opinion is the excision of subsection 3553(b)(1), with the result that the use of the Guidelines to select a sentence is no longer mandatory, a critically important aspect of Booker/Fanfan is the preservation of the entirety of the SRA with the exception of only the two severed provisions. As the Court noted in the Remedy Opinion, \\\"The remainder of the Act Tunction[s] independently.' \\\" Remedy Opinion, \\u2014 U.S. at \\u2014, 125 S.Ct. at 764 (citing Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 684, 107 S.Ct. 1476, 94 L.Ed.2d 661 (1987)). Notably, the Court explained, \\\"Section 3553(a) remains in effect, and sets forth numerous factors that guide sentencing. Those factors in turn will guide appellate courts, as they have in the past, in determining whether a sentence is unreasonable.\\\" Id. at 766.\\nCrosby, 397 F.3d at 107-10 (footnotes omitted) (alterations in original).\\nThe Court in Booker instructed that its holdings should be applied \\\"to all cases on direct review.\\\" \\u2014 U.S. at \\u2014, 125 S.Ct. at 769. The Court, however, did not \\\"be lieve that every appeal will lead to a new sentencing hearing.\\\" Id. Rather, the Court explained, \\\"we expect reviewing courts to apply ordinary prudential doctrines, determining, for example, whether the issue was raised below and whether it fails the 'plain-error' test.\\\" Id.\\nIII.\\nColes contends that his sentence should be vacated in light of Booker. Specifically, he argues that his Sixth Amendment rights were violated, because his sentence was enhanced by the trial court based on facts neither admitted by him nor proved to a jury beyond a reasonable doubt. Although Coles objected to the District Court's findings of fact at sentencing, he raised no arguments in the District Court questioning either the constitutionality of the Guidelines or their mandatory application. Accordingly, we review Coles' Booker claim only for plain error. FED. R. CRIM. P. 52(b).\\nUnder the plain-error standard of Rule 52(b), \\\"there must be (1) 'error,' (2) that is 'plain,' and (3) that 'affect[s] substantial rights.' \\\" Johnson v. United States, 520 U.S. 461, 466-67, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997) (quoting United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)) (alteration in original). \\\"If all three conditions are met, an appellate court may then exercise its discretion to notice a forfeited error, but only if (4) the error 'seriously affects the fairness, integrity, or public reputation of judicial proceedings.' \\\" Id. at 467, 117 S.Ct. 1544 (quoting Olano, 507 U.S. at 732, 113 S.Ct. 1770) (internal quotation marks and alteration omitted).\\nIt is clear that Coles satisfies the first two elements of the plain-error test, for the District Court applied the Guidelines on the assumption that they were mandatory. Following Booker, this was error and it is undoubtedly \\\"plain.\\\" And the Supreme Court has made it clear that \\\"where the law at the time of trial was settled and clearly contrary to the law at the time of appeal . it is enough that an error be 'plain' at the time of appellate consideration.\\\" Id. at 468, 117 S.Ct. 1544. The Government does not dispute that Coles has satisfied the first two elements of the plain error test. See Supplemental Br. for Appellee at 7 n.5.\\nWe are also convinced that, if the District Court's error was prejudicial, the error would \\\"seriously affect[ ] the fairness, integrity, or public reputation of judicial proceedings.\\\" As the Seventh Circuit aptly observed, \\\"[i]t is a miscarriage of justice to give a person an illegal sentence that increases his punishment, just as it is to convict an innocent person.\\\" Paladino, 401 F.3d 471, 2005 WL 435430, at *9; see also United States v. Williams, 399 F.3d 450, 461 (2d Cir.2005) (\\\"[Ljeaving in place an error-infected sentence that would have been materially different absent error and that could be readily corrected would 'seriously affect[] the fairness, integrity or public reputation of judicial proceedings.' Indeed, it would seriously affect all three.\\\" (footnote and citation omitted) (alteration in original)).\\nThus, the only question remaining is whether the District Court's error affected Coles' substantial rights in a material way. We now turn to that question.\\nIV.\\nWe hold that, in assessing whether the District Court's Booker error was prejudicial, we must determine whether there would have been a materially different result, more favorable to the defendant, had the sentence been imposed in accordance with the post-Booker sentencing regime. This mode of inquiry has been adopted, either implicitly or explicitly, by the First, Second, Fifth, Seventh, and Eleventh Cir-\\ncuits. See United States v. Mares, 402 F.3d 511, 521 (5th Cir.2005) (\\\"[T]he pertinent question is whether Mares demonstrated that the sentencing judge \\u2014 sentencing under an advisory scheme rather than a mandatory one \\u2014 would have reached a significantly different result.\\\"); Paladino, 401 F.3d 471, 483 (\\\"[I]f the judge would have imposed the same sentence even if he had thought the guidelines merely advisory (in which event there would have been no Sixth Amendment violation), and the sentence would be lawful under the post-Booker regime, there is no prejudice to the defendant.\\\"); United States v. Antonakopoulos, 399 F.3d 68, 75 (1st Cir.2005) (\\\"[T]he defendant must point to circumstances creating a reasonable probability that the district court would impose a different sentence more favorable to the defendant under the new 'advisory Guidelines' Booker regime.\\\"); United States v. Rodriguez, 398 F.3d 1291, 1301 (11th Cir.2005) (\\\"[I]n applying the third prong, we ask whether there is a reasonable probability of a different result if the guidelines had been applied in an advisory instead of binding fashion by the sentencing judge in this case.\\\"); Crosby, 397 F.3d at 118 (\\\"[A] sentence imposed under a mistaken perception of the requirements of law will satisfy plain error analysis if the sentence imposed under a correct understanding would have been materially different.\\\").\\nThe Fourth and Ninth Circuits, in contrast, have found plain error under Booker when a trial judge determined facts which, under the Guidelines, increased a sentence beyond that authorized by the jury verdict or an admission by the defendant. In other words, these circuits assess plain error without regard to whether the sentencing judge would have reached a different result under an advisory sentencing scheme. See United States v. Hughes, 401 F.3d 540, 547-555 (4th Cir.2005); United States v. Ameline, 400 F.3d 646, 654 (9th Cir.2005), reh'g en banc granted, 401 F.3d 1007, 2005 WL 612710 (9th Cir. Mar.11, 2005). The problem with this approach is that it employs the wrong baseline for determining prejudice in light of Booker's remedy. In other words, the courts employing this approach assess error and prejudice as if the pr e-Booker, mandatory sentencing regime were still in place, and as if the error were judicial factfinding under that regime. This flies in the face of the Supreme Court's remedial order in Booker.\\nIn assessing whether a district court committed prejudicial error under Booker, an appellate court must determine what the sentencing court would have done had it not committed the error. In their assessments of plain error, the Fourth and Ninth Circuits find error when a sentencing court increased a Guidelines sentence beyond that corresponding to the facts established by the jury verdict or an admission by the defendant. But such a finding seems to assume that judicial factfinding is erroneous even under the advisory sentencing regime left us by Booker, which it surely is not. The Supreme Court in Booker plainly says:\\nWe have never doubted the authority of a judge to exercise broad discretion in imposing a sentence within a statutory range.... [W]hen a trial judge exercises his discretion to select a specific sentence within a defined range, the defendant has no right to a jury determination of the facts that the judge deems relevant.\\n\\u2022\\u2014 U.S. at-, 125 S.Ct. at 750.\\nA prescient pr e-Booker sentencing court committing no error would have behaved just as a sentencing court in the post-Booker era will operate: it would have treated the Guidelines as advisory. And it would have committed no error if it had increased a sentence beyond that suggest ed by the Guidelines in light of the facts established by the jury verdict or an admission by the defendant, so long as the sentence was within the prescribed statutory range and otherwise reasonable.\\nAs noted in Williams, the error under Booker \\\"is the mandatory use of the Guidelines enhancement, not the fact of the enhancement.\\\" 399 F.3d at 458; see also Antonakopoulos, 399 F.3d at 75 (\\\"The error is not that a judge (by a preponderance of the evidence) determined facts under the Guidelines which increased a sentence beyond that authorized by the jury verdict or an admission by the defendant; the error is only that the judge did so in a mandatory Guidelines system.\\\"); Rodriguez, 398 F.3d at 1300 (\\\"The error that was committed in pre-Booker sentencing . is not that there were extra-verdict enhancements . that led to an increase in the defendant's sentence. The error is that there were extra-verdict enhancements used in a mandatory guidelines system.\\\").\\nV.\\nThis brings us to the question of how to determine whether the District Court would have imposed a sentence materially more favorable to the defendant had it been aware of the post-Booker sentencing regime. There undoubtedly will be some cases in which a reviewing court will be confident that a defendant has suffered no prejudice. For example, \\\"if a judge were to impose a sentence at the statutory maximum and say that if he could he would have imposed an even longer sentence, there would be no basis for thinking that if he had known that the sentencing guidelines are merely advisory he would have given the defendant a lighter sentence.\\\" Paladino, 401 F.3d 471, 483. Indeed, we recently found no prejudice in a case in which the sentencing judge twice departed upward from the Guidelines. See United States v. Smith, 401 F.3d 497 (D.C.Cir.2005) (per curiam). When the judge initially departed upward, he told the defendant, .\\\"I believe, in my view, that you deserve the sentence . imposed here.\\\" Id. at 499. The case was remanded before Booker issued and the trial judge was forced to impose a shorter sentence on grounds not relevant here. However, the trial judge again departed upward. Id. On the second appeal, this court found that it was clear that the defendant had suffered no prejudice:\\nThe district judge, on each of the prior two sentencings, imposed a sentence beyond what the Guidelines require.... On remand, the judge was forced to impose a shorter sentence \\u2014 21 months\\u2014 but again reached the figure by departing upward, even though the government had not requested an upward departure on resentencing:...\\nBooker's requirement that the sentencing judge appreciate that he is not bound by the Guidelines thus plainly cannot help Smith. Smith . recognizes that giving the district judge wider latitude in this case could very well result in a longer sentence. Smith was not prejudiced by the impermissibly mandatory nature of the Guidelines; if anything, he benefitted from it.\\nId.\\nConversely, there will be some cases in which we are confident that the defendant suffered prejudice, say, for example, if the sentencing judge indicated on the record that, but for the Guidelines, she would have imposed a lower sentence.\\nIn a case like this one, however, the record simply is not sufficient for an appellate court to determine prejudice with any confidence. The Government notes here that the District Court sentenced Coles to 36 months in prison, \\\"somewhat above the lower end\\\" of the 33-to-41 months Guidelines range, but this is hardly conclusive. \\\"A conscientious judge \\u2014 one who took the guidelines seriously whatever his private views \\u2014 would pick a sentence relative to the guideline range. If he thought the defendant a more serious offender than an offender at the bottom of the range, he would give him a. higher sentence even if he thought the entire range too high.\\\" Paladino, 401 F.3d at 482. We agree with the Seventh Circuit, following the lead of the Second Circuit, that \\\"[t]he only practical way (and it happens also to be the shortest, the easiest, the quickest, and the surest way) to determine whether the kind of plain error argued in these cases has actually occurred is to ask the district judge.\\\" Id. at 483; see also Crosby, 397 F.3d at 117.\\nThe Fifth and Eleventh Circuits have concluded that, because the burden of showing prejudice is on the defendant, the fact that the record is insufficient to reach a conclusion regarding prejudice means that the defendant necessarily loses. See Rodriguez, 398 F.3d at 1301 (\\\"[Wjhere the effect of an error on the result in the district court is uncertain or indeterminate \\u2014 where we would have to speculate\\u2014 the appellant has not met his burden of showing \\u00e1 reasonable probability that the result would have been different but for the error; he has not met his burden of showing prejudice; he has not met his burden of showing that his substantial rights have been affected.\\\"); see also Mares, 402 F.3d at 521-522. But as the Seventh Circuit has noted:\\nGiven the alternative of simply asking the district judge to tell us whether he would have given a different sentence, and thus dispelling the epistemic fog, we cannot fathom why [we should] condemn some unknown fraction of criminal defendants to serve an illegal sentence. Crosby is the middle way between placing on the defendant the impossible burden of proving that the sentencing judge would have imposed a different sentence had the judge not thought the guidelines mandatory and requiring that all defendants whose cases were pending when Booker was decided are entitled to be resentenced, even when it is clear that the judge would impose the same sentence and the court of appeals would affirm.\\nPaladino, 401 F.3d at 484.\\nPersuaded by the Second and Seventh Circuits, we conclude that, because the record is insufficient to determine whether the error was prejudicial, we will remand the record to the District Court so that it may determine whether it would have imposed a different sentence materially more favorable to the defendant had it been fully aware of the post -Booker sentencing regime. In making this determination, the District Court \\\"need not determine what that sentence would have been.\\\" Crosby, 397 F.3d at 118 n. 20. Crosby, 397 F.3d at 118 n. 20. And while \\\" 'the District Court should obtain the views of counsel, at least in writing, [it] \\\"need not\\\" require the presence of the Defendant.' \\\" Paladino, 401 F.3d at 484 (quoting Crosby, 397 F.3d at 120 (quoting Fed. R. Crim. P. 43(b)(3))).\\nWe note that the \\\"limited remand\\\" procedures adopted by the Second and Seventh Circuits offer slightly different approaches. The Second Circuit procedure requires that the district court itself vacate the original sentence if it determines that resentencing is warranted. See Crosby, 397 F.3d at 117, 120; see also Williams, 399 F.3d at 461 n. 15. By contrast, under the Seventh Circuit's procedure, the appellate court retains jurisdiction throughout the limited remand, and thus it is the appellate court that will \\\"vacate the sentence upon being notified by the judge that he would not have imposed it had he known that the guidelines were merely advisory.\\\" Paladino, 401 F.3d at 484. We think the Seventh Circuit's approach is more faithful to Booker's instruction that \\\"reviewing courts\\\" should apply \\\"ordinary prudential doctrines\\\" such as plain error, see \\u2014 U.S. at \\u2014, 125 S.Ct. at 769, and we will accordingly retain jurisdiction over this case.\\nBecause the record is unclear, in this case the District Court should also state whether the sentences for the defendant's D.C.Code convictions were the product of the court's independent, discretionary judgment. See United States v. Cutchin, 956 F.2d 1216, 1219 (D.C.Cir.1992) (\\\"[T]he Sentencing Guidelines apply only to federal crimes under 18 U.S.C. \\u00a7 3551(a). Defendants found guilty of violations of the D.C.Code can only be sentenced under the D.C.Code.\\\").\\nVI.\\nAccordingly, while retaining jurisdiction over the case, we remand the record to the District Court for the limited purpose of allowing it to determine whether it would have imposed a different sentence, materially more favorable to the defendant, had it been fully aware of the post-Booker sentencing regime.\\nSo ordered.\"}"

dc/3443896.json

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+"{\"id\": \"3443896\", \"name\": \"NATIONAL PARKS CONSERVATION ASSOCIATION, et al., Appellants v. Craig MANSON, in his official capacity as Assistant Secretary of Interior, Fish and Wildlife and Parks, et al., Appellees\", \"name_abbreviation\": \"National Parks Conservation Ass'n v. Manson\", \"decision_date\": \"2005-07-01\", \"docket_number\": \"No. 04-5327\", \"first_page\": \"110\", \"last_page\": \"116\", \"citations\": \"367 U.S. App. D.C. 110\", \"volume\": \"367\", \"reporter\": \"United States Court of Appeals for the District of Columbia Circuit\", \"court\": \"United States Court of Appeals for the District of Columbia Circuit\", \"jurisdiction\": \"District of Columbia\", \"last_updated\": \"2021-08-11T00:45:32.210543+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before: SENTELLE, RANDOLPH, and GARLAND, Circuit Judges.\", \"parties\": \"NATIONAL PARKS CONSERVATION ASSOCIATION, et al., Appellants v. Craig MANSON, in his official capacity as Assistant Secretary of Interior, Fish and Wildlife and Parks, et al., Appellees.\", \"head_matter\": \"414 F.3d 1\\nNATIONAL PARKS CONSERVATION ASSOCIATION, et al., Appellants v. Craig MANSON, in his official capacity as Assistant Secretary of Interior, Fish and Wildlife and Parks, et al., Appellees.\\nNo. 04-5327.\\nUnited States Court of Appeals, District of Columbia Circuit.\\nArgued May 16, 2005.\\nDecided July 1, 2005.\\nAbigail M. Dillen argued the cause for appellants. On the briefs were Timothy J. Preso and Douglas L. Honnold.\\nKathryn E. Kovacs, Attorney, U.S. Department of Justice, argued the cause for appellees. With her on the brief were David C. Shilton and Eric G. Hostetler, Attorneys.\\nBefore: SENTELLE, RANDOLPH, and GARLAND, Circuit Judges.\\nOpinion for the Court filed by Circuit Judge RANDOLPH.\", \"word_count\": \"2565\", \"char_count\": \"16396\", \"text\": \"RANDOLPH, Circuit Judge.\\nThe Bull Mountain Power Company sought permission from a state agency to construct a coal-fired, electric generating plant in Roundup, Montana, in the vicinity of Yellowstone National Park and a federal wilderness area. The state agency issued a permit after receiving a letter from an official of the Department of the Interior stating that the power plant would not adversely affect visibility in Yellowstone Park or the wilderness area. The National Parks Conservation Association and other environmental conservation organizations (\\\"National Parks\\\") sued in district court, claiming that the Interior Department violated the Clean Air Act, 42 U.S.C. \\u00a7 7401-7671q. The district court dismissed the suit on the ground that plaintiffs lacked standing. We reverse.\\nI.\\nThe proposed Roundup Plant lies between Yellowstone National Park and the UL Bend Wilderness Area. Its proximity to protected federal lands triggered the Prevention of Significant Deterioration provisions of the Clean Air Act. Under these provisions, which were designed \\\"to preserve, protect, and enhance the air quality in national parks [and] national wilderness areas,\\\" 42 U.S.C. \\u00a7 7470(2), (3), EPA must forward proposals for the construction of \\\"major emitting facilities\\\" to the \\\"Federal Land Manager\\\" and to the \\\"Federal official\\\" responsible for the areas potentially affected. 42 U.S.C. \\u00a7 7475(d)(1), (2)(A). The National Park Service manages Yellowstone. The U.S. Fish and Wildlife Service is responsible for the UL Bend Wilderness Area. They are the Federal Land Managers in this case. The federal official with oversight over both bodies is the Secretary of the Interi- or.\\nThe Clean Air Act does not give these federal officials authority to issue or reject permit applications. But it charges them with \\\"an affirmative responsibility to protect the air quality\\\" in the protected areas, and requires them to \\\"consider . whether a proposed major emitting facility will have an adverse impact.\\\" \\u00a7 7475(d)(2)(B). The federal officials fulfill these responsibilities by transmitting to the state authority their findings regarding the potential air-quality ramifications of the proposed project. No permit shall issue if \\\"the Federal Land Manager demonstrates to the satisfaction of the State that the emissions from such facility will have an adverse impact on the air quality-related values (including visibility) of such lands.\\\" \\u00a7 7475(d)(2)(C)(ii). Although the state permitting authority thus retains final decision-making authority, a federal impact report is not purely advisory. If the state authority chooses to disregard an adverse impact determination, it must \\u2014 in accordance with federal requirements for state implementation plans \\u2014 explain its decision in writing and publish the explanation. 40 C.F.R. \\u00a7 51.307(a)(3); Mont. Admin. R. 17.8.1109(3).\\nThe facts of this case are as follows. On January 14, 2002, the Bull Mountain Power Company applied to the Montana Department of Environmental Quality (\\\"DEQ\\\") for a permit for the Roundup Plant. On August 12, the DEQ published a draft permit for public comment, having furnished the National Park Service and U.S. Fish and Wildlife Service notice of the pending application. On December 18, following statistical and modeling analysis, the two Federal Land Managers sent a letter and a report formally notifying the Montana DEQ that the proposed Roundup Plant would \\\"cause perceptible visibility impairment at\\\" Yellowstone and UL Bend.\\nTwo days later, Bull Mountain Power voiced its objection to officials at the Interior Department. The company later submitted written comments, arguing that the original federal analysis was flawed because it failed to take into account weather conditions at Yellowstone. (The comments did not mention UL Bend.) In response, the Department's Air Resources Division conducted further analysis. This only served to reaffirm the original adverse impact conclusion. On January 7, 2003, Air Resources prepared a letter reiterating the initial determination that the Roundup Plant would adversely affect air quality at Yellowstone and UL Bend. On January 10, Assistant Secretary Manson rejected the proposed staff letter and prepared a new letter, withdrawing the December 18 finding of adverse impact. Despite objections from Air Resources staff, and officials of the National Park Service and the Fish and Wildlife Service, the Assistant Secretary sent the withdrawal letter, which represented the final federal action in the matter. On January 31, relying on Interi- or's reversal of positions, the Montana DEQ approved the Roundup Plant permit application.\\nNational Parks brought suits challenging the permit in Montana state court and in federal district court. In the federal action it claimed that Assistant Secretary Manson violated the Administrative Procedure Act when he withdrew the initial report without adequately discharging his procedural obligation to \\\"consider\\\" the potential adverse impact on air quality in Yellowstone and UL Bend. 42 U.S.C. \\u00a7 7475(d)(2)(B). In the state litigation, the Montana Supreme Court ruled in favor of National Parks, vacated the Montana DEQ's issuance of the Roundup Plant permit and ordered the DEQ to revisit its conclusions. Mont. Envtl. Info. Ctr. v. Mont. Dep't of Envtl. Quality, 326 Mont. 502, 112 P.3d 964 (2005). The permit application is now before the Montana DEQ on remand.\\nII.\\nIn order to satisfy Article Ill's standing requirements, plaintiffs must demonstrate injury-in-fact (concrete and particularized, actual or imminent), caused by the defendant and capable of being redressed by a court order. Friends of the Earth v. Laidlaw, 528 U.S. 167, 180-81, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000); Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). The district court assumed, without deciding, that National Parks had suffered a cognizable injury. But the court determined that National Parks had not satisfied the two other standing requirements and entered a judgment dismissing the action, a judgment we review de novo. Nat'l Wrestling Coaches Ass'n v. Dep't of Educ., 366 F.3d 930, 937 (D.C.Cir. 2004).\\nA.\\nNational Parks' complaint alleged that its members regularly use and enjoy Yellowstone and UL Bend. It claims to have suffered a \\\"procedural injury\\\" from the Assistant Secretary's failure to conduct a reasoned determination regarding the proposed plant's impact on air quality in these areas. Interior does not deny that National Parks has alleged an injury, but it takes issue with the proper characterization of that injury, arguing that National Parks' claim is simply a challenge to the substance of Interior's action. Regardless whether the alleged injury is procedural or direct, it satisfies the first aspect of the standing test. As an organization dedicated to the conservation of, and whose members make use of, public lands, National Parks suffers a cognizable injury from environmental damage to those lands. See Sierra Club v. Menton, 405 U.S. 727, 734, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972). In the alternative, if the Assistant Secretary's alleged inadequate consideration of air quality constitutes a procedural injury, this would \\\"cause a distinct risk to a particularized interest of the plaintiff' \\u2014 that is, conservation of those public lands plaintiffs' members use. Fla. Audubon Soc'y v. Bentsen, 94 F.3d 658, 664 (D.C.Cir.1996) (en banc); see also Wyo. Outdoor Council v. U.S. Forest Serv., 165 F.3d 43, 51 (D.C.Cir.1999).\\nThe procedural-substantive distinction may still seem to be important because \\\" '[procedural rights are special': The person who has been accorded a procedural right to protect his concrete interests can assert that right without meeting all the normal standards for redressability and immedicacy.\\\" Lujan, 504 U.S. at 572 n. 7, 112 S.Ct. 2130. \\\"A plaintiff who alleges a deprivation of a procedural protection to which he is entitled never has to prove that if he had received the procedure the substantive result would have been altered. All that is necessary is to show that the procedural step was connected to the substantive result.\\\" Sugar Cane Growers Coop. v. Veneman, 289 F.3d 89, 94-95 (D.C.Cir.2002). Thus, if we have before us a procedural injury, this would appear to affect our analysis of causation and redressability. But this case does not quite fit into the mold of the major procedural rights standing cases. The hypothetical in footnote 7 of Lujan represents the archetypal procedural injury: an agency's failure to prepare a statutorily required environmental impact statement before taking action with potential adverse consequences to the environment. Id. Our decision in Florida Audubon involved a similar fact pattern. 94 F.3d at 662-63. A common element in those cases is that the same actor was responsible for the procedural defect and the injurious final agency action. Under those circumstances, the case law relieves the plaintiff of the need to demonstrate that (1) the agency action would have been different but for the procedural violation, and (2) that court-ordered compliance with the procedure would alter the final result. Lujan, 504 U.S. at 572 n. 7, 112 S.Ct. 2130.\\nIn this case the ultimate source of injury is two steps removed from the alleged procedural defect. There is the intra-federal link between the Assistant Secretary's alleged failure to consider air quality impact and his decision to withdraw the adverse impact letter, and there is the federal-state link between withdrawal of the impact report and the Montana DEQ's decision to approve the Roundup Plant permit. The relaxation of procedural standing requirements would excuse National Parks from having to prove the causal relationship regarding the Interior Department's action, but its burden regarding the action of the Montana authorities would not change. See Ctr. for Law & Educ. v. Dep't of Educ., 396 F.3d 1152, 1160 (D.C.Cir.2005) (\\\"[Tjhis Court assumes the causal relationship between the procedural defect and the final agency action. Nonetheless, [plaintiffs] still must demonstrate a causal relationship between the final action and the alleged injuries.\\\").\\nIf the claim is that Interior's withdrawal of its adverse impact letter was arbitrary and capricious, then we need only concern ourselves with the connection between the federal action and the outcome of the permitting process in Montana. On the other hand, if the claim should be viewed as a procedural injury, we need not inquire into whether the procedural defect influenced the final action of the Interior Department. Either option leaves us in essentially the same place. Regardless whether National Parks' injury is procedural or substantive in nature, the question of standing must turn on the strength of the link between Interior's action and the ultimate permitting decision of the Montana DEQ.\\nB.\\nTo satisfy the causation requirement of Article III standing, National Parks had to show a causal link between Interior's withdrawal of its adverse impact letter and the Montana DEQ's decision to issue the power plant permit. See Nat'l Wrestling Coaches, 366 F.3d at 938 (citing Lujan, 504 U.S. at 562, 112 S.Ct. 2130). A \\\"substantial probability\\\" that Interior's action \\\"created a demonstrable risk, or caused a demonstrable increase in an existing risk, of injury to the particularized interests of' National Parks will suffice. Fla. Audubon, 94 F.3d at 669.\\nThe Montana DEQ has discretionary authority to conduct an independent evaluation when it receives a federal adverse impact report. Mont. Admin. R. 17.8.1109. But in this case it did not do so. Interior's withdrawal of its impact letter was virtually dispositive of the state permitting decision. Mont. Dep't Of Envtl. Quality, Permitting & Compliance Div., Record Of Decision For Roundup Power Project, Jan. 31, 2003, reprinted in App. 48-49 (\\\"[T]he federal land managers have withdrawn their finding of adverse visibility impact on nearby mandatory federal Class I areas, so DEQ has not determined that an adverse impact on visibility may result from the proposed action.\\\"). In addition, federal regulations and the Montana air quality regulations are intertwined such that the challenged federal action \\\"alters the legal regime to which the [local] agency action is subject.\\\" Bennett v. Spear, 520 U.S. 154, 169, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997). Had Interior not withdrawn its adverse impact report, the Montana DEQ would have been bound to consider that report before proceeding with its permitting decision and, crucially, would have been required to justify its decision in writing if it disagreed with the federal report. Mont. Admin. R. 17.8.1109. This regime is not specific to Montana. All states must promulgate rules such as Montana's in order to comply with federal regulations. 40 C.F.R. \\u00a7 51.307(a)(3) (\\\"Where the State finds that such an analysis does not- demonstrate to the satisfaction of the State that an adverse impact will result, . the State must, in the notice of public hearing, either explain its decision or give notice as to where the explanation can be obtained.\\\").\\nThe existence of this formal legal relationship undermines Interior's suggested analogy to Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 41-42, 96 S.Ct. 1917, 48 L.Ed.2d 450 (1976), which it uses to argue that the Montana DEQ is an independent actor whose intervening action breaks the causal chain. In Simon a class of indigents sued the Internal Revenue Service, claiming that an IRS ruling reduced tax incentives for hospitals offering free health care to indigents, and therefore would result in indigents being deprived of free health care. The Court found this to be too speculative and attenuated a connection between federal agency action and the action of private parties,. which IRS could neither anticipate nor control. Id. By contrast, when Interior acts in its capacity as Federal Land Manager, the agency exerts legal authority over the Montana DEQ; in determining whether to release an adverse impact report, Interior expects and intends its decision to influence the permitting authority. The Montana DEQ is therefore not the sort of truly independent actor who could destroy the causation required for standing. Lujan, 504 U.S. at 560-61, 112 S.Ct. 2130; Simon, 426 U.S. at 41-42, 96 S.Ct. 1917.\\nC.\\nAs to redressability, although a federal district court ruling in favor of National Parks would not directly determine whether the Roundup Plant will get its permit, the effect of such a ruling would not be far removed. The permitting decision remains open and pending before the Montana DEQ. The Montana Supreme Court has ordered DEQ to revisit its conclusions regarding the Roundup Plant permit and to determine anew whether \\\"Bull Mountain established that emissions from its proposed project will not cause or contribute to adverse impact on visibility in the Class I areas at issue.\\\" Mont. Envtl. Info. Ctr., 326 Mont. 502, at \\u00b638, 112 P.3d 964. A district court order setting aside Interior's letter withdrawing its adverse impact determination doubtless would significantly affect these ongoing proceedings. That is enough to satisfy redressability. \\\"A significant increase in the likelihood that the plaintiff would obtain relief that directly redresses the injury suffered\\\" will suffice for standing. Utah v. Evans, 536 U.S. 452, 464, 122 S.Ct. 2191, 153 L.Ed.2d 453 (2002).\\nWe therefore reverse the judgment of the district court dismissing the action for the lack of standing and remand the case for further proceedings.\\nSo ordered.\"}"

dc/3476190.json

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+"{\"id\": \"3476190\", \"name\": \"In re SEALED CASE\", \"name_abbreviation\": \"In re Sealed Case\", \"decision_date\": \"1989-11-21\", \"docket_number\": \"Division No. Misc. 3\", \"first_page\": \"334\", \"last_page\": \"339\", \"citations\": \"281 U.S. App. D.C. 334\", \"volume\": \"281\", \"reporter\": \"United States Court of Appeals for the District of Columbia Circuit\", \"court\": \"United States Court of Appeals for the District of Columbia Circuit\", \"jurisdiction\": \"District of Columbia\", \"last_updated\": \"2021-08-11T01:31:23.090303+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before MacKINNON, Presiding, and BUTZNER and PELL, Senior Circuit Judges.\", \"parties\": \"In re SEALED CASE.\", \"head_matter\": \"890 F.2d 451\\nIn re SEALED CASE.\\nDivision No. Misc. 3.\\nUnited States Court of Appeals, District of Columbia Circuit.\\n(Division for the Purpose of Appointing Independent Counsels Ethics in Government Act of 1978, as Amended).\\nNov. 21, 1989.\\nBefore MacKINNON, Presiding, and BUTZNER and PELL, Senior Circuit Judges.\", \"word_count\": \"2344\", \"char_count\": \"15124\", \"text\": \"PER CURIAM:\\nA government official covered by the Ethics in Government Act was the subject of an Independent Counsel investigation following which \\\"no indictment [was] brought.\\\" The subject of the investigation (hereafter \\\"applicant\\\") now applies to the court, pursuant to the Independent Counsel Reauthorization Act of 1987, 28 U.S.C. \\u00a7 591 et seq. (hereafter the \\\"Act\\\"), for an award of $69,316.24 in attorneys' fees and costs incurred during the investigation. The court approves an award of $58,005.25.\\n1. The \\\"But For\\\" Requirement.\\nAll requests for attorneys' fees under the Act must satisfy the \\\"but for\\\" requirement of 28 U.S.C. \\u00a7 593(f) which provides:\\nUpon the request of an individual who is the subject of an investigation conducted by an independent counsel pursuant to this chapter, the division of the court may, if no indictment is brought against such individual pursuant to that investigation, award reimbursement for those reasonable attorneys' fees incurred by that individual during that investigation which would not have been incurred but for the requirements of this chapter.\\n28 U.S.C. \\u00a7 593(f)(1), 101 Stat. 1299 (emphasis added).\\nThe decisional standards that an applicant for an award of attorneys' fees must comply with are set forth in our opinions in In re Donovan, 877 F.2d 982 (D.C.Cir.1989) and In re Olson, 884 F.2d 1415 (D.C.Cir.1989) and need not generally be repeated here. The statute restricts the court to authorizing the payment of reasonable attorneys' fees in situations where the \\\"fees . would not have been incurred in the absence of the special prosecutor [independent counsel] law.\\\" S.Rep. No. 97-496, 97th Cong., 2d Sess. 18 (1982), U.S.Code & Admin.News 1982, pp. 3537, 3554. The basic objective of such restriction is to provide that those officials who are investigated by independent counsels will be subject only to paying those attorneys' fees that would normally be paid by private citizens being investigated for the same offense by the United States Attorney, or, as here, possibly by the Internal Revenue Service. If the investigated official, because of the provisions of the Act, is subjected \\\"to a more rigorous application of the criminal law than is applied to other citizens,\\\" (id., at 19), U.S.Code & Admin.News 1982, p. 3555, the statute authorizes an award of his reasonable attorneys' fees to the extent that the attorneys' services were attributable to \\\"the more rigorous application of the criminal law.\\\" Id. Applicant's present request must be evaluated against this standard.\\n(a) Restrictions on Preliminary Investigation.\\nFor reasons hereinafter stated we find that the \\\"but for\\\" requirement is satisfied; first, because the statutory restrictions on his preliminary investigation prevented the Attorney General from obtaining the necessary facts to enable him to make a proper prosecutorial decision in the matter and hence required him to request further investigation by an independent counsel.\\nIn his application to the court for the appointment of an independent counsel, the Attorney General cited \\\"the Department's inability to use compulsory process during a preliminary investigation .\\\" as one of his reasons for requesting the court to appoint an independent counsel and define his jurisdiction. Application of Attorney General, at 3 (Dec. 15, 1986). The restrictive provisions of the Act he referred to provide:\\nIn conducting preliminary investigations under this chapter, the Attorney General shall have no authority to convene grand juries, plea bargain, grant immunity, or issue subpoenas.\\n28 U.S.C. \\u00a7 592(a)(2)(A), 101 Stat. 1295.\\nThese restrictions on the Attorney General's investigative authority during his preliminary investigation are particularly limiting. Not that the mere existence of these statutory restrictions satisfies the \\\"but for\\\" requirement in every case. But where, as here, the Attorney General in his application represents that the statutory restrictions have interfered with his ability to conduct an adequate preliminary investigation, and the circumstances of the alleged offense indicate that, if the Attorney General were not so limited, applicant might have been subjected to a lesser investigation, or perhaps exonerated at this early stage, the statutory limitations are factors that the court may rely upon in determining that the \\\"but for\\\" factor is satisfied.\\nIn this case, relying partially upon the Attorney General's reference to the limitations placed upon him by the Act, and additionally upon the alleged offenses investigated by the Independent Counsel pursuant to his defined jurisdiction, we conclude that the subsequent investigation subjected applicant to a \\\"more rigorous application of the criminal law than is applied to other litigants\\\" under suspicion for committing the same offenses.\\n(b) The Actual Investigation.\\nThe actual investigation came about in the following manner. The application by the Attorney General to the court pursuant to 28 U.S.C. \\u00a7 592(c)(1) recommended\\nthat the Independent Counsel be [appointed and] granted jurisdiction to investigate whether [applicant] violated 26 U.S.C. \\u00a7 7203 or any other provision of federal criminal tax law in connection with his filing of, or failure to file, his U.S. Individual Income Tax Returns for 1981, 1982, and/or 1984....\\nApplication of Attorney General, at 4 (Dec. 15, 1986). The court specifically defined the jurisdiction of the Independent Counsel to conform to the request of the Attorney General. The jurisdiction to investigate for violations of 26 U.S.C. \\u00a7 7203 and additionally for \\\"any other provision offederal criminal tax law . in connection with his filing of, or failure to file, his U.S. Individual Income Tax Returns for 1981, 1982, and/or 1984,\\\" as requested by the Attorney General, expanded the investigative jurisdiction of Independent Counsel into other related tax offenses beyond 26 U.S.C. \\u00a7 7203 offenses and neces sarily authorized a wider investigation than one limited to \\u00a7 7203.\\nIn response to this defined jurisdiction, the Independent Counsel conducted a thorough investigation and actually examined applicant's tax returns, and his financial dealings, for nine years from 1976 to 1984. In our opinion the ordinary examination of a taxpayer for a \\u00a7 7203 violation would have been substantially less probing. The result subjected applicant to a more rigorous application of the criminal law than is applied to other citizens in similar circumstances. Therefore, we find the \\\"but for\\\" requirement of the statute to be satisfied and applicant is accordingly entitled to be awarded his reasonable attorneys' fees incurred during the Independent Counsel's investigation. However, for reasons set forth below the amount of the requested award must be subjected to certain deductions.\\n2. Reasonable Attorneys' Fees.\\n(a) Fees Incurred During Preliminary Investigation.\\nApplicant has requested, inter alia, compensation for his attorneys' fees incurred during the preliminary investigation conducted by the Attorney General. The Act, however, only authorizes the government to pay \\\"reasonable attorneys' fees incurred . during [the] investigation [conducted by an independent counsel]....\\\" 28 U.S.C. \\u00a7 593(f)(1). As we have held, this statutory requirement must be strictly construed. In re Donovan, 877 F.2d 982, 994 (D.C.Cir.1989); In re Olson, 884 F.2d 1415, 1428 (D.C.Cir.1989); In re Jordan, 745 F.2d 1574, 1576 (D.C.Cir.1984). In re Olson held, that the statute did not empower the court to authorize an award of any attorneys' fees incurred during the Attorney General's preliminary investigation. 884 F.2d at 1419. Accordingly, applying the statute and our decisional law, applicant is not entitled to an award for his attorneys' fees incurred from \\\"9/20 . [to] . 12/9 .\\\" during the Attorney General's preliminary investigation. Independent Counsel was not appointed until December 16th. This necessitates a deduction of $5,850 from the $23,906.35 requested to eliminate the charge for attorney's fees incurred during the preliminary investigation.\\n(b) Fees for Accountant/Attorneys.\\nApplicant also requests payment of $45,-409.89 for work performed by \\\"accountant/attorneys\\\" employed by applicant's attorney. The Act provides that the court may \\\"award reimbursement for . reasonable attorneys'fees.\\\" 28 U.S.C. \\u00a7 593(f)(1) (emphasis added). Recently, the Supreme Court, in Missouri v. Jenkins, - U.S. -, 109 S.Ct. 2463, 105 L.Ed.2d 229 (1989) addressed the meaning of \\\"reasonable attorney's fee\\\" under the Civil Rights Attorney's Fees Awards Act. In holding, inter alia, that \\\"reasonable attorney's fee\\\" included work performed by \\\"paralegals and law clerks,\\\" the Court stated:\\nClearly, a reasonable attorney's fee cannot have been meant to compensate only work performed personally by members of the bar. Rather, the term must refer to a reasonable fee for the work product of an attorney. Thus, the fee must take into account the work not only of attorneys, but also of secretaries, messengers, librarians, janitors, and others whose labor contributes to the work product for which an attorney bills her client; and it must also take account of other expenses and profits.\\nId. at 2470 (emphasis added). While Jenkins was a state case and did not require a strict construction, as here, see supra at 5, we consider the decision applicable to the Act.\\nIn light of. this' interpretation of \\\"reasonable attorneys' fees,\\\" we conclude that the fees requested by the accountant/attorney and his firm constitutes \\\"reasonable attorneys' fees\\\" within the definition of \\u00a7 593(f)(1). In reaching this conclusion we note that this is a tax case and in complicated tax cases, attorneys frequently find it necessary to make considerable use of accountants. Moreover, in this case the principal \\\"accountant/attorney\\\" was also a licensed lawyer who, with members of his accounting firm, acted as consultants on tax matters. Another employee on the staff of the accountant/attorneys was also admitted to the bar.\\nWe also find it significant that: (1) the applicant's attorney, in applicant's name, employed the accounting firm for which the accountants and attorneys worked, (2) applicant was billed through his attorney, and (3)the services were rendered to the attorney and could be said to be, in effect, part of his costs.\\nEssentially, this case had two features: First, it was a potential criminal case. Second, it was a tax case. It was thus necessary that the subject of the criminal tax investigation be advised on both the criminal and tax features of the case. In such circumstances we see no objection to employing both an attorney and an accountant/attorney who together are able to furnish the necessary effective assistance to their client because they are sufficiently knowledgeable in both the criminal and the tax features of the case. There are not too many lawyers with adequate criminal law and tax law qualifications, as the Special Division found when it was seeking an independent counsel to appoint in this case. It is also significant that the Independent Counsel found it necessary to make considerable use of an accountant.\\nTherefore, while the employment of two lead attorneys is ordinarily subject to some objection, we do not object to an attorney in a potential criminal tax case employing an accountant/attorney and his accounting firm to assist him.\\n(c) Documentation and Specification by Attorney.\\nIn reviewing the specific bills for fees and costs as presented to applicant, which he in turn presents to this court, we note numerous instances of documentation and specification that do not adequately describe the legal work for which the client is being billed. This makes it impossible for the court to verify the reasonableness of the billings, either as to the necessity of the particular service or the amount of time expended on a given legal task. For example, there are numerous instances in the attorneys' billings where the subject matter of a telephone call is not specified; there is no specification whatsoever except \\\"Telephone Call[s]\\\" for $1,920, i.e., 12.8 hours, at $150 an hour for 23 calls. This averages approximately 30 minutes for each call. This item could be denied in its entirety, but we recognize that some telephone calls must have been necessary. We thus deny $920.00 for insufficient specification.\\n(d) Accountant/Attorneys' Billings.\\nWith specific reference to the billings of the accountants/attorneys, we note that this firm's total bill of $45,409.89 included the lead accountant/attorney billing at the top rate of $135 per hour. The original bills cryptically stated a number of tasks performed during a given day and in conclusion \\\"TOTAL FEES\\\" were tabulated for each month without any specification of the hourly rates applied, or the amount of time expended on specific items of work. These fatal deficiencies were corrected to some extent in Applicant's Responses to the Attorney General's Evaluation. At that time billing rates were added as well as the totals for each person in the firm for whom there were billings. But the material submitted by the accountant/attorney has been disjointed, and is devoid of any specification of the names of the individuals who performed particular described tasks, or the specific amounts of time devoted to such tasks. The substantiation submitted for these billings is thus borderline.\\nStill, we recognize that the firm did the necessary work to marshal the facts as required by the Independent Counsel. And, especially when we compare these bills for attorneys' fees with those submitted in other independent counsel cases, we find that the requested award, minus some unsubstantiated deductions, is reasonable. The basic rates and the total amount of time are very reasonable.\\nWe are required, however, to make some deduction for items that are not sufficiently specific as to the work performed. In re Donovan, 877 F.2d 982, 994-95 (D.C.Cir.1989). To comply with the congressional admonition, because of (1) many inadequate descriptions of the nature of services rendered, the insufficient specification of (2) time devoted to particular tasks, and (3) the names of the particular individuals who rendered the services for which payment is requested, we deduct ten percent ($4,540.99) from the bill of the accountants /attorneys.\\nConclusi\\u00f3n\\nIt is Ordered, by the Court, that applicant is awarded compensation in the total amount of $58,005.25 in accordance with 28 U.S.C. \\u00a7 593(f)(1). That amount represents $17,136.35 in attorneys' fees and expenses for the services of applicant's attorney and $40,868.90 for the services of applicant's accountant/attorneys.\\nJudgment accordingly.\\n. This deduction is based on 39 hours of attorney's time billed at SI50 per hour.\"}"

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@@ -0,0 +1 @@
+"{\"id\": \"3528780\", \"name\": \"NATIONWIDE BUILDING MAINTENANCE, INC., Appellant, v. Arthur SAMPSON, Administrator, U. S. General Services Administration, et al.\", \"name_abbreviation\": \"Nationwide Building Maintenance, Inc. v. Sampson\", \"decision_date\": \"1977-04-18\", \"docket_number\": \"No. 76-1453\", \"first_page\": \"83\", \"last_page\": \"95\", \"citations\": \"182 U.S. App. D.C. 83\", \"volume\": \"182\", \"reporter\": \"United States Court of Appeals for the District of Columbia Circuit\", \"court\": \"United States Court of Appeals for the District of Columbia Circuit\", \"jurisdiction\": \"District of Columbia\", \"last_updated\": \"2021-08-11T01:31:31.050435+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before BAZELON, Chief Judge, and TAMM and ROBB, Circuit Judges.\", \"parties\": \"NATIONWIDE BUILDING MAINTENANCE, INC., Appellant, v. Arthur SAMPSON, Administrator, U. S. General Services Administration, et al.\", \"head_matter\": \"559 F.2d 704\\nNATIONWIDE BUILDING MAINTENANCE, INC., Appellant, v. Arthur SAMPSON, Administrator, U. S. General Services Administration, et al.\\nNo. 76-1453.\\nUnited States Court of Appeals, District of Columbia Circuit.\\nArgued Oct. 12, 1976.\\nDecided April 18, 1977.\\nJohn B. Tieder Jr., Washington, D. C., with whom William W. Thompson Jr., Washington, D. C., was on the brief for appellant.\\nEloise E. Davies, Atty., Dept, of Justice, Washington, D. C., with whom Rex E. Lee, Asst. Atty. Gen., Earl J. Silbert, U. S. Atty., and Leonard Sehaitman, Atty., Dept, of Justice, Washington, D. C., were on the brief for appellees.\\nBefore BAZELON, Chief Judge, and TAMM and ROBB, Circuit Judges.\", \"word_count\": \"7978\", \"char_count\": \"49684\", \"text\": \"Opinion for the Court filed by TAMM, Circuit Judge.\\nTAMM, Circuit Judge:\\nNationwide Building Maintenance, Inc. appeals from the summary judgment of the United States District Court for the District of Columbia which denied its request for an award of attorney fees and litigation costs under section 552(a)(4)(E) of the Freedom of Information Act (FOIA), 5 U.S.C. \\u00a7 552(a)(4)(E) (Supp. V 1975). The district court's judgment rests on its conclusion that Nationwide had not \\\"substantially prevailed\\\" within the meaning of section 552(a)(4)(E) because the government abandoned its exemption claims and disclosed the requested information before the court made any finding that it had been wrongfully withheld. We disagree with the district court's ruling on this question of law and hold that Nationwide was eligible for an attorney fees award.\\nSection 552(a)(4)(E) does not provide, however, for an automatic award of attorney fees to every successful FOIA plaintiff. It contemplates a reasoned exercise of the courts' discretion taking into account all relevant factors. With respect to Nationwide's petition for attorney fees we think that particular consideration should have been given to the reasonableness of the government's exemption claims, the potential commercial benefit to Nationwide from disclosure of the information it sought and any general public benefit resulting from disclosure of the documents actually obtained. The single most important element un der section 552(a)(4)(E), however, is the courts' discretion, and we think that that discretion is more properly exercised by the trial court which has had a continuing relationship with the parties throughout the suit. We therefore remand this case to the district court for a decision whether Nationwide, as a party who has substantially prevailed, should be awarded attorney fees and litigation costs under section 552(a)(4)(E).\\nI. BACKGROUND\\nOn June 12, 1975, Nationwide filed a bid protest with the General Accounting Office protesting the General Services Administration's (GSA) award of a janitorial services contract for an Internal Revenue Service Center in Philadelphia, Pennsylvania, to Ensec Service Corp. Nationwide requested that \\\"the award to Ensec be can-celled and the GSA be directed to award the contract to Nationwide.\\\" J.A. at 25. On July 18, 1975 Nationwide asked GSA to provide copies of certain documents relating to this contract award. Ten days later GSA received a second FOIA request from Nationwide seeking documents relating to the cleaning services contract for the New Executive Office Building in Washington, D. C. No bid protest had been filed with respect to that contract at the time of the request for documents. Just over two weeks later, however, Nationwide did file a protest with the General Accounting Office urging that the New Executive Office Building contract should have been awarded through small business restricted advertising. J.A. at 26-31.\\nIn separate letters \\u2014 the first sent nearly three weeks after Nationwide's request, the second only two \\u2014 GSA advised Nationwide that no decision had been made on its requests. GSA had yet to reach a decision as of September 17,1975, and Nationwide filed suit in the Unites States District Court for the District of Columbia alleging as part of its complaint that it needed the requested documents in order to substantiate its arguments in the bid protests before the General Accounting Office. One month later, and one day after Nationwide made its motion for a preliminary injunction, the GSA notified Nationwide that as of that date it had decided that the documents relating to the New Executive Office Building contract would be disclosed but that those relating to the Internal Revenue Service Center fell within specific exemptions of the FOIA and would not be disclosed. Nationwide was also informed that this decision was being processed through GSA's internal appeal procedure.\\nWith the approval of the court, the parties agreed to file \\\"dispositive motions\\\" by late December 1975 in lieu of proceedings on Nationwide's motion for a preliminary injunction. Before any such motions were filed, GSA revised its opinion on disclosure of the Internal Revenue Service Center documents. It granted complete disclosure of one set of documents and limited disclosure of three other documents. GSA continued to refuse to disclose ten sets of documents, however, relying on exemptions four and five of the FOIA. On five subsequent occasions, from late November to the middle of December, GSA made further disclosures explaining that, although some of the information provided was exempt, it nevertheless would be furnished unless it was also prejudicial to the government or the firm which had submitted it. See J.A. at 79-87.\\nFinally on December 19, 1975 the parties stipulated that GSA had provided all the information necessary for a complete response to Nationwide's request, J.A. at 52, and the government moved for dismissal or summary judgment on grounds of mootness. In its cross-motion for summary judgment Nationwide conceded that an injunction was now unnecessary but urged the court to award attorney fees under section 552(a)(4)(E). The district court entered summary judgment for the government and denied Nationwide's claim for attorney fees reasoning that Nationwide had not \\\"substantially prevailed.\\\" J.A. at 154-55. ' Nationwide now seeks review of that denial.\\n11. COURT ORDER COMPELLING DISCLOSURE NOT A PREREQUISITE FOR AWARD OF ATTORNEY FEES\\nThe government argues that Nationwide is not eligible for an attorney fees award under section 552(a)(4)(E) in the absence of a court order holding that GSA had wrongfully withheld the requested documents. It relies primarily on cases construing analogous attorney fees provisions in the civil rights laws, the Social Security Act, and the courts' interpretation of \\\"prevailing party\\\" for purposes of awarding costs under Rule 54(d) of the Federal Rules of Civil Procedure, The only direct authority cited as support for its position is a district court decision denying attorney fees to a FOIA plaintiff that had received its requested information shortly after filing suit. Vermont Low Income Advocacy Council v. Dunlop, 71 F.R.D. 343 (D.Vt.), aff'd sub nom., Vermont Low Income Advocacy Council v. Usery, 546 F.2d 509 (2d Cir. 1976).\\nAlthough the Second Circuit did affirm the denial of attorney fees in Vermont Low Income Advocacy Council under the circumstances of that case, it expressly repudiated the district court's conclusion that an order directing production is a necessary condition for an award of attorney fees under the FOIA. Vermont Low Income Advocacy Council v. Usery, 546 F.2d at 510, 513 (2d Cir. 1976). We agree with the Second Circuit and adopt its conclusion that a court judgment is not a prerequisite for an attorney fees award under section 552(a)(4)(E). See Cuneo v. Rumsfeld, 180 U.S.App.D.C. 184, at 188-189, 553 F.2d 1360 at 1364-1365 (1977).\\nIt has long been the rule in American courts that attorney fees should not generally be awarded in the absence of explicit statutory authorizations. In the early 1970's a broad exception to this rule began to evolve in the lower federal courts for litigants who advanced an important public interest. This liberalization was short-lived, however, for the Supreme Court soon reaffirmed the strict application of the \\\"American Rule\\\" in Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975). For our purposes, the most significant aspect of Alyeska is the Court's statement that its holding was based not on any evaluation of the merits of the rule barring attorney fees, 421 U.S. at 270, 95 S.Ct. 1612, but only on its conclusion that a rule so deeply rooted in court practice and congressional policy should not be departed from by courts, acting on their own, without legislative guidance. Id. at 271, 95 S.Ct. 1612. Alyeska thus does not condemn the awarding of attorney fees to successful litigants per se; it only admonishes the courts not to take the initiative in fashioning \\\"drastic new rules\\\" with respect to \\\"a policy matter that Congress has reserved for itself.\\\" Id. at 269, 95 S.Ct. at 1627.\\nIn the 1974 amendments to the FOIA, Congress explicitly authorized the courts to award attorney fees to complainants who have \\\"substantially prevailed.\\\" If, as Alyeska cautions, Congress is the master of this policy area, our construction of \\\"substantially prevailed\\\" should rely on the particular legislative intent behind section 552(a)(4)(E) rather than on any \\\"common law\\\" meaning of that phrase derived from court interpretations of similar language in other statutory contexts. The \\\"unusually complete\\\" legislative history of section 552(a)(4)(E) is extensively discussed in Vermont Low Income Advocacy Council, supra, 546 F.2d at 512-13, and clearly indicates that Congress did not intend to require a court judgment as a prerequisite for an award of attorney fees under section 552(a)(4)(E). Id. at 512-13; see H.R.Rep. No.93-1380, 93d Cong., 2d Sess. 9-10 (1974) (conference report); S.Rep.No.93-854, 93d Cong., 2d Sess. 17-20 (1974); H.R.Rep.No. 93-876, 93d Cong., 2d Sess. 6-7, U.S.Code Cong. & Admin.News p. 6267 (1974).\\nExcept for the court in Vermont Low Income Advisory Council v. Dunlop, supra, the district courts which have addressed this issue have also concluded that a FOIA plaintiff is not absolutely barred from an award of attorney fees because the government acts to moot his claim before judg ment is entered in his suit. See, e. g., Pope v. United States, 424 F.Supp. 962 (S.D.Tex. 1977); American Federation of Government Employees v. Rosen, 418 F.Supp. 205, 208-09 (N.D.Ill.1976); Goldstein v. Levi, 415 F.Supp. 303, 304-05 (D.D.C.1976); Kaye v. Burns, 411 F.Supp. 897, 902 (S.D.N.Y.1976); Communist Party of the United States v. Department of Justice, No. 75-1770 (D.D.C. 1975) (unpublished opinion), appeal pending, No. 76-1746 (D.C.Cir.); Consumers Union of United States v. Board of Governors of the Federal Reserve System, 410 F.Supp. 63, 64 (D.D.C.1975).\\nIf the government could avoid liability for fees merely be conceding the cases before final judgment, the impact of the fee provision would be greatly reduced. The government would remain free to assert boilerplate defenses, and private parties who served the public interest by enforcing the Act's mandates would be deprived of compensation for the undertaking. Thus, a general bar to awards of fees in cases resolved before final judgment cannot be accepted by the court.\\nCommunist Party, supra.\\nWe hold that it was error for the district court in this case to conclude that Nationwide was not eligible for an award of attorney fees simply because it did not win a court order compelling disclosure. Of course, Nationwide's ' eligibility for an award of attorney fees does not mean that it is necessarily entitled to such an award. Congress clearly intended to grant the courts broad discretion in deciding whether attorney fees should be awarded on the particular facts of each case.\\nIII. SCOPE OF COURTS' DISCRETION UNDER ATTORNEY FEES PROVISION OF FOIA\\nSection 552(a)(4)(E), like the other provisions added to the FOIA by the 1974 amendments, grew out of a general dissatisfaction with the administrative response to the policy of open government embodied in the Act. Extensive oversight hearings held in 1971 and 1972 brought to light substantial \\\"foot-dragging\\\" on the part of administrative officials who invoked every conceivable delaying technique and forced citizens requesting information under the FOIA to resort to expensive litigation for vindication of their statutory rights. Several witnesses suggested either financial penalties for inordinate delay in responding to a FOIA request or the award of attorney fees to successful FOIA plaintiffs. The House Committee on Government Operations subsequently recommended that strict deadlines be set for administrative response to FOIA requests and that attorney fees be awarded where a court found that information had been wrongfully withheld.\\nSeveral bills were introduced in the 93d Congress embodying the Committee's recommendations. Hearings were held, and H.R. 12471 was passed as the final House version on March 14, 1974. With respect to attorney fees, that bill provided:\\nThe court may assess against the United States reasonable attorney fees and other litigation costs reasonably incurred in any case under this section in which the United States or an officer or agency thereof, as litigant, has not prevailed.\\nIn the Senate a companion bill of the original House bill, S. 1142, was considered during joint hearings on government information policy conducted by three subcommittees. Three months later in October, 1973 Senator Kennedy introduced S. 2543 which differed from both S. 1142 and the House bill. S. 2543 was reported without hearings, debated, and amended on the floor. Its provisions, as amended, were substituted for the language of H.R. 12471, whereupon that bill was passed by the Senate on May 30,1974. The Senate version of the attorney fees provision of H.R. 12471 read:\\nThe court may assess against the United States reasonable attorney fees and other litigation costs reasonably incurred in any case under this section in which the complainant has substantially prevailed. In exercising its discretion under this paragraph, the court shall consider the benefit to the public, if any, deriving from the case, the commercial benefit to the complainant and the nature of his interest in the records sought, and whether the Government's withholding of the records sought had a reasonable basis in law.\\nThis and other differences between the House and Senate versions of the bill were submitted to a Conference Committee which adopted the first sentence of the Senate attorney fees provision but dropped its specific listing of the factors to be considered by the courts in exercising their discretion. The Conference Report makes it clear, however, that this deletion was made to avoid limiting the court to these four factors and was not intended to make the award of attorney fees automatic or to preclude the courts from considering those factors. H.R.Rep.No.93-1380, supra at 10; see Joint Committee Print at 118 (unofficial staff notes of Conference Committee meetings).\\nOur examination of this legislative history persuades us that section 552(a)(4)(E) was not enacted to provide a reward for any litigant who successfully forces the government to disclose information it wished to withhold. It had a more limited purpose \\u2014 to remove the incentive for administrative resistance to disclosure requests based not on the merits of exemption claims, but on the knowledge that many FOIA plaintiffs do not have the financial resources or economic incentives to pursue their requests through expensive litigation.\\nThe Senate Judiciary Committee Report on S. 2543, containing the most extensive congressional discussion of this issue, clearly indicates that the attorney fees provision was adopted to ensure that judicial review of exemption claims would be available practicably as well as legally. The Report states that \\\"[t]oo often the barriers presented by court costs and attorneys' fees are insumountable [sic] for the average person requesting information, allowing the government to escape compliance with the law.\\\" S.Rep.No.93-854, supra at 17. Quoting from Senator Thurmond the Report emphasizes:\\nWe must insure that the average citizen can take advantage of the law to the same extent as the giant corporations with large legal staffs. Often the average citizen has foregone the legal remedies supplied by the Act because he has had neither the financial nor legal resources to pursue litigation when his Administrative remedies have been exhausted.\\nId. at 18 quoting from 1973 Senate Hearings, Vol. I at 175. It also provided illustrations of how the four factors \\u2014 public benefit, commercial benefit to the complainant, nature of the complainant's interest in the records sought and reasonableness of the government's asserted legal basis for withholding \\u2014 should be applied in particular cases.\\nUnder the first criterion a court would ordinarily award fees, for example, where a newsman was seeking information to be used in a publication or a public interest group was seeking information to further a project benefitting the general public, but it would not award fees if a business was using the FOIA to obtain data relating to a competitor or as a substitute for discovery in private litigation with the government.\\nUnder the second criterion a court would usually allow recovery of fees where the complainant was indigent or a nonprofit public interest group versus [sic] but would not if it was a large corporate interest (or a representative of such an interest). For the purposes of applying this criterion, news interests should not be considered commercial interests.\\nUnder the third criterion a court would generally award fees if the complainant's interest in the information sought was scholarly or journalistic or public-interest oriented, but would not do so if his interest was of a frivolous or purely commercial nature.\\nFinally, under the fourth criterion a court would not award fees where the government's withholding had a colorable basis in law but would ordinarily award them if the withholding appeared to be merely to avoid embarrassment or to frustrate the requester.\\nId. at 19. Summing up the effect that consideration of these factors should have on the courts' discretion the Committee reported that\\nthere will seldom be an award of attorneys' fees when the suit is to advance the private commercial interests of the complainant. In these cases there is usually no need to award attorneys' fees to insure that the action will be brought. The private self-interest motive of, and often pecuniary benefit to, the complainant will be sufficient to insure the vindication of the rights given in the FOIA. The court should not ordinarily award fees under this situation unless the government officials have been recalcitrant in their opposition to a valid claim or have been otherwise engaged in obdurate behavior.\\nId.\\nThe application of section 552(a)(4)(E) in the district courts has been consistent with this legislative history. In Goldstein v. Levi, supra, the court based its award of attorney fees on the plaintiff's status as a television producer who had sought information for use in a public television documentary and a book rather than for his personal commercial benefit. 415 F.Supp. at 305; accord, Consumers Union of United States v. Board of Governors of the Federal Reserve System, supra. The court distinguished two cases cited by the government in opposition to the award because \\\"they involved FOIA requests which were personal or commercial and did not involve the public interest . . . .\\\" 415 F.Supp. at 304. In Chamberlain v. Alexander, 419 F.Supp. 235 (S.D.Ala.1976), a successful FOIA plaintiff was denied attorney fees because the Internal Revenue Service documents he had sought related solely to his personal and commercial interest, not any administrative policy of general public interest, and because the government's resistance had a reasonable basis in law. Similarly in Kaye v. Burns, supra, the court denied a request for attorney fees because the government had a reasonable basis in law for resisting disclosure and there was \\\"little doubt that this action was brought to further plaintiff's commercial interest. [Tjhere has been little, if any, benefit to the public by virtue of plaintiff's action.\\\" 411 F.Supp. at 904-05; cf. Pope v. United States, supra (plaintiff who sought government files relating to his tax litigation denied attorney fees because documents within exemption and his motives were personal and commercial).\\nNationwide argues that the courts' discretion under 552(a)(4)(E) should be narrowly limited so that attorney fees could only be denied in exceptional circumstances. It reasons that the citation of the attorney fees provisions of Title II and Title VII of the Civil Rights Act of 1964 and cases applying those provisions in the committee reports is clear evidence of a congressional intent to incorporate into 552(a)(4)(E) the same presumption in favor of awarding attorney fees which the courts have read into the civil rights provisions.\\nThe Supreme Court's decision to narrowly confine the courts' discretion to deny an award of attorney fees in Title II or Title VII suits was based on its conclusion that Congress intended private suits to be an important part of the Act's enforcement scheme and that that intent would be frustrated unless attorney fees were routinely awarded. See Newman v. Piggie Park Enterprises, 390 U.S. 400, 401-02, 88 S.Ct. 964, 19 L.Ed.2d 1263 (1968). Inherent in the Court's conclusion is the assumption that the potential personal benefit resulting from a successful Title II or Title VII suit is an insufficient incentive to encourage private plaintiffs to bear the expense of litigation, notwithstanding the benefits which such suits produce for the public generally.\\nThe FOIA relies on private suits for enforcement as well, but it is not as easily assumed that the benefits of disclosure for individual FOIA plaintiffs will almost always be insufficient to overcome the economic disincentives to seek judicial review. The large majority of FOIA suits may yield broad public benefits and relatively small personal private gain, but it is not far fetched to imagine FOIA requests motivated by the potential private economic gain which could result from disclosure. See, e.g., Pope v. United States, supra; Chamberlain v. Alexander, supra; Kaye v. Burns, supra. In addition, unlike the attorney fee provisions of Title II and Title VII, the legislative history of section 552(a)(4)(E) evinces a clear congressional intent to leave the courts' broad discretion when considering a request for attorney fees. See H.R. Rep.No.93-1380, supra at 10; notes 28-34, supra, and accompanying text. Under the teaching of Alyeska we should rely on that expressed legislative intent rather than a judicial rule developed under a different statutory provision.\\nTo say that the decision whether Nationwide, or any successful FOIA plaintiff, should be awarded attorney fees is within the discretion of the courts is not to say that that discretion is unguided.' Certainly the courts should consider the four factors discussed in the committee reports although they must be careful not to give any particular factor dispositive weight. Even when these factors were incorporated in the proposed statutory language, they were \\\"intended to provide guidance and direction\\u2014 not airtight standards . . .\\\" S.Rep. No.93-854, supra at 19. Moreover, Congress's express intention in removing them from the statutory language was to avoid limiting the courts' consideration. Courts should not inadvertently frustrate that intent by failing to search out and consider other factors that may be relevant to whether attorney fees should be awarded to a successful FOIA plaintiff.\\nIn Vermont Low Income Advocacy Council, supra, 546 F.2d at 513, the Second Circuit articulated two other factors to be considered: 1) whether the prosecution of the plaintiff's action could reasonably have been regarded as necessary and 2) whether his suit had a substantial causative effect on the delivery of the information. Applying those factors to the situation before it, the court denied attorney fees to a FOIA plaintiff who had chosen to \\\"make a 'federal case' out of a matter that . . . had promise of amicable resolution,\\\" id. at 514, where the result \\\"was not one whit different than if [plaintiff] had withheld legal action,\\\" and the record showed that the agency sincerely, desired to disclose all that the FOIA required and more but was delayed because of excusable delay in its administrative appeal process. Id. at 515. The court's opinion explicitly rejected the contention that the government's failure to act within the time limits imposed by section 552(a)(6)(A) of the FOIA or to seek an extension of those time limits precludes a court from rejecting a request for attorney fees on the grounds that the plaintiff could not have reasonably regarded court action as necessary. Id. at 514 n.6. Those time limits are intended to prevent the government from utilizing administrative delay to shield FOIA disputes from judicial review. They should not be read as a congressional imprimatur, conclusively establishing the necessity of court action when an agency does not comply \\u2014 particularly where the administrative delay arises from an agency's attempt to comply fully with the spirit of the FOIA by supplying all requested information, whether exempt or not, unless there is a vital reason not to disclose it.\\nAs a final and overriding guideline courts should always keep in mind the basic policy of the FOIA to encourage the maximum feasible public access to government information and the fundamental purpose of section 552(a)(4)(E) to facilitate citizen access to the courts to vindicate their statutory rights. Each of the particular factors we have discussed must be evaluated in light of these fundamental legislative policies. The touchstone of a court's discretionary decision under section 552(a)(4)(E) must be whether an award of attorney fees is necessary to implement the FOIA. A grudging application of this provision, which would dissuade those who have been denied information from invoking their right to judicial review, would be clearly contrary to congressional intent.\\nNationwide's request for attorney fees requires a multifarious analysis of all the factors we have highlighted. On the one hand the government argues that Nationwide should not be awarded attorney fees because its sole interest in obtaining the requested information was to substantiate its bid protests, because the documents released were not of general public interest, and because the GSA had a reasonable basis in law for resisting disclosure. Brief for Appellees at 38-89 & n.26; id. at 47. On the other hand Nationwide contends that the actual impact of its bid protests was public and general because it corrected improprieties in GSA procurement procedures and because it did not result in any compensation or contract award for Nationwide. Brief for Appellant at 20 n.*; Reply Brief for Appellant at 24. Nationwide does not deny, however, that it remains a potential future contractor under those corrected procedures and that at the time of its FOIA request, before the bid protest had been decided, it had asked the GAO to order the GSA, as part of the relief in the bid protest decision, to award the Internal Revenue Service Center contract to Nationwide. Thus both commercial incentive and pecuniary benefit are factors to weigh in the balance along with consideration of any public service rendered as a private attorney general vindicating the policies of the FOIA. This case also appears to raise the issues of the necessity for suit and its causative effect on the government's decision to disclose. Although not a clear cut case of unreasonable resort to litigation like Vermont Low Income Advocacy Council, supra, it is also not a case of absolute resistance to disclosure before the plaintiff sought judicial review, e.g., Goldstein v. Levi, supra.\\nOnly the commercial motivation issue was raised before the district court and even that was not a basis for the court's decision to deny attorney fees to Nationwide. Therefore we think that although both sides in this litigation have urged us to decide the question of attorney fees ourselves, the more appropriate course is to remand for a decision by the district court in light of the relevant factors we have articulated in this opinion. We may well have the authority to make our own discretionary decision under section 552(aX4)(E), but in this area where, as we have emphasized, Congress has relied on the broad discretion of the courts, it is better to have that discretion exercised by the court which has been the most intimately associated with the case. A remand here does not necessarily require any further delay for additional proceedings. The district court is of course free to conduct what inquiry it deems necessary for a full exploration of the relevant factors.\\nNationwide did \\\"substantially prevail\\\" in its FOIA action and was entitled to a discretionary decision by the court as to whether it deserved an attorney fees award under section 552(a)(4)(E). Since that discretion is best exercised by the court most closely associated with the case we do not ourselves decide that question but remand the case to the district court for a decision not inconsistent with this opinion.\\nReversed and remanded.\\n. The district court's judgment also denied Nationwide's request for a written finding under section 552(a)(4)(F), \\\"that the circumstances surrounding the withholding raise questions whether agency personnel acted arbitrarily or capriciously with respect to the withholding. .\\\" 5 U.S.C. \\u00a7 552(a)(4)(F) (Supp. V 1975). Nationwide has decided not to pursue this issue on appeal, however. Brief for Appellant at 7 n.*.\\n. See generally 4 C.F.R. \\u00a7 20 (1976) (procedures for protesting award of contract by federal agency).\\n. The service contract for the building had been held previously by Nationwide. Brief for Appellant at 3.\\n. Nationwide sought:\\n1. Copies of the proposals submitted by Surf Cleaners, Inc. and Ensec Service Corporation;\\n2. All documents pertaining to \\\"best and final offers\\\" in response to the bid proposal;\\n3. All documents pertaining to negotiations with each offeror under the bid proposal;\\n4. All documents pertaining to the selection and subsequent rejection of a proposal by Surf Cleaners, Inc.;\\n5. All documents evaluating, summarizing or discussing offers received under the bid proposal;\\n6. All documents pertaining to the decision to award the contract to Ensec;\\n7. All documents pertaining to the decision to reject Nationwide's offer;\\n8. All documents which justify the award to Ensec although it offered a higher price than Nationwide;\\n9. All documents summarizing Nationwide's performance of its contract for cleaning services at the IRS Service Center;\\n10. The Ensec Service Corporation's offer submitted in response to a proposed contract for the Department of Interior Building, Washington, D.C.;\\n11. All documents evaluating, summarizing or discussing all offers received with respect to the above contract;\\n12. All documents pertaining to the award of the above contract to Ensec Service Corporation;\\n13. All documents pertaining to the decision to reject Nationwide's offer under the above contract proposal.\\nBrief for Appellees at 3-4.\\n. Nationwide's second request covered:\\n1. All documents relating to the decision to obtain the services through negotiated rather than advertised procurement;\\n2. All documents justifying negotiated rather than advertised procurement of these services;\\n3. All documents which relate to the procurement of janitorial services through negotiated rather than advertised procurement.\\nId. at 4.\\n. Section 552(a)(6) of the FOIA provides that an agency shall notify a party seeking information of its decision whether to comply or not within ten working days of receipt of a request. 5 U.S.C. \\u00a7 552(a)(6)(A)(i) (Supp. V 1975). In certain statutorily defined circumstances this time limit may be extended up to ten more days, but the agency must give written notice of such an extension along with the reasons therefor. 5 U.S.C. \\u00a7 552(a)(6)(B) (Supp. V 1975). Even if one could construe GSA's initial letters as adequate notices of extensions, the maximum possible time period of twenty work ing days had run on each of Nationwide's requests before it filed suit. If an agency fails to comply with the time limits of the Act, the party seeking disclosure is \\\"deemed to have exhausted his administrative remedies.\\\" 5 U.S.C. \\u00a7 552(a)(6)(C) (Supp. V 1975).\\n.GSA claimed that the contract proposals of Surf Cleaners, Inc. and Ensec Service Corp. were exempt from disclosure under section 552(b)(4) which exempts \\\"commercial or financial information obtained from a person and privileged or confidential\\\" 5 U.S.C. \\u00a7 552(b)(4) (1970). According to GSA both Surf Cleaners and Ensec had requested that these proposals, which contained detailed operational plans, cost allocations, descriptions of internal corporate structure and other proprietary financial information, not be released because disclosure would cause substantial harm to their competitive position in the future. See generally National Park and Conservation Ass'n v. Kleppe, 178 U.S.App.D.C. 376, 380-87, 547 F.2d 673, 677-84 (1976) (affirming in part- district court finding that disclosure of certain financial information would cause substantial competitive harm).\\nWith respect to the other documents not disclosed, GSA claimed exemption as \\\"intra-agency memoranda\\\" under section 552(b)(5) of the Act and section 105-60.502(e) of title 41 of the Code of Federal Regulations which merely restates the language of the statute.\\n. See generally 41 C.F.R. \\u00a7 105-60.404 (1976) (FOIA appeal process within GSA).\\n. All documents relating to Nationwide's performance under its past contract for cleaning services at the IRS Center were disclosed.\\n. The contract proposals of Surf Cleaners, Inc. and Ensec Service Corp., and the contract offer made by Ensec were disclosed after deletion of cost, pricing, personnel and organizational data constituting trade secrets or financial information which GSA concluded would harm the competitive positions of Surf and Ensec or would hamper the ability of GSA to operate a competitive contracting program. The agency relied on exemption four as authority to withhold that information.\\n. For a list of the types of documents withheld see items 2 through 8 and 11 through 13 in note 4 supra. GSA told Nationwide that these documents reflected the deliberative process within the agency in evaluating contract proposals and were therefore exempt from disclosure as intra-agency memoranda under 552(b)(5). In addition, the agency claimed that they contained information from Surf Cleaners and En-sec which was exempt under 552(b)(4).\\n. Northcross v. Board of Educ., 412 U.S. 427, 93 S.Ct. 2201, 37 L.Ed.2d 48 (1973) (\\u00a7 718 of Emergency School Aid Act of 1972); Newman v. Piggie Park Enterprises, 390 U.S. 400, 88 S.Ct. 964, 19 L.Ed.2d 1263 (1968) (\\u00a7 204(b) of Civil Rights Act of 1964); Grubbs v. Butz, 179 U.S.App.D.C. 18, 548 F.2d 973 (1976) (\\u00a7 706(k) of Civil Rights Act of 1964); Williams v. General Foods Corp., 492 F.2d 399 (7th Cir. 1974) (same); Mello v. Secretary of the Department of Health Education and Welfare, 8 Empl.Prac. Dec. 5657 (D.D.C.1974) (same).\\n. Whitehead v. Richardson, 446 F.2d 126 (6th Cir. 1971).\\n. Larkin v. McCann, 368 F.Supp. 1352, 1354 (E.D.Wis.1974); see 10 C. Wright & A. Miller, Federal Practice and Procedure \\u00a7 2667-2668 (1973).\\n. On August 28, 1975, the Vermont Low Income Advocacy Council (VLIAC) requested the Boston office of the United States Department of Labor to disclose all information relating to the efforts of Vermont apple growers to recruit domestic labor to pick the 1975 harvest. The Boston office denied VLIAC's request by letter of September 8 and eight days later VLIAC appealed to the Solicitor of Labor in Washington. On October 2, the Solicitor wrote to VLIAC noting the necessity to obtain the records from the regional office before acting on its appeal and promised to advise VLIAC of his decision by October 22. The Solicitor requested the documents on October 3 and although something was immediately forwarded it was lost in transit.\\nAs of October 30 VLIAC had not heard from the Solicitor and wrote a letter stating that it intended to file suit unless the requested information was received by November 5. That letter was not received in the Solicitor's office until November 5. Immediately a telegram was dispatched to VLIAC explaining the problems in receiving the documents from the regional office and requesting VLIAC to supply its telephone number so that the Department could contact it to discuss the matter. VLIAC did not respond to the telegram. Instead it filed this suit on November 12.\\nA second attempt in early November to have the documents delivered to Washington failed, but on the third try the correct records were finally received on December 11. The next day an informal decision was made to grant VLI-AC's appeal with minor deletions to protect personal privacy and the documents were received by VLIAC on December 30. See 546 F.2d at 510-11.\\nUnder these facts the Second Circuit found \\\"no reason for rewarding VLIAC with moneys from the public treasury,\\\" id. at 514, because it could not show that its suit could have been reasonably regarded as necessary and that it had a substantial causative effect on delivery of the information. Id. at 513. The court noted that VLIAC was not under any time constraints which prevented it from contacting the Solicitor's Office to talk over the matter. Id. at 513-14. Moreover, VLIAC had conceded that if it had known all the facts concerning the Department's difficulty in obtaining the records for review and the efforts made to overcome them, which the court concluded it would have discovered if it had responded to the Solicitor's request for a discussion of the matter, it would not have gone to court at all. Id. at 514 n.5.\\n. See Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 247-57, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975). There are narrow exceptions to this rule, however, under which courts may award attorney fees in particular situations unless explicitly forbidden by Congress. See, e. g., Mills v. Electric Auto-Lite Co., 396 U.S. 375, 90 S.Ct. 616, 24 L.Ed.2d 593 (1970) (common fund recovered for benefit of others as well as plaintiff); Vaughn v. Atkinson, 369 U.S. 527, 530-31, 82 S.Ct. 997, 8 L.Ed.2d 88 (1962) (bad faith); Toledo Scale Co. v. Computing Scale Co., 261 U.S. 399, 426-27, 43 S.Ct. 458, 67 L.Ed. 719 (1923) (willful disobedience of court order); see Alyeska, supra, 421 U.S. at 257-59, 95 S.Ct. 1612; Fleischmann Distilling Corp. v. Maier Brewing Co., 386 U.S. 714, 718, 87 S.Ct. 1404, 18 L.Ed.2d 475 (1967).\\n. See, e. g., Hoitt v. Vitek, 495 F.2d 219 (1st Cir. 1974); Cornist v. School Bd., 495 F.2d 189 (5th Cir. 1974); Morales v. Haines, 486 F.2d 880 (7th Cir. 1973). But see Bradley v. School Bd., 472 F.2d 318, 327-31 (4 Cir. 1972), vacated on other grounds, 416 U.S. 696, 94 S.Ct. 2006, 40 L.Ed.2d 476 (1974); cf. Bridgeport Guardians, Inc. v. Members of Bridgeport Civil Service Comm'n, 497 F.2d 1113 (2d Cir. 1974), cert. denied, 421 U.S. 991, 95 S.Ct. 1997, 44 L.Ed.2d 481 (1975) (no abuse of discretion in denial of attorney fees to successful \\u00a7 1983 plaintiffs).\\n. The Supreme Court reversed a holding of this court that although the Wilderness Society did not fall within any of the well established narrow exceptions to the general rule it nonetheless was entitled to attorney fees as a \\\"private attorney general\\\" who had vindicated important statutory rights of all citizens and ensured proper government. 421 U.S. at 245, 269-71, 95 S.Ct. 1612.\\n. 1974 Amendments to the Freedom of Information Act, Pub.L.No.93-502, 88 Stat. 1561 (1974).\\n. Id.\\n. See Subcommittee on Government Information and Individual Rights of House Comm, on Government Operations & Subcomm. on Administrative Practice and Procedure of the Senate Comm, on the Judiciary, 94th Cong., 1st Sess., Freedom of Information Act and Amendments of 1974, Source Book: Legislative History, Texts, and other Documents 8-42 (1975) (Joint Committee Print) [hereinafter referred to as Joint Committee Print]; Hearings on Executive Privilege, Secrecy in Government and Freedom of Information Before the Subcomm. on Intergovernmental Relations of the Senate Comm, on Government Operations and the Subcomm. on Separation of Powers and Sub-comm. on Administrative Practice and Procedure of the Senate Comm, on the Judiciary, 93d Cong., 1st Sess. Vol. Ill at 477-98 (1973) [hereinafter referred to as 1973 Senate Hearings].\\nSee also Katz, The Games Bureaucrats Play: Hide and Seek under the Freedom of Information Act, 48 Texas L.Rev. 1261 (1970); Nader, Freedom from Information: The Act and the Agencies, 5 Harv.Civ.R. \\u2014 Civ.Lib.L.Rev. 1 (1970).\\n. See H.R.Rep.No.92-1419, 92 Cong., 2d Sess. 20^12, 73-74 (1972).\\n. See id. at 38-40.\\n. Id. at 83.\\n. See H.R. 4960, H.R. 5425, H.R. 12080, 93d Cong., 1st Sess. (1973).\\n. Hearings on H.R. 4960 and H.R. 5425 before Subcomm. on Foreign Operations and Government Information of the House Comm, on Government Operations, 93 Cong., 1st Sess. (1973).\\n. 120 Cong.Rec. 6804-20 (1974).\\n. Joint Committee Print at 147; see H.R.Rep. No.93-876 93d Cong., 2d Sess. 6-7 (1974).\\n. 1973 Senate Hearings (FOIA issues were discussed on April 11, 12, May 9, June 7, 8, 11, 26).\\n. See S.Rep.No.93-854, 93d Cong., 2d Sess. (1974).\\n. 120 Cong.Rec. 17014-40, 17042-47 (1974).\\n. Id. at 17045-47.\\n. Id. at 17014; see H.R.Rep.No.93-1380, supra at 9-10.\\n. The government has argued that unless we require a court finding of wrongful withholding for eligibility for an attorney fees award under section 552(a)(4)(E) we will encourage less disclosure and more litigation since an agency would be unwilling to settle a suit by disclosing information which while arguably exempt need not be withheld. Indeed, it claims that the delay of the GSA which gave rise to this litigation resulted from that agency's close scrutiny of the documents requested through its internal appeals procedure pursuant to a policy of releasing even lawfully exempt material for which there is no other vital interest requiring non-disclosure. Brief for Appellees at 35-36.\\nSurely this is an important consideration. The FOIA should not be construed so as to put the federal bureaucracy in a defensive or hostile position with respect to the Act's spirit of open government and liberal disclosure of information. But cf. Charles River Park \\\"A\\\", Inc. v. Department of Housing & Urban Dev., 171 U.S.App.D.C. 286, 519 F.2d 935 (1975) (decision of agency to disclose information within a FOIA exemption may be an abuse of discretion). Nevertheless, we believe that this is an issue which should be addressed to the courts' discretionary evaluation of the reasonableness of the government's resistance to a FOIA plaintiff's request, not a reason for requiring a judgment of wrongful withholding as a prerequisite for the exercise of that discretion. Certainly where the government can show that information disclosed after initial resistance was nonetheless exempt from the FOIA a plaintiff should not be awarded attorney fees under section 552(a)(4)(E). Indeed, if the government only establishes that it had a reasonable basis in law for resisting disclosure it may be proper to deny a FOIA plaintiff's motion for attorney fees unless other factors affirmatively justify such an award.\\n. The opinions in the two cases distinguished by the court, Friedman v. Kelly, No. 75-965 (D.Or. Apr. 4, 1976), and Orange County Vegetable Improvement Cooperative Association v. Department of Agriculture, No. 75-842 (D.D.C. Mar. 4, 1976), are not published, but the court summarized the relevant facts of each case in a footnote. 415 F.Supp. at 304 n.4. Friedman involved a plaintiff who sought her FBI file for personal interests and Orange County was a case promoted for the plaintiffs commercial interests rather than the public interest. See id.\\n. The plaintiff in Kaye had requested records of the Federal Reserve Board relating to acquisitions and other activities of Equimark Corp. and a copy of a summary of a meeting between staff members of the Board of Governors and counsel for Equimark. His requests were honored with two exceptions. The Board refused to disclose a letter from an Assistant Secretary of the Board to Equimark claiming that it was exempt and stated that no summary had been made of the meeting referred to. Plaintiff thereupon filed suit and two months later the United States Attorney provided him a copy of the letter previously withheld. Plaintiff apparently conceded that no summary of the meeting existed. See 411 F.Supp. at 898-901. In discussing plaintiffs motivation the court noted that he was involved in litigation against Equimark and that his FOIA request was doubtless related to discovery in that dispute. Id. at 905.\\n. \\u00a7 204(b), 706(k), 42 U.S.C. \\u00a7 2000a-3(b), 2000e-5(k) (1970).\\n. E.g., Newman v. Piggie Park Enterprises, supra; Parham v. Southwestern Bell Tel. Co., 433 F.2d 421 (8th Cir. 1970); see note 12 supra.\\n. In Newman v. Piggie Park Enterprises, Inc., supra, the Supreme Court reversed a court of appeals holding that attorney fees should only be awarded in a Title II suit where defenses were not advanced in good faith, but only for purposes of delay. 390 U.S. at 401, 88 S.Ct. 964. The Court stated that \\\"one who succeeds in obtaining an injunction under that Title should ordinarily recover an attorney's fee unless special circumstances would render such an award unjust.\\\" Id. at 402, 88 S.Ct. at 966.\\n. See note 15 supra.\\n. Each agency, upon any request for records made under paragraph (1), (2), or (3) of this subsection, shall\\u2014\\n(i) determine within ten days (excepting Saturdays, Sundays, and legal public holidays) after the receipt of any such request whether to comply with such request and shall immediately notify the person making such request of such determination and the reasons therefor, and of the right of such person to appeal to the head of the agency any adverse determination; and\\n(ii) make a determination with respect to any appeal within twenty days (excepting Saturdays, Sundays, and legal public holidays) after the receipt of such appeal. If on appeal the denial of the request for records is in whole or in part upheld, the agency shall notify the person making such request of the provisions for judicial review of that determination under paragraph (4) of this subsection.\\n5 U.S.C. \\u00a7 552(a)(6)(A) (Supp. V 1975).\\n. In unusual circumstances as specified in this subparagraph, the time limits prescribed in either clause (i) or clause (ii) of subparagraph (A) may be extended by written notice to the person making such request setting forth the reasons for such extension and the date on which a determination is expected to be dispatched. No such notice shall specify a date that would result in an extension for more than ten working days. As used in this subparagraph, \\\"unusual circumstances\\\" means, but only to the extent reasonably necessary to the proper processing of the particular request\\u2014\\n(i) the need to search for and collect the requested records from field facilities or other establishments that are separate from the office processing the request;\\n(ii) the need to search for, collect, and appropriately examine a voluminous amount of separate and distinct records which are demanded in a single request; or\\n(iii) the need for consultation, which shall be conducted with all practicable speed, with another agency having a substantial interest in the determination of the request or among two or more components of the agency having substantial subject-matter interest therein.\\n5 U.S.C. \\u00a7 522(a)(6)(B) (Supp. V 1975). Moreover, after a FOIA plaintiff has filed suit the court may grant the agency additional time to complete its review of the requested information if the government can show \\\"exceptional circumstances\\\" and \\\"due diligence.\\\" 5 U.S.C. \\u00a7 552(a)(6)(C) (Supp. V 1975); see Open America v. Watergate Special Prosecution Force, 178 U.S.App.D.C. 308, 547 F.2d 605 (1976); 11 Georgia L.Rev. 241 (1976).\\n. Although Alyeska prevents the courts from awarding attorney fees under a private attorney general theory in the absence of statutory authorization, it has not vitiated the effect of that rationale under a legislative provision which clearly contemplates its application. See Northcross v. Board of Educ., 412 U.S. 427, 428, 93 S.Ct. 2201, 37 L.Ed.2d 48 (1973) (\\u00a7 718 of Emergency School Aid Act of 1972 interpreted to ordinarily provide attorney fees as does \\u00a7 204(b) of Civil Rights Act of 1964 since both contemplate enforcement by private attorneys general).\\n. See Vermont Low Income Advocacy Council v. Usery, supra; cf. Reed v. Arlington Hotel Co., 476 F.2d 721, 726 (8th Cir.), cert. denied, 414 U.S. 854, 94 S.Ct. 153, 38 L.Ed.2d 103 (1973) (court of appeals reversed dismissal of plaintiffs' class action under Title VII of Civil Rights Act of 1964; found plaintiff entitled to attorney fees); Malone v. North American Rockwell Corp., 457 F.2d 779, 881 (9th Cir. 1972) (court of appeals reversed district court holding of no jurisdiction; awarded attorney fees).\"}"

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+"{\"id\": \"3536298\", \"name\": \"Sue GOTTFRIED, Individually and on Behalf of the Deaf and Hearing Impaired Population Within the Stations' Viewing Area, and Greater Los Angeles Council on Deafness, Inc., Appellants, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee, National Broadcasting Company, Inc., Community Television of Southern California, Metromedia, Inc., American Broadcasting Companies, Inc., KCOP Television, Inc., RKO General, Inc., Golden West Broadcasters, and CBS, Inc., Intervenors\", \"name_abbreviation\": \"Gottfried v. Federal Communications Commission\", \"decision_date\": \"1981-04-17\", \"docket_number\": \"No. 79-1722\", \"first_page\": \"184\", \"last_page\": \"204\", \"citations\": \"210 U.S. App. D.C. 184\", \"volume\": \"210\", \"reporter\": \"United States Court of Appeals for the District of Columbia Circuit\", \"court\": \"United States Court of Appeals for the District of Columbia Circuit\", \"jurisdiction\": \"District of Columbia\", \"last_updated\": \"2021-08-10T18:51:32.966612+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before McGOWAN, Chief Judge, WRIGHT, Circuit Judge, and GASCH, District Judge.\", \"parties\": \"Sue GOTTFRIED, Individually and on Behalf of the Deaf and Hearing Impaired Population Within the Stations\\u2019 Viewing Area, and Greater Los Angeles Council on Deafness, Inc., Appellants, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee, National Broadcasting Company, Inc., Community Television of Southern California, Metromedia, Inc., American Broadcasting Companies, Inc., KCOP Television, Inc., RKO General, Inc., Golden West Broadcasters, and CBS, Inc., Intervenors.\", \"head_matter\": \"655 F.2d 297\\nSue GOTTFRIED, Individually and on Behalf of the Deaf and Hearing Impaired Population Within the Stations\\u2019 Viewing Area, and Greater Los Angeles Council on Deafness, Inc., Appellants, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee, National Broadcasting Company, Inc., Community Television of Southern California, Metromedia, Inc., American Broadcasting Companies, Inc., KCOP Television, Inc., RKO General, Inc., Golden West Broadcasters, and CBS, Inc., Intervenors.\\nNo. 79-1722.\\nUnited States Court of Appeals, District of Columbia Circuit.\\nArgued Nov. 5, 1980.\\nDecided April 17, 1981.\\nAbraham Gottfried, Los Angeles, Cal., and Charles M. Firestone for appellants.\\nRandolph J. May, Counsel, F. C. C., Washington, D. C., with whom Robert R. Bruce, Gen. Counsel, Daniel M. Armstrong, Associate Gen. Counsel, and Keith H. Fagan and Mary Lee Lindquist, Counsel, F. C. C., Washington, D. C., were on the brief, for appellee. Lisa B. Margolis, Counsel, F. C. C., Washington, D. C., entered an appearance for appellee.\\nTimothy B. Dyk, Washington, D. C., with whom J. Roger Wollenberg and Judith Barry Wish, Washington, D. C., (for intervenor CBS, Inc.), James A. McKenna, Jr., Mark D. Roth, and Carl R. Ramey, Washington, D. C., (for intervenor American Broadcasting Companies, Inc.), Michael J. McCarthy, Washington, D. C., (for intervenor Golden West Broadcasters), Howard F. Roycroft, Richard S. Rodin, and Marvin J, Diamond, Washington, D. C., (for intervenor KCOP Television, Inc.), Thomas J. Dougherty and Preston R. Padden, Washington, D. C., (for intervenor Metromedia, Inc.), Bernard Roteen, Arthur B. Goodkind, and Howard Monderer, Washington, D. C., (for intervenor National Broadcasting Company, Inc.), and J. Laurent Scharff and Jack N. Goodman, Washington, D. C., (for intervenor RKO General, Inc.), were on the joint brief, for intervenors CBS, Inc. et al. Margot Smiley Humphrey, Washington, D. C., entered an appearance for intervenor National Broadcasting Company, Inc.\\nEdgar F. Czarra, Jr., and Mark D. Nozette, Washington, D. C., were on the brief for intervenor Community Television of Southern California.\\nBefore McGOWAN, Chief Judge, WRIGHT, Circuit Judge, and GASCH, District Judge.\\nOf the United States District Court for the District of Columbia, sitting by designation pursuant to 28 U.S.C. \\u00a7 292(a) (1976).\", \"word_count\": \"12093\", \"char_count\": \"77756\", \"text\": \"Opinion for the court filed by Circuit Judge J. SKELLY WRIGHT.\\nOpinion concurring in part and dissenting in part filed by Chief Judge McGOWAN.\\nJ. SKELLY WRIGHT, Circuit Judge:\\nThis case, involving denial by the Federal Communications Commission (FCC or Commission) of a petition to deny license renewals to eight Los Angeles television stations, presents difficult questions concerning the obligations of public and commercial broadcasters to attempt to meet the programming needs of persons with impaired hearing. The issues arise under two statutes: the Communications Act, under which the Commission can renew a station's license only upon a finding that its programming has served the public interest, and Section 504 of the Rehabilitation Act of 1973, which, prohibits discrimination against \\\"otherwise qualified\\\" handicapped persons by recipients of federal financial assistance. Because public television stations are apparently bound by Section 504 of the Rehabilitation Act to provide service to \\\"otherwise qualified\\\" handicapped persons, we do not believe that the FCC could find the service of such stations to be adequate to justify renewal without at least inquiring specifically into their efforts to meet the programming needs of the hearing impaired. Accordingly, we hold that the challenge to the license renewal of public station KCET-TV must be remanded to the Commission for further proceedings.\\nWe conclude, however, that Section 504 does not apply directly to commercial broadcasters. We therefore hold that the decision of the Commission concerning the seven commercial stations may be upheld, on the basis of both the record compiled below and the Commission's representations of substantial progress in extending the benefits of commercial television to the hearing impaired. In so doing, however, we recognize that the Commission's statutory obligation to pursue the public interest requires it to protect the interests of the hard of hearing in having meaningful access to commercial broadcasting. We also note that rulemaking might be a better, fairer, and more effective vehicle for considering how the broadcast industry is required to provide the enjoyment and educational benefits of television to persons with impaired hearing. Radio has been available to the general public for over half a century, as has television for over a quarter century. But millions of Americans have lived and died during that time without being able to enjoy radio and television simply because their hearing was impaired. It is time for the Commission to act realistically to require, in the public interest, that the benefits of television be made available to the hard of hearing now.\\nI. BACKGROUND\\nA. Statutory Context\\nThis case, in which appellants challenge an FCC order denying a petition to deny license renewals to eight Los Angeles television stations, arises against a complex background of federal statutes and administrative action. The Communications Act of 1934 charges the Federal Communications Commission with granting broadcast licenses and license renewals. The Commission does so pursuant to a general mandate to protect and advance \\\"the public interest, convenience, and necessity.\\\" Although this mandate is general, the Commission has in fact interpreted it through the issuance of a number of regulations and guidelines. These Commission guidelines typically govern decisions about whether to renew broadcast licenses in cases where there is no announced competitor for a license held by the applicant for renewal. Although the statute provides that \\\"[a]ny party in interest may file with the Commis sion a petition to deny any application,\\\" the Commission need generally hold no hearings unless the petition raises a \\\"subf stantial and material question of fact\\\" concerning the incumbent licensee's satisfaction of pertinent Commission standards. Where no question is raised concerning the station's compliance with Commission guidelines, renewal is generally granted without public hearing.\\nBoth the courts and the FCC have construed the \\\"public interest\\\" standard for license awards to include a requirement that broadcasters endeavor to discover and to meet the programming needs of all significant groups within their areas of service. The Commission publishes a list of specific groups whose needs must be \\\"ascertained.\\\" At least since 1970 it has urged licensees to make efforts to serve the hearing impaired, a group estimated to include at least 13 million people, nationwide. But the Commission has declined to include the hearing impaired among the groups whose needs must specifically be consulted. Nor has it ever promulgated guidelines requiring entertainment programming for the hard of hearing. The Commission has, however, insisted that emergency broadcasts must be made accessible to the deaf, and, whenever individual broadcasters have sought Commission approval for innovative service to the hearing impaired, the Commission has given its approval. For example, the Commission in 1976 adopted rules to permit \\\"closed captioning\\\" for visual display of aural material accompanying television programs. Pursuant to this grant of permission, the Public Broadcasting Service (PBS) and two of the commercial networks began in March 1980 to provide a total of up to 20 hours a week of programming captioned by the National Captioning Institute. The FCC has also emphasized in its public pronouncements that \\\"licensees can and will be responsive to the needs of their [hearing impaired] viewers, but it is still the responsibility of each licensee to determine how it can most effectively meet those needs.\\\"\\n- Although it has recognized that Section 504 of the Rehabilitation Act of 1973 may impose a statutory obligation on public television stations to accommodate at least some pf their programming to the needs of the hearing impaired, the FCC has thus far declined to take specific steps to enforce the Act. The Department of Education has been officially designated as the agency to develop guidelines clarifying the specific obligations imposed on public broadcasters by Section 504. The FCC has indicated that if any broadcaster should be found by another agency of government to be in violation of Section 504, it would \\\"consider the effect of that violation upon the licensee's qualifications.\\\" But because it is not the agency responsible for enforcement of the Rehabilitation Act, the FCC has stated that it will not attempt to hold broadcasters to any obligations thereunder, at least until the responsible agency has spoken.\\nB. Factual Background\\nSue Gottfried is a hearing impaired member of the Los Angeles community. On October 28, 1977, on behalf of herself and others similarly situated, Mrs. Gottfried filed petitions to deny the license renewal applications of eight Los Angeles television stations. In her petitions pertaining to the seven commercial licensees Mrs. Gottfried alleged generally that the stations had failed to ascertain or to meet the needs of the hearing impaired. She further argued that the stations, as recipients of valuable federal licenses, had failed to satisfy obligations imposed on them by Section 504 of the Rehabilitation Act of 1973. Regarding the public station KCET-TV, Mrs. Gottfried repeated her general claims and arguments, but she also added the specific charge that the station had shown indifference to the needs of the deaf by failing to broadcast, through most of its license term, a captioned version of the ABC Evening News that was made available to it by the Public Broadcasting Service.\\nOn September 8, 1978 the FCC denied Mrs. Gottfried's petitions to deny license renewals to the eight stations. The petitions, the Commission said, had \\\"failed to allege specific facts which raised any substantial or material question as to whether a grant of the renewal applications before us would serve the public interest, convenience, and necessity.\\\" The FCC based this conclusion on the failure of the petitions to allege violations of any specific Commission standards- or guidelines. The Commission noted that it had no requirement that stations develop demographic data related to the hearing impaired population of a service area, specifically ascertain the needs of the deaf, or utilize captioning or other techniques to make programming accessible to the hard of hearing. The Commission also found that Section 504 of the Rehabilitation Act did not apply to the commercial licensees, and it stated that the Department of Health, Education and Welfare (HEW) was the appropriate agency to consider whether the public station had violated the Act. Although it said that it would give consideration to any adverse finding that HEW might reach, the Commission denied that a petitioner could raise a \\\"substantial or material\\\" renewal question merely by alleging noncompliance with the Rehabilitation Act or with the national policy expressed by that statute.\\nThe appellants responded to the Commission's order by filing a petition for re consideration, in which they alleged, in elaborated form, essentially the same arguments they had made earlier. They also filed supplemental pleadings in which they presented evidence that viewers were not averse to captioned programming and claimed that the Commission was obligated by HEW regulations and by Executive Order to implement Section 504 of the Rehabilitation Act. Once again, the Commission dismissed the petition as failing to present a substantial or material question of fact requiring further hearings. Because the petitioners had not effectively challenged the stations' compliance with stated FCC requirements, the Commission held that they had not raised a substantial claim that the licensees' service had failed to satisfy the statutory requirement of being in the public interest.\\nPursuant to Section 402 of the Communications Act, 47 U.S.C. \\u00a7 402 (1976), Mrs. Gottfried appealed the decision of the Commission to this court.\\nII. ISSUES ON APPEAL\\nThe issues presented in this appeal are complicated by the contested relationship between two statutes, the Communications Act and the Rehabilitation Act of 1973. The Rehabilitation Act does not directly impose any enforcement obligation on the FCC. But the Communications Act does require the FCC to make determinations about the requirements of the \\\"public interest,\\\" and appellants argue that the \\\"public interest\\\" standard must be construed to require at least some consideration of the national policy expressed by the Rehabilitation Act and any legal obligations imposed on the stations by Section 504. We agree.\\nBecause the parties have assumed that Section 504 of the Rehabilitation Act applies to public television stations, we begin by considering the obligation of the FCC to weigh compliance with this standard in a challenge to renewal of a license such as that involved in this case. This discussion yields the conclusion that the case of the public station must be remanded to the Commission. We then consider the argument that Section 504 applies to the commercial stations, and conclude that it does not. Although the Commission may still be obliged to weigh the national policy of the Rehabilitation Act within the public interest standard, the commercial stations themselves have been assigned no direct statuto ry obligations to the hearing impaired. We therefore determine that the Commission has a range of discretion in assessing what commercial stations must do in the public interest, and in consideration of both its expertise and its efforts in the area, we defer to its judgment at this time. We repeat, however, that in our view television, both public and commercial, should be made available to persons with impaired hearing now.\\nIII. PUBLIC STATIONS\\nSection 504 of the Rehabilitation Act of 1973 provides:\\nNo otherwise qualified handicapped individual in the United States shall, solely by reason of his handicap, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.[ ]\\nIn this case appellants urge that public television station KCET-TV is a recipient of federal financial assistance subject to the statute. This claim rests on two bases. First, appellants argue that a broadcast license is itself a valuable commodity constituting \\\"financial assistance\\\" as that term is used under the Rehabilitation Act. Second, appellants argue that KCET-TV, as a \\\"public\\\" or noncommercial educational broadcasting station, is subsidized by congressional appropriations channeled, among other sources, through the National Telecommunications and Information Administration of the Department of Commerce and the Corporation for Public Broadcasting.\\nIn its brief in this court the FCC does not dispute the applicability of Section 504 to public station KCET-TV. At the time it was the agency responsible for interpretation of the Rehabilitation Act \\u2014 and thus at a time when its construction would have been due \\\"substantial deference\\\" from a reviewing court \\u2014 the Department of Health, Education and Welfare determined that Section 504 applies to public broadcast ing stations. The Department of Education, which has now assumed responsibility for developing guidelines applicable to public broadcasters, has apparently accepted this conclusion, and the FCC has indicated a willingness to defer to its judgment.\\nThe case of KCET-TV also exhibits incidences of more direct and traditional \\\"Federal financial assistance.\\\" During 1977, the year in which KCET-TV's petition for license renewal was challenged, federal agencies combined to provide the station with $2,298,160 \\u2014 an amount representing roughly 17 percent of its revenues for the year \\u2014 in restricted program grants. The contributing agencies included the National Institute for Education, which granted $1,814,090; the National Endowment for the Arts, $461,872; the National Endowment for the Humanities, $18,243; and the United States Information Agency, $3,955. We therefore conclude that Section 504 imposed legal obligations on station KCETTV during the term of its license preceding the renewal challenge, and we assume that it continues to do so.\\nThere remain, however, important issues concerning the duty of the FCC to define the station's responsibilities under the Rehabilitation Act and to enforce the Act's policies in license renewal proceedings. The FCC is not the agency primarily responsible for enforcing the Rehabilitation Act. Nonetheless, appellants argue that the Act's Section 504 reflects a partial congressional definition of the FCC's obligation to serve \\\"the public interest\\\" \\u2014 in effect, a specification that the FCC must consider compliance with Section 504's nondiscrimination requirement in determining whether a public broadcaster has satisfied the public interest standard. Second, appellants argue that the FCC is bound to take immediate action to implement Section 504, at a minimum by bringing its policies to bear in renewal proceedings such as this. The FCC, noting that no guidelines have yet been issued by the Department of Education, takes a different view. The Commission asserts that it would be unfair to penalize a station in a license renewal proceeding for noncompliance with a statute for which interpretive guidelines were not in existence during the term of the license.\\nUnder the special circumstances presented by this case, we agree with appellants that the FCC is obligated to take account of a public broadcaster's legal duties under Section 504 in making its public interest determinations. Moreover, given the variety of procedural options pursuant to which the FCC could avoid unfair harshness to the broadcaster, we cannot accept that the public television stations need to be regarded by the Commission as free from any enforceable obligations under Section 504 until interpretive guidelines are issued.\\nA. Section 504 and the Public Interest Standard\\nThe FCC is directed to renew broadcast licenses only if it finds that renewal would serve the \\\"public interest, convenience, and necessity.\\\" 47 U.S.C. \\u00a7 309(a) (1976). In construing this standard we must of course accord substantial deference to the Commission's judgments. As the Supreme Court has recently observed, \\\" 'the weighing of policies under the \\\"public interest\\\" standard is a task that Congress has delegated to the Commission in the first instance.' \\\" FCC v. WNCN Listeners Guild, 450 U.S. 582, 596, 101 S.Ct. 1266, 1275, 67 L.Ed.2d 521 (1981), quoting FCC v. National Citizens Committee for Broadcasting, 436 U.S. 775, 810, 98 S.Ct. 2096, 2119, 56 L.Ed.2d 697 (1978). Yet there remains, under the Communications Act, an inescapable judicial role. Although the \\\"public interest\\\" standard requires judgments of policy, see FCC v. WNCN Listeners Guild, supra, 450 U.S. at 596, 101 S.Ct. at 1275, it also contains an irreducible element of law, see National Broadcasting Co. v. United States, 319 U.S. 190, 224-226, 63 S.Ct. 997, 1013, 87 L.Ed. 1344 (1943), which makes judicial review both necessary and possible. Cf. NAACP v. FPC, 425 U.S. 662, 669, 96 S.Ct. 1806, 1811, 48 L.Ed.2d 284 (1976) (\\\"[T]he words 'public interest' in a regulatory statute take meaning from the purposes of the regulatory legislation.\\\"). It is the function of the judiciary to resolve disputed questions of law. See Internat'l Brhd of Teamsters v. Daniel, 439 U.S. 551, 566 & n.20, 99 S.Ct. 790, 800 & n.20, 58 L.Ed.2d 808 (1979).\\nIn their brief in this court appellants argue that the FCC's \\\"public interest\\\" mandate must be construed to incorporate the national policy of nondiscrimination against the handicapped minority, at least insofar as that policy imposes specific legal obligations under Section 504 of the Rehabilitation Act of 1973. We agree.\\nWe begin with the settled proposition that a federal agency, in construing the requirements of the \\\"public interest\\\" under its governing statute, must at least give weight to federal laws and public policies addressed to similar purposes. See, e. g., McLean Trucking Co. v. United States, 321 U.S. 67, 79-80, 64 S.Ct. 370, 376, 88 L.Ed. 544 (1944) (Interstate Commerce Commission obliged to weigh policies implicit in Sherman Act); Northern Natural Gas Co.\\nv. FPC, 399 F.2d 953, 961 (D.C.Cir.1968) (Federal Power Commission, operating under public interest mandate, is \\\"obliged to make findings related to the pertinent antitrust policies, draw conclusions from the findings, and weigh these conclusions along with other important public interest considerations\\\"); City of Pittsburgh v. FPC, 237 F.2d 741, 754 (D.C.Cir.1956) (FPC obligation to consider antitrust factors not alleviated by fact that antitrust enforcement generally committed to Attorney General); Johnston Broadcasting Co. v. FCC, 175 F.2d 351, 357 (D.C.Cir.1949); see also FMC v. Aktiebolaget Svenska Amerika Linien, 390 U.S. 238, 244, 88 S.Ct. 1005, 1009, 19 L.Ed.2d 1071 (1968) (antitrust laws are tool by which regulatory agency gives \\\"understandable content to the broad statutory concept of the 'public interest' \\\"); National Broadcasting Co. v. United States, supra, 319 U.S. at 222-224, 63 S.Ct. at 1011. It makes no difference in such cases that Congress may have vested primary responsibility for enforcement of a statutory policy in another agency. As the Supreme Court has made clear, the grant of enforcement power to one organ of government does not free others to ignore national laws and policies until such time as violations have been proved in the courts. See, e. g., McLean Trucking Co. v. United States, supra, 321 U.S. at 79-80, 64 S.Ct. at 376; National Broadcasting Co. v. United States, supra, 319 U.S. at 222-224, 63 S.Ct. at 1011.\\nBy its passage of the Rehabilitation Act of 1973 Congress placed public stations under a legal obligation to consider and attempt to serve the interests of the nation's hearing impaired minority. Surely the policy of this statute falls well within the broad purposes of the Communications Act. As the Supreme Court has recognized, the \\\"public interest\\\" standard established by the Communications Act imposes on the FCC an affirmative \\\"obligation to ensure that its licensees' programming fairly reflects the tastes of minority groups.\\\" NAACP v. FPC, supra, 425 U.S. at 670 n.7, 96 S.Ct. at 1812 n.7.\\nFollowing Congress' decision that recipients of federal assistance must extend their programs to otherwise qualified members of handicapped minorities, settled legal principles compel the conclusion that the FCC must, at a minimum, weigh this con.gressional policy in making \\\"public interest\\\" determinations. It is unreasonable to believe that a public station could give service cognizable as being \\\"in the public interest\\\" without at least making efforts to satisfy its statutory obligations.\\nIn holding as we do, we do little more than recall the FCC to a position it has itself asserted in the past. The Commission has frequently recognized its obligation under the public interest standard to protect the interests of minority groups previously excluded from full access to broadcast programming. See, e. g., Nat'l Organization for Women, NYC Chapter v. FCC, 555 F.2d 1002, 1017 (D.C.Cir.1977) (Commission considers \\\"the employment practices of its licensees to the extent those practices affect the obligation of the licensee to provide programming that 'fairly reflects the tastes and viewpoints of minority groups' and to the extent those practices raise questions about the character qualifications of the licensee\\\") (emphasis in original; footnotes omitted); Nondiscrimination in the Employment Policies and Practices of Broadcast Licensees, 60 FCC2d 222 (1976); Nondiscrimination in Employment Practices of Broadcast Licensees, 13 FCC2d 766 (1968). Although the Equal Employment Opportunity Commission was given primary responsibility for enforcement of the discrimination prohibitions of the 1964 Civil Rights Act, the FCC recognized its independent responsibility, pursuant to the public interest standard, to carry out the Act's policy. Its authority to do so has been recognized by the courts. See, e. g., NAACP v. FPC, supra, 425 U.S. at 670 n.7, 96 S.Ct. at 1812 n.7; Nat'l Organization for Women, NYC Chapter v. FCC, supra, 555 F.2d at 1015-1020. And where the Commission has lagged in accepting its responsibility, this court has not hesitated to direct it to do so. See, e. g., Black Broadcasting Coalition of Richmond v. FCC, 556 F.2d 59 (D.C.Cir. 1977) (per curiam); Office of Communica tion of United Church of Christ v. FCC, 359 F.2d 994 (D.C.Cir.1966). We do not shirk our duty in the present ease.\\nB. Required Procedures\\nIn their brief in this court appellants have asked us to remand the license renewal application of public station KCET \\u2014 TV for a public hearing and other appropriate proceedings by the FCC. We regard this as the proper disposition.\\nThe FCC has objected that KCET \\u2014 TV complied with all existing Commission rules, and that there is thus \\\"no substantial and material question of fact\\\" to be determined before final action on the application. But, as this court has held before, \\\"Under Section 309(e) the Commission must set a renewal application for hearing where 'a substantial and material question of fact is presented or the Commission for any reason is unable to make the finding' that the public interest, convenience, and necessity will be served by the license renewal.\\\" Office of Communication of United Church of Christ v. FCC, supra, 359 F.2d at 1007 (emphasis in opinion of Burger, J.; citation omitted).\\nFinding that Congress must be understood to have prescribed that the \\\"public interest\\\" encompasses at least the legal interests of the nation's hearing impaired minority, we do not believe that a Commission decision in which this factor has not been weighed can escape condemnation as \\\"arbitrary, capricious, [or] an abuse of discretion.\\\" As the Supreme Court held in Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 823, 28 L.Ed.2d 136 (1972), satisfaction of this standard requires, at a minimum, \\\"consideration of all relevant factors.\\\"\\nThe task of weighing the interests of the hearing impaired is not an easy one, and we do not presume to intrude into the Commission's range of discretion in this difficult area. It is appropriate, however, for us to respond to some of the concerns that the Commission has raised on this appeal.\\nThese concerns arise primarily from the ambiguity of the legislative policy expressed in Section 504. In construing this provision the responsible administrative agencies have concluded that Congress intended recipients of federal funds to make \\\"reasonable accommodations\\\" to provide service to handicapped persons, see 45 C.F.R. \\u00a7 84.12 (1977) (HEW guidelines), current version 34 C.F.R. \\u00a7 104.12 (1980) (Department of Education guidelines), and the courts have generally accepted this construction, see, e. g., United Handicapped Federation v. Andre, 558 F.2d 413 (8th Cir. 1977) (cause remanded to District Court for application of guidelines); Lloyd v. Regional Transportation Authority, 548 F.2d 1277 (7th Cir. 1977) (same). But, as the Supreme Court acknowledged in Southeastern Community College v. Davis, 442 U.S. 397, 412, 99 S.Ct. 2361, 2370, 60 L.Ed.2d 980 (1979), the line between lawful refusal to extend affirmative action and illegal discrimination will not always be clear.\\nEmphasizing the difficulty of line-drawing in this area, the Commission pleads that it has no choice but to stay its hand. The Department of Education is currently engaged in preparation of interpretive guidelines construing the obligations that Section 504 imposes on public broadcasters. Pending completion of those guidelines the FCC has said that it has no basis for assessing compliance with the statute, and that there would be nothing for it to consider in the public hearing requested by appellants. We do not agree.\\nIn pursuing the public policy represented by Section 504 it is not the function of the FCC to adjudicate law violations, or, indeed, to regard itself as bound strictly by the specific dictates of the Rehabilitation Act or interpretive guidelines issued thereunder. See, e. g., California v. FPC, 369 U.S. 482, 490, 82 S.Ct. 901, 906, 8 L.Ed.2d 54 (1962); United States v. Radio Corp. of America, 358 U.S. 334, 350, 79 S.Ct. 457, 466, 3 L.Ed.2d 354 (1959). The Commission's responsibility is rather to effectuate the underlying national policy of providing federally assisted programs, including public television, to handicapped persons, such as the deaf, who are capable of benefitting from them.\\nIn effectuating a policy that is currently framed in general terms only, the FCC must of course proceed with sensitivity to the situation of its licensees. In its review of KCET-TV's renewal application the Commission can appropriately consider the station's uncertainty about the precise requirements imposed on it by Section 504. It would indeed be unfair to insist on strict compliance with a standard developed after the fact, and we expect the FCC neither to develop nor to apply a fully formulated set of guidelines at this time. Nonetheless, it is clear to us that the absence of interpretive guidelines \\u2014 either now or during the station's license term \\u2014 could not justify a licensee's disregard of or indifference to the policies of the statute. Eight years after the passage of the Rehabilitation Act, we cannot accept that a public station still has no duty to make reasonable efforts to serve the handicapped, or that this duty cannot be enforced, in an agency proceeding, by an intended beneficiary of the statute. The Commission must therefore proceed immediately to inquire at least into the station's good faith, as manifest in its efforts to provide service in accord with the legislative policy goals of Section 504.\\nThe Commission has also argued that it would be unfair for the issues at the heart of this case to be raised for the first time in a license renewal proceeding. During the term of its license KCET-TV lacked clear standards defining the level of service required by Section 504. And in the absence of prior notice of the FCC's renewal policy, the Commission argues, it would be wrong to penalize a station for its shortcomings.\\nOur answer to this argument is implicit in what we have said before. Properly conducted, an FCC inquiry will impose no unreasonable burden on the station. Focusing primarily on good faith efforts to interpret and follow statutory policies, it should not enforce numerical criteria on a retroactive basis, but instead assess the station's willingness \\u2014 as measured against its capacity and its viewers' needs \\u2014 to provide programming for the aurally handicapped.\\nAs the Commission itself has asserted repeatedly, the predominant concern in a license renewal case may be \\\"prospective, seeking to lead a licensee who has not possessed an adequate program in the past to adopt policies ensuring\\\" better performance in the future. Nat'l Organization for Women, NYC Chapter v. FCC, supra, 555 F.2d at 1017, quoting Nat'l Broadcasting Co., 58 FCC2d 419, 422 (1976); see Bilingual Bicultural Coalition of Mass Media, Inc. v. FCC, 595 F.2d 621, 628 & n. 24 (D.C.Cir.1978) (en banc). Consistent with that concern, in a case such as this the FCC may choose among a variety of dispositional alternatives, including short-term or conditional license renewal, as well as standard renewal or denial. We intimate \\u2014 because we hold \\u2014 no a priori preference among them. The ultimate decision is obviously not for us, but for the Commission, with its special expertise concerning what can reasonably be expected of a public broadcaster within the context of current technology and current needs.\\nWe recognize the indefiniteness with which our prescriptions are stated. The guidelines promised by the Department of Education will hopefully resolve many of the uncertainties confronting the stations, the Commission, and this court. But we reiterate our strong view that no guidelines are needed to identify the outlines of Congress' policy aims. The Commission \\u2014 like the stations \\u2014 must accept its duty now. There are many ways in which the policy of Section 504 of the Rehabilitation Act might be implemented. We hold only that it cannot be ignored.\\nIV. COMMERCIAL STATIONS\\nA. Section 504 and Federal Licenses\\nAppellants argue that the seven commercial stations involved in this case are also bound by Section 504 of the Rehabilitation Act, and that the FCC must therefore assess their compliance with the statute in considering applications for license renewal. We are unable to accept this argument in the terms advanced by appellants.\\nSection 504 directly imposes legal obligations only on recipients of \\\"Federal financial assistance.\\\" Appellants correctly argue that a license to broadcast on the public airwaves is a commodity of great value. But this does not resolve the question of congressional intent: Did Congress intend broadcast licenses to count as \\\"financial assistance\\\" within the meaning of Section 504? We are unable to conclude that it did.\\nThe first reason arises from the statute's legislative heritage. Section 504 of the Rehabilitation Act was expressly modeled on Section 601 of Title VI of the Civil Rights Act of 1964. And although the legislative history of Section 504 is sparse, we find ample evidence to conclude that Congress did not intend Title VI to reach the recipients of licenses from the FCC. This evidence includes congressional hearings and floor debates, in which various speakers interpreted the language as applying to \\\"funds\\\" and \\\"public moneys out of the Federal Treasury,\\\" and none apparently referred to federal licenses. It also encompasses authoritative interpretations of the Civil Rights Act developed by the Attorney General both before and after the measure's passage. In anticipation of the congressional debate Congressman Celler asked the Justice Department to supply a list of federal programs and activities that would fall within the ambit of Title VI. Duly prepared by the Deputy Attorney General, the list that appeared in the Congressional Record of June 10, 1964 included no reference to the FCC or to any other government program involving issuance of federal licenses.\\nThe Justice Department reiterated its interpretation after the Civil Rights Act had become law. Designated to develop interpreting regulations, the Department undertook to aid all affected agencies to formulate standards to implement Title VI. Yet it found no need for the issuance of regulations by the FCC. The Justice Department's contemporaneous construction of the statutory term \\\"Federal financial assistance\\\" deserves substantial weight in this court, both because of the Department's close involvement in the drafting of the Civil Rights Act and because of its status as the agency responsible for \\\"setting the [Act's] machinery in motion.\\\" Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 801,13 L.Ed.2d 616 (1965) (citation omitted); E. I. duPont de Nemours & Co. v. Train, 430 U.S. 112, 134-135, 97 S.Ct. 965, 978, 51 L.Ed.2d 204 (1977).\\nThe agencies responsible for implementation of the Rehabilitation Act have followed the pattern of construction established under the Civil Rights Act. They too have regarded broadcast and other licenses as falling outside the statutory meaning of the term \\\"Federal financial assistance.\\\" Neither HEW nor the Department of Education has thought it necessary to issue regulations applicable to commercial broadcasters. And regulations issued by the Justice Department, which has recently been designated by Executive Order as the agency responsible for coordinating federal efforts to implement the Rehabilitation Act, hold specifically that federal licensees are not bound by Section 504. We note also that the Justice Department's interpretation accords with the FCC's construction of the Communications Act of 1934, under which licenses are not regarded as establishing property rights, even though licensees do enjoy a limited renewal expectancy.\\nB. Public Interest Obligations\\nIn denying appellants' claim that the FCC committed reversible error in failing to hold the seven commercial stations to specific obligations under Section 504, we are not unmindful that the FCC functions under a statutory obligation to make findings about the public interest, and that the Rehabilitation Act of 1973 may evidence a general national policy of considering the concerns of the deaf within the public interest rubric, even where direct legal obliga tions are not imposed. Indeed, the FCC itself has sometimes suggested that it could not, consistent with its statutory mandate, ignore the wants and needs of minorities that national policies aim to protect.\\nBecause of the national policy of extending increased opportunities to the hearing impaired, we believe that some accommodations for the hard of hearing are required of commercial stations, under the general obligation of licensees to serve \\\"the public interest, convenience, and necessity.\\\" But in the absence of specific statutory obligations directed at the commercial broadcasters, we conclude that it would not be appropriate for us to delineate standards for the commercial stations or to require specific Commission procedures at this time.\\nIn its brief in this court the Commission rehearses a series of efforts that it has encouraged and licensed from 1970 to the present. It represents that it is moving forward in this area, and that it will continue to do so. Recognizing that the Commission possesses special competence in weighing the factors of technological feasi bility and economic viability that the concept of the public interest must embrace, we defer today to its judgment. However, should the Commission fail to fulfill its obligations to the nation's hearing impaired minority, as we have indicated above, judicial action might become appropriate at a later date.\\nIn consideration of the Commission's representations of good faith and active concern, together with the record on which it based its decisions to renew the licenses of the seven commercial stations, we conclude that the action of the Commission with respect to the commercial broadcasters should be affirmed.\\nV. CONCLUSION\\nFor the reasons stated in this opinion, those portions of the Commission's order denying appellants' application to deny license renewal to public station KCET-TV are vacated and remanded to the Commission for further proceedings, and those portions of the order that concern the seven commercial stations are affirmed.\\nSo ordered.\\n. There are seven commercial stations and licensees involved: KABC-TV, American Broadcasting Companies, Inc.; KCOP-TV, KCOP Television, Inc.; KHO-TV, RKO General, Inc.; KNBC-TV, National Broadcasting Co., Inc.; KNXT-TV, CBS, Inc.; KTLA-TV, Golden West Broadcasters; and KTTY-TV, Metromedia, Inc. The eighth station is a noncommercial or public station, KCET-TV, licensed to Community Television of Southern California.\\n. The Communications Act of 1934, ch. 652, 48 Stat. 1064, as amended, 47 U.S.C. \\u00a7 151 et seq. (1976) (hereinafter cited to U.S. Code only).\\n. Section 504 of the Rehabilitation Act of 1973, Pub.L.No.93-112, 87 Stat. 357, as amended, 29 U.S.C. \\u00a7 794 (1976) (hereinafter cited to U.S. Code only). The provision is quoted in text at note 37 infra.\\n. See License Renewal Applications of Certain Television Stations Licensed For and Serving Los Angeles, California, 69 FCC2d 451 (1978) (Order) (reprinted at Joint Appendix (JA) 1), reconsid. denied, 72 FCC2d 273 (1979) (Reconsideration) (JA 11).\\n. See 47 U.S.C. \\u00a7 307-309 (1976).\\n. See 47 U.S.C. \\u00a7 307(d), 309(a), 309(d) (1976).\\n.It is well settled that the Commission, in order to obviate the need for repetitive hearings, may specify by rule the criteria that will govern its decisions. See United States v. Storer Broadcasting Co., 351 U.S. 192, 202-205, 76 S.Ct. 763, 770, 100 L.Ed. 1081 (1956); American Tel. & Tel. Co. v. FCC, 539 F.2d 767, 774-775 (D.C.Cir.1976). The Commission is not, of course, permitted to proceed pursuant to rules that are inconsistent with the underlying intent and purpose of the Communications Act. Citizens Communications Center v. FCC, 447 F.2d 1201, 1212-1214 (D.C.Cir.1971).\\n. 47 U.S.C. \\u00a7 309(d) (1976).\\n. See 47 U.S.C. \\u00a7 309(d)(2), 309(e) (1976). Where the Commission specifies by rule the criteria that will govern its licensing decisions, see note 7 supra, questions falling outside the ambit of those rules will ordinarily not be regarded as substantial or material, unless the party opposed to the Commission's adopted policies asserts reasons sufficient to justify a change or waiver of the rules. United States v. Storer Broadcasting Co., supra note 7, 351 U.S. at 205, 76 S.Ct. at 771; American Tel. & Tel. Co. v. FCC, supra note 7, 539 F.2d at 774.\\n. See, e. g., Stone v. FCC, 466 F.2d 316, 327-328 (D.C.Cir.1972); Amendment of the Primer on Ascertainment of Community Problems by Commercial Broadcast Applicants, Permittees and Licensees, Docket No. 78-237 (April 4, 1980); Ascertainment of Community Problems by Broadcast Applicants, 53 FCC2d 3 (1975).\\n. See Renewal Primer, 57 FCC2d 418, Appendix D, 447 (1976). The 19 \\\"ascertainment\\\" categories mandate inquiries into the service needs of (1) agriculture, (2) business, (3) charities, (4) civic, neighborhood, and fraternal organizations, (5) consumer service organizations, (6) culture, (7) education, (8) the environment, (9) government, (10) labor, (11) the military, (12) minority and ethnic groups, (13) organizations of and for the elderly, (14) organizations of and for women, (15) organizations of and for youth and students, (16) professions, (17) public safety, health, and welfare, (18) recreation, and (19) religion.\\n. See The Use of Telecasts to Inform and Alert Viewers with Impaired Hearing, 26 FCC2d 917 (1970).\\n. See Amendment of Subpart E, Part 73, of the Commission's Rules and Regulations, to Reserve Line 21 of the Vertical Blanking Interval of the Television Broadcast Signal for Captioning for the Deaf, Docket No. 20693, 63 FCC2d 378, 379 (1976).\\n. The proposal that the handicapped should constitute a separate \\\"ascertainment\\\" category was specifically rejected in Amendment of the Primer on Ascertainment of Community Problems by Broadcast Renewal Applicants in Regard to the Community Leader Survey, Docket No. 78-237, FCC 80-134 (released April 4, 1980).\\n. Amendment of Part 73 of the Rules to Establish Requirements for Captioning of Emergency Messages on Television, Docket No. 20659, 61 FCC2d 18 (1976), reconsid. denied, 62 FCC2d 565 (1977).\\n. The most notable efforts in this area involve \\\"closed captioning\\\" \\u2014 a method of subtitling, similar to that used in foreign language films, but different in that it can only be seen on television sets equipped with decoding units. In 1972 the Commission authorized the Public Broadcasting System to initiate experiments with closed captioning, and in 1976 it promulgated rules to permit closed captioning by any broadcaster. Amendment of Subpart E, Part 73, of the Commission's Rules and Regulations, to Reserve Line 21 of the Vertical Blanking Interval of the Television Broadcast Signal for Captioning for the Deaf, supra note 13. The Commission has also instituted a clearinghouse program to provide information that would assist licensees in employing persons with various handicaps. The clearinghouse furnishes research data and reports concerning equipment availability and modification, and about various means to increase employment of and service to the handicapped. See Amendment of Broadcast Equal Employment Opportunity Rules and FCC Form 395, Docket No. 21474, FCC 80-62 (released March 6, 1980).\\n. See note 16 supra.\\n. Brief for appellee at 5. The two commercial networks that are participating are the American Broadcasting Co. (ABC) and the National Broadcasting Co. (NBC). According to the National Captioning Institute, the Fall 1980 schedule of closed captioned programs included the ABC series Love Boat, Barney Miller, Eight is Enough, Friday Night Movie, and Three's Company, and the NBC series Disney's Wonderful World, Little House on the Prairie, Diffrent Strokes, and Sunday Big Event. More than 15 PBS series are also captioned. See National Captioning Institute, Schedule of Closed-Captioned Programs Fall 1980 (1980). The third major commercial network, the Columbia Broadcasting System (CBS), is also involved in experimental efforts to provide the advantages of programming to the hard of hearing through a system known as \\\"teletext.\\\" On July 29, 1980 CBS petitioned the FCC seeking a rule-making leading to promulgation of rules that would allow television stations to undertake teletext transmission. See Amendment of Part 73, Subpart E of the Rules Governing Television Broadcast Stations to Authorize Teletext, RM-3727. \\\"Teletext\\\" is a generic name for systems that transmit letters, numbers, and other characters that can be made to appear on television screens equipped with special decoders. Because teletext could be used to provide information to the general public, CBS believes that it would ultimately be more useful to the hearing impaired, and also less expensive, than would a closed captioning system.\\n. Amendment of Subpart E, Part 73, of the Commission's Rules and Regulations, to Reserve Line 21 of the Vertical Blanking Interval of the Television Broadcast Signal for Captioning for the Deaf, supra note 13, 63 FCC2d at 389.\\n. See Order, supra note 4, 69 FCC2d at 459; JA 9.\\n. See id. at 458^159, JA 8-9; Reconsideration, ' supra note 4, 72 FCC2d at 276-280, JA 14-18.\\n. The responsibility was originally assigned to the Department of Health, Education and Welfare (HEW). See Executive Order 11914, 41 Fed.Reg. 17871 (April 28, 1976). Acting on the advice of HEW's Office of Civil Rights (OCR), Secretary Harris concluded in October 1979 that \\u00a7 504 was applicable to public broadcasters receiving federal financial assistance, and she instructed OCR to develop compliance standards for public stations. No standards had yet been promulgated, however, when the Department of Education was established on May 4, 1980. Under the Department of Education Organization Act, Pub.L.No.96-88, 93 Stat. 691 (1979), the Department of Education assumed responsibility for administration of programs that provide financial assistance for production of programs shown on public television. The HEW study group that was involved in preparation of \\u00a7 504 compliance guidelines for public television was also transferred to the Department of Education, and it remains there, located in the office of the Assistant Secretary for Civil Rights.\\nOn January 19, 1981 the Department of Education issued a Notice of Intent to Develop Regulations concerning the rights of persons with impaired hearing to access to television programs. 46 Fed.Reg. 4954 (Jan. 19, 1981). It remains uncertain, however, when the rule-making process will be completed. In Greater Los Angeles Council on Deafness, Inc. v. Community Television of Southern California, d/b/a KCET-TV, Civil No. 78-4715-R (C.D. Cal.), the District Court ordered the Department to issue final regulations not later than February 17, 1981. But the District Court's order has been stayed by the Ninth Circuit, pending appeal. Greater Los Angeles Council on Deafness, Inc. v. Community Television of Southern California, d/b/a KCET-TV, Nos. 80-5400 and 80-5445 (9th Cir. Dec. 19, 1980) (order staying order of lower court and ordering expedition of appeal).\\n. Reconsideration, supra note 4, 72 FCC2d at 278, JA 16.\\n. Order, supra note 4, 69 FCC2d at 458-459, JA 8-9; Reconsideration, supra note 4, 72 FCC2d at 276-280, JA 14-18.\\n. See Order, supra note 4, 69 FCC2d at 451-452, JA 1-2; JA at 29.\\n. See JA at 24-28.\\n. Order, supra note 4, 69 FCC2d at 451, JA 1.\\n. Id. at 459, JA 9.\\n. Id. at 458, JA 8.\\n. Id. at 459, JA 9.\\n. Id. Responsibility for issuance of guidelines applying \\u00a7 504 to public television has since been shifted to the Department of Education. See note 22 supra. The FCC apparently now considers that Education is the agency responsible for determining statutory violations.\\n. The Commission originally determined that Mrs. Gottfried was the only signer of the petitions to deny who had established standing before the Commission. See Order, supra note 4, 69 FCC2d at 453, JA 3. But the standing of the Greater Los Angeles Council on Deafness, Inc. (GLAD) was at least implicitly recognized by the Commission in Reconsideration, supra note 4, 72 FCC2d 273, JA 11, even though the Commission declined to reverse its earlier standing determination. See id. at 280, JA 18. GLAD is before this court as an appellant, together with Sue Gottfried, individually and on behalf of the hearing impaired population within the stations' viewing area.\\n. See Reconsideration, supra note 4, 72 FCC2d at 276, JA 14.\\n. Id. at 275-276, JA 13-14.\\n. See id. at 281, JA 19.\\n. In its brief in this court, see brief for appellee at 15-16 & n.9, the FCC states that it had determined to defer to the judgment of HEW on this question, and that \\\"[i]n the case entitled Greater Los Angeles Council on Deafness, Inc. v. Community Television of Southern California d/b/a KCET-TV, et al., Civil No. 78-4715-R (C.D.Cal.), HEW stated that it had determined that Section 504 is applicable to public television stations that receive federal financial assistance.\\\" As an intervenor in this court KCET-TV does not expressly concede the applicability of \\u00a7 504, noting that Congress went to some lengths to assure that programming funded by the Corporation for Public Broadcasting is insulated from federal control and regulation. See brief for intervenor Community Television of Southern California at 15 n.7. Significantly, however, KCET -TV does not deny that it is a recipient of federal funds channeled to it through the Corporation for Public Broadcasting. Moreover, although it was generally eager to keep public broadcasting free from \\\"governmental interference or control,\\\" Accuracy in Media, Inc. v. FCC, 521 F.2d 288, 293 (D.C.Cir.1975), Congress not only did not intend to free public broadcasters from all legal standards, see id. at 294-296, but actually created some programming standards applicable to public broadcasters only, see id. at 291 & n.7. We therefore reject any implied argument that Congress could not have intended federal funds channeled through the Corporation for Public Broadcasting to count as federal financial assistance merely because such a construction would subject recipients to a statutory requirement of nondiscrimination against the handicapped.\\nThe administrative agencies responsible for implementing the Rehabilitation Act have held consistently that \\u00a7 504 applies to public television broadcasters. See note 22 supra.\\n. 29 U.S.C. \\u00a7 794 (1976).\\n. This argument is based largely on the proposition that a license to broadcast on the public airwaves is a valuable commodity. See brief for appellants at 32-41. Although not explicitly disputing that broadcast licenses possess economic value, the FCC argues that Congress did not intend broadcast licenses to count as \\\"Federal financial assistance\\\" for purposes of applying the Rehabilitation Act. See brief for appellee at 15- 30.\\n. Under the Educational Broadcasting Facilities Act, 76 Stat. 64 (1962), and the Public Broadcasting Act, 81 Stat. 365 (1967), 47 U.S.C. \\u00a7 390-399 (1976 & Supp. 111 1979), as amended by the Public Telecommunications Financing Act, 92 Stat. 2405 (1978), public or noncommercial educational- broadcasting stations, such as KCET-TV, are subsidized by federal appropriations dispensed through the National Telecommunications and Information Administration of the Department of Commerce and/or the Corporation for Public Broadcasting. The Corporation, a nonprofit organization created by federal statute, receives funds directly from the federal treasury, subject to a number of statutory directives and prohibitions concerning how the funds may be spent. See 47 U.S.C. \\u00a7 396 (1976 & Supp. Ill 1979).\\nDuring its 1977 fiscal year, KCET-TV received $2,363,927 \\u2014 more than 18% of its total revenues \\u2014 from the Corporation for Public Broadcasting. See Private Defendants' Proposed Findings of Fact, Statements of Fact as to Which There Is No Genuine Issue, and Proposed Conclusions of Law (Sept. 28, 1979), Greater Los Angeles Council on Deafness, Inc. v. Community Television of Southern California d/b/a KCET-TV, Civil No. 78-4715-R (C.D.Cal.). In the same year the station also got $495,229 from the Public Broadcasting Service, which in turn is largely funded by the Corporation for Public Broadcasting. KCETTV's revenues for 1977 also included $2,298,-160 in restricted program grants provided directly by various agencies of the federal government. See note 44 infra and accompanying text.\\n.An administrative interpretation of a statute is due substantial weight from a reviewing court when it reflects \\\"a contemporaneous construction of a statute by the [agency] charged with the responsibility of setting its machinery in motion, of making the parts work efficiently and smoothly while they are yet untried and new.\\\" Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 801, 13 L.Ed.2d 616 (1965) (citation omitted); see E. I. duPont de Nemours & Co. v. Train, 430 U.S. 112, 134-135, 97 S.Ct. 965, 978, 51 L.Ed.2d 204 (1977); Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971).\\n. HEW in fact began to develop compliance guidelines for public broadcasters in October 1979, but it had not completed the task prior to its split into separate Departments of Health and Human Services and of Education in May 1980.\\n. The Department of Education has recently issued a Notice of Intent to Develop Regulations. See note 22 supra.\\n. See brief for appellee at 15-16 n.9; Order, supra note 4, 69 FCC2d at 459, JA 9 (\\\"[I]n the event some adverse finding were made relative to Section 504, the Commission would take whatever action would be appropriate.\\\").\\n. See Private Defendants' Proposed Findings of Fact, Statements of Fact as to Which There Is No Genuine Issue, and Proposed Conclusions of Law (Sept. 28, 1979), Greater Los Angeles Council on Deafness, Inc. v. Community Television of Southern California d/b/a KCET-TV, Civil No. 78 \\u2014 4715-R (C.D.Cal.).\\n. See brief for appellants at 47-50.\\n. See id. at 51-55.\\n. Reconsideration, supra note 4, 72 FCC2d at 279, JA 17.\\n. In Accuracy in Media, Inc. v. FCC, 521 F.2d 288 (D.C.Cir.1975), this court held that the Commission lacks jurisdiction directly to enforce legal obligations imposed on the Corporation for Public Broadcasting by the Public Broadcasting Act of 1967, 81 Stat. 365 (1967), as amended, 47 U.S.C. \\u00a7 390-399 (1976 & Supp. Ill 1979). Intervenor KCET-TV suggests that this holding rests on the principle that \\\"the programming of noncommercial broadcast stations such as KCET is insulated from federal control and regulation,\\\" brief for intervenor Community Television of Southern California at 15 n.7, and that federal money channeled to noncommercial stations through the Corporation for Public Broadcasting should therefore not be construed as \\\"Federal financial assistance\\\" if such a construction would subject noncommercial broadcasters to federal legal controls. This claim rests on a confusion of arguments. Accuracy in Media held that the FCC could not directly, by order or otherwise, enforce the obligations imposed on the Corporation for Public Broadcasting by the Public Broadcasting Act. But the case did not hold that public stations were not recipients of federal financial assistance. It did not hold that they were not subject to legal obligations under other federal statutes. See 521 F.2d at 294-296. And, most important, it did not hold that the FCC should not indirectly enforce legal obligations, arising under federal statutes other than the Public Broadcasting Act, in licensing proceedings under the public interest standard. See id. at 295-296 & n.33. On the contrary, the court was careful to note that \\\"[w]e find nothing which limits established FCC authority over local noncommercial licensees,\\\" id. at 295, and that \\\"FCC regulation of the educational licensees was seen as the ultimate check on the public broadcasting system,\\\" id. at 295-296 n.33.\\nIn recognizing the FCC's continuing and undiminished authority to assess compliance with the public interest standard, the Accuracy in Media court noted that, under a provision of the Public Broadcasting Act, 47 U.S.C. \\u00a7 398 (1970), current version 47 U.S.C. \\u00a7 398 (Supp. Ill 1979), no agency of government is authorized to \\\"exercise any direction, supervision, or control\\\" over public telecommunications. See 521 F.2d at 292 (quoting statute). But the court clearly stated that the \\\"prohibition against governmental interference is expressly limited to [attempts to enforce] authorizations\\\" contained in the Public Broadcasting Act itself, see 521 F.2d at 296, and that the FCC's obligation to uphold the public interest arises from a section of the Communications Act, 47 U.S.C. \\u00a7 309 (1976), to which the prohibition did not apply.\\n.See brief for appellants at 51-53. The FCC understands appellants to argue that the Commission is obligated to impose specific requirements of program captioning on all of its licensees. See brief for appellee at 38-39. Even if we believed appellants to be urging such a claim, we would need to reject it at this time, as prematurely interfering with the Commission's discretion to determine what accommodations to the deaf can reasonably be required of licensees under the public interest standard. See text accompanying notes 51-52 infra.\\n. Order, supra note 4, 69 FCC2d at 459, JA 9; brief for appellee at 30-40.\\n. 5 U.S.C. \\u00a7 706(2)(A) (1976).\\n. It remains unclear, however, when the guidelines will be completed. See note 22 supra.\\n. See brief for appellee at 38-39.\\n. Appellants seem at some points in their brief to suggest that there can be no discretion in this matter, because the First Amendment protects the right of all segments of society to have access to programming over the public airwaves. See brief for appellants at 55-57. From this premise they appear to deduce a right to have broadcast programming captioned for the hearing impaired. Even if the First Amendment entitles the hearing impaired to have access to some minimum of programming over the airwaves, however, we could not accept that it requires all stations to make their programming accessible to all deaf persons all of the time. Cf. Columbia Broadcasting System, Inc. v. Democratic Nat'l Committee, 412 U.S. 94, 111, 93 S.Ct. 2080, 2091, 36 L.Ed.2d 772 (1973) (frequency scarcity makes it infeasible for all persons wishing to speak to have access to the air). In demanding fair access to the public airwaves for the hearing impaired, the First Amendment, in our view, sweeps no more broadly than the public interest standard of the Communications Act, under which we are unprepared to demand a specific, substantive interpretation from the Commission at this time.\\nIntervenors in this court have also lodged a First Amendment argument on behalf of the licensees: the argument that any captioning requirement the FCC might impose would violate protected rights of the broadcasters by regulating the \\\"content\\\" of their programming. See joint brief for intervenors American Broadcasting Companies, Inc.; Golden West Broadcasters; KCOP Television, Inc.; Metromedia, Inc.; National Broadcasting Co.; and RKO General, Inc. at 47-51. We find this argument to be without merit. A captioning requirement would not significantly interfere with program content. And in cases of more limited regulations such as those likely to come in issue it is well established that the Commission may constitutionally condition licenses on a station's provision of programming in the public interest. See, e. g., Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 390-392, 89 S.Ct. 1794, 1806, 23 L.Ed.2d 371 (1969); Nat'l Broadcasting Co. v. United States, 319 U.S. 190, 226-227, 63 S.Ct. 997, 1014, 87 L.Ed. 1344 (1943).\\n. Appellants cite an article, Levin, Economic Effects of Broadcast Licensing, 72 J.Pol.Econ. 151 (1964), in which it was estimated, as long ago as 1964, that the average value of a VHF license exceeded $1,500,000. See brief for appellants at 33-34. That figure was based on calculations of the difference between the sale price of stations actually sold and the replacement cost of the stations' material facilities. Whatever the actual figure, there can be no doubt that the broadcast licenses contested in this case possess great value. In the Los Angeles market, which comprises approximately 10 million people, the FCC grants only 13 commercial licenses to television broadcasters. And Los Angeles is the most profitable market in the country. Broadcasting Magazine, July 30, 1979, at 46 \\u2014 47. Cf. Sangamon Valley Television Corp. v. United States, 269 F.2d 221, 224 (D.C.Cir.1959) (broadcast license constitutes \\\"valuable privilege\\\"); Columbia Broadcasting System, Inc. v. Democratic Nat'l Committee, supra note 54, 412 U.S. at 174 n.5, 93 S.Ct. at 2122 n.5 (Brennan, J., dissenting) (free license is functional equivalent to \\\"Government subsidization of broadcasters\\\").\\n. See S.Rep.No.93-1297, 93d Cong., 2d Sess., reprinted at [1974] U.S.Code Cong. & Ad.News 6373, 6390 (\\\"Section 504 was patterned after, and is almost identical to, the anti-discrimination language of section 601 of the Civil Rights Act of 1964\\\"); Lloyd v. Regional Transportation Authority, 548 F.2d 1277, 1280 & n.9 (7th Cir. 1977); 119 Cong.Rec. S6144-S6145 (daily ed. March 1, 1973) (remarks of Sen. Humphrey, indicating that \\u00a7 504 represented substitute for amendments to Title VI to protect the handicapped). Congress reiterated its intent in 1978 when it adopted the Rehabilitation, Comprehensive Services and Development Disabilities Amendments, Pub.L.No.95-602. Section 120 of the Amendments, \\u00a7 505(a)(2) of the Rehabilitation Act, 29 U.S.C. \\u00a7 794a(a)(2) (Supp. Ill 1979), points explicitly to Title VI as a model for \\u00a7 504:\\nThe remedies, procedures, and rights set forth in title VI of the Civil Rights Act of 1964 shall be available to any person aggrieved by any act or failure to act by any recipient of Federal assistance or Federal provider of such assistance under section [504] of this [Act],\\n. See, e. g., Civil Rights: Hearings before the House Judiciary Committee, 88th Cong., 1st Sess. 2731 (1963) (statement of Attorney General Robert F. Kennedy) (\\\"It is going to be every program of the Federal government where Federal funds are expended.\\\").\\n. See, e. g., 110 Cong.Rec. S6430 (daily ed. March 26, 1964) (transcript of televised remarks of Sen. Humphrey) (\\\"What it merely says is that public moneys out of the Federal Treasury will not be used to promote discrimination .\\\").\\n. Not even opponents of the 1964 Civil Rights Act, who frequently criticized the measure on account of what they considered its excessively broad sweep, see, e. g\\\" Minority Report Upon Proposed Civil Rights Act of 1963, Committee on Judiciary Substitute for H.R. 7152, reprinted at [1964] U.S.Code Cong. & Ad.News 2355, 2433 (bill \\\"constitutes the greatest grasp for executive power conceived in the 20th century\\\"), suggested that issuance of a federal license would subject licensees to Title VI. For example, Congressmen Poff and Cramer, who filed separate minority views, listed existing federal programs that \\\"apparently would be embraced.\\\" See Separate Minority Views of Hon. Richard H. Poff and Hon. William Cram-er, reprinted at [1964] U.S.Code Cong. & Ad. News 2471, 2471-2472. None of the programs contained on their list involved federal licensing. See id.\\n. See 110 Cong.Rec. H13380 (daily ed. June 10, 1964).\\n. See id. at H13380-H13382.\\n. The Justice Department remains responsible for coordination and implementation of Title VI, see Executive Order 11764 (Jan. 24, 1974), 3A C.F.R. 124, and it has at no time issued, or asked the FCC to issue, regulations governing recipients of broadcast licenses.\\n. HEW was charged by Executive Order 11914, 41 Fed.Reg. 17871 (April 28, 1976), with the task of issuing general regulations for the guidance of all federal agencies providing financial assistance encompassed by \\u00a7 504. It developed an expansive definition of financial assistance:\\n(h) \\\"Federal financial assistance\\\" means any grant, loan, contract , or any other arrangement by which the Department provides or otherwise makes available assistance in the form of:\\n(1) Funds;\\n(2) Services of Federal personnel; or\\n(3) Real and personal property or any interest in or use of such property, including:\\n(i) Transfers or leases of such property for less than fair market value or for reduced consideration; and\\n(ii) Proceeds from a subsequent transfer or lease of such property if the Federal share of its fair market value is not returned to the Federal Government.\\n45 C.F.R. \\u00a7 84.3(h) & 85.3(e) (1979). Relying on the breadth of the HEW definition, appellants cite that agency's interpretation in support of their position. See brief for appellants at 28-31. Significantly, however, HEW never explicitly classified broadcast licenses as financial assistance, nor did that agency ever issue regulations specifically applicable to commercial broadcast licensees or ask the FCC to do so. The Department of Education, which has now assumed responsibility for issuing interpretive guidelines applicable to public broadcasters, has given no indication that it regards \\u00a7 504 as applying to commercial licensees.\\n. See Executive Order 12250, 45 Fed.Reg. 72995 (Nov. 4, 1980).\\n. See Nondiscrimination Based on Handicap in Federally Assisted Programs \\u2014 Implementation of Section 504 of the Rehabilitation Act of 1973 and Executive Order 11914, 45 Fed.Reg. 37620, 37632 (June 3, 1980) (\\\"The term 'Federal financial assistance' does not include licenses, for example, since licenses are not Federal assistance grants, contracts, loans, or cooperative agreements.\\\"). The Justice Department guidelines were intended to apply only to federally funded programs administered by the Department of Justice. Since their issuance, however, the Department has been designated as the agency primarily responsible for coordinating and implementing federal compliance with \\u00a7 504. See Executive Order 12250, 45 Fed.Reg. 72995 (Nov. 4, 1980).\\n. See Reconsideration, supra note 4, 72 FCC2d at 277, JA 15. The Commission bases its construction on the plain language of the Act, which states expressly that \\\"no [broadcast] license shall be construed to create any right, beyond the terms, conditions, and periods of the license.\\\" 47 U.S.C. \\u00a7 301 (1976). The Supreme Court has also held that Congress intended the Commission's grant of a license to create no property rights. Ashbacker Radio Corp. v. FCC, 326 U.S. 327, 331-332, 66 S.Ct. 148, 150, 90 L.Ed. 108 (1945); FCC v. Sanders Brothers Radio Station, 309 U.S. 470, 475, 60 S.Ct. 693, 697, 84 L.Ed. 869 (1940).\\n. See, e. g., FCC v. Nat'l Citizens Committee for Broadcasting, 436 U.S. 775, 805, 98 S.Ct. 2096, 2117, 56 L.Ed.2d 697 (1978); Central Florida Enterprises, Inc. v. FCC, 598 F.2d 37, 61 (D.C.Cir.1978) (per curiam) (petition for rehearing).\\n. Cf. text and notes at notes 48-52 supra; Petition for Rulemaking to Require Broadcast Licensees to Show Nondiscrimination in Their Employment . Practices, 13 FCC2d 766, 769 (1968):\\nThere is [a] National policy against discrimination in hiring. And here we note that this is a National policy. The 25-employee prescription in the Civil Rights Act does not limit that National policy, and specifically, \\\"title VII was not intended to circumscribe the authority of Federal agencies other than the Equal Employment Opportunity Commission to regulate employment practices.\\\" (See letter of Assistant Attorney General Poliak, app. A, pp. 2-3.) Second, there is the consideration that broadcasting is an important mass media form which, because it makes use of the airwaves belonging to the public, must obtain a Federal license under a public interest standard and must operate in the public interest in order to obtain periodic renewals of that license. When these two considerations are taken together \\u2014 the National policy against discrimination and the nature of broadcasting \\u2014 we simply do not see how the Commission could make the public interest finding as to a broadcast applicant who is deliberately pursuing or preparing to pursue a policy of discrimination\\u2014 of violating the National policy. In this respect \\u2014 a mass media service to the public which is based entirely on a Federal license under a public interest standard \\u2014 the situation clearly parallels the Federal policy in contract awards.\\n. See The Use of Telecasts to Inform and Alert Viewers with Impaired Hearing, 26 FCC2d 917, 919 (1970) (expressing concern about needs of hearing impaired and noting that if stations do not voluntarily provide better service \\\"it may be necessary to begin rule making looking toward the adoption of minimum requirements\\\"); Petition for Rulemaking to Require Broadcast Licensees to Show Nondiscrimination in Their Employment Practices, 13 FCC2d 766, 769 (1968) (quoted in note 68 supra).\\n. In its Notice of Intent to Develop Regulations, see note 22 supra, the Department of Education seems to hold open the possibility that at least some commercial stations may air programs that are produced with federal assistance, and that they may therefore be subject to statutory obligations under \\u00a7 504 of the Rehabilitation Act. See 46 Fed.Reg. 4954, 4955 (Jan. 19, 1981). Because receipt of assistance of this kind has not been alleged as a basis for the existence of statutory obligations in this case, no such issue is before us. We hold only that broadcast licenses do not by themselves constitute \\\"Federal financial assistance\\\" within the meaning of \\u00a7 504.\\n. Brief for appellee at 3-6. Some of the Commission's efforts are described at notes 12-19 supra and accompanying text.\\n. The Commission has expressed especially high hopes for the closed captioning program initiated in March 1980, pursuant to which PBS, NBC, and ABC are making available approximately 20 hours of \\\"closed captioned\\\" programming per week. See Reconsideration, supra note 4, 72 FCC2d at 281, JA 19:\\n[W]e are satisfied that important advances are being made toward achieving the goals which petitioners espouse and which we share \\u2014 namely, the access of the aurally handicapped to the medium of television. We expect that the closed captioning project will be a success. However, if at a later date it is demonstrated that the project is not successful in making television programming more available and enjoyable to the hearing impaired, then it may be necessary for the Commission to determine if a rulemaking is warranted to ensure that the hearing impaired are not deprived of the benefits of television.\\n(Footnote omitted.) The Commission made similar representations in oral argument before this court.\\n. In the analogous case of establishing compliance guidelines for public stations under \\u00a7 504, the Department of Education has asserted that at least the following factors must be taken into account: (1) costs of making broadcasting available to the hearing impaired; (2) alternative ways of distributing any costs incurred; (3) possible standards other than a requirement that all programming should be accessible to the hearing impaired; (4) attitudes of the general public toward open captioning and cameo signing; (5) the state of existing technology. See \\\"Declaration of Cynthia G. Brown, Assistant Secretary for Civil Rights, Department of Education,\\\" accompanying Defendants' Motion to Modify Order of March 20, 1980, Greater Los Angeles Council on Deafness, Inc. v. Community Television of Southern California, d/b/a KCET-TV, Civil No. 78-4715-R (C.D.Cal.).\\n. See discussion at pp. 301, 305-306, 314-315 supra.\"}"

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+"{\"id\": \"3569098\", \"name\": \"CALIFORNIA VALLEY MIWOK TRIBE f/k/a Sheep Ranch of Me-Wuk Indians of California, Appellant v. UNITED STATES of America, et al., Appellees\", \"name_abbreviation\": \"California Valley Miwok Tribe v. United States\", \"decision_date\": \"2008-02-15\", \"docket_number\": \"No. 06-5203\", \"first_page\": \"39\", \"last_page\": \"45\", \"citations\": \"380 U.S. App. D.C. 39\", \"volume\": \"380\", \"reporter\": \"United States Court of Appeals for the District of Columbia Circuit\", \"court\": \"United States Court of Appeals for the District of Columbia Circuit\", \"jurisdiction\": \"District of Columbia\", \"last_updated\": \"2021-08-10T17:19:08.767167+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before: GRIFFITH, Circuit Judge, and EDWARDS and WILLIAMS, Senior Circuit Judges.\", \"parties\": \"CALIFORNIA VALLEY MIWOK TRIBE f/k/a Sheep Ranch of Me-Wuk Indians of California, Appellant v. UNITED STATES of America, et al., Appellees.\", \"head_matter\": \"515 F.3d 1262\\nCALIFORNIA VALLEY MIWOK TRIBE f/k/a Sheep Ranch of Me-Wuk Indians of California, Appellant v. UNITED STATES of America, et al., Appellees.\\nNo. 06-5203.\\nUnited States Court of Appeals, District of Columbia Circuit.\\nArgued Oct. 12, 2007.\\nDecided Feb. 15, 2008.\\nRehearing En Banc Denied April 28, 2008.\\nPhillip Eugene Thompson argued the cause for appellant. With him on the briefs were Johnine Clark and Sonya Anjanette Smith-Valentine.\\n\\u25a0 Mark R. Haag, Attorney, U.S. Department of Justice, argued the cause for appellees. With him on the brief were James Merritt Upton and Katherine J. Barton, Attorneys.\\nTim Vollmann argued the cause and filed the brief for amicus curiae Yakima K. Dixie in support of appellees.\\nBefore: GRIFFITH, Circuit Judge, and EDWARDS and WILLIAMS, Senior Circuit Judges.\", \"word_count\": \"3218\", \"char_count\": \"20086\", \"text\": \"Opinion for the Court filed by Circuit Judge GRIFFITH.\\nGRIFFITH, Circuit Judge.\\nSince the days of John Marshall, it has been a bedrock principle of federal Indian law that every tribe is \\\"capable of managing its own affairs and governing itself.\\\" Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 16, 8 L.Ed. 25 (1831); see also Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 559, 8 L.Ed. 483 (1832) (stating that tribes are \\\"distinct, independent political communities, retaining their original natural rights\\\"). But tribes that want federal benefits must adhere to federal requirements. The gateway to some of those benefits is the Indian Reorganization Act of 1934 (\\\"the Act\\\"), which requires tribes to organize their governments by adopting a constitution approved by the Secretary of the Interior (\\\"Secretary\\\"). See 25 U.S.C. \\u00a7 476.\\nThis ease involves an attempt by a small cluster of people within the California Valley Miwok tribe (\\\"CVM\\\") to organize a tribal government under the Act. CVM's chairwoman, Silvia Burley, and a group of her supporters adopted a constitution to govern the tribe without so much as consulting its membership. The Secretary declined to approve the constitution because it was not ratified by anything close to a majority of the tribe. Burley and her supporters \\u2014 in CVM's name \\u2014 then sued the United States, claiming that the Secretary's refusal was unlawful and seeking a declaration that CVM is organized pursuant to 25 U.S.C. \\u00a7 476. Because we conclude that the Secretary lawfully refused to approve the proposed constitution, we affirm the district court's dismissal of Burley's claim. Burley also argues that the district court erred in denying her motions for leave to file supplemental claims for relief. We conclude that any such error was harmless.\\nI.\\nIndian tribes are \\\"unique aggregations possessing attributes of sovereignty over both them members and their territory; they are a separate people possessing the power of regulating them internal and social relations.\\\" United States v. Mazurie, 419 U.S. 544, 557, 95 S.Ct. 710, 42 L.Ed.2d 706 (1975) (internal quotation marks and citations omitted). To qualify for federal benefits, however, tribes must meet conditions set by federal law. The most important condition is federal recognition, which is \\\"a formal political act confirming the tribe's existence as a distinct political society, and institutionalizing the government-to-government relationship between the tribe and the federal government.\\\" Cohen's Handbook of Federal Indian Law \\u00a7 3.02[3], at 138 (2005 ed.). The federal government has historically recognized tribes through treaties, statutes, and executive orders, but it does so today primarily by a standardized application process administered by the Secretary. See generally 25 C.F.R. pt. 83; see also id. \\u00a7 83.7 (listing the factors the Secretary must consider when deciding whether to recognize a tribe). Among the federal benefits that a recognized tribe and its members may claim are the right to receive financial assistance under the Snyder Act, see 25 U.S.C. \\u00a7 IB (authorizing the Secretary to \\\"direct, supervise, and expend\\\" funds for a range of purposes including health and education), and the right to operate gaming facilities under the Indian Gaming Regulatory Act, see 25 U.S.C. \\u00a7 2701 et secj.\\nOnce recognized, a tribe may qualify for additional federal benefits by organizing its government under the Act. \\\"[Section 476 of the Act] authorizes any tribe . to adopt a constitution and bylaws, subject to the approval of the Secretary of the Interi- or.\\\" Kerr-McGee Corp. v. Navajo Tribe of Indians, 471 U.S. 195, 198, 105 S.Ct. 1900, 85 L.Ed.2d 200 (1985). Organization under \\u00a7 476 vests in a tribe the power \\\"[t]o employ legal counsel; to prevent the sale, disposition, lease, or encumbrance of tribal lands, interests in lands, or other tribal assets without the consent of the tribe; and to negotiate with the Federal, State, and local governments.\\\" 25 U.S.C. \\u00a7 476(e). And some governmental benefits may flow only to tribes organized under the Act. For example, in this case the California Gaming Control Commission\\u2014 which distributes an annual payment to all non-gaming tribes in the state \\u2014 suspended CVM's allotment of approximately $1 million when it learned that CVM was unorganized.\\nSection 476 of the Act provides two ways a tribe may receive the Secretary's approval for its constitution. The first is, in effect, a safe harbor. Section 476(a) says:\\nAny Indian tribe shall have the right to organize for its common welfare, and may adopt an appropriate constitution and bylaws, and any amendments thereto, which shall become effective when\\u2014\\n(1) ratified by a majority vote of the adult members of the tribe or tribes at a special election authorized and called by the Secretary under such rules and regulations as the Secretary may prescribe; and\\n(2) approved by the Secretary pursuant to subsection (d) of this section.\\n25 U.S.C. \\u00a7 476(a). Pursuant to subsection (a)(1), the Secretary has promulgated several rules governing special elections. See generally 25 C.F.R. pt. 81. Compliance with these rules is a prerequisite for the Secretary's approval of a proposed constitution. Among other things, the rules define voter eligibility, id. \\u00a7 81.6, create tribal-election boards, id. \\u00a7 81.8, establish voting districts, id. \\u00a7 81.9, describe voter-registration procedures, id. \\u00a7 81.11, stipulate conditions for election notices, id. \\u00a7 81.14, set poll opening and closing times, id. \\u00a7 81.15, and describe the criteria for ballots, id. \\u00a7 81.20. According to subsection (d)(1), once shown that the proposed constitution is the product of the \\u00a7 476(a) process, the Secretary \\\"shall approve the constitution [ ] within forty-five days after the election unless the Secretary finds that the proposed constitution [is] contrary to applicable laws.\\\" 25 U.S.C. \\u00a7 476(d)(1).\\nSection 476(h) provides a second way to seek the Secretary's approval for a proposed constitution. Unlike the extensive procedural requirements of \\u00a7 476(a), under \\u00a7 476(h) a tribe may adopt a constitu\\u00ed tion using procedures of its own making:\\nNotwithstanding any other provision of this Act each Indian tribe shall retain inherent sovereign power to adopt governing documents under procedures other than those specified in this section[.]\\n25 U.S.C. \\u00a7 476(h)(1). But this greater flexibility in process comes with a cost. Section 476(h) does not provide a safe harbor. As discussed in detail in Part III, the central issue in this case is the extent of the Secretary's power to approve a constitution under this section.\\nII.\\nCVM is a federally recognized Indian tribe. See Indian Entities Recognized and Eligible to Receive Services from the United States Bureau of Indian Affairs, 70 Fed.Reg. 71,194, 71,194 (Nov. 25, 2005). It has a potential membership of 250, but its current tribal council \\u2014 led by Burley \\u2014 was handpicked by only a tiny minority. This case is the latest round of sparring between Burley and the federal government over whether the tribe is organized under the Act. Burley's efforts to organize the tribe began in 2000 when, pursuing the safe harbor procedure of \\u00a7 476(a), she and a group of her supporters adopted a constitution and requested the Secretary to call an election for its ratification. Section 476(c) required the Secretary to call an election on the proposed constitution within 180 days. For reasons not apparent from the record, the Secretary never called the election. Rather than press the matter, Burley withdrew her request for a vote on the constitution.\\nA second effort to organize came in 2001, when Burley's group adopted a new constitution for the tribe. This time, Burley bypassed the \\u00a7 476(a) process and instead sent the constitution directly to the Secretary for approval. The Secretary informed her that the constitution was defective and the tribe still unorganized.\\nPerhaps relying on the old adage, Burley made a third attempt in early 2004. Meanwhile, Congress passed the Native American Technical Corrections Act, which added \\u00a7 476(h). The Secretary then responded to Burley by rejecting her proposed constitution and explaining that she Would need to at least attempt to involve the entire tribe in the organizational process before the Secretary would give approval:\\nWhere a tribe that has not previously organized seeks to do so, [the Secretary] also has a responsibility to determine that the organizational efforts reflect the involvement of the whole tribal commu nity. We have not seen evidence that such general involvement was attempted or has occurred with the purported organization of your tribe.... To our knowledge, the only persons of Indian descent involved in the tribe's organization efforts, were you and your two daughters.\\nLetter from Dale Risling, Sr., Superintendent, United States Department of the Interior, Bureau of Indian Affairs-Cent. Cal. Agency, to Silvia Burley (Mar. 26, 2004).\\nBurley, in CVM's name, then sued the United States for its failure to recognize the tribe as organized. She also twice motioned for leave to file supplemental claims for relief. The district court dismissed the original complaint for failure to state a claim and also denied the motions for leave.\\nWe review the grant of a motion to dismiss de novo. Broudy v. Mather, 460 F.3d 106, 116 (D.C.Cir.2006). Although Burley initially filed two claims for relief \\u2014 one under \\u00a7 476(h) of the Act and the other under the Administrative Procedure Act (\\\"APA\\\"), 5 U.S.C. \\u00a7 704 \\u2014 we review only the APA claim because \\u00a7 476(h) offers no private cause of action. We review the denial of leave to file supplemental claims for abuse of discretion. Hall v. CIA 437 F.3d 94, 101 (D.C.Cir.2006).\\nIII.\\nThe Burley faction has chosen not to repeat its effort to organize under \\u00a7 476(a). Instead, it has tried to organize under \\u00a7 476(h). Burley argues that, under \\u00a7 476(h), the Secretary had no choice but to approve the proposed constitution. The Secretary reads \\u00a7 476(h) to allow her to reject any constitution that does not \\\"reflect the involvement of the whole tribal community.\\\" We consider the question within the framework of 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). The Secretary's legal interpretation did not come in either a notice-and-comment rulemaking or a formal adjudication, the usual suspects for Chevron deference. We nonetheless believe that Chevron\\u2014rather than Skidmore v. Swift & Co., 323 U.S. 134, 65 S.Ct. 161, 89 L.Ed. 124 (1944)\\u2014provides \\\"the appropriate legal lens through which to view the legality of the Agency interpretation,\\\" Barnhart v. Walton, 535 U.S. 212, 222, 122 S.Ct. 1265, 152 L.Ed.2d 330 (2002), because of the \\\"interstitial nature of the legal question\\\" and the \\\"related expertise of the Agency,\\\" id. We must therefore determine whether Congress has spoken directly to the issue. If it has not, we must defer to the agency's interpretation as long as it is reasonable. Chevron, 467 U.S. at 842-43, 104 S.Ct. 2778. We hold that the Secretary's interpretation is a permissible one.\\nBurley asserts that \\u00a7 476(h) unambiguously requires the Secretary to approve any constitution adopted under that provision. In Burley's view, the Secretary has no role in determining whether a tribe has properly organized itself to qualify for the federal benefits provided in the Act and elsewhere. That cannot be. Although the sovereign nature of Indian tribes cautions the Secretary not to exercise freestanding authority to interfere with a tribe's internal governance, the Secretary has the power to manage \\\"all Indian affairs and [ ] all matters arising out of Indian relations.\\\" 25 U.S.C. \\u00a7 2 (emphases added). We have previously held that this extensive grant of authority gives the Secretary broad power to carry out the federal government's unique responsibilities with respect to Indians. See Udall v. Littell, 366 F.2d 668, 672 (D.C.Cir.1966) (\\\"In charging the Secretary with broad responsibility for the welfare of Indian tribes, Congress must be assumed to have given [her] reasonable powers to discharge it effectively.\\\"); see also United States v. Eberhardt, 789 F.2d 1354, 1359 (9th Cir.1986) (noting that \\u00a7 2 serves \\\"as the source of Interior's plenary administrative authority in discharging the federal government's trust obligations to Indians\\\"). The exercise of this authority is especially vital when, as is the case here, the government is determining whether a tribe is organized, and the receipt of significant federal benefits turns on the decision.\\nThe Secretary suggests that her authority under \\u00a7 476(h) includes the power to reject a proposed constitution that does not enjoy sufficient support from a tribe's membership. Her suggestion is reasonable, particularly in light of the federal government's unique trust obligation to Indian tribes. See Seminole Nation v. United States, 316 U.S. 286, 296, 62 S.Ct. 1049, 86 L.Ed. 1480 (1942) (noting \\\"the distinctive obligation of trust incumbent upon the Government in its dealings with\\\" tribes). A cornerstone of this obligation is to promote a tribe's political integrity, which includes ensuring that the will of tribal members is not thwarted by rogue leaders when it comes to decisions affecting federal benefits. See id. at 297, 62 S.Ct. 1049 (\\\"Payment of funds at the request of a tribal council which, to the knowledge of the Government officers charged with the administration of Indian affairs ., was composed of representatives faithless to them own people and without integrity would be a clear breach of the Government's fiduciary obligation.\\\"); Seminole Nation v. Norton, 223 F.Supp.2d 122, 140 (D.D.C.2002) (noting that the Secretary \\\"has the responsibility to ensure that [a tribe's] representatives, with whom [she] must conduct government-to-government relations, are valid representatives of the [tribe] as a whole\\\") (emphasis added).\\nThe sensibility of the Secretary's understanding of \\u00a7 476(h) is especially apparent in a case like this one. Although CVM, by its own admission, has a potential membership of 250, only Burley and her small group of supporters had a hand in adopting her proposed constitution. This antimajoritarian gambit deserves no stamp of approval from the Secretary. As Congress has made clear, tribal organization under the Act must reflect majoritarian values. See 25 U.S.C. \\u00a7 476(a) (requiring majority vote by tribe for adoption of a constitution); id. \\u00a7 476(b) (requiring majority vote by tribe for revocation of a constitution); id. \\u00a7 478, 478a (requiring majority vote by tribe in order to exclude itself from the Act). And as we have previously noted, tribal governments should \\\"fully and fairly involve the tribal members in the proceedings leading to constitutional reform.\\\" Morris v. Watt, 640 F.2d 404, 414 (D.C.Cir.1981). Because the Secretary's decision not to approve Burley's proposed constitution was permissible, we affirm the dismissal of Burley's claim.\\nBurley also argues that the district court abused its discretion by denying her motions for leave to file supplemental claims. See Fed.R.CivP. 15(d). Any such error was harmless. See Fed.R.CivP. 61. Because there has been no fact development in this case, no harm is done by requiring Burley to file her supplemental claims in a new cause of action. See 6A Charles Alan Wright, Arthur R. Miller and Mary Kay Kane, Federal Practice & Procedure \\u00a7 1506, at 197 (2d ed.1990) (noting that \\\"when joinder will not promote judicial economy or the speedy disposition of the dispute between the parties, refusal to allow the supplemental pleading is entirely justified\\\").\\nFor the foregoing reasons, the judgment of the district court is\\nAffirmed.\\n. Throughout, we refer to Burley rather than \\\"CVM\\\" or \\\"the tribe\\\" because we are mindful that there is an ongoing leadership dispute between Burley and former tribal chairman Yakima Dixie. Both claim to represent the tribe, and Dixie filed an amicus brief in this case in support of the United States. We pass no judgment on that dispute.\\n. According to the government, Burley wishes to build and operate a casino for CVM. Government's Brief at 10-11.\\n. The stakes for CVM may be raised even higher if California's gaming tribes expand their casinos, as news reports suggest they are planning to do. See The New Indian Wars, Economist, Nov. 29, 2007.\\n.\\\"[Applicable laws\\\" means \\\"any treaty, Executive order or Act of Congress or any final decision of the Federal courts which are applicable to the tribe, and any other laws which \\u00e1re applicable to the tribe pursuant to an Act of Congress or by any final decision of the Federal courts.\\\" Act of Nov. 1, 1988, Pub.L. No. 100-581, \\u00a7 102(1), 102 Stat. 2938, 2939.\\n. This figure was offered by the tribe itself in separate litigation. See Complaint for Injunctive and Declaratory Relief at 1, California Valley Miwok Tribe v. United States, No. 02-0912 (E.D.Cal. Apr. 29, 2002). We take judicial notice of that document. See Veg-Mix, Inc. v. U.S. Dep't of Agric., 832 F.2d 601, 607 (D.C.Cir.1987).\\n. In 1999, the Secretary recognized Burley as CVM's chairperson. The Secretary also entered into a \\\"self-determination contract\\\" with the tribe under the Indian Self-Determination Act. See 25 U.S.C. \\u00a7 450f. Pursuant to that contract, the tribe received funds for the development of its government. Subsequently, however, the Secretary modified her stance and recognized CVM's leadership only on an interim basis, pending the tribe's organization effort. Burley does not challenge this change.\\n. We recognize that we typically do not apply full Chevron deference to an agency interpretation of an ambiguous statutory provision involving Indian affairs. In the usual circumstance, \\\"[t]he governing canon of construction requires that 'statutes are to be construed liberally in favor of the Indians, with ambiguous provisions interpreted to their benefit.' \\\" Cobell v. Norton, 240 F.3d 1081, 1101 (D.C.Cir.2001) (quoting Montana v. Blackfeet Tribe of Indians, 471 U.S. 759, 766, 105 S.Ct. 2399, 85 L.Ed.2d 753 (1985)). \\\"This departure from the Chevron norm arises from the fact that the rule of liberally construing statutes to the benefit of the Indians arises not from the ordinary exegesis, but 'from principles of equitable obligations and normative rules of behavior,' applicable to the trust relationship between the United States and the Native American people.\\\" Id. (quoting Albuquerque Indian Rights v. Lujan, 930 F.2d 49, 59 (D.C.Cir.1991)). Here, however, the Secretary's proposed interpretation does not run against any Indian tribe; it runs only against one of the contestants in a heated tribal lead ership dispute, see supra note 1. In fact, as we later explain, the Secretary's interpretation actually advances \\\"the trust relationship between the United States and the Native American people.\\\" Therefore, adherence to Chevron is consistent with the customary Indian-law canon of construction.\\n. This grant of authority was initially lodged in the Secretary of War. See Act of July 9, 1832, ch. 174, \\u00a7 1, 4 Slat. 564. It was eventually transferred to the Secretary of the Interior in 1849. See Act of Mar. 3, 1849, ch. 108, \\u00a7 5, 15 Stat. 228.\"}"

dc/3597785.json

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+"{\"id\": \"3597785\", \"name\": \"In re GTE SERVICE CORPORATION, et al., Petitioners\", \"name_abbreviation\": \"In re GTE Service Corp.\", \"decision_date\": \"1985-05-28\", \"docket_number\": \"No. 85-1103\", \"first_page\": \"45\", \"last_page\": \"48\", \"citations\": \"246 U.S. App. D.C. 45\", \"volume\": \"246\", \"reporter\": \"United States Court of Appeals for the District of Columbia Circuit\", \"court\": \"United States Court of Appeals for the District of Columbia Circuit\", \"jurisdiction\": \"District of Columbia\", \"last_updated\": \"2021-08-10T18:10:14.458812+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before EDWARDS, GINSBURG and SCALIA, Circuit Judges.\", \"parties\": \"In re GTE SERVICE CORPORATION, et al., Petitioners.\", \"head_matter\": \"762 F.2d 1024\\nIn re GTE SERVICE CORPORATION, et al., Petitioners.\\nNo. 85-1103.\\nUnited States Court of Appeals, District of Columbia Circuit.\\nOrder Feb. 19, 1985.\\nOpinion May 28, 1985.\\nJames R. Hobson and William Malone, Washington, D.C., were on the Emergency Application for Judicial Stay Pending Agency Reconsideration and Appeal or, in the Alternative, for an Injunctive Order.\\nBefore EDWARDS, GINSBURG and SCALIA, Circuit Judges.\", \"word_count\": \"1522\", \"char_count\": \"9164\", \"text\": \"Opinion for the Court filed by HARRY T. EDWARDS, Circuit Judge.\\nHARRY T. EDWARDS, Circuit Judge:\\nThe petitioners in this action filed a pleading that was captioned as a petition for a writ of mandamus but which was entitled \\\"Emergency Application for Judicial Stay Pending Agency Reconsideration and Appeal or, in the Alternative, for an Injunctive Order.\\\" The pleading was accepted by this court as a petition for a writ of mandamus because, although the petitioners sought \\\"a judicial stay of part of the [Federal Communications] Commission's decision\\\" in a rate refund proceeding or, in the alternative, \\\"an injunctive order to the FCC staying [a] portion of the Commission's order,\\\" the petitioners did not file a petition for review of the order. Apparently, the petitioners sought to invoke this court's jurisdiction to review and stay the Commission's order pursuant to the All Writs Act, 28 U.S.C. \\u00a7 1651(a) (1982) and this court's recent ruling in Telecommunications Research and Action Center v. FCC, 750 F.2d 70 (D.C.Cir.1984) (\\\"TRAC\\\"). This court denied the petitioners' application in an order dated February 19, 1985. Because the petitioners' actions represent a basic misunderstanding of this court's authority to issue writs of mandamus, and of this court's decision in TRAC, we issue this opinion to explain the grounds for the court's denial of the petitioners' application.\\nThe petitioners' filing could not properly be entertained as a motion for stay because it was not accompanied by a petition to review the underlying order and, thus, the court did not have jurisdiction to grant the motion. It is beyond dispute that a court does not have jurisdiction to review an agency order unless a petition for review of the order has been filed in that court. See 28 U.S.C. \\u00a7 2349(a) (1982) (\\\"The court of appeals has jurisdiction of the proceeding on the filing and service of a petition to review.\\\"); Fed.R.App.P. 15(a) (\\\"Review of an order of an administrative agency . shall be obtained by filing . a petition to enjoin, set aside, suspend, modify, or otherwise review____\\\"). The motion for stay was, therefore, apparently premised upon this court's statutory authority to stay agency orders pending review in this court. See Administrative Procedure Act \\u00a7 10(d), 5 U.S.C. \\u00a7 705 (1982); 28 U.S.C. \\u00a7 2349(b); Fed.R.App.P. 18. These provisions, however, necessarily contemplate that the motion will be made in a proceeding in this court in which a petition to review an agency order is pending, and in which the movant is a party. See 28 U.S.C. \\u00a7 2349(b) (\\\"The filing of the petition to review does not of itself stay or suspend the operation of the order of the agency, but the court of appeals in its discretion may restrain or suspend, in whole or in part, the operation of the order pending the final hearing and determination of the petition.\\\"); Fed.R.App.P. 18 (\\\"Reasonable notice of the motion shall be given to all parties to the proceeding in the court of appeals.\\\"). Therefore, because the petitioners did not file a petition for review, there was no ongoing proceeding in this court in which a motion for stay could have been filed and thus the court did not have jurisdiction to grant the motion for stay. The motion was, therefore, not properly before this court and was denied.\\nThe petitioners' filing, regarded as a petition for a writ of mandamus, was properly before this court but it was denied because the petitioners had a clearly adequate remedy in that they could have petitioned for review of the Commission's order pursuant to Section 402(a) of the Communications Act of 1934, 47 U.S.C. \\u00a7 402(a), and could then have moved for a stay of that order.\\nPursuant to the All Writs Act, \\\"[t]he Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions____\\\" 28 U.S.C. \\u00a7 1651(a). The writ of mandamus is an extraordinary remedy, however, and will usually be denied when the petitioner could have invoked an adequate, ordinary remedy. Cartier v. Secretary of State, 506 F.2d 191, 199 (D.C.Cir.1974), cert. denied, 421 U.S. 947, 95 S.Ct. 1677, 44 L.Ed.2d 101 (1975). \\\"Only where an appeal can promise no more than a clearly inadequate remedy may the remedy of mandamus be resorted to,\\\" Knable v. Wilson, 570 F.2d 957, 961 (D.C.Cir.1977) (citations and internal quotations omitted), and it is well-settled that the remedy may not be invoked as a mere substitute for appeal. Will v. United States, 389 U.S. 90, 97, 88 S.Ct. 269, 274, 19 L.Ed.2d 305 (1967); Bankers Life & Casualty Co. v. Holland, 346 U.S. 379, 382-83, 74 S.Ct. 145, 147-48, 98 L.Ed. 106 (1953); Ex Parte Fahey, 332 U.S. 258, 260, 67 S.Ct. 1558, 1559, 91 L.Ed. 2041 (1947); Nixon v. Sirica, 487 F.2d 700, 706 (D.C.Cir.1973). In this action, the petitioners clearly had an adequate, ordinary remedy by virtue of the review provision in the Communications Act of 1934 and this court's statutory authority to stay an agency order pending review. The court will not consider the extraordinary relief a writ of mandamus provides unless the petitioners can show that this ordinary mode of relief is inadequate. The petitioners did not attempt to make this showing and, therefore, the petition was denied.\\nPetitioners' reliance on the TRAC decision as support for their petition for a writ of mandamus is of no avail. In TRAC, this court held, inter alia, that \\\"[bjecause the statutory obligation of a Court of Appeals to review on the merits may be defeated by an agency that fails to resolve disputes, a Circuit Court may [pursuant to the All Writs Act] resolve claims of unreasonable agency delay in order to protect its future jurisdiction.\\\" 750 F.2dat76. Thus, the court found that claims of unreasonable agency delay represent one narrow class of cases which are within this court's mandamus jurisdiction. This holding does not, and cannot under any reasonable interpretation, affect the well-settled principle that mandamus is an extraordinary remedy that may be invoked only if the statutorily prescribed remedy is clearly inadequate. See id. at 78. In TRAC, the remedy of appeal was clearly inadequate because there was no order from which to take an appeal. In this action, because the petitioners did not allege that appeal was an inadequate remedy, the appropriate course of action was an appeal from the Commission's order. Because of the availability of this routine remedy, mandamus was not available, and the petition was denied.\\n. Emergency Application for Judicial Stay Pending Agency Reconsideration and Appeal or, in the Alternative, for an Injunctive Order at 1-2, In Re: GTE Serv. Corp., No. 85-1103 (D.C.Cir. filed Feb. 15, 1985).\\n. On February 19, 1985, the petitioners filed a petition for review and a motion for stay of the Commission's order. See GTE Serv. Corp. v. FCC, No. 85-1107 (D.C.Cir. filed Feb. 19, 1985).\\n. 28 U.S.C. \\u00a7 1651(a) provides:\\nThe Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.\\n. In Re: GTE Serv. Corp., No. 85-1103 (D.C.Cir. Feb. 19, 1985) (order denying application for stay, or in the alternative, for injunctive order).\\n. We note that this misunderstanding may have resulted, in part, from the internal procedures employed by this court upon receipt of a writ of mandamus seeking to compel agency action which has been unreasonably delayed.\\nAny case filed in this court which seeks to compel agency action pursuant to the holding in TRAC, whether or not the pleading is denominated as a \\\"petition for writ of mandamus,\\\" is treated, for administrative purposes, in the same manner as a case in which a petition for review has been filed. Upon receipt of the petition, the court establishes a normal briefing and oral argument schedule. No preliminary review of these petitions is undertaken by a motions division panel. Rather, if the petitioner believes that the petition requires special treatment, the petitioner may request this treatment by filing an appropriate motion with the court and this motion will be considered by a motions division panel.\\nBy contrast, when a petition for a writ of mandamus that does not seek to compel agency action under TRAC is filed in this court, it is immediately submitted to a motions division panel of this court. Pursuant to Rule 21(b) of the Federal Rules of Appellate Procedure* the opposing party may submit a response only upon an order of the motions panel. The petition is then either acted upon by the motions division or, alternatively, scheduled for full briefing and disposition by a merits panel.\"}"

dc/3598961.json

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+"{\"id\": \"3598961\", \"name\": \"MOTOR VEHICLE MANUFACTURERS ASSOCIATION OF the UNITED STATES, INC., et al., Petitioners, v. ENVIRONMENTAL PROTECTION AGENCY, Respondent, American Methyl Corporation, Intervenor. GENERAL MOTORS CORPORATION, Petitioner, v. ENVIRONMENTAL PROTECTION AGENCY, Respondent, American Methyl Corporation, Intervenor\", \"name_abbreviation\": \"Motor Vehicle Manufacturers Ass'n of the United States, Inc. v. Environmental Protection Agency\", \"decision_date\": \"1985-07-26\", \"docket_number\": \"Nos. 81-2276, 81-2279\", \"first_page\": \"268\", \"last_page\": \"285\", \"citations\": \"247 U.S. App. D.C. 268\", \"volume\": \"247\", \"reporter\": \"United States Court of Appeals for the District of Columbia Circuit\", \"court\": \"United States Court of Appeals for the District of Columbia Circuit\", \"jurisdiction\": \"District of Columbia\", \"last_updated\": \"2021-08-10T19:41:31.779745+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before TAMM, WALD and MIKVA, Circuit Judges.\", \"parties\": \"MOTOR VEHICLE MANUFACTURERS ASSOCIATION OF the UNITED STATES, INC., et al., Petitioners, v. ENVIRONMENTAL PROTECTION AGENCY, Respondent, American Methyl Corporation, Intervenor. GENERAL MOTORS CORPORATION, Petitioner, v. ENVIRONMENTAL PROTECTION AGENCY, Respondent, American Methyl Corporation, Intervenor.\", \"head_matter\": \"768 F.2d 385\\nMOTOR VEHICLE MANUFACTURERS ASSOCIATION OF the UNITED STATES, INC., et al., Petitioners, v. ENVIRONMENTAL PROTECTION AGENCY, Respondent, American Methyl Corporation, Intervenor. GENERAL MOTORS CORPORATION, Petitioner, v. ENVIRONMENTAL PROTECTION AGENCY, Respondent, American Methyl Corporation, Intervenor.\\nNos. 81-2276, 81-2279.\\nUnited States Court of Appeals, District of Columbia Circuit.\\nArgued May 14, 1985.\\nDecided July 26, 1985.\\nGary P. Toth, Detroit, Mich., with whom William H. Crabtree, V. Mark Slywynsky, Michael W. Grice, Detroit, Mich., Robert G. Seasonwein, Troy, Mich., and William L. Weber, Jr., Detroit, Mich., were on brief, for petitioners in Nos. 81-2276 and 81-2279.\\nDavid E. Dearing, Atty., Dept, of Justice, Washington, D.C., with whom Samuel I. Gutter, Robert A. Weissman, Attys., A. James Barnes,. Gen. Counsel, Gerald K. Gleason, Asst. Gen. Counsel, E.P.A. and Jose R. Allen, Atty., Dept, of Justice, Washington, D.C., were on brief, for respondents in Nos. 81-2276 and 81-2279. Nancy Marvel and Ralph Colleli, Jr., Washington, D.C., entered appearances, for respondents in Nos. 81-2276 and 81-2279.\\nJames W. Moorman, Washington, D.C., with whom Scott N. Stone, Russell V. Randle and David B. Robinson, Washington, D.C., were on brief, for intervenor American Methyl Corp. Arnold B. Podgorsky and Laurence S. Kirsch, Washington, D.C., entered appearances, for intervenor in Nos. 81-2276 and 81-2279.\\nV. Peter Wynne, was on brief, for Atlantic Richfield Co., amicus curiae, urging reversal in Nos. 81-2276 and 81-2279.\\nMilton D. Andrews and Lance E. Tunick, Washington, D.C., were on brief for Auto. Importers of America, Inc., amicus curiae, urging reversal in Nos. 81-2276 and 81-2279.\\nBefore TAMM, WALD and MIKVA, Circuit Judges.\", \"word_count\": \"11331\", \"char_count\": \"71892\", \"text\": \"Opinion for the Court filed by Circuit Judge WALD.\\nWALD, Circuit Judge.\\nPetitioners seek review of a decision of the Administrator of the Environmental Protection Agency (the \\\"Administrator\\\" or the \\\"EPA\\\") to grant a waiver of the Clean Air Act's (the \\\"Act\\\") restrictions on new fuels or fuel additives, see 42 U.S.C. \\u00a7 7545(f)(4), to American Methyl Corporation for a proprietary fuel known as Petrocoal. Finding that the EPA's decision to grant the waiver was arbitrary, capricious and an abuse of discretion, we vacate the Petrocoal waiver and remand to the agency for further proceedings consistent with this opinion.\\nI.Background\\nSince this court has already had occasion to set forth the background of this case in American Methyl Corp. v. EPA, 749 F.2d 826 (D.C.Cir.1984), we present here only a brief synopsis of that background, highlighting the facts particularly relevant to the present petition. The statutory provision at issue is section 211(f) of the Clean Air Act which places substantial restrictions on new fuels or fuel additives (collectively referred to as \\\"fuel\\\"). Specifically section 211(f)(1) makes it\\n. unlawful for any manufacturer . to first introduce into commerce, or to increase the concentration in use of, any fuel or fuel additive for general use in light duty motor vehicles . which is not substantially similar to any fuel or fuel additive utilized in the certification of any . [1975 or later model year vehicle or engine].\\n42 U.S.C. \\u00a7 7545(f)(1). Section 211(f)(4), however, allows the Administrator to waive this prohibition in specified circumstances:\\nThe Administrator, upon application of any manufacturer . may waive the prohibitions established . if he determines that the applicant has established that such fuel or fuel additive or a specified concentration thereof, and the emission products of such fuel or additive or specified concentration thereof, will not cause or contribute to a failure of any emission control device or system (over the useful life of any vehicle in which such device or system is used) to achieve compliance by the vehicle with the emission standards with respect to which it has been certified pursuant to section 7525 of this title.\\n42 U.S.C. \\u00a7 7545(f)(4).\\nOn February 20, 1981, American Methyl applied for a section 211(f)(4) waiver for a methanol/gasoline blend fuel called Petrocoal. EPA published a public notice on April 13, 1981, acknowledging receipt of the application and soliciting comments on whether Petrocoal met the waiver criteria. See 46 Fed.Reg. 21,695 (1981), Joint Appendix (\\\"J.A.\\\") at 79. Under section 211(f)(4), a waiver is treated as granted if the Administrator fails to grant or deny the application within 180 days of its receipt. 42 U.S.C. \\u00a7 7545(f)(4). By mutual consent of the EPA and American Methyl, this 180-day review period, scheduled to expire on August 19, 1981, was extended, see 46 Fed. Reg. 43,082 (Aug. 26, 1981) (30 day extension) and 46 Fed.Reg. 47,299 (Sept. 25, 1981) (10 day extension), until September 28, 1981, when EPA granted a conditional waiver for Petrocoal. See Petrocoal Waiver, 46 Fed.Reg. 48,975 (Oct. 5, 1981). The Administrator determined that American Methyl had met the burden necessary to establish its eligibility for a waiver for Petrocoal under section 211(f)(4) provided.that the finished fuel met the following conditions:\\n[T]he concentration of methanol . does not exceed 12 percent, by volume, the concentration of total alcohols in the fuel does not exceed 15 percent, by volume, the ratio of methanol to four-carbon alcohols in the finished fuel does not exceed 6.5 to 1, by volume and the finished fuel is blended such that it meets the American Society for Testing and Materials (ASTM) fuel volatility specifications for the area and time of year in which it is sold.\\nId. at 48,976.\\nOn December 4, 1981, MVMA filed both a petition for administrative reconsideration of the waiver by the EPA and the present petition for judicial review of the waiver by this court. The EPA did not act on MVMA's petition for administrative reconsideration. On February 22, 1983, MVMA filed a supplemental petition for reconsideration supported by new data which purportedly contradicted one of the EPA's basic assumptions in granting the waiver \\u2014 namely that increased evaporative emissions due to the use of Petrocoal could be controlled by controlling the volatility of the blended fuel. This supplemental petition together with the new data submitted prompted the EPA to reconsider the waiver grant, see 48 Fed.Reg. 19,779, 19,780 (1983) (notice and request for comments on petition for reconsideration), and to a proposed revocation of the waiver. See 49 Fed.Reg. 11,879, 11,885 (1984) (notice of reconsideration and proposed revocation of Petrocoal waiver). Coincidentally with the EPA's publication of the proposed notice of revocation, the parties to the pending petition for judicial review of the waiver grant jointly moved to remand the record to the EPA for further administrative proceedings. This court granted that motion on April 3, 1984.\\nA month later on May 3, 1984, however, American Methyl formally requested the EPA to terminate the revocation proceeding on the ground that section 211(f) did not authorize the EPA to revoke a waiver. The EPA's General Counsel denied this request in a letter ruling dated June 8, 1984. American Methyl petitioned this court for judicial review of both the notice of proposed revocation and the letter ruling. On July 27, 1984, this court granted American Methyl's motion to stay the EPA's proj posed revocation proceeding. On the merits, this court held that the EPA may not revoke a waiver pursuant to section 211(f), but may forbid the marketing of Petrocoal pursuant to section 211(c) which grants the Administrator the authority to regulate fuels or fuel additives. American Methyl, 749 F.2d at 828. The case was remanded to the EPA for further proceedings pursuant to section 211(c). To date, the EPA has not initiated a proceeding to regulate Petrocoal under section 211(c).\\nFollowing this court's remand to the EPA for further proceedings pursuant to section 211(c), MVMA moved the court to order the return of the record on its peti tion for review of the original waiver decision and to hear oral argument. The court granted the motion on February 13, 1985, and oral argument was heard on May 14, 1985.\\nThe principal issue presented in this case is the reasonableness of the EPA's determination that American Methyl sufficiently established that Petrocoal met the criteria to qualify for a waiver under section 211(f)(4). This challenge to the grant of the Petrocoal waiver, however, has raised two initial questions of statutory construction related to the showing an applicant must make in order to qualify for a section 211(f)(4) waiver. Specifically, the statutory questions are: (1) Does section 211(f)(4) require the EPA to determine that a fuel will not cause or contribute to any increase in emissions or only that it will not cause or contribute to an increase which exceeds applicable emission standards; and (2) Does section 211(f)(4) oblige the EPA to require applicants to submit emission data on vehicles tested over a 50,000-mile period or may the EPA evaluate the long-term effects of a new fuel on the basis of reasoned technical judgments?\\nII. Statutory Construction Questions\\nThis court in reviewing the EPA's construction and implementation of the terms of section 211(f)(4) may reverse the agency's action only if it is outside the bounds of its statutory authority, see American Methyl, 749 F.2d at 833 (citing section 307(d)(9)(C) of the Clean Air Act, 42 U.S.C. \\u00a7 7607(d)(9)(C)), or if it is arbitrary, capricious, or an abuse of discretion. With respect to issues of statutory construction, if Congress' intent can be ascertained from the plain language of the statute or its legislative history then that intent must be given effect. See Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., \\u2014 U.S. -, 104 S.Ct. 2778, 2782 n. 9, 81 L.Ed.2d 694 (1984). If, on the other hand, the court determines that Congress has not directly addressed the question at issue, then \\\"the question for the court is whether the agency's answer is based on a permissible construction of the statute.\\\" Id., 104 S.Ct. at 2782. With these precepts in mind, we turn to the statutory questions of whether section 211(f)(4) compels the Administrator to deny a waiver application if the fuel causes any increase in emissions and to require the applicant to submit 50,000-mile durability data.\\nA. Requisite Finding With Respect to Emission Increases\\nThe EPA contends that to grant a waiver under section 211(f)(4), the Administrator is required only to determine that the fuel will not cause vehicles to exceed applicable emission standards. Brief for EPA at 9. The EPA makes this argument in response to MVMA's and amicus AIA's assertions that Congress intended section 211(f)(4) to preclude the grant of a waiver if the fuel caused any increase in emissions. See Brief for MVMA at 30, 43; Brief for AIA at 19-22; but see Brief for MVMA at 26, 45 (referring to any increase which causes or contributes to a vehicle's failure to meet emission standards). AIA contends that the Act's language stating that a waiver must be denied if a fuel \\\"contributes\\\" to a failure to achieve compliance with emission standards \\\"means that a waiver must be denied if the subject fuel causes any increase in emissions.\\\" Brief for AIA at 20 (emphasis in original); see also Reply Brief for MVMA at 12-13. We note at the outset that the decision whether to grant a waiver is committed to the discretion of the Administrator. See 42 U.S.C. \\u00a7 7545(f)(4) (\\\"The Administrator . may waive the prohibitions . \\\") (emphasis added). Thus, the question is not whether the Administrator may deny a waiver on the basis of an increase in emissions not amounting to a failure to meet emission standards, but whether section 211(f)(4) mandates that the Administrator must deny a waiver if a fuel causes any increase in emissions.\\nThe plain language of section 211(f)(4) refers not to any increase in emissions but to \\\"a failure of any emission control device or system . to achieve compliance . with the [applicable] emissions standards____\\\" 42 U.S.C. \\u00a7 7545(f)(4). Section 211(f)(4) was added to the Clean Air Act in 1977. See Clean Air Act Amendments of 1977, Pub.L. No. 95-95, \\u00a7 222, 91 Stat. 685, 763-64. The Senate version of section 211(f)(4), relied upon by AIA, would have required a waiver applicant to establish that the fuel did not impair emission performance. See S.Rep. No. 127, 95th Cong., 1st Sess. 90-91 (1977). The conferees, however, rejected the Senate version, and in adopting the current language of section 211(f)(4) stated:\\nThus, if a fuel or fuel additive causes an increase in engine emissions so as to increase tail pipe emissions or interferes with performance of a specific device or element of emission control so as to cause or contribute to the vehicle's failure to meet the standards at any point in its useful life, the Administrator could not waive the prohibition.\\nH.R.Conf.Rep. No. 564, 95th Cong., 1st Sess. 161 (1977), U.S.Code Cong. & Admin. News 1977, pp. 1077, 1542 (emphasis added). Thus we find that both the plain language of the Act and its legislative history support the EPA's view that the Administrator is not required under section 211(f)(4) to adopt a \\\"no increase\\\" standard and may grant a waiver as long as the fuel does not cause or contribute to a failure to achieve compliance with emission standards. Cf. Specialty Equip. Mkt. Ass'n v. Ruckelshaus, 720 F.2d 124, 133-34 (D.C.Cir.1983) (rejecting MVMA's contention that section 207(a)(2) of the Act required a \\\"no-increase\\\" standard with respect to the certification of aftermarket parts).\\nB. 50,000-Mile Durability Testing\\nSection 211(f)(4) provides that, to qualify for a waiver, an applicant must establish that the fuel \\\"will not cause or contribute to a failure of any emission control device or system (over the useful life of any vehicle in which such device or system is used) to achieve compliance by the vehicle with the [applicable] emission standards.\\\" 42 U.S.C. \\u00a7 7545(f)(4) (emphasis added). The Conference Report states that a waiver could not be granted if the fuel caused or contributed to the \\\"vehicle's failure to meet the standards at any point in its useful life.\\\" H.R.Conf.Rep. No. 564, 95th Cong., 1st Sess. 161 (1977), U.S.Code Cong. & Admin.News 1977, p. 1542 (emphasis added); see supra p. 390 (quoting passage in full). Section 202(d), 42 U.S.C. \\u00a7 7521(d), defines the \\\"useful life\\\" of a vehicle as five years or 50,000 miles, whichever occurs first. Petitioners argue that both the language of section 211(f)(4) and its legislative history clearly indicate that an applicant must submit data which measure the fuel's effect on emissions over the \\\"useful life\\\" of the vehicle (i.e., 50,000-mile durability testing). See Brief for MVMA at 27-30, 37-41. Thus petitioners claim that the EPA erred in granting the Petrocoal waiver in the absence of 50,000-mile durability data.\\nThe EPA, however, has established a practice of not requiring 50,000-mile durability testing where it determines that the emissions effect of the fuel is of an instantaneous, not deteriorative, nature. See Oxinal Waiver, 44 Fed.Reg. 37,074 (1979); MTBE Waiver, 44 Fed.Reg. 12,242 (1979); TBA Waiver, 44 Fed.Reg. 10,530 (1979). Instead the EPA requires only \\\"back-to-back\\\" testing. This practice is predicated upon EPA's general interpretation of the. burden of proof required of an applicant under section 211(f)(4). Specifically, the EPA states:\\nThis burden, which Congress has imposed on the applicant, if interpreted literally, is virtually impossible to meet as it requires proof of a negative proposition, i.e., that no vehicle will fail to meet emission standards with respect to which it has been certified. Taken literally, it would require the testing of every vehicle. Recognizing that Congress contemplated a workable waiver provision, mitigation of this stringent burden was deemed necessary. For purposes of the waiver provision, EPA has previously indicated that reliable statistical sampling and fleet testing protocols may be used to demonstrate that a fuel under consideration would not cause or contribute to a significant failure of emission standards by vehicles in the national fleet.\\nPetrocoal Waiver, 46 Fed.Reg. at 48,976; TBA Waiver, 44 Fed.Reg. at 10,530. Having determined that sample testing of vehicles is an appropriate method for establishing that a fuel qualifies for a waiver under section 211(f)(4), the EPA then further considered which specific testing methods were appropriate in given cases. The EPA concluded that back-to-back testing and statistical projections are sufficient where a fuel is predicated to have only instantaneous effects, see supra note 9, and that 50,000-mile durability testing is only required where a fuel is predicated to have long-term deteriorative effects. See, e.g., Petrocoal Waiver, 46 Fed.Reg. at 48,- 976; TBA Waiver, 44 Fed.Reg. at 10,531. The EPA justifies this latter determination regarding the requisite testing sufficient to qualify for a section 211(f)(4) waiver on the ground that the legislative history of section 211(f)(4) indicates that the EPA in evaluating the long-term effects of a fuel is only required to take into account \\\"the deterioration factors employed in certifying the engine.\\\" Brief for EPA at 12 (citing H.R.Conf.Rep. No. 564 at 161). The EPA asserts that the statistical tests used to evaluate the emissions effect of a fuel expected to have an instantaneous effect on emissions, namely the Deteriorated Emissions Test, see supra note 9, takes full account of the deterioration factors used in certifying the vehicles. The EPA further asserts that it may apply sound technical judgment to determine whether a fuel is expected to have an instantaneous or deteriorative effect on emissions and that, where alternative methodologies are available for evaluating the long-term effects of a fuel, nothing in the Act or its legislative history precludes the use of these alternatives to the costly and time-consuming method of actual 50,000-mile testing. See Brief for EPA at 13-14.\\nWe find merit in both petitioners' and the EPA's arguments on this issue. We agree with petitioners that both the language of section 211(f)(4) and its legislative history specifically provide that, for a fuel to qualify for a waiver, the EPA must determine that the fuel will not cause or contribute to a vehicle's failure to meet the applicable standards at any time during its useful life. On the other hand, we also find persuasive the EPA's argument that actual 50,000-mile durability testing may not always be required to make the requisite determination that a fuel will not cause a vehicle to exceed emission standards over its useful life. Clear evidence before the EPA may allow it to conclusively rule out the possibility of long-term, deteriorative effects, thus making the EPA's Deteriorated Emissions Test sufficient and obviating the need for actually conducting costly and time-consuming 50,000-mile durability tests. Section 211(f)(4) only requires that the EPA determine that a fuel will not cause or contribute to a failure of an emission device to comply with applicable emission standards during a vehicle's useful life, it does not specify that the EPA must base this determination on actual 50,000-mile durability tests in all cases. Nonetheless, given section 211(f)(4)'s clear directive that the EPA must evaluate the effect of a fuel over the useful life of a vehicle, the EPA must have a clearly sound basis for determining in a given case that back-to-back testing provides an adequate and sufficient means of evaluation in lieu of actual 50,000-mile testing.\\nIn the present case, however, we are compelled to find that the Administrator apparently lacked any rational basis for concluding that Petrocoal will not cause or contribute to a vehicle's failure to comply with emission standards over its useful life. The Administrator's stated rationale for concluding that Petrocoal will have only an instantaneous, not deteriorative, effect on emissions, simply fails to withstand careful scrutiny. Moreover, even if we accepted the validity of this conclusion, Petrocoal failed \\u2014 albeit marginally \\u2014 the Deteriorated Emissions Test performed in lieu of 50,000-mile testing. See infra section III-B. Under these circumstances, we have no doubt that the EPA abused its discretion in determining that Petrocoal will not cause a vehicle to exceed the emission standards over its useful life.\\nThe Administrator's stated rationale for concluding that 50,000-mile durability testing was unnecessary for Petrocoal rests entirely on three prior waiver decisions:\\nExperience with other oxygenated hydrocarbon additives similar to the alcohols contained in Petrocoal has led EPA to believe that only an instantaneous emission effect should be observed with Petrocoal.\\nPetrocoal Waiver, 46 Fed.Reg. at 48,977 & n. 6 (citing waiver decisions for TBA, 44 Fed.Reg. 10,530 (1979), MTBE, 44 Fed.Reg. 12,242 (1979), and Oxinal, 44 Fed.Reg. 37,-074 (1979)). The sufficiency of this rationale turns on whether the reasoning and data supporting the three cited waivers can be generalized to reasonably support a conclusion that Petrocoal will have only instantaneous, not deteriorative, emission effects thus obviating the need for 50,000-mile testing. Upon a review of the three waiver decisions, we conclude that they fail either singularly or in combination to provide a reasonably sufficient basis for the EPA's conclusion.\\nIn the TBA waiver decision, the EPA granted ARCO a waiver for a fuel additive, Arconol, in a concentration of 0 to 7 volume percent, which consists primarily of tertiary butyl alcohol (TBA). See TBA Waiver, 44 Fed.Reg. at 10,530, & n. 2. No 50,000-mile durability testing was conducted. The EPA concluded that back-to-back testing would provide a reasonable estimate of a vehicle's emission performance on Arconol based upon an examination of the available data on materials compatibility and the chemistry of Arconol. Id. at 10,531 & n. 9. The EPA further noted that ARCO had been \\\"using up to 5% Arconol since 1970 and up to 7% since 1974 without apparent material compatibility problems. Therefore, the vehicle manufacturers should have already accommodated for Arconol in their design.\\\" Id. at 10,532 n. 16.\\nIn the MTBE waiver decision, the EPA granted ARCO a waiver for methyl tertiary butyl ether (MTBE) in a concentration range of 0 to 7 volume percent. See MTBE Waiver, 44 Fed.Reg. at 12,243. As in the TBA waiver, the EPA determined that 50,-000-mile durability testing was unnecessary based upon an examination of the available data on materials compatibility and the chemistry of MTBE. Id. at n. 10. The EPA's conclusion here that 50,000-mile test data should not be required was, however, supported by limited durability data. Id. at 12,244 n. 11. Specifically the EPA referenced a limited durability test program conducted by Texaco using six vehicles, each of which accumulated 20,000 miles on a dynamometer.\\nFinally in the Oxinal waiver decision, the EPA granted Sun Petroleum Products Company a waiver for a proprietary oxygenated hydrocarbon fuel additive which provides no more than two percent oxygen in the fuel. Oxinal Waiver, .44 Fed.Reg. at 37,074. At the time of the waiver grant, the composition of Oxinal was kept confidential. The waiver was predicated, inter alia, upon the condition that the Administrator could revoke the' waiver based on new data submitted after the public disclosure of Oxinal's chemical composition. Id. A subsequent disclosure notice revealed that Oxinal was comprised of a maximum of 2.75 percent by volume of TBA and 2.75 percent by volume of methanol. See 45 Fed.Reg. 9766 (1980) (notice of disclosure of chemical composition of fuel additive); see also 45 Fed.Reg. 75,755 (1980) (denial of petition to revoke waiver following disclosure of chemical composition). This is the only cited waiver decision which contained methanol, the principal alcohol used in Petrocoal. Once again the EPA concluded, based upon an examination of the available materials compatibility data and the chemistry of the fuel additive, that 50,000-mile durability data testing was not required. See Oxinal Waiver, 44 Fed.Reg. at 37,076 & n. 10. The EPA also noted that limited durability test data (one vehicle tested at the end of 20,000 miles) supported its conclusion. Id. at n. 11.\\nWhile we intimate no opinion as to the propriety of the EPA's conclusion that 50,-000-mile durability testing was not essential in these three waiver decisions, we find the EPA's bootstrap approach of relying on them to support a conclusion that 50,000-mile testing was likewise not required for Petrocoal extremely troubling. Not only were the TBA, MTBE, and Oxinal waiver decisions themselves predicated on a conclusion that 50,000-mile testing was unnecessary but this conclusion in each case was purportedly based on an evaluation of the materials compatibility data available on and the chemical composition of the particular fuel or fuel additive at issue. Out of the three, only Oxinal contained methanol, the principal alcohol in Petrocoal, and it contained only 2.75 percent by volume methanol whereas Petrocoal may contain up to 12 percent by volume methanol. We find this factor particularly telling given the well-recognized special concerns raised specifically with respect to the potential adverse deteriorative effects of using methanol/gasoline blend fuels. See generally J. Keller, G. Nakaguchi, & J. Ware, Final Report: Methanol Fuel Modification for Highway Vehicle Use, Prepared for U.S. Dep't of Energy (HCP/W3683-18) (July 1978).\\nIndeed, at the time the EPA granted the Petrocoal waiver, it had denied two previous waiver applications for methanol fuel additives. See Denial of Conservation Consultants of New England, Inc.'s (\\\"Conservation\\\") Application for a Fuel Additive Waiver, 45 Fed.Reg. 53,861 (1980); Denial of Beker Industries, Inc.'s (\\\"Beker\\\") Application for a Fuel Additive Waiver, 45 Fed. Reg. 26,122 (1980). Particularly relevant is the EPA's general characterization and recognition of the potential problems associated with methanol/gasoline blends set forth in the Beker decision:\\nTo summarize, the various data on methanol/gasoline mixtures are not encouraging. Generally such mixtures exhibit only slight effects on tailpipe exhaust emissions, but they generally appear to have appreciably greater evaporative emissions than gasoline. This is because of the higher volatility of fuels containing a significant amount (approximately 10%) of methanol. Methanol/gasoline mixtures are also more chemically active than gasoline because of the methanol. Thus, such mixtures may exhibit materials compatibility problems. Finally, driveability may be a problem at higher concentrations of methanol because of the increased oxygen content of the fuel____\\nThese observations on methanol/gasoline fuels, [sic] . are not intended as final judgments concerning methanol, but to highlight EPA's concerns about methanol/gasoline fuels[. A waiver request for such methanol/gasoline fuels] will have to be supported by sufficient data to overcome the existing data which suggest that methanol/g\\u00e1soline mixtures may cause or contribute to a failure of vehicles to comply with emission standards over their useful life.\\nBeker Waiver, 45 Fed.Reg. at 26,124.\\nIn the context of evaluating the Petrocoal waiver request, a technical report was prepared which reviewed the available literature on the compatibility effects of methanol/gasoline blends containing 10-15 percent methanol, with special attention to the beneficial effects of inhibitors and four-carbon (\\\"C-4\\\") alcohols in compensating for the adverse effects of methanol. See R. Garbe, Technical Report: A Review of the Compatibility of Methanol/Gasoline Blends with Motor Vehicle Fuel Systems (May 1981), reprinted in Brief for MVMA, Appendix I. While not purporting to represent the EPA's final position or to be based on the specific testing of Petrocoal, the report, nonetheless reached the following general conclusion based on a review of data available on methanol/gasoline blends: \\\"[T]here appears to be no available data, either in the published literature or supplied by [American Methyl], which would conclusively demonstrate that Petrocoal would be safe (from an emission control standpoint) to operate in currently available motor vehicles over long time periods.\\\" Id. at 4. The report recommended that emissions durability to 50,000 miles should be demonstrated. Id. In the Petrocoal waiver decision itself, although con- eluding 50,000-mile durability testing unnecessary, the EPA equivocated stating:\\nIn reviewing future waiver applications for fuel containing high percentages of methanol without the presence of cosolvents and special inhibitors some long-term durability testing may be [required].\\nPetrocoal Waiver, 46 Fed.Reg. at 48,977 (footnote omitted). The EPA further said that such a determination would have to be made on a case-by-case basis. Id. at n. 9.\\nAs the foregoing discussion of the three waiver decisions and the special concerns raised about methanol blends amply illustrates, the TBA, MTBE, and Oxinal w?.,er decisions can in no way be construed to provide a reasonable basis for the EPA's conclusion that Petrocoal \\u2014 a fuel containing up to 12 percent methanol\\u2014 would have only instantaneous, not deteriorative, effects. The presence of undisclosed special inhibitors and cosolvents in Petrocoal does not change this conclusion. The effectiveness of the additives at preventing any potential deteriorative effects resulting from the use of a methanol blend fuel similar to Petrocoal was neither at issue nor established by the three cited waiver decisions. Cf. infra p. 401 (discussing relevance of proprietary inhibitor with respect to materials compatibility).\\nIII. Analysis of the Test Data Submitted on Petrocoal\\nWe now turn to petitioners' challenges to the sufficiency of the emissions data which was submitted on Petrocoal and the reasonableness of the EPA's determination, based upon its evaluation of the data, that Petrocoal will not cause or contribute to a vehicle's failure to meet the applicable emission standards over its useful life.\\nA. Maximum Concentration Limits Are Not Supported in the Record\\nThe EPA- determined that American Methyl had met the burden established by section 211(f)(4) to qualify for a waiver \\\"provided the concentration of methanol in the finished fuel does not exceed 12 percent, by volume, the concentration of total alcohols in the fuel does not exceed 15 percent, by volume, the ratio of methanol to four-carbon alcohols in the finished fuel does not exceed 6.5 to 1 by volume____\\\" Petrocoal Waiver, 46 Fed.Reg. at 48,976. Petitioners, however, contend that the record is inconclusive as to whether this maximum concentration fuel was ever tested. See Brief for MVMA at 34. The EPA in its brief concedes that \\\"the record does not appear to support these limits,\\\" and asks the court for a remand in order to reconsider the appropriate limits. Brief for EPA at 15; see also id. at 16 (\\\"the record does not appear to support key elements of the waiver\\\"). While we agree with intervenor American Methyl's assertion that we are not bound by the EPA's concession but may make our own independent judgment as to whether the .concession is warranted, our own review has uncovered nothing which persuades us that the EPA's concession is unwarranted.\\nEmissions data on Petrocoal were provided from three sources. See Characterization Report \\u2014 Anafuel Unlimited, J.A. at 232, 233-34. American Methyl, in support of its waiver request for the use of Petrocoal, submitted back-to-back Federal Test Procedure (FTP) data on eight 1970 or later model year light duty vehicles. General Motors tested four 1980 or later model year vehicles using samples supplied by American Methyl containing 10 percent total alcohols. The EPA's Office of Mobile Source Air Pollution arranged for testing of four 1979 and later model year vehicles using samples supplied by American Methyl containing 13 percent total alcohols.\\nIt is uncontested that neither the fuel tested by GM nor by the EPA contained the maximum concentration limits of total alcohols or the maximum percentage ratio of methanol to C-4 alcohols allowed by the waiver. Whether the fuel tested by American Methyl contained the maximum concentrations is a matter of controversy. American Methyl's waiver application reported that the fuel it tested contained \\\"15% of [American Methyl's] proprietary oxygenated hydrocarbon.\\\" Anafuel Unlimited, Application for Waiver (Feb. 20, 1981), J.A. at 1, 6. No other information, such as the ratio of methanol to C-4 alcohols, is provided. GM in its comments raised the issue that American Methyl had informed GM that the additive contained non-alcohol as well as alcohol hydrocarbons, thus GM asserted that the fuel tested by American Methyl may have contained a total alcohol content of less than 15 percent. See Comments of General Motors Corporation on the Anafuel Unlimited Application for a Fuel Additive Waiver (July 6, 1981) (\\\"GM Comments\\\"), J.A. at 121, 124, 127, 132. This issue was not addressed in the Administrator's decision. The EPA now concedes that its \\\"conclusion that the Petrocoal samples tested by [American Methyl] contained 15% alcohol [citing the Characterization Report, J.A. at 234-35] might have been in error.\\\" Brief for EPA at 15 n. 21. We find no clear and unequivocal verification in the record that the fuel tested by American Methyl contained the maximum concentration levels or percentage ratio permitted by the waiver. Hence, as the EPA concedes, the record does not support the maximum limits allowed by the waiver. Moreover, the fact the \\\"worst case\\\" fuel might not have been tested casts' doubt on the confidence we may place in any of the test results on Petrocoal cited to support the waiver decision.\\nAmerican Methyl filed a supplemental brief in this case asserting that we should reject the EPA's concession that the record does not support the maximum alcohol limits and percentage ratio specified in the waiver because this court determined in American Methyl that this very concession was a \\\"make-weight\\\" and \\\"red herring.\\\" See Supplemental Brief for Intervenor American Methyl at 5-9. We find that the court's statements in American Methyl are limited to the context of that case and have no bearing on the validity of the EPA's representations regarding the state of the record evidence supporting the original waiver decision for Petrocoal.\\nIn American Methyl, this court held that the EPA had no inherent authority to re consider or revoke a waiver under section 211(f)(4) but must instead proceed to prohibit or regulate the fuel under section 211(c). American Methyl, 749 F.2d at 831. The court explicitly stated that the issue of the validity of the original waiver was not before the court. Id. at 837.. In American Methyl, the EPA conceded that it could not revoke a waiver under section 211(f)(4) if correctly granted, but argued that it could revoke a waiver under section 211(f)(4) if, upon re-examination, the record was found insufficient to support the waiver. Id. Accordingly, the EPA asserted that the Petrocoal waiver was not correctly granted initially because the maximum alcohol levels and percentage ratio were not supported in the record. The court determined, however, that the EPA's actions and the chronology of events leading up to the proposed revocation demonstrated that the EPA's real impetus for initiating the proposed revocation was new evidence relating to Petrocoal's effect on evaporative emissions of hydrocarbons and not any purported defects in the original waiver. Id. The court then went on to characterize the EPA's assertion of deficiencies in the record supporting the original waiver grant as \\\"makeweights\\\" and \\\"red herrings.\\\" Id. at 837-38. Contrary to American Methyl's contention, however, the court characterized the EPA's claims that it sought revocation due to the incorrectness of the original waiver as \\\"make-weights\\\" and \\\"red herrings,\\\" not because the claims per se lacked merit, but because they lacked merit as purported reasons for the proposed revocation proceeding.\\nThe court's purpose in discussing the relevant issues in American Methyl was to demonstrate that since the proposed revocation was motivated by new evidence, not past error, the revocation would be unwarranted even on the EPA's own view of the statute. Id. at 838 (\\\"EPA's primary reason for revoking American Methyl's waiver does not relate to a defect in the original grant; thus under the EPA's own interpretation of its powers, a revocation proceeding is not warranted in this case.\\\"). This finding was clearly not essential to the court's decision, since the court held that the EPA had no authority to revoke a waiver pursuant to section 211(f) regardless of whether or not the waiver was correctly granted in the first instance. In sum, we find that the dicta in American Methyl cited by intervenor American Methyl has no bearing on our evaluation of whether the maximum alcohol levels and percentage ratio specified in the Petrocoal waiver are supported by the record.\\nB. Petrocoal Failed the Deteriorated Emissions Test for NOx Emissions\\nHaving determined that Petrocoal was expected to have an instantaneous effect on emissions, the EPA analyzed the emissions data on Petrocoal using the Paired Difference Test, the Sign of the Difference Test, and the Deteriorated Emissions Test. See supra note 9. All three tests examine the emissions effect of the waiver fuel with respect to the following pollutants: hydrocarbon (HC), carbon monoxide (CO), and oxides of nitrogen (NOx). The EPA reported the test results on the combined data from the eight vehicles tested by American Methyl, the four vehicles tested by GM, and the four vehicles tested by the EPA.\\nAs discussed earlier, the Deteriorated Emissions .Test is the test used in lieu of 50,000-mile durability data to determine whether the waiver fuel will cause a vehicle to fail to meet the applicable emission standards over its useful life. See supra note 11 (describing test). The number of vehicles whose projected 50,000-mile emission values exceeded the applicable emission standards using Petrocoal were:\\nHC .1 out of 16\\nCO...............1 out of 16\\nNOx .2 out of 16\\nPetrocoal Waiver, 46 Fed.Reg. at 48,978. The Deteriorated Emissions Test is designed to provide a 90 percent probability of failure of the test if 25 percent or more of the vehicle fleet tested would fail to meet emission standards using the waiver fuel or fuel additive. Id. For a sample of 16, as here, the failure of two or more vehicles to meet the emission standards constitutes a failure of the test. Id. at 48,979. Thus, Petrocoal failed the Deteriorated Emissions Test for Nox emissions.\\nThe Administrator acknowledged Petrocoal's failure for NOx emissions but nevertheless granted the waiver stating:\\nIn this case, Petrocoal just fails (by one vehicle) this Test for NOx. Nevertheless, because the failure was borderline, i.e., small changes to the test criteria would result in a pass, coupled with the small increase in NOx emissions found in Test 1, I conclude that this problem is not significant enough to warrant a disapproval of the waiver request. In reaching this conclusion, I considered all the information before me including the EEA report submitted by Anafuel.\\nId. Hence, although the EPA has established specific statistical criteria for determining whether a fuel will cause a vehicle to exceed emission standards, the Administrator determined that it was appropriate to deviate from those criteria and grant a waiver for Petrocoal despite its clear failure of the Deteriorated Emissions Test for Nox emissions. As far as we know, based on the information supplied by the parties and our own research, the EPA has never before granted a waiver in spite of a fuel's failure to pass the Deteriorated Emissions Test. Indeed, given the straightforward nature of the Deteriorated Emissions Test coupled with the fact that the test itself is conducted in lieu of actual 50,000-mile durability data, based on the a priori assumption that the fuel will have only an instantaneous effect, we find it difficult to conceive of any circumstances which would justify deviating from the established criteria. While we do not totally reject the possibility that the Administrator might in some other instance be able to articulate a reasoned explanation for deviating from the established criteria, she certainly has not done so in this case. At oral argument, even the EPA, while arguing that the Administrator could deviate from the established criteria given a reasoned explanation, conceded that the Administrator gave no such reasoned explanation in this case.\\nThe EPA's criteria provide specific cutoff points based on sample size for determining whether a fuel will cause a vehicle to exceed emission standards for each pollutant. The fact that Petrocoal failed for NOx emissions on the basis of the minimum number of vehicles constituting a failure (i.e., 2 out of 16) and thus \\\"small changes to the test criteria would result in a pass,\\\" id., does not in our view provide any reasoned explanation for why this failure \\u2014 albeit marginal \\u2014 should not be regarded as a failure. There is no question that if the test criteria were changed, Petrocoal could pass the test. The question is why a special exception should be made to accommodate Petrocoal's failure under the established test criteria. Equally unavailing is the Administrator's notation that the Paired Difference Test indicated only a small increase in NOx emissions. The point of the Deteriorated Emissions Test is to project, in the absence of actual 50,000-mile durability data indicating the emissions d\\u00e9gradation resulting over the vehicle's useful life, whether the identified increase due to the use of Petrocoal will cause the vehicle to exceed emission standards at any point during its useful life. In sum, we find that the Administrator has failed to articulate any plausible reason why the established test criteria do not accurately reflect the emissions effects due to Petrocoal.\\nThe EPA may not grant a section 211(f)(4) waiver unless the applicant has established that the fuel will not cause or contribute to the failure of any emission control device to achieve compliance with emission standards over the useful life of the vehicle. See supra p. 390. The EPA's alcohol-gasoline waiver guidelines expressly state: \\\"Where the potential for such harm is evidenced, the applicant has the burden of proving that such harm will not occur.\\\" Guidelines for Section 211(f)(4) Waivers for Alcohol-Gasoline Blends, 43 Fed.Reg. at 24,132. Certainly, Petrocoal's failure for NOx emissions indicates a potential for harmful emission effects absent some reasoned explanation to the contrary. The Administrator may not simply subjectively without a reasoned explanation conclude that a failure of the EPA's established criteria is not significant. Section 211(f)(4) speaks in terms of \\\"a failure\\\" to achieve compliance with the emission standards. We find nothing in the Act or its legislative history to support the Administrator's added gloss that the relevant question is whether the fuel will cause or contribute to a \\\"significant failure.\\\" See Petrocoal Waiver, 46 Fed.Reg. at 48,977. We conclude that on the record in this case the Administrator acted arbitrarily, capriciously, and abused her discretion in granting the Petrocoal waiver despite Petrocoal's failure of the Deteriorated Emissions Test for NOx emissions.\\nC. Evaporative Emissions\\nThe petitioners also contend that the Administrator's conclusion that the increased evaporative emissions caused by Petrocoal could be controlled by controlling the volatility of the blended fuel was arbitrary and capricious. See Brief for MVMA at 45. The Administrator, in the Petrocoal waiver decision, stated that the relationship between fuel volatility characteristics (primarily the Front End Volatility Index (FEVI)) and evaporative emissions had been clearly established for fuels composed entirely of hydrocarbon components and had been demonstrated to apply for fuels containing \\\"some relatively small percentages of the oxygenated hydrocarbons\\\" TBA, MTBE and Oxinal. Petrocoal Waiver, 46 Fed.Reg. at 48,977. Although noting that the data available on Petrocoal at the higher percentages of alcohol was incomplete, the Administrator concluded that the relationship between fuel volatility and evaporative emissions appeared to hold for Petrocoal based on the data in the record with respect to Petrocoal's FEVI and evaporative emissions.\\nThe Administrator in past waiver decisions has consistently relied on the assumption that fuel volatility restrictions will adequately control evaporative emission increases; generally, however, the assumption has been supported by at least some confirmatory test data on the fuel at issue. See, e.g., Oxinal Waiver, 44 Fed.Reg. at 87,076; MTBE Waiver, 44 Fed.Reg. at 12,245; TBA Waiver, 44 Fed.Reg. at 10,532. While we harbor some doubts as to the wisdom of the Administrator's application of this assumption in the specific case of Petrocoal with its higher methanol, total alcohol, and oxygen content, we decline to find the Administrator's action arbitrary and capricious. The data cited by MVMA indicating that controlling volatility will not solve the evaporative emissions problem caused by Petrocoal was submitted as a supplement to MVMA's petition for administrative reconsideration. See Brief for MVMA at 48 & n. 38. While this new data may indicate that the Administrator's reliance on the assumed relationship between fuel volatility and evaporative emissions was in error, this evidence was not in the record at the time the waiver was granted, and thus we will not rely on it to undercut the Administrator's conclusions on review. See American Petroleum Inst. v. Costle, 665 F.2d 1176, 1186 n. 3 (D.C.Cir.1981), cert. denied, 455 U.S. 1034, 102 S.Ct. 1737, 72 L.Ed.2d 152 (1982).\\nD. Materials Compatibility and Driveability\\nFinally, petitioners argue that the Administrator erred in concluding that Petrocoal does not present materials compatibility or driveability problems. See Brief for MVMA at 49-56. The Administrator observes in the Petrocoal waiver decision that both materials compatibility and driveability are important criteria in evaluating a waiver request. See Petrocoal Waiver, 46 Fed.Reg. at 48,977. \\\"Materials incompatibility can contribute or cause the failure of vehicles to meet either their exhaust or evaporative emission standards . because a fuel . may cause changes in the components in carburetors or fuel systems which exceed the tolerances specified by the manufacturer.\\\" Id. \\\"Driveability information is important because poor driveability can directly result in increased emissions due to constant misfires and repeat\\u00e9d stalling, and possibly lead to tampering with the emission controls of the vehicle.\\\" Id. The Administrator concluded that based on the information developed in the record that Petrocoal presented neither materials compatibility problems nor significant driveability problems affecting emissions.\\nSince we have already found on the basis of petitioners' other challenges that the Administrator acted arbitrarily, capriciously, and abused her discretion in granting the Petrocoal waiver, we find it unnecessary to determine expressly whether the Administrator also acted arbitrarily and capriciously in concluding that Petrocoal resulted in no significant materials compatibility or driveability problems. We are compelled, however, to express our doubts about the adequacy of the Administrator's findings with respect to materials compatibility problems. The EPA, itself, has recognized that materials compatibility is a particularly salient concern with methanol blends. See supra p. 394. Yet, the record data on materials compatibility problems associated with Petrocoal is rendered suspect by the lack of any unequivocal evidence that the effects of the \\\"worst case\\\" fuel allowed by the waiver were ever tested. See supra p. 397. Nor do we find the mere presence in Petrocoal of a proprietary inhibitor, which purportedly inhibits materials compatibility problems, a sufficient basis for concluding that materials compatibility will not be a problem in the absence of data supporting the actual effectiveness of the inhibitor.\\nIV. Conclusion\\nFor the foregoing reasons, we find that the Administrator acted arbitrarily, capriciously, and abused her discretion in granting the Petrocoal waiver. We have addressed the EPA's and American Methyl's principal arguments in support of the waiver; any arguments not specifically addressed herein were duly considered and found unpersuasive. Accordingly, we vacate the Administrator's decision granting a waiver for Petrocoal, and remand to the EP\\u00c1 for further proceedings consistent with this decision. While we doubt that it is possible for the Administrator to make a reasoned decision to grant the Petrocoal waiver on the basis of the existing record, we, nonetheless, remand to the agency to make this determination. Should the Administrator conclude that the existing record does not contain sufficient data to support a section 211(f)(4) waiver for Petrocoal, American Methyl remains free to rehabilitate the administrative record by reapplying for a waiver with additional data on the emission effects of Petrocoal.\\nIt is so ordered.\\n. The Motor Vehicle Manufacturers Association of the United States, Inc. (\\\"MVMA\\\"), American Motors Corporation, Chrysler Corporation, General Motors Corporation (\\\"GM\\\" or \\\"General Motors\\\") and Volkswagen of America, Inc. are jointly prosecuting the petition for review in No. 81-2276. General Motors is the petitioner in the consolidated action. No. 81-2279. MVMA is a trade association of automobile manufacturers. The petitioners are collectively referred to in this opinion as \\\"petitioners\\\" or \\\"MVMA.\\\" Atlantic Richfield Company (\\\"ARCO\\\") and Automobile Importers of America, Inc. (\\\"AIA\\\") filed amici curiae briefs in support of the petitioners.\\n. American Methyl Corporation is an intervenor in this case on the side of the EPA. At the time of the waiver decision and up until June 30, 1982, American Methyl was incorporated under the name Anafuel Unlimited. We refer to the corporation by its current name, American Methyl.\\n. \\\"Certification\\\" refers to the process of testing and issuance of a certificate of conformity required by section 206(a) of the Act, 42 U.S.C. \\u00a7 7525(a), whereby manufacturers must demonstrate, under carefully controlled procedures, that their vehicles, or any engine or emission control system incorporated therein, conform with the applicable emissions standards prescribed in 42 U.S.C. \\u00a7 7521.\\n.Intervenor American Methyl argues that the provision that a waiver is automatically granted if the Administrator fails to act within 180 days indicates that Congress intended a lenient burden of proof under section 211(f)(4) and that we should accord special deference to the Administrator's decision. See Brief for American Methyl at 25, 27-29. Section 211(f)(4), however, establishes a clear burden on the waiver applicant to establish that the new fuel will not cause or contribute to the failure of any emission control device to achieve compliance with emission standards over the useful life of a vehicle. See infra pp. 390-91. Neither the Act nor its legislative history indicates how Congress intended us to reconcile the clear burden placed on the waiver applicant to qualify for a waiver grant and the automatic granting of a waiver in the absence of action by the Administrator within 180 days. We find it most plausible to construe the 180-day limitation as a means of ensuring prompt administrative action on waiver applications; hence, we reject American Methyl's assertion that it has any bearing on the applicant's burden of proof. We also note that the 180-day period in no way limits the time an applicant has to conduct tests and compile the necessary information to qualify for a waiver prior to filing an application.\\n. The waiver was actually signed by the Acting Administrator John W. Hernandez not the then current Administrator Anne M. Gorsuch. For ease of reference we will refer to the Administrator on whose behalf the waiver was granted.\\n. Intervenor American Methyl argues that section 307(d)(9), 42 U.S.C. \\u00a7 7607(d)(9), governs our review in this case, whereas MVMA argues that the Administrative Procedure Act, 5 U.S.C. \\u00a7 706, governs. While not expressly addressing the issue, this court in American Methyl, 749 F.2d at 833, apparently construed section 307(d)(9) of the Clean Air Act to govern review of the EPA's actions pursuant to section 211(f). We find it unnecessary to decide this issue here since the standard we apply (i.e., whether the EPA's actions were in excess of statutory authority or arbitrary and capricious) is the same under either Act. See Small Refiners Lead Phase-Down Task Force v. EPA, 705 F.2d 506, 519 (D.C.Cir.1983) (the standard for substantive judicial review under the Clean Air Act is taken directly from the Administrative Procedure Act).\\nThe scope of our review under the arbitrary and capricious standard is well established. We must engage in a \\\"searching and careful\\\" review of both the facts and the agency's reasoning to ensure that the agency's decision was a product of reasoned decisionmaking based upon a consideration of the relevant factors. Id. at 520 (citing Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 823, 28 L.Ed.2d 136 (1971); Ethyl Corp. v. EPA, 541 F.2d 1, 35 (D.C.Cir.) (en banc), cert. denied, 426 U.S. 941, 96 S.Ct. 2662, 49 L.Ed.2d 394 (1976)); see also Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 2867, 77 L.Ed.2d 443 (1983) (Agency must \\\"articulate a satisfactory explanation for its action including a 'rational connection between the facts found and the choice made.' \\\" (quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168, 83 S.Ct. 239, 246, 9 L.Ed.2d 207 (1962)).\\n. The Senate Committee in 1977 received testimony that a certain fuel additive, MMT, \\\"was impairing the performance of emission control systems and increasing hydrocarbon emissions in test vehicles.\\\" S.Rep. No. 127, 95th Cong., 1st Sess. 90 (1977). The Committee was concerned that existing section 211(c), which allows the Administrator to control or prohibit fuels by regulation, could not adequately protect emissions systems currently in use from the possible deterioration caused by MMT, or other new fuels or additives, due to the delay associated with the procedural safeguards required in section 211(c) proceedings. Id. As a result, the Committee proposed and Congress ultimately enacted section 211(f) banning new fuels or fuel additives not substantially similar to those utilized in the certification of any 1975 or later model year vehicle or engine. The Senate Committee proposed including the waiver provision found in section 211(f)(4) because \\\"(t]he committee was concerned with the increased use of crude oil that would be necessitated by the prohibition in use of MMT or other octane raising agents, and the smaller refineries that would be adversely affected by these provisions when lead phase-down requirements were taken into account.\\\" Id. at 91.\\n. Conducting 50,000-mile durability testing involves operating a matched set of vehicles for 50,000 miles and performing emissions tests on each vehicle at 5,000-mile intervals. This is essentially the same testing method required of automobile manufacturers to obtain new motor vehicle certification under section 206 of the Act. See Petrocoal Waiver, 46 Fed.Reg. at 48,976 n. 7; see also supra note 3 (defining \\\"certification\\\").\\n. If a fuel is predicted to have only an instantaneous effect on emissions then the fuel is predicted to cause an immediate, incremental shift in the emission levels relative to a base fuel and this shift is predicted to remain constant throughout the useful life of the vehicle. \\\"Back-to-back\\\" emission testing is considered by the EPA to be sufficient where only instantaneous effects are predicted. Back-to-back emission testing refers to the testing of a vehicle on a base fuel, then testing the same vehicle on the waiver fuel. The difference in emission levels is attributed to the waiver fuel. The EPA uses three statistical tests to evaluate the emission data provided with respect to a fuel expected to have an instantaneous emission effect: (1) the Paired Difference Test which determines the mean difference in emissions between the base fuel and the waiver fuel; (2) the Sign of the Difference Test which assesses the number of vehicles exhibiting an increase or decrease in emissions; and (3) the Deteriorated Emissions Test which indicates whether the waiver fuel will cause or contribute to a failure to meet emission standards by comparing deteriorated emissions with the emission standards in lieu of actually having 50,000-mile emission data. See Petrocoal Waiver, 46 Fed.Reg. at 48,976 & Appendix A (describing statistical tests).\\n. Specifically the passage relied upon by the EPA states:\\nThe conferees also intend that the words \\\"cause or contribute to the failure of an emission control device or system to meet emission standards over its useful life to which it has been certified pursuant to section 206\\\" mean, the noncompliance of an engine or device with emission levels to which it was certified, taking into account the deterioration factors employed in certifying the engine.\\nH.R.Conf.Rep. No. 564, 95th Cong., 1st Sess. 161 (1977), U.S.Code Cong. & Admin.News 1977, p. 1542.\\nThe EPA further contends that the term \\\"deterioration factors\\\" was drawn directly from the EPA's regulations, and refers to the manufacturer's projection of the amount of emissions degradation expected over a vehicle's useful life. See Brief for EPA at 13 (citing 40 C.F.R. \\u00a7 86.082-28(a)).\\n. Specifically the Deteriorated Emissions Test takes account of the deterioration factor or amount of projected emissions degradation over the vehicle's 50,000-mile useful life as follows:\\nFor each vehicle, the effect the waiver fuel or fuel additive had on emissions is determined. This incremental effect, either positive or negative, is added to the 50,000-mile certification emission value of the certification emission vehicle which the test vehicle represented. This incremental 50,000-mile emission value is compared to emission standards to determine if it did or did not exceed the standards. Either a pass or fail is assigned accordingly. The pass/fail results are analyzed using a one-sided sign test.\\nPetrocoal Waiver, 46 Fed.Reg. at 48,978.\\n.We note that there are exceptions to the 50,000-mile testing requirement with respect to vehicle certification pursuant to section 206 of the Act. See 40 C.F.R. \\u00a7 86.081-13 (1984) (alternate durability program); id. \\u00a7 86.082-14 (1984) (exception for small volume manufacturers).\\n. Given our conclusion in this case that the Administrator lacked a rational basis for determining that Petrocoal will not cause a vehicle to fail to comply with emission standards over its useful life, we find it unnecessary to speculate about the precise circumstances in which the EPA might permissibly conclude that a waiver could be granted on the basis of back-to-back testing in the absence of any 50,000-mile durability data.\\n. Materials compatibility testing refers to testing conducted to determine the potential deteriorative effects of a fuel or fuel additive on the materials used in fuel and emission control systems.\\n. We note that in determining that 50,000-mile durability testing was not essential to the Petrocoal waiver, the EPA did not similarly purport to rely on an evaluation of the materials compatibility data available with respect to Petrocoal. Given the Administrator's departure from the established practice of citing to the materials compatibility data on the fuel at issue and the nature of the materials compatibility data on Petrocoal, see infra section III-D, we decline to infer that the Administrator relied on this data in concluding that 50,000-mile durability testing was unnecessary. See infra note 20.\\n. Petrocoal also has an oxygen content of between 7 and I'A percent which is considerably greater than that of other fuels for which the EPA has granted section 211(f)(4) waivers (e.g., the Oxinol waiver was conditioned on a maximum allowable oxygen content of 2 percent). The EPA has specifically recognized in a prior waiver decision that:\\n[DJriveability may be a problem at higher concentrations of methanol because of the increased oxygen content of the fuel. As oxygen content increases, the air/fuel ratio shifts outside the design specifications (enleanment).\\nDenial of Beker Industries, Inc.'s Application for a Fuel Additive Waiver, 45 Fed.Reg. 26,122, 26,134 (1980). The EPA has also noted \\\"[e]xperience with other waivers [has] demonstrated that increases in emissions, particularly oxides of nitrogen and evaporative hydrocarbons, were proportional to oxygen content.\\\" See Grant of Application for a Fuel Waiver Submitted by Atlantic Richfield Company (ARCO) \\u2014 Decision of the Administrator, at 6 (Nov. 7, 1981) (granting waiver for a methanol blend fuel provided that the maximum oxygen content allowable is 3.5 percent), reprinted in Brief for MVMA, Appendix N.\\n.We note that in July 1983, the EPA issued a notice in the Federal Register announcing that it would hold a public workshop on methanol/unleaded gasoline blends with the purpose of help ing the EPA to \\\"assess the meaning of existing data and to better understand the concerns that may exist regarding the use of such blends and the basis for these concerns.\\\" See 48 Fed.Reg. 32,075 (1983).\\n. Beker requested a waiver for crude methanol in unleaded gasoline from 0 to 15 percent by volume. Conservation requested a waiver for a one-to-one mixture of methanol and ethanol at 10 percent by volume (i.e., 5 percent methanol and 5 percent ethanol) to be blended with 90 percent, by volume, unleaded gasoline. While in both decisions, the EPA did state generally that \\\"[e]xperience with other oxygenated hydrocarbon additives leads EPA to believe that [the mixture at issue] would probably have an instantaneous effect [on emissions],\\\" it gave no citation to any other waiver decision or supporting data. See Conservation Waiver, 45 Fed.Reg. at 53,862 n. 3; Beker Waiver, 45 Fed.Reg. at 26,123 n. 2. Moreover, the EPA qualified this conclusion in both decisions stating: 'The . mixture may also exhibit long-term deteriorative effects on fuel system components. Therefore any future waiver application should be supported with materials compatibility testing.\\\" Id. Both applications were denied on the ground that the applicant failed to submit sufficient data to establish that the methanol/gasoline blend would not cause or contribute to a vehicle's failure to meet emission standards over its useful life.\\n. American Methyl argues that this court has previously stated that it would uphold an EPA decision setting a numerical standard so long as the standard selected was within a \\\"zone of reasonableness\\\" and was properly explained. See Brief for American Methyl at 51 (citing Small Refiners, 705 F.2d at 525). We find this argument unpersuasive. First, the maximum concentration levels set by the EPA were not properly explained in this case. Second, the EPA's guidelines for section 211(f)(4) waivers for alcohol-gasoline blends specifically state:\\n[EJmissions performance may be critically dependent upon its concentration in use. Data submitted should encompass the range of concentrations intended for use. No attempt by i EPA to extrapolate data to a permissible concentration level is contemplated.\\nGuidelines for Section 211(f) Waivers for Alcohol-Gasoline Blends, 43 Fed.Reg. 24,131, 24,132 (1978).\\n. Intervenor American Methyl attempts in its brief to rationalize the Administrator's decision by providing reasons and analysis not stated in the decision. See, e.g., Brief for American Methyl at 50-55. American Methyl argues that although the Administrator may not have fully articulated her path of analysis, the court may uphold the agency if that path can reasonably be discerned from the record. See id. at 53 (citing Bowman Trans., Inc. v. Arkansas-Best Freight Sys., Inc., 419 U.S. 281, 286, 95 S.Ct. 438, 442, 42 L.Ed.2d 447 (1974); Small Refiners, 705 F.2d at 533-34). While this court may indeed adopt such a course of action in appropriate cases, this is not one. The evidence in the record and the Administrator's decision are simply not of the nature which would warrant this court attributing to the Administrator reasons not even hinted at in the decision. In Small Refiners, 705 F.2d at 533-34, we recognized the settled rule that neither the courts nor counsel may provide new or substitute reasons for the agency's action; we, however, noted:\\n[T]his is not a case where EPA failed to give any reasons or gave unsupported reasons for its belief---- Rather, EPA merely failed to articulate its reasons in any detail____\\nId.\\n. We note that even if American Methyl's blend did contain the maximum concentrations permitted by the waiver, its emissions data standing alone would have counseled denial of the waiver. When the Deteriorated Emissions Test was applied to the data submitted on the eight vehicles tested by American Methyl, Petrocoal failed the test for both tailpipe hydrocarbons and oxides of nitrogen. Characterization Report, J.A. at 240; see infra section III-B.\\n. In its notice soliciting comments on whether to reconsider the Petrocoal waiver, the EPA stated that\\ninformation indicates that the fuel tested by the applicant and provided by the applicant to the Agency and to General Motors Corporation for testing, may not have been the fuel described in the waiver request.\\n48 Fed.Reg. 19,779, 19,780 (1983). In its notice of proposed revocation, the EPA concluded:\\nThus, the total alcohol, in one case might have reached 15% but some ambiguity still remains. It appears clear, however, that the highest ratio of methanol to butanol was 4.5 to 1, not 6.5 to 1.\\n49 Fed.Reg. 11,879, 11,884 (1984).\\n. The EPA further indicates that the Deteriorated Emissions Test is especially useful because it measures the emissions effect of the waiver fuel with respect to each vehicle:\\nIt is useful to perform this analysis even if the first two analyses indicate the waiver fuel or fuel additive has no adverse effect. The analysis indicates whether the emissions from any particular type of vehicles or special emission control technologies are uniquely sensitive to the waiver fuel or fuel additive, thus causing vehicles to fail to meet emission standards. This effect could be masked in the previous analyses which consider the emissions results as a group without distinguishing the emissions impact on subgroups.\\nPetrocoal Waiver, 46 Fed.Reg. at 48,978.\\n. This is especially true in the present case where at least half the sample of vehicles tested, and possibly all, were not tested on the \\\"worst case\\\" fuel allowed by the waiver. See supra p. 397.\\n. The Administrator further stated that she considered all the information before her including \\\"the EEA Report\\\" submitted by American Methyl. Petrocoal Waiver, 46 Fed.Reg. at 48,978. The \\\"EEA Report\\\" cited is a report prepared for American Methyl by Energy and Environmental Analysis (\\\"EEA\\\"). EEA, utilizing its own methodology, concluded that Petrocoal satisfied the waiver conditions related to its impact on tailpipe emissions. See Energy and Environmental Analysis, Analysis of Emissions Data from Vehicles Tested with Petrocoal (Sept. 8, 1981), J.A. at 161, 163. In choosing to apply a different statistical test to evaluate the emissions data on Petrocoal, the EEA stated:\\nThe small sample of cars tested, the variation in baseline fuels and Petrocoal blends used, and the differences in emission control technologies within the sample of cars tested are factors that detract from the significance of EPA's analysis. In addition, EPA's Deteriorated Emissions Test is of questionable validity, since it judges compliance with emission standards by adding the incremental emissions (between vehicles fueled with baseline fuel and Petrocoal) obtained from tests on production cars to emissions prototype certification cars fueled with Indolene. A more statistically and technically valid test is to add average incremental emissions for the test fleet to the average emissions for equivalent certification cars . and check for compliance with the standard.\\nId. at 163. Whatever the merits of the EEA's conclusions, the Administrator's mere statement that she considered the report does not constitute a reasoned explanation of what factors or circumstances the Administrator relied on as justification for her deviation from the established criteria in the case of Petrocoal. Indeed, the EEA Report may be viewed as casting doubt on the reliability and sufficiency of the emissions data available on Petrocoal as well as questioning the per se validity of the EPA's Deteriorated Emissions Test.\\n. We likewise find it unnecessary to address petitioners' contentions that the Administrator erred by failing to consider the phase separation problems associated with Petrocoal.\\n. We note that the Administrator's decision does refer to the materials compatibility data submitted by American Methyl. The Administrator states:\\n[American Methyl] performed immersion tests on several metallic parts and elastomeric parts commonly found in carburetors and full systems. The results from [American Methyl's] testing indicated that the corrosion of metallic parts due to Petrocoal would be no worse than that of gasoline. The results for \\u2022the elastomeric parts indicated that while some components changed in characteristics such changes were not significantly different than those with gasoline.\\nPetrocoal Waiver, 46 Fed.Reg. at 48,977. Comments from GM, however, pointed out not only that it was unclear whether any tests had been run using the \\\"worst case\\\" fuel permitted but also several other shortcomings in the tests. According to GM, American Methyl erred in identifying certain materials used in some fuel system components and conducted all of its tests at room temperature despite the recognized fact that temperature can be a factor in the corrosion of metals. GM Comments, J.A. at 145-46. GM conducted its own materials compatibility testing with Petrocoal and concluded:\\nThese short-term laboratory tests have indicated that Petrocoal should not cause rapid, catastrophic failures of the elastomers which were tested. However, they do suggest that there is a potential for problems related to the large volume swell of nitrile rubber.\\nId. at 144 (emphasis in original). GM further noted that it believed its Petrocoal contained a 2:1 ratio of methanol to butyl alcohols and that a higher ratio \\\"could be more detrimental in certain areas such as evaporative emissions and materials compatibility.\\\" Id. at 147. The Administrator fails to address any of these concerns.\\n. Contrary to American Methyl's contentions, nothing in our decision in American Methyl or in section 211(f)(5), 42 U.S.C. \\u00a7 7545(f)(5), prohibiting a stay of the EPA's action under section 211(f) pending judicial review precludes us from remanding this proceeding to the EPA.\"}"

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+"{\"id\": \"3601988\", \"name\": \"ALABAMA POWER COMPANY, Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents, Texas Power & Light Company, Georgia Power Company, et al., Mississippi Power & Light Company, Group W Cable, Inc., Intervenors\", \"name_abbreviation\": \"Alabama Power Co. v. Federal Communications Commission\", \"decision_date\": \"1985-09-24\", \"docket_number\": \"No. 83-2191\", \"first_page\": \"99\", \"last_page\": \"109\", \"citations\": \"249 U.S. App. D.C. 99\", \"volume\": \"249\", \"reporter\": \"United States Court of Appeals for the District of Columbia Circuit\", \"court\": \"United States Court of Appeals for the District of Columbia Circuit\", \"jurisdiction\": \"District of Columbia\", \"last_updated\": \"2021-08-10T22:43:43.071625+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before BORK and SCALIA, Circuit Judges, and HOGAN, District Judge.\", \"parties\": \"ALABAMA POWER COMPANY, Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents, Texas Power & Light Company, Georgia Power Company, et al., Mississippi Power & Light Company, Group W Cable, Inc., Intervenors.\", \"head_matter\": \"773 F.2d 362\\nALABAMA POWER COMPANY, Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents, Texas Power & Light Company, Georgia Power Company, et al., Mississippi Power & Light Company, Group W Cable, Inc., Intervenors.\\nNo. 83-2191.\\nUnited States Court of Appeals, District of Columbia Circuit.\\nArgued Sept. 27, 1984.\\nDecided Sept. 24, 1985.\\nSamuel Eason Balch, Jr., Birmingham, Ala., of the bar of the Supreme Court of Alabama, pro hac vice, by special leave of the Court and Daniel J. Wright, with whom Peyton G. Bowman, III, Washington, D.C., were on brief, for petitioner and intervenors, Texas Power & Light Co., et al.\\nGregory M. Christopher, Counsel, F.C.C., Washington, D.C., with whom J. Paul McGrath, Asst. Atty. Gen., Dept, of Justice, Bruce E. Fein, Gen. Counsel, Daniel M. Armstrong, Associate Gen. Counsel, F.C.C., Barry B. Grossman and George Edelstein, Attys., Dept, of Justice, Washington, D.C., were on brief, for respondents. Jane E. Mago, Atty., F.C.C., and George Edelstein, Atty., Dept, of Justice, Washington, D.C., also entered an appearance for respondents.\\nPaul Glist, Washington, D.C., with whom Gardner F. Gillespie, Washington, D.C., was on brief, for intervenor Group W Cable, Inc. Jay E. Ricks and Ann D. Jordan, Washington, D.C., also entered appearances for Group W Cable, Inc.\\nJohn R. Molm, Robert P. Edwards, Jr. and E. William Henry, Atlanta, Ga., were on brief for intervenors, Georgia Power Co., et al.\\nBefore BORK and SCALIA, Circuit Judges, and HOGAN, District Judge.\\nOpinion for the Court filed by Circuit Judge BORK.\\nOf the' United States District Court for the District of Columbia, sitting by designation pursuant to 28 U.S.C. \\u00a7 292(a).\", \"word_count\": \"5806\", \"char_count\": \"36335\", \"text\": \"BORK, Circuit Judge.\\nAlabama Power Company petitions for review of a determination by the Federal Communications Commission that the pole attachment rates it had been charging Group W Cable, Inc. were higher than the maximum permitted by the Pole Attachment Act, 47 U.S.C. \\u00a7 224 (1982). Because we find that the Commission did not fairly and accurately calculate the maximum allowable rate, we vacate its order and remand to the Commission for further proceedings consistent with this opinion.\\nI.\\nA.\\nIt has been the general practice of the cable television industry since its inception to lease space on existing distribution poles owned by electric utilities and telephone companies in order to attach its coaxial cables and related equipment. Cable operators typically enter into leasing agreements with the company owning the pole providing for the payment of a periodic fee plus reimbursement for all additional pole costs made necessary by the cable attachments. Concern over the ability of utilities and telephone companies to extract monopoly profits from cable operators in need of pole space led Congress, in 1978, to enact the Pole Attachment Act, Pub.L. No. 95-234, \\u00a7 6, 92 Stat. 33, 35 (codified as amended at 47 U.S.C. \\u00a7 224 (1982)), conferring jurisdiction on the FCC to:\\nregulate the rates, terms, and conditions for pole attachments to provide that such rates, terms, and conditions are just and reasonable, and . adopt procedures necessary and appropriate to hear and resolve complaints concerning such rates, terms, and conditions.\\n47 U.S.C. \\u00a7 224(b)(1). A rate would be considered just and reasonable if it:\\nassure[d] a utility the recovery of not less than the additional costs of providing pole attachments, nor more than an amount determined by multiplying the percentage of the total usable space . which is occupied by the pole attachment by the sum of the operating expenses and actual capital costs of the utility attributable to the entire pole____\\n47 U.S.C. \\u00a7 224(d)(1). It is the task of the Commission, therefore, to ensure that the pole attachment rates charged cable operators do not fall below the statutory minimum \\u2014 incremental costs \\u2014 or above the statutory maximum \\u2014 fully allocated costs.\\nFollowing passage of the Pole Attachment Act, the FCC instituted a complaint procedure that \\\"focuses on the upper end of the zone of reasonableness.\\\" Brief for Respondents at 6. To calculate fully allocated costs, the Commission has adopted the following formulaic representation of the statutory definition:\\nTeleprompter Corp. v. Alabama Power Co., Mimeo No. 1808 (released June 29, 1981) (\\\"Bureau Order\\\") at 2, Joint Appendix (\\\"J.A.\\\") at 152; see also 47 C.F.R. \\u00a7 1.1409 (1984). In practice, however, the Commission first determines the net cost of the pole, then multiplies that amount by a percentage figure that reflects operating expenses (also referred to as \\\"carrying charges\\\"), and then multiplies the product by the percentage of pole space used by the cable operator. See, e.g., Bureau Order at 3, J.A. at 153; Teleprompter Corp. v. Alabama Power Co., File No. PA-81-0014 (released Nov. 3, 1983) (\\\"Commission Order\\\") at 7, J.A. at 297. The formula actually used \\u2014 identical for all purposes to the one shown above \\u2014 can therefore be expressed as follows:\\nThe Commission determines the cost of the pole by subtracting the depreciation reserve and the amount attributable to \\\"non-cable-related investment\\\" from the gross investment in pole plant, Brief for Respondents at 7, and the figure for carrying charges encompasses the costs of administration, maintenance, depreciation, taxes, and capital.\\nB.\\nIn December of 1980, Group W, an owner and operator of cable television systems, filed a complaint with the Commission alleging that the pole attachment rates charged by Alabama Power were \\\"unjust and unreasonable.\\\" J.A. at 1, 6. At the time, Group W was leasing space on approximately 22,000 poles owned by Alabama Power, most at the annual rate of $8.00 per pole. Group W claimed in its pleadings that the maximum allowable rate was $1.45 per pole. Id. at 6. In an order issued in June of 1981, the Acting Chief of the Common Carrier Bureau held that the maximum annual rate that should be allowed Alabama Power was $1.13 per pole. Bureau Order at 8, J.A. at 158. The existing rates were therefore held to be unjust and unreasonable, id., and Alabama Power was ordered to make refunds to Group W retroactive to the date on which the complaint had been filed.\\nAlabama Power filed an application for review of the Bureau Order with the Commission one month later, charging that the Bureau had made several mathematical, conceptual, and legal errors. The Commission granted the application in part, but affirmed the Bureau on several key issues of contention. Commission Order, J.A. at 291. The Commission determined that the maximum allowable annual fate was not $1.13 per pole, as the Bureau had found, but $1.56 per pole, and ordered Group W to remit the excess refunds it had received. Since the maximum allowable rate as determined by the Commission was still lower than the rate that had been contractually agreed upon between Alabama Power and Group W, the contracts between the parties were modified to provide that thereafter the Commission's figure would be the rate charged.\\nIn its petition for review before this court, Alabama Power challenges several aspects of the Commission's calculation of the maximum allowable rate. Specifically, Alabama Power raises the following claims:\\n1. The Commission's calculation of net pole costs contained a significant mathematical error.\\n2. The Commission improperly excluded from net pole costs the expenses incurred by the utility in providing guy wires and anchors.\\n3. The Commission failed to calculate accurately the general and administrative expenses.\\n4. The Commission improperly prohibited Alabama Power from normalizing its deferred tax expenses.\\n5. The Commission adopted a rate of return that had been held invalid under Alabama state law.\\nThe first two claims relate to the determination of net pole investment, and we deal with them in Part III. The latter three claims relate to the determination of carry ing charges, and we deal with them in Part IV.\\nII.\\nAt the outset, we must determine the appropriate standard by which to judge the validity of the Commission's calculation. Alabama Power claims that in attempting to compute fully allocated costs the Commission erred and reached a result that falls well below the statutory maximum. While the Commission contests most of Alabama Power's charges of error, it argues as well that any error committed is presumptively harmless. The Commission contends that because the statute requires only that rates fall within a zone of reasonableness, and because the Commission was attempting to calculate the upper end, any result that falls short of the mark \\u2014 although the product of error\\u2014 is likely to be within the boundaries defined by the statute as just and reasonable. The Commission proffers no evidence or findings to support its assertion that the $1.56 rate is above incremental costs, but urges that the burden of proof be placed upon petitioner. In other words, regardless of whatever mistakes it made in calculating the maximum rate, the Commission argues that its order cannot be disturbed absent a showing by Alabama Power that the Commission's rate is below the statutory minimum.\\nWe cannot agree. In the memorandum opinion we review, the Commission determined that $1.56 per pole was the \\\"maximum rate.\\\" Commission Opinion at 7, J.A. at 297. In the papers filed before the Commission, both parties focused exclusively on the question of whether the Bureau had correctly calculated the maximum rate. See Application for Review, J.A. at 161; Opposition to Application for Review, J.A. at 191. Thus, in the proceeding below, the Commission never even attempted to determine Alabama Power's incremental costs. It heard no evidence, and made no findings, bearing on a determination of the statutory minimum rate. It has long been settled doctrine that \\\"[t]he grounds upon which an administrative order must be judged are those upon which the record discloses that its action was based.\\\" SEC v. Chenery Corp., 318 U.S. 80, 87, 63 S.Ct. 454, 459, 87 L.Ed. 626 (1943). We will not uphold agency action simply because \\\"findings might have been made and considerations disclosed which would justify its order____\\\" Id. at 94, 63 S.Ct. at 462. Accord FPC v. Texaco Inc., 417 U.S. 380, 397, 94 S.Ct. 2315, 2326, 41 L.Ed.2d 141 (1974); Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168-69, 83 S.Ct. 239, 245-46, 9 L.Ed.2d 207 (1962); SEC v. Chenery Corp., 332 U.S. 194, 196, 67 S.Ct. 1575, 1577, 91 L.Ed. 1995 (1947). The rationality of administrative decisionmaking can only be assessed by reference to the agency's stated objectives. We refuse to speculate on whether or not the end result of an agency's flawed analysis could, in fact, have been legitimately reached under a theory upon which the agency never relied.\\nIndeed, a determination of incremental costs would not have been germane. The existing contracts between Alabama Power and Group W provided for a rate of $3.00 per pole. These proceedings began when Group W filed a complaint charging that a $3.00 fee was \\\"unjust and unreasonable, and therefore unlawful.\\\" J.A. at 6. Group W therefore had the burden of demonstrating that the rate it was being charged was higher than the law permitted. Absent such a demonstration, the complaint would necessarily have been dismissed, pursuant to Commission regulations. See 47 C.F.R. \\u00a7 1.1409(d) (1984). The Commission's exclusive focus on the upper end of the zone of reasonableness was thus a product of both the posture in which this case arose and the plain language of its own regulations. We will therefore judge the validity of the order by examining whether the Commission in fact calculated that which it sought to calculate, and determine whether the $1.56 fee is what the Commission claims it to be \\u2014 the maximum statutory rate.\\nIII.\\nIn calculating net pole investment, the Commission sought to eliminate all non-cable-related investments. Upon review, we find that the Commission used a clearly erroneous method for computing the non-cable-related investment, and we also find that the Commission improperly excluded the costs of guys and anchors as non-cable-related.\\nIn order to appreciate the methodological error made by the Commission, it is helpful to examine first the calculations presented to it by Group W. Opposition to Application for Review, J.A. at 191, 208. Group W took the figure for gross pole investment, excluding lightning arrestors and grounds, \\u2014$175,819,167\\u2014and subtracted from it the figures for depreciation and for non-cable-related investment. This difference was then added to the costs of lightning arre stors and grounds (minus depreciation), costs both parties agreed were cable-related. The sum of that addition was what Group W claimed to be the net investment by Alabama Power in pole expenses applicable to cable attachments.\\nWhen the Commission made its calculation, it used a percentage figure to eliminate the non-cable-related investment from the gross pole investment. The Commission calculated this percentage (41.43%) by dividing the figure provided by Group W for gross non-cable-related investment ($72,840,638) by the figure provided by Group W for gross pole investment, excluding lightning arrestors and grounds ($175,-819,167).\\nHowever, the Commission proceeded to apply this percentage figure to gross pole investment including the costs of lightning arrestors and grounds. The error is apparent. The entire cost of lightning arrestors and grounds (minus depreciation) ought to have been included in the figure for net pole investment, but the Commission instead reduced that cost by a percentage figure. Since the costs of lightning arrestors and grounds were conceded by both parties to be wholly cable-related, the Commission erred by discounting the costs through the use of a wholly irrelevant percentage figure.\\nWe believe the Commission made an additional error when it excluded the cost of guys and anchors from the category of capital costs by classifying it as a non-cable-related investment. Guy wires and anchors are used to counteract the stress caused by wind, storms, the turning of corners and the attachment of wires. They keep the pole standing and therefore benefit all its users.\\nThe Commission reasons that so long as Group W provides whatever additional guys and anchors are made necessary by the additional stress created by the cable attachments, it need not reimburse Alabama Power for a proportionate share of the expense already incurred to anchor the pole. That, however, is only a calculation of incremental costs, and is inconsistent with the statutory definition of the maximum rate. The statutory language is quite clear: the maximum rate is calculated by \\\"multiplying the percentage of the total usable space . which is occupied by the pole attachment by the sum of the operating expenses and actual capital costs of the utility attributable to the entire pole, duct, conduit, or right of way.\\\" 47 U.S.C. \\u00a7 224(d)(1) (emphasis added). The Senate Report is no less precise, and explains that \\\"[t]he term 'operating expenses and actual capital costs of the utility,' as used in S.1547, as reported, refers to the costs to the utilities, irrespective of the CATV attachment, of owning and maintaining poles.\\\" Senate Report at 19-20 (emphasis added). The expense of providing guys and anchors is clearly a cost necessary to the maintenance of Alabama Power's poles. Requiring contribution from Group W does not require the cable company to subsidize a cost from which it derives no benefit; even when the guys and anchors serve merely to counteract the stress created by the electric utility wires, they nevertheless provide Group W with an essential service by bracing the poles and holding them upright. As counsel for the Commission conceded at oral argument, were Alabama Power to decide that the holes in which the poles were placed needed to be dug deeper in order to better brace the pole, Group W would be required to pay a' proportionate share of the digging costs. Whether the pole is braced by digging deeper holes or by attaching extra guy wires, the principle is the same. We therefore hold that the Commission may not exclude the cost of guys and anchors from net pole investment.\\nIV.\\nTo compute carrying charges, the Commission determines the percentage of pole investment devoted to each of five categories of expenses: administration, maintenance, depreciation, taxes, and cost of capital. The percentage figure for carrying charges is simply the sum of these five calculations. Alabama Power disputes the Commission's calculation of administrative expenses, its calculation of taxes, and its calculation of the cost of capital. We deal with each in turn.\\nA.\\nIn calculating the percentage figure for general and administrative expenses, the Commission divided the sum of four separate accounts \\u2014 administrative and general salaries, office supplies, administrative expenses transferred credit, and regulatory commission expenses \\u2014 by net plant investment. Commission Order at 6, J.A. at 296. Alabama Power argues that the Commission ought to have included nine other accounts as well, claiming that these other accounts were just as applicable to the service provided Group W as the four that were included. The Commission explains in its brief that \\\"[wjhile there may be some cable-related items buried in [the excluded] accounts, it should also be noted that the accounts which are included contain not only cable-related items but also non-cable-related items.\\\" Brief for Respondents at 16-17.\\nThe degree to which each of these accounts is cable-related is an issue we need not decide, for the Commission was clearly in error when it chose to use only cable-related accounts in calculating administrative costs. The Commission was seeking to determine the percentage of investment devoted to administrative and general expenses. When that percentage is multiplied by the net pole investment, it will yield a reasonable estimate of the administrative and general expenses incurred in the maintenance of Alabama Power's poles. In order to determine that percentage, the Commission could have divided pole-related administrative expenses by pole-related investment, cable-related administrative expenses by cable-related investment, or total administrative expenses by total plant in vestment. Instead, the Commission restricted the numerator to cable-related administrative costs and divided it by a denominator that represented total plant investment. Such a division necessarily yields an artificially low percentage. Dividing pole-related administrative costs by pole-related investment produces the valid figure, and dividing either cable-related administrative costs by cable-related investment or total administrative costs by total investment generates a reasonable approximation. The fraction used by the Commission, on the other hand, bears no rational relationship to the determination it purports to mak\\u00e9.\\nB.\\nThe Commission has refused to allow Alabama Power to normalize its tax expenses in establishing cable attachment rates. Instead, the Commission has employed the flow-through method of accounting to calculate fully allocated costs. Alabama Power challenges this policy, and contends that the normalization of tax benefits does not render an otherwise acceptable rate unjust and unreasonable.\\nThis issue of accounting arises whenever a utility defers some of its current tax liabilities. If the deferred taxes are normalized, then the rates are calculated to reflect the full tax liability in the year in which that liability is incurred. Under flow-through, in contrast, the benefit of the deferral is passed on to the ratepayers, and each year's rates reflect only the cost of those taxes actually paid that year by the utility. Advocates of flow-through claim that it serves to ensure that rates reflect only those expenses actually borne by the utility, while opponents argue that only through normalization can expenses be matched to the customer that receives the related services. See Public Systems v. FERC, 709 F.2d 73, 76 (D.C.Cir.1983).\\nThe chief point of general dispute has centered on the question whether normalization provides the utility with a permanent tax savings. As long as the revenues and expenses of a utility continue to grow, the taxes postponed in each year will more than offset the past liabilities that come due. Critics of normalization contend that this continuing offset represents a tax savings which should be reflected in the rates; supporters of normalization argue that the \\\"savings\\\" is illusory, since every liability deferred does in fact become due at the appropriate time.\\nIn the order presently under review, the FCC justified its use of flow-through with a citation to one of its previous orders, Television Cable Service, Inc. v. Monongahela Power Co., 88 F.C.C.2d 56 (1981). Commission Order at 6, J.A. at 296. The analysis given in Monongahela \\u2014which appears to be the most complete discussion that the FCC (has given this issue as it relates to pole attachments \\u2014 consists of the following paragraph:\\nWe find no merit in this [normalization] approach. The accrued tax figure reflects certain deferrals and timing differences in tax payments which may not properly be attributed to the operating expenses and capital costs of poles Congress has directed us to consider. As we see it, using the actual taxes paid adequately assigns the company's tax expense to the cost of maintaining poles. At the same time, the actual figure avoids the possibility of apportioning to pole attachments taxes which may be deferred for an indefinite time.\\n88 F.C.C.2d at 59 (citation omitted).\\nIn a more recent memorandum opinion, however, the Commission rejected as \\\"unsound\\\" a party's contention that normalization results in a permanent tax savings. The Commission noted that \\\"the character ization of deferred tax reserves as permanent tax savings and the corresponding rejection of normalized tax accounting have been criticized by a number of commenters,\\\" and that both the accounting profession and Congress have resolved the debate in favor of normalization. Second Computer Inquiry, No. 81-893 (released May 15, 1985) at 32-33 n. 100. Although Second Computer Inquiry was not a pole attachment case, the general principle it applied is inconsistent with the terse explanation given in Monongahela. As we have noted, \\\"an administrative decision may be found arbitrary and capricious on judicial review if the administrator, without comprehensible explanation, adopts a rationale in subsequent cases that yields decisions contrary to the decision under review.\\\" Dep't of Treasury v. FLRA, 707 F.2d 574, 581 n. 25 (D.C.Cir.1983). While we do not foreclose the possibility that the Commission might be able to reconcile its contradictory positions, nothing yet in the record successfully does so. In light of this unexplained inconsistency, we cannot uphold the Commission's decision to exclude normalized taxes from the calculation of the maximum rate.\\nC.\\nThe Senate Report that accompanied the Pole Attachment Act expressly authorized, but did not require, the Commission to employ the determinations made by state governments of the appropriate rate of return. Senate Report at 22. Relying on an opinion issued by the Alabama Public Service Commission (\\\"APSC\\\"), the FCC held that Alabama Power was entitled to a rate of return of 9.97%. Alabama Power challenges the use of that figure on the grounds that it had been held invalid under Alabama state law almost a year before the Bureau's decision to use it was affirmed by the Commission. Upon reviewing the various state law determinations, we conclude that Alabama Power's claim is a meritorious one.\\nThe 9.97% figure for Alabama Power's rate of return originated in an opinion issued by the APSC in August of 1980, and was based on a finding of 14% return on equity. One week later, the Supreme Court of Alabama issued its decision in an appeal by Alabama Power of an earlier rate order, Alabama Power Co., APSC Docket No. 17667 (July 19, 1979). Alabama Power Co. v. APSC, 390 So.2d 1017 (Ala.1980). In this opinion, the Alabama Supreme Court found the Commission's decision to allow an 11.7% rate of return to be \\\"arbitrary,\\\" id. at 1026, and remanded to the Commission with instructions to \\\"enter an order based on the evidence.\\\" Id. at 1027. At the time, Alabama Power had an appeal of the more recent rate order \\u2014 the one establishing the 9.97% rate of return and based on the 14% return on equity\\u2014 pending before the Alabama Supreme Court. In March of 1981, in response to the joint request of Alabama Power and the APSC, that appeal was remanded to the APSC and the APSC then issued an order disposing of both the earlier and the more recent rate proceedings. That order granted Alabama Power a more substantial rate increase.\\nFollowing the issuance of this order, Alabama Power filed an application with the APSC for an additional rate increase. Its application was denied, Alabama Power Co., APSC Docket No. 18117 (Oct. 16, 1981), and its return on equity \\u2014 12.43%\\u2014 was held adequate by the APSC. This determination was reversed by the Alabama Supreme Court in Alabama Power Co. v. APSC, 422 So.2d 767 (Ala.1982). The Alabama Supreme Court found the 12.43% rate of return on equity to be \\\"confiscatory,\\\" id. at 770, and held unanimously that \\\"[ujnder the undisputed evidence in this case and our review of the record a 15% return on equity is the minimum which would not result in confiscation.\\\" Id. at 773. The court ruled that \\\"[t]he evidence and the monthly reports submitted . clearly show that the Company has been suffering confiscation of its property for some time,\\\" and remanded to the Commission. Id.\\nIn light of this series of decisions, the 9.97% figure cannot be regarded as a valid rate of return under Alabama law. The 9.97% rate of return was implicitly superseded when the Commission, upon remand, increased the rate order for which it was employed, and the 14% rate, of return on equity on which it was based has been held to be below the minimum required to avoid confiscation. The court decision holding that 15% was the minimum allowable rate of return on equity was issued on November 5,1982, one year before the FCC issued its memorandum opinion and order, and the decision relied upon data from a test period that began before Group W's original complaint was filed with the FCC.\\nWe stress that the Commission is under no obligation to accept the Alabama court's determination of what rates constitute the minimum required to avoid confiscation. Regardless of the findings of the state court, the Commission is free to make its own calculation of what would constitute an adequate rate of return, and we will uphold that calculation as long as it meets the statutory requirements and is not arbitrary or capricious. However, where the Commission seeks to free itself from the necessity of making an independent determination by relying on the rulings of state courts and agencies, it may not, under that procedure, adopt determinations that have been invalidated under state law.\\nV.\\nWe find, therefore, that the Commission's somewhat casual calculations exhibit at several points the sort of \\\"clear error[s] of judgment,\\\" Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 824, 28 L.Ed.2d 136 (1971), and absence of \\\"rational connection^] between the facts found and the choice[s] made,\\\" Burlington Truck Lines, Inc. v. United States, 371 U.S. at 168, 83 S.Ct. at 246, that render an order arbitrary and capricious. We vacate the Commission's order and remand to the Commission for further proceedings consistent with this opinion.\\nIt is so ordered.\\n. \\\"Use is made of existing poles rather than newly placed poles due to the reluctance of most communities, based on environmental considerations, to allow an additional, duplicate set of poles to be placed.\\\" H.R.Rep. No. 721, 95th Cong., 1st Sess. 2 (1977).\\n. The complainant was Teleprompter Corporation, Group W's predecessor in interest. During the pendency of the Commission proceeding, Teleprompter was purchased by Westinghouse Corporation and merged into Group W. For simplicity, we refer to complainant as Group W throughout this opinion.\\n. Group W paid an annual rental fee of $6.15 for each of 22 poles located in Dothan, Alabama. J.A. at 16.\\n. The Commission concedes error in its treatment of lightning arrestors and grounds, see Part III infra, but suggests that the error made only a \\\"negligible difference in the final rate.\\\" Brief for Respondents at 18 n. 17.\\n. The Commission's brief mentions in passing that in a proceeding unrelated to the present action, Georgia Power Co. v. Columbus Cablevision, Inc., 55 Rad.Reg.2d (P & F) 940 (Mar. 20, 1984), petition for review pending sub nom. Georgia Power Co. v. FCC, No. 84-1107 (D.C.Cir. filed Mar. 21, 1984), it \\\"found\\\" Georgia Power's incremental costs to be less than one dollar. Brief for Respondents at 5 n. 4. We fail to see what relevance a calculation of Georgia Power's incremental costs has to this proceeding. In any event, no such calculation was ever actually made; the Commission was merely rejecting, on methodological grounds, a study by Georgia Power that purported to show incremental costs much higher than had been assumed.\\n.This appears to reflect standard procedure. See Cablevision of Augusta, Inc. v. Georgia Power Co., File Nos. PA-83-0013 et at., Mimeo No. 3314 (released Apr. 5, 1984) at 6 (\\\"[I]t has been Commission practice to establish the maximum rate____\\\").\\n. The Senate Report accompanying the Pole Attachment Act indicated that the Commission would have the authority to assign burdens of proof in rate proceedings. S.Rep. No. 580, 95th Cong., 1st Sess. 22, reprinted in 1978 U.S.Code Cong. & Ad.News 109, 130 [hereinafter cited as \\\"Senate Report\\\"]. The Commission's regulations assign the complainant \\\"the burden of establishing a prima facie case that the rate, term, or condition is not just and reasonable.\\\" 47 C.F.R. \\u00a7 1.1409(b) (1984). The Commission's authority below does not enable it, of course, to redistribute burdens and presumptions when challenged before this court.\\n. Because the Commission was seeking to determine the statutory maximum, we need not decide whether modifying the contracts so as to require Alabama Power to continue providing access at anything less than fully allocated costs would constitute failure to provide just compensation for what is clearly a taking. See Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 102 S.Ct. 3164, 73 L.Ed.2d 868 (1982).\\n. Our conclusion that this is the appropriate standard is bolstered by our review of the legislative history of the Pole Attachment Act. According to the Senate Report, it was not the intent of Congress \\\"to require the Commission to embark upon a large-scale ratemaking proceeding____'' Senate Report at 22. Congress enacted the statute in response to two related concerns: cable companies' dependence on existing poles enabled utilities to exact monopoly profits, and telephone companies in particular\\u2014 as potential competitors to cable \\u2014 were in a position to engage in anticompetitive practices. Id. at 13. While the Commission has some flexibility to evaluate the reasonableness of rates with reference to the services actually provided, id. at 19, the Commission was not expected to adjust rates that were already within the zone of reasonableness; its far more limited task is to police the borders. The Senate Report made this clear in describing the applicable procedure:\\nThe Commission's adjudicatory authority would not come into play until a complaining party has brought a matter to the Commission's attention. After hearing the complaint and responsive pleadings, if the Commission determines that a particular rate, term, or condition is unjust or unreasonable, it shall take any action it deems appropriate and necessary, including ordering the parties to undertake further negotiations to arrive at a just and reasonable settlement of the dispute to their mutual satisfaction. Alternatively, the Commission may order a party to show cause why it should not cease and desist from practices found to be unjust or unreasonable.\\nId. at 22 (emphasis added). In the context of an adjudication between parties under contract, therefore, a determination that a fee is outside the statutory zone is a prerequisite to rate adjustment by the Commission.\\n.While the parties dispute what costs ought properly be included as non-cable-related investments, the Commission's calculation method was erroneous regardless of which costs are included.\\n. At one point in its calculation, the Commission referred to a figure of 43.43%. J.A. at 293. We read that as a typographical error. Elsewhere in its memorandum opinion, the Commission used the 41.43% figure, and the product of its multiplication is clearly based upon the lower figure.\\n.The Commission concedes this error in a footnote to its brief but implies that the question is not properly before us because Alabama Power has not filed a petition for reconsideration before the Commission. Brief for Respondents at 18 n. 17. We know of no such bar to review in this court of a final order of the FCC. The Administrative Procedure Act provides that '[e]xcept as otherwise expressly required by statute, agency action otherwise final is final . whether or not there has been presented or determined an application . for any form of reconsiderations____\\\" 5 U.S.C. \\u00a7 704 (1982). The filing of a petition for reconsideration before the FCC is a prerequisite to judicial review only when the party seeking review was not a party to the original proceeding, or when the party \\\"relies on questions of fact or law upon which the Commission . has been afforded no opportunity to pass.\\\" 47 U.S.C. \\u00a7 405 (1982). Neither of these circumstances is applicable here.\\n.The legislative history defining the maximum rate as a proportionate share of the expense, \\\"irrespective of the CATV attachment, of owning and maintaining poles,\\\" Senate Report at 19-20, may call into question the elimination of the other items that were subtracted from gross pole investment on the grounds that they were not \\\"cable-related.\\\" The question is not whether the investments were cable-related, but whether they were pole-related, as the entire figure for gross pole investment would seem at first glance to be. However, we cannot determine from the record what precise costs were excluded as non-cable-related pole investments, and it may be that the account includes expenses that do not all reflect the cost of \\\"owning and maintaining poles.\\\" Since guys and anchors were the only excluded costs challenged by Alabama Power, they are the only ones we examine here.\\n. The claim has not been made in this case, and therefore we have not considered, whether requiring the cable company by contract to provide and install the guys and anchors necessary only for the cable installation imposes upon the cable company a cost that should be considered part of the \\\"rate\\\" whose maximum is described by \\u00a7 224(d)(1).\\n. These other accounts were: outside services, property insurance, injuries and damages, employee pensions and benefits, franchise requirements, duplicate charges credit, miscellaneous and advertising expenses, rents, and maintenance of general plant.\\n. The validity of the latter two formulae would depend on a determination by the Commission that the percentage of pole investment spent on administration was roughly the same as the percentage of cable-related investment (if the second formula were used) or of plant investment overall (if the third formula were used). If such a determination were made, use of the third formula would free the Commission from the necessity of deciding which administrative accounts were sufficiently pole-related to be included.\\n. Refunds were ordered retroactive to the date of the filing of the complaint. Bureau Order at 10, J.\\u00c1. at 160. Therefore, the period to which the Commission applied the 9.97% rate of return is the period for which the Alabama Supreme Court has held that a rate of return on equity below 15% would be confiscatory.\"}"

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+"{\"id\": \"3618245\", \"name\": \"CNPq-CONSELHO NACIONAL DE DESENVOLVIMENTO CIENTIFICO E TECHNOLOGICO, An Agency of the Federal Republic of Brazil, Appellee, v. INTER-TRADE, INC., a District of Columbia Corporation, et al., Appellants\", \"name_abbreviation\": \"CNPq-Conselho Nacional de Desenvolvimento Cientifico e Technologico v. Inter-Trade, Inc.\", \"decision_date\": \"1995-04-04\", \"docket_number\": \"No. 94-7153\", \"first_page\": \"85\", \"last_page\": \"88\", \"citations\": \"311 U.S. App. D.C. 85\", \"volume\": \"311\", \"reporter\": \"United States Court of Appeals for the District of Columbia Circuit\", \"court\": \"United States Court of Appeals for the District of Columbia Circuit\", \"jurisdiction\": \"District of Columbia\", \"last_updated\": \"2021-08-11T00:33:33.160476+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before: EDWARDS, Chief Judge, SILBERMAN and BUCKLEY, Circuit Judges.\", \"parties\": \"CNPq\\u2014CONSELHO NACIONAL DE DESENVOLVIMENTO CIENTIFICO E TECHNOLOGICO, An Agency of the Federal Republic of Brazil, Appellee, v. INTER-TRADE, INC., a District of Columbia Corporation, et al., Appellants.\", \"head_matter\": \"50 F.3d 56\\nCNPq\\u2014CONSELHO NACIONAL DE DESENVOLVIMENTO CIENTIFICO E TECHNOLOGICO, An Agency of the Federal Republic of Brazil, Appellee, v. INTER-TRADE, INC., a District of Columbia Corporation, et al., Appellants.\\nNo. 94-7153.\\nUnited States Court of Appeals, District of Columbia Circuit.\\nApril 4, 1995.\\nLarry W. Thomas and Gregory J. Bendlin, Attys., were on the Motion to Dismiss, for appellee.\\nSamuel Bailey, Jr., and Donald L. McClure, Sr., Attys., were on the Opposition to the Motion to Dismiss, for appellants.\\nBefore: EDWARDS, Chief Judge, SILBERMAN and BUCKLEY, Circuit Judges.\", \"word_count\": \"1206\", \"char_count\": \"7257\", \"text\": \"Opinion for the Court filed PER CURIAM.\\nON MOTION TO DISMISS\\nPER CURIAM:\\nThis case is before the court on the motion of appellee CNPq\\u2014Conselho Nacional de Desenvolvimento Cient\\u00edfico e Tecnologico (CNPq) to dismiss for lack of jurisdiction. The appeal was brought by Inter-Trade, Inc., and others (Inter-Trade), which seek to challenge a magistrate judge's assessment of attorneys' fees and costs as part of a decision remanding the case to the District of Columbia Superior Court. Under the Federal Rules, a party displeased by a magistrate judge's order must file written objections within ten days as a prerequisite to obtaining appellate review. See Fed.R.Civ.P. 72; Pagano v. Frank, 983 F.2d 343, 345 & n. 3 (1st Cir.1993). Inter-Trade's attempt to do so was rejected by the district court as out of time, and CNPq claims that as a result we lack jurisdiction to review the magistrate's order. The contested issue is whether the three days added to the filing deadline by Fed.R.Civ.P. 6(e) to account for mailing are calendar days (which include weekends and legal holidays) or business days. We hold that the three days provided by Fed.R.Civ.P. 6(e) are calendar days.\\nOn June 23, 1994, the magistrate judge to whom the pretrial matters in this case had been assigned pursuant to Fed.R.Civ.P. 72 granted CNPq's motion for remand to D.C. Superior Court and its accompanying request for attorneys' fees and costs. The order was served on the parties by mail. On July 12, Inter-Trade attempted to file written objections to the magistrate judge's order. The district court refused to accept Inter-Trade's objections, however, because earlier that same day it had formally approved the order.\\nInter-Trade now seeks review of the magistrate judge's order imposing liability for attorneys' fees and costs. CNPq counters that since Inter-Trade's objections were refused by the district court as untimely, they were not preserved for appeal. Inter-Trade responds that it is entitled to review of the order in spite of the district court's refusal to accept its objections; that refusal, Inter-Trade claims, erroneously truncated the time within which it was permitted to object and thereby preserve its challenge for appeal.\\nFed.R.Civ.P. 72 provides that objections to an order or recommendation of a magistrate judge are to be filed \\\"within 10 days after being served with a copy.\\\" The Advisory Committee Notes to Fed.R.Civ.P. 72 indicate that this ten-day period is subject to Fed. R.Civ.P. 6(e). For its part, Rule 6(e) states:\\nWhenever a party has the right or is required to do some act or take some proceedings within a prescribed period after the service of a notice or other paper upon the party and the notice or paper is served upon the party by mail, 3 days shall be added to the prescribed period.\\nBoth parties agree that since the magistrate judge's order in this case was served on the parties by mail, Rule 6(e) extended the ten-day period for objecting by three days.\\nThe parties also agree that the ten days available pursuant to FED.R.CrvJP. 72 are business days, since Fed.R.Civ.P. 6(a) excludes weekends and legal holidays from the computation of filing periods of less than eleven days. Fed.R.Civ.P. 6(a). The question upon which this case turns is whether Rule 6(e)'s three-day extension is subject to Rule 6(a)'s exclusion of weekends and holidays. If it is not, then the district court correctly refused to enter Inter-Trade's objections, which would have been due on July 11&emdash;the day before they were filed. If, on the other hand, Rule 6(a) does apply to the Rule 6(e) extension, Inter-Trade's objections were properly submitted to the district court.\\nIn computing any period of time prescribed or allowed by these rules . [w]hen the period . prescribed or allowed is less than 11 days, intermediate Saturdays, Sundays, and legal holidays shall be excluded in the computation.\\nRule 6(a) sets forth the method for \\\"computing any period of time prescribed or allowed by these rules.\\\" Rule 6(e) does not, we think, establish a \\\"period of time\\\" within the meaning of Rule 6(a). The latter apparently contemplates periods of time bounded by specific acts or occurrences-such as the period of time between service of a magistrate's judgment and the filing of objections. Rule 6(e) does not, in our view, establish a \\\"period of time\\\" in this sense. It provides for a three-day extension to a \\\"prescribed period,\\\" and that extension is not in itself a period governed by Rule 6(a)'s counting instructions for periods under eleven days. See Tushner v. United States District Court, 829 F.2d 853, 855-56 (9th Cir.1987); National Savings Bank of Albany v. Jefferson Bank, 127 F.R.D. 218, 222 n. 7 (S.D.Fla. 1989); Nalty v. Nalty Tree Farm, 654 F.Supp. 1315, 1316-17 (S.D.Ala.1987); 4A Wright & Miller, Federal Practice & Procedure \\u00a7 1171, at 516-20 (2d ed. 1987). In computing time under both 6(a) and 6(e), the three-day addition for mailing should have no effect in determining the run of the prescribed period, such as the ten-day period for objection under Rule 72. When the Rules provide for a period of less than eleven days, its run should be computed excluding weekends and holidays, pursuant to Rule 6(a), and the three-day extension-counting weekends and holidays-should then be added at the end. See Tushner, 829 F.2d at 853; Natty, 654 F.Supp. at 1317-18. Compare Wright & Miller, Federal Practice & Procedure \\u00a7 1171, at 520 (suggesting that the three calendar days should be counted first, and the prescribed period then computed).\\nApplying the foregoing analysis to this case, the ten-day period set by Rule 72\\u2014 counting only business days\\u2014ran from the service of the magistrate judge's order to July 8,1994. Adding three calendar days to account for service by mail, as dictated by Rule 6(e), we compute July 11 as the deadline for objecting in the district court. Inter-Trade's attempt to file written objections on July 12 came a day late. By that mistake, Inter-Trade failed to preserve its objections for appeal. Accordingly, we grant CNPq's motion to dismiss the appeal for lack of jurisdiction.\\n. CNPq raised several other grounds for dismissal which we do not address in light of our ruling on this issue.\\n. Even if Inter-Trade's exceptions were filed in a timely fashion, it does not necessarily follow that we would then examine them ourselves. The proper course in such a case might be to remand and have the district court consider them in the first instance, as contemplated by Rule 72.\\n. This date was obtained by excluding intermediate Saturdays, Sundays, and Monday, July 4, 1994, a legal holiday, from the computation.\"}"

dc/3618321.json

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+"{\"id\": \"3618321\", \"name\": \"UNITED STATES of America, Appellee, v. Robert JOHNSON, a/k/a/ Big Rob, Appellant\", \"name_abbreviation\": \"United States v. Johnson\", \"decision_date\": \"1995-03-21\", \"docket_number\": \"No. 93-3183\", \"first_page\": \"32\", \"last_page\": \"34\", \"citations\": \"311 U.S. App. D.C. 32\", \"volume\": \"311\", \"reporter\": \"United States Court of Appeals for the District of Columbia Circuit\", \"court\": \"United States Court of Appeals for the District of Columbia Circuit\", \"jurisdiction\": \"District of Columbia\", \"last_updated\": \"2021-08-11T00:33:33.160476+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before SENTELLE, HENDERSON and TATEL, Circuit Judges.\", \"parties\": \"UNITED STATES of America, Appellee, v. Robert JOHNSON, a/k/a/ Big Rob, Appellant.\", \"head_matter\": \"49 F.3d 766\\nUNITED STATES of America, Appellee, v. Robert JOHNSON, a/k/a/ Big Rob, Appellant.\\nNo. 93-3183.\\nUnited States Court of Appeals, District of Columbia Circuit.\\nArgued March 6, 1996.\\nDecided March 21, 1995.\\nSteven R. Kiersh, appointed by the court, argued the cause for the appellant.\\nSima F. Sarrafan, Asst. U.S. Atty., argued the cause for the appellee. On brief were Eric H. Holder, Jr., U.S. Atty., and John R. Fisher, Elizabeth Trosman and Steven J. McCool, Asst. U.S. Attys.\\nBefore SENTELLE, HENDERSON and TATEL, Circuit Judges.\", \"word_count\": \"1387\", \"char_count\": \"8620\", \"text\": \"Opinion for the court filed by Circuit Judge KAREN LECRAFT HENDERSON.\\nKAREN LECRAFT HENDERSON, Circuit Judge:\\nAppellant Robert Johnson raises two challenges to the sentence imposed following his convictions on one count of distribution of cocaine base and one count of distribution of cocaine base within 1000 feet of a school. He argues that the district court misapplied the sentencing guidelines by (1) enhancing his sentence for having committed the offenses while under a criminal justice sentence for a previous offense even though he was not then under active supervision by New York state parole authorities and by (2) not reducing his sentence because of diminished mental capacity. We affirm.\\nI. BACKGROUND\\nJohnson's convictions arise from two separate sales of cocaine base. On October 29, 1992 Johnson sold 20.96 grams of cocaine base to an undercover officer of the Metropolitan Police Department (MPD) at 8933 14th Street, NW, near Powell Elementary School. On November 2, 1993, over a year later, Johnson sold 10.60 grams of cocaine base to the same officer near the same location. A jury found him guilty of two counts of distribution of five grams or more of cocaine base in violation of 21 U.S.C. \\u00a7 841(a)(1) and one count of distribution of cocaine base within 1000 feet of a school in violation of 21 U.S.C. \\u00a7 860(a). The district court had dismissed the second count of distribution of cocaine base within 1000 feet of a school before the jury's deliberations and ultimately dismissed the related count of distribution (on which the jury had rendered a guilty verdict) on the government's motion.\\nThe presentence report recommended the addition of two points to the computation of Johnson's criminal history under the United States Sentencing Guidelines (U.S.S.G. or guidelines) because Johnson was on parole in New York for previous offenses at the time of the cocaine sales. Johnson objected to the enhancement, arguing that he had not been under active parole supervision in 1992 or 1993. He relied on a letter he had received from the New York State Division of Parole (Parole Board) indicating that he would no longer be required to report to or contact his parole officer, nor would a parole officer contact him, after April 1, 1991. Johnson later filed a supplemental challenge to the presentence report contending that a downward departure pursuant to U.S.S.G. \\u00a7 5K2.13 was warranted because he suffered significantly reduced mental capacity from post traumatic stress disorder (PTSD) resulting from the murder of his brother more than twenty years earlier.\\nThe district court rejected both arguments at sentencing. Regarding the parole en-' hancement, the judge concluded that Johnson was \\\"still under some jurisdiction of the parole authorities\\\" warranting the enhancement. Transcript (Tr.) 16. Regarding the downward departure, the judge stated \\\"it is essential that the court be satisfied that there was a direct connection between a conviction [sic\\u2014meaning the PTSD] . and the precise offense involved,\\\" found no such connection and declined to depart. Tr. 39-40. Johnson was sentenced to 189 months of incarceration, eight years of supervised release and two special assessments of fifty dollars each.\\nII. DISCUSSION\\nA. Parole\\nThe guidelines require a sentencing court to add two points to a defendant's criminal history calculation if \\\"the defendant committed the instant offense while under any criminal justice sentence, including probation, parole, supervised release, imprisonment, work release, or escape status.\\\" U.S.S.G. \\u00a7 4Al.l(d). According to the Commentary, \\\"active supervision is not required for this item to apply:\\\" U.S.S.G. \\u00a7 4Al.l(d) application note 4. Johnson argues that he was no longer under a \\\"criminal justice sentence\\\" at the time of his offenses because the Parole Board's decision not to supervise him was equivalent to a discharge of his parole. We disagree.\\nNew York law provides that the Parole Board can provide an \\\"absolute discharge from parole,\\\" which is the statutory equivalent of a termination of the underlying sentence, if an offender has completed three years of unrevoked parole and the Board \\\" determines that discharge is warranted \\\"in the best interests of society.\\\" N.Y.Exec.Law \\u00a7 259\\u2014j (McKinney 1993). The Parole Board has \\\"complete discretion\\\" to determine whether to grant such relief, People ex rel. Allah v. New York State Bd. of Parole, 158 A.D.2d 328, 551 N.Y.S.2d 16, 17 (1990), but did not in fact discharge Johnson's parole. Without that action, he remained in the legal custody of New York authorities at the time of the instant offenses notwithstanding their decision not to supervise him actively. See Carmona v. Ward, 439 U.S. 1091, 1098, 99 S.Ct. 874, 878-79, 59 L.Ed.2d 58 (1979) (Marshall, J., dissenting from denial of certiorari) (\\\"Unless the parolee receives an absolute discharge, he remains in the legal custody of the State [of New York] for the maximum term of his sentence and may be reincarcerated for violating any of the conditions which normally attach to the grant of parole.\\\") Accordingly, the enhancement was proper.\\nB. Mental Capacity\\nWe will not review the decision of a sentencing judge not to provide a downward departure in sentencing a defendant absent a mistake of law or an incorrect application of the sentencing guidelines. United States v. Ortez, 902 F.2d 61, 63 (D.C.Cir.1990); United States v. Pinnick, 47 F.3d 434, 439 (D.C.Cir. 1995). The district court committed no such error here.\\nThe relevant guideline provides:\\nIf the defendant committed a non-violent offense while suffering from significantly reduced mental capacity . a lower sentence may be warranted to reflect the extent to which reduced mental capacity contributed to the commission of the offense, provided that the defendant's criminal history does not indicate a need for incarceration to protect the public.\\nU.S.S.G. \\u00a7 5K2.13. Johnson asserts that the district court misapplied section 5K2.13 by requiring him to show that his diminished capacity was the \\\"sole cause\\\" of the offense and not merely a contributing factor. However, the judge indicated only that there must be a \\\"direct connection\\\" between Johnson's PTSD and the offense and in no way indicated that the PTSD must be the \\\"sole cause\\\" of his conduct. The court's requirement of a \\\"direct connection\\\" was no more than a restatement of the express guideline language that reduced mental capacity must have \\\"contributed to the commission of the offense.\\\" Such a finding is necessary because a defendant might otherwise assert perpetual eligibility for a downward departure for even repeat offenses merely by securing a diagnosis of PTSD. There was thus no misunderstanding or misapplication of the guidelines warranting review.\\nFor the foregoing reasons, the judgment of the district court is\\nAffirmed.\\n. The New York law provides in relevant part: If the board of parole is satisfied that an absolute discharge from parole or from conditional release is in the best interests of society, the board may grant such a discharge prior to the expiration of the full maximum term to any person who has been on unrevoked parole or conditional release for at least three consecutive years. A discharge granted under this section shall constitute a termination of the sentence with respect to which it was granted.\\n. The Parole Board notified Johnson that if he were convicted of a new felony by a New York court \\\"the amount of time from the date of the offense that led to your new conviction to your current maximum sentence date will be added to the maximum term of your new sentence.\\\" Appellee's R. Material at Tab D.\\n.Johnson also raised an equal protection challenge to the sentencing guidelines for cocaine base offenses but conceded in his brief that the court's then-pending opinion in United States v. Thomas, D.C.Cir. No. 93-3153, would control the issue. The court subsequently rejected an argument similar to Johnson's in a case consolidated with Thomas. See United States v. Johnson, 40 F.3d 436 (D.C.Cir.1994).\"}"

dc/3636338.json

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+"{\"id\": \"3636338\", \"name\": \"David B. MOFFER, Petitioner, v. James G. WATT, Secretary, U. S. Department of the Interior, Respondent\", \"name_abbreviation\": \"Moffer v. Watt\", \"decision_date\": \"1982-10-15\", \"docket_number\": \"No. 81-2197\", \"first_page\": \"300\", \"last_page\": \"304\", \"citations\": \"223 U.S. App. D.C. 300\", \"volume\": \"223\", \"reporter\": \"United States Court of Appeals for the District of Columbia Circuit\", \"court\": \"United States Court of Appeals for the District of Columbia Circuit\", \"jurisdiction\": \"District of Columbia\", \"last_updated\": \"2021-08-11T01:31:49.122428+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before WRIGHT, WALD and MIKVA, Circuit Judges.\", \"parties\": \"David B. MOFFER, Petitioner, v. James G. WATT, Secretary, U. S. Department of the Interior, Respondent.\", \"head_matter\": \"690 F.2d 1037\\nDavid B. MOFFER, Petitioner, v. James G. WATT, Secretary, U. S. Department of the Interior, Respondent.\\nNo. 81-2197.\\nUnited States Court of Appeals, District of Columbia Circuit.\\nArgued Sept. 16, 1982.\\nDecided Oct. 15, 1982.\\nAs Amended Oct. 15, 1982.\\nJack B. Gordon, Washington, D. C., for petitioner.\\nRegina C. McGranery, Asst. U. S. Atty., with whom Stanley S. Harris, U. S. Atty., and Royce C. Lamberth, R. Craig Lawrence, and Michael J. Ryan, Asst. U. S. Attys., Washington, D. C., were on the brief, for respondent.\\nBefore WRIGHT, WALD and MIKVA, Circuit Judges.\", \"word_count\": \"2389\", \"char_count\": \"14982\", \"text\": \"Opinion for the court PER CURIAM.\\nPER CURIAM:\\nWe are asked in this case to review a decision by the Merit Systems Protection Board (MSPB) upholding the dismissal of petitioner, David B. Moffer, from his position with the Bureau of Indian Affairs, Department of the Interior. Because we conclude that the MSPB correctly found petitioner's conduct to violate the statutory prohibition against federal employees trading with Indians and properly held that his discharge was an appropriate penalty, we affirm the MSPB decision.\\nI.Background\\nPetitioner Moffer was a realty specialist at the Anadarko [Oklahoma] Indian Agency (Agency), responsible for overseeing the acquisitions and dispositions of all Indian trust properties in the area. In 1978 Moffer, his wife Wildena, and his wife's cousin, Edwin Edge \\u2014 all three full-blooded Indians \\u2014 became parties to a land transaction. In need of money, Edge decided to sell about 160 acres of property; to keep the land in the family, he sold the property to Wildena for $40,000. Moffer cosigned his wife's financing agreement with a loan company, and the deed to the land was prepared in both his name and his wife's name.\\nOn February 7, 1980, the Agency removed Moffer from his position, charging him with violations of 25 U.S.C. \\u00a7 68 (1976) (prohibiting federal employees from trading with Indians), 43 C.F.R. \\u00a7 20.735-15(a)(2) (1981) (prohibiting use of information gained through government employment for financial transactions), and 43 C.F.R. \\u00a7 20.735-32(d)(1) (1981) (prohibiting actions which result in, or create the appearance of, using public office for private gain). Moffer appealed his removal to the MSPB. Following a hearing, the presiding officer found that petitioner's involvement in the land purchase had violated only the Section 68 prohibition and did not warrant dismissal. See Moffer v. Bureau of Indian Affairs, Docket No. DA 075209208 (M.S.P.B. July 10, 1980) (hereinafter cited as Initial Decision), Joint Appendix (JA) at 14-15. However, on petition for review, the MSPB reversed the initial decision and held: (1) that Moffer's conduct constituted a serious violation of both Section 68's prohibition and the regulation against creating the appearance of using public office for private gain; and (2) that the Agency's decision to impose the penalty of removal was fully justified. See Moffer v. Department of the Interior, Docket No. DA 075209208 (M.S.P.B. October 14, 1981) (hereinafter cited as Final Board Decision), JA at 20-23. This final decision is now before us on review.\\nII. Violation of 25 U.S.C. \\u00a7 68\\nPetitioner contends that the MSPB finding of a violation of Section 68 was wrong as a matter of law and was unsupported by substantial evidence. We disagree. The language of the statute is clear and unmistakable:\\nNo person employed in Indian affairs shall have any interest or concern in any trade with the Indians, except for, and on account of, the United States; and any person offending herein, shall be liable to a penalty of $5,000, and shall be removed from his office.\\n25 U.S.C. \\u00a7 68 (1976) (emphasis added). Moffer's cosignature on the loan agreement financing the land purchase and the presence of his name (albeit temporarily) on the land deed plainly constitute \\\"interest\\\" or \\\"trade\\\" within the broad meaning of those statutory terms. See Ewert v. Bluejacket, 259 U.S. 129, 137, 42 S.Ct. 442, 444, 66 L.Ed. 858 (1922) (federal employee's single purchase of land from an Indian falls within Congress' intended meaning of phrase \\\"trade with the Indians\\\"); United States v. Douglas, 190 F. 482, 484-485 (8th Cir. 1911). Petitioner contends, however, that he had no intent to acquire an interest in the land, that his wife simply needed his signature on the loan to obtain financing, and that she placed his name on the deed without his knowledge. Brief for petitioner at 6-7. This argument misconstrues Section 68's prohibition; the statute on its face has no intent requirement.\\nPetitioner also argues that his \\\"unintentional\\\" acquisition of interest in the land simply falls outside the intended scope of the statute. It is true that the statute, dating back in some form to 1796, was originally intended to protect the \\\"inexperienced, dependent, and improvident wards of the nation\\\" from the \\\"avarice and cunning of unscrupulous men in official position.\\\" Ewert v. Bluejacket, supra, 259 U.S. at 136, 42 S.Ct. at 443. Such a paternalistic attitude toward Indians may appear anachronistic, and even condescending, today. Edwin Edge himself, for example, hardly fits the Ewert Court's stereotyped view \\u2014 he holds a B.A. in business administration and, according to the presiding official at the hearing, decided to sell his land \\\"knowingly, intelligently, and with due deliberation.\\\" Initial Decision, slip op. at 10, JA at 15. But the scope of Section 68 is not restricted to instances of outright unscrupulousness and readily exploitable Indians; the statute is intended to guard even honest employees from the temptation of taking advantage of their Indian constituency. See Ewert, supra, 259 U.S. at 136, 42 S.Ct. at 443.\\nIt is therefore not surprising that Congress saw fit to renew the prohibition against Bureau of Indian Affairs employees trading with Indians. Its primary concern was with those federal employees directly in positions to use their official powers over Indian trust properties or funds in a coercive or otherwise inappropriate manner. By re-enacting a statute of an admittedly strict and prophylactic character, Congress sought to ensure integrity of conduct by these federal employees. As the Board stressed, Moffer was responsible for overseeing the disposition of all Indian trust properties in the area, and so stood in a direct fiduciary relationship with those whose interests he was employed to protect. See Final Board Decision, slip op. at 6, JA at 23. These responsibilities place his undisputed involvement in a land sale squarely within the category of conduct Congress intended to prohibit. In short, petitioner's claims that the MSPB read the statute too broadly and that no evidence exists to support the finding of a violation must fail.\\nIII. Appropriateness of Penalty\\nHaving sustained the finding that Moffer violated Section 68's prohibition against trading with Indians, this court's further role in assessing the appropriateness of the decision to dismiss is quite limited. Unless the penalty is \\\"so clearly excessive as to constitute an abuse of the agency's discretion,\\\" Gipson v. Veterans Administration, 682 F.2d 1004, 1011 (D.C.Cir.1982), the Agency's judgment must be upheld. See also Jolly v. Listerman, 672 F.2d 935, 943 (D.C.Cir.1982). The decision of the MSPB to uphold Moffer's removal survives this limited inquiry. Moffer violated a clear statutory ban on trade encompassing the purchase of property from an Indian. The Agency had a legitimate interest in seeking to preserve its credibility and reputation for impartiality by removing an official whose conduct was directly contrary to the public trust he was charged with protecting. See Yacovone v. Bolger, 645 F.2d 1028, 1032 (D.C.Cir.) (removal of postmaster warranted when he committed \\\"serious breach of conduct\\\" that had \\\"significant effect on his reputation for honesty and integrity\\\"), cert. denied, 454 U.S. 844, 102 S.Ct. 159, 70 L.Ed.2d 130 (1981). The MSPB could therefore reasonably conclude that petitioner's dismissal would \\\"promote the efficiency of the service.\\\" See 5 U.S.C. \\u00a7 7513(a) (Supp. IV 1980); Doe v. Hampton, 566 F.2d 265, 272 (D.C.Cir.1977). Finally, the MSPB did indicate that it had considered all the relevant circumstances of this case \\u2014 including the seriousness of the offense, the penalty specified in Section 68 itself, and any mitigating factors \\u2014before concluding that the removal penalty had been properly imposed by the Agency. See Final Board Decision, slip op. at 7-8, JA at 24-25. As we cannot find that petitioner's removal was so clearly unwarranted as to constitute an abuse of discretion, we defer to the judgment of the Agency, as approved by the MSPB, that Moffer should be removed from his position based upon his violation of 25 U.S.C. \\u00a7 68 (1976).\\nIV. Conclusion\\nFor the reasons stated above, we deny petitioner's request for review and affirm the decision of the Merit Systems Protection Board.\\nSo ordered.\\n. When questions were raised about petitioner's interest in the property, he executed a quitclaim deed in favor of his wife.\\n. The appropriate standards for reviewing MSPB decisions are provided by the Civil Service Reform Act of 1978:\\n[T]he court shall review the record and hold unlawful and set aside any agency action, findings, or conclusions found to be\\u2014\\n(1)arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;\\n(2) obtained without procedures required by law, rule, or regulation having been followed; or\\n(3) unsupported by substantial evidence[.]\\n5 U.S.C. \\u00a7 7703(c) (Supp. IV 1980).\\n. Because petitioner's clear violation of the statute is sufficient to warrant his dismissal, we deem it unnecessary to reach the issue of his violation of applicable Department of Interi- or regulations.\\n. Section 68 was repealed in 1980 by Pub.L. 96-277, 94 Stat. 544. The offense with which petitioner was charged is now covered by 18 U.S.C. \\u00a7 437 (Supp. IV 1980), which maintains the same ban against trading with Indians, but narrows the category of federal employees against whom it applies to those directly employed by the Bureau of Indian Affairs and the Indian Health Service. See S.Rep.No.96-629, 96th Cong., 2d Sess. 5 (1980). The statute further allows the President to permit such trade, subject to certain exceptions, under regulations promulgated by him or his designee. 18 U.S.C. \\u00a7 437(b)(1) and (2); see S.Rep.No.96-629, supra. As petitioner was an employee with the Bureau of Indian Affairs, the restriction of the category of relevant federal employees has no impact on his case.\\n. As support for his argument, petitioner refers this court to a decision rendered by the District Court for the Western District of South Dakota, finding no violation of \\u00a7 68 by a federal employee who \\u2014 acting as a \\\"go-between\\\" for his neighbor \\u2014 purchased a barn from an Indian and resold it the next day to his neighbor. Burnette v. Valandra, 300 F.Supp. 312, 317 (W.D.S.D.1969). Unfortunately, the case provides little analysis of either the statute or the challenged conduct, and appears to misconstrue the statute as requiring proof of a commercial venture to establish a violation. Id.\\n. See United States v. Douglas, 190 F. 482, 485-490 (8th Cir. 1911) (discussion of earlier statutory and treaty prohibitions on trading with Indians).\\n. The Senate committee considering re-enactment of the trading ban emphasized that Indians \\\"have now become better educated and more sophisticated in business practices and are better able to engage in arms-length transactions with non-indians . Indians are now more aware of their legal rights and the avenues for enforcement of these rights.\\\" S.Rep.No.96-629, supra note 4, at 4.\\n. The new statute does provide at 18 U.S.C. \\u00a7 437(b)(2)(B) (Supp. IV 1980) that the Secretary of the Interior (or his designee) may permit an otherwise prohibited purchase of land if the employee first seeks approval. Petitioner's argument that his failure to obtain permission is therefore a mere technical violation ignores the important safeguard and oversight policies served by this requirement.\\n. See H.R.Rep.No.96-653, 96th Cong., 2d Sess. 3 (1979). The concern would appear to be justified. One piece of testimony received by the Senate Select Committee on Indian Affairs indicated that at one reservation over 22% of the Indian lands purchased between 1964 and 1978 was bought by employees of the Bureau of Indian Affairs or their relatives. See S.Rep. 96-629, supra note 4, at 6-7.\\n. Indeed, one of petitioner's responsibilities was to serve on the committee that must approve applications for the \\\"patents-in-fee\\\" needed to sell trust property. This committee approved the patent-in-fee for the very property in which Moffer acquired an interest. See Initial Decision, slip op. at 6, JA at 11.\\n. Cf. Wroblaski v. Hampton, 528 F.2d 852, 856 (7th Cir. 1976) (dismissal of employees of Immigration and Naturalization Service fully justified in light of appearance of conflict of interest arising from the use of aliens in personal household service).\\n. The case law interprets this language to require that a \\\"nexus\\\" be shown to exist between the action taken by an agency and the good of the service. See, e.g., McClelland v. Andrus, 606 F.2d 1278, 1291 (D.C.Cir.1979). While the MSPB might have provided a clearer articulation of the nexus, its existence can be inferred from the circumstances of the dismissal itself. See, e.g., Gueory v. Hampton, 510 F.2d 1222, 1227 (D.C.Cir.1974). In this case, the intimate connection between the petitioner's misconduct and his public responsibilities speaks for itself.\\n. Contrary to petitioner's assertions, we do not believe that the MSPB felt compelled to impose the penalty of removal by the terms of the statute. The plain language of its decision makes it clear that the MSPB weighed all the relevant evidence before deciding to approve the removal penalty. See Final Board Decision, slip op. at 7-8, JA at 24-25.\\n. The MSPB explicitly cited to its decision in Douglas v. Veterans Administration, MSPB Order No. AT075299006 at 32-33 (April 10, 1981), which enumerated possible mitigating factors to be considered. This reference constitutes sufficient indication that the MSPB took into account potentially mitigating considerations in accordance with that decision.\\n.We also decline to remand this case back to the Agency for a determination of whether the asserted grounds for dismissal were to be independent or cumulative. See Meehan v. Macy, 392 F.2d 822, 839 (D.C.Cir.), aff'd en banc, 425 F.2d 472 (D.C.Cir. 1968). We believe that the violation of \\u00a7 68 alone fully warrants dismissal, and note that Congress obviously shared our view of the seriousness of the offense by explicitly providing in the newly revised statute that violators \\\"shall be removed from office notwithstanding any other provision of law concerning termination of federal employment.\\\" 18 U.S.C. \\u00a7 437(a) (Supp. IV 1980) (emphasis added).\"}"

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+"{\"id\": \"3669294\", \"name\": \"U S WEST COMMUNICATIONS, INC., et al., Petitioners, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents. AT&T Corporation, et al., Intervenors\", \"name_abbreviation\": \"U S West Communications, Inc. v. Federal Communications Commission\", \"decision_date\": \"1999-06-08\", \"docket_number\": \"Nos. 98-1468, 98-1469 and 98-1471\", \"first_page\": \"224\", \"last_page\": \"228\", \"citations\": \"336 U.S. App. D.C. 224\", \"volume\": \"336\", \"reporter\": \"United States Court of Appeals for the District of Columbia Circuit\", \"court\": \"United States Court of Appeals for the District of Columbia Circuit\", \"jurisdiction\": \"District of Columbia\", \"last_updated\": \"2021-08-10T19:27:41.949517+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before: SILBERMAN, WILLIAMS and TATEL, Circuit Judges.\", \"parties\": \"U S WEST COMMUNICATIONS, INC., et al., Petitioners, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents. AT&T Corporation, et al., Intervenors.\", \"head_matter\": \"177 F.3d 1057\\nU S WEST COMMUNICATIONS, INC., et al., Petitioners, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents. AT&T Corporation, et al., Intervenors.\\nNos. 98-1468, 98-1469 and 98-1471.\\nUnited States Court of Appeals, District of Columbia Circuit.\\nArgued May 3, 1999.\\nDecided June 8, 1999.\\nWilliam T. Lake argued the cause for petitioners U S WEST Communications, Inc., and Ameritech Corporation. With him on the briefs were William R. Richardson, Jr., Lynn R. Charytan, Theodore A. Livingston, John E. Muench and Raspar J. Stoffelmayr.\\nDrew S. Days, III, argued the cause for petitioner Qwest Communications Corporation. With him on the briefs was Robert H. Loeffler. Kenneth W. Irvin entered an appearance.\\nRichard K. Welch, Counsel, Federal Communications Commission, argued the cause for respondents. With him on the brief were Joel I. Klein, Assistant Attorney General, U.S. Department of Justice, Catherine G. O\\u2019Sullivan and Adam D. Hirsh, Attorneys, Christopher J. Wright, General Counsel, Federal Communications Commission, Daniel M. Armstrong, Associate General Counsel, and John E. Ingle, Deputy Associate General Counsel.\\nDavid W. Carpenter argued the cause for intervenors AT&T Corporation, et al. With him on the brief were Peter D. Keisler, Mark C. Rosenblum, Roy E. Hoffinger, William Single, IV, Jerome L. Epstein, Donald B. Verrilli, Jr., Howard J. Symons, Sara F. Seidman, Albert H. Kramer, Andrew D. Lipman, Richard M. Rindler, W. Anthony Fitch, Brian Conboy, Thomas Jones and Robert M. McDowell. Genevieve Morelli and Michael J. Shortley, III, entered appearances.\\nJohn Thorne, Michael E. Glover, Mark L. Evans and M. Robert Sutherland were on the brief for amici curiae Bell Atlantic Telephone Companies.\\nBefore: SILBERMAN, WILLIAMS and TATEL, Circuit Judges.\", \"word_count\": \"2652\", \"char_count\": \"16347\", \"text\": \"Opinion for the Court filed by Circuit Judge STEPHEN F. WILLIAMS.\\nSTEPHEN F. WILLIAMS, Circuit Judge:\\nUntil various conditions relating to competition in local (\\\"intraLATA\\\") telephone service are satisfied, the Telecommunications Act of 1996 generally bars each Bell operating company (\\\"BOC\\\") from providing long distance (\\\"interLATA\\\") service originating in the region where it provides local service:\\nNeither a Bell operating company, nor any affiliate of a Bell operating company, may provide interLATA services except as provided in this section.\\n\\u00a7 271(a) of the Communications Act, 47 U.S.C. \\u00a7 271(a).\\nIn May 1998 two of the BOCs, U S WEST and Ameritech, announced deals with Qwest Communications Corporation under which each BOC would market Qwest's long distance service to its customers. Each BOC employed a special label for the resulting package (\\\"Buyer's Advantage\\\" for U S WEST, \\\"CompleteAccess\\\" for Ameritech); each offered the customer \\\"one-stop shopping\\\" for both local and long distance, with all customer support (sign-up and servicing) through the BOC's own toll-free number. Qwest was to compensate each BOC with a fixed fee for every customer obtained.\\nCompetitors of Qwest in the long distance market filed complaints in two federal district courts, which referred them to the FCC. The Commission invited the filing of administrative complaints, which duly followed. The Commission held adjudicative proceedings and ultimately issued the order under review here, finding the agreements in violation of \\u00a7 271. AT&T Corp. v. Ameritech Corp., 13 FCC Red 21,438 (1998). U S WEST, Ameritech, and Qwest petitioned for review.\\nThe statutory term \\\"provide\\\" appears to us somewhat ambiguous in the present context. The Commission believes that the disputed arrangements would give the two BOCs positions in the market for local and long distance service that would greatly advantage them once they become explicitly entitled to provide long distance service. Given the reasonableness of that belief, and its relation to the overall purposes of the Act, we find the Commission's interpretation here permissible.\\nAs we said, \\u00a7 271 says that a BOC may not \\\"provide interLATA services except as provided in this section.\\\" Exceptions in the Act allow several forms of interLATA service immediately; the rest \\u2014 including the sort of service at issue here- \\u2014 is permitted, on a state-by-state basis, only upon application and FCC approval pursuant to \\u00a7 271(d). See generally SBC Communications Inc. v. FCC, 138 F.3d 410, 412-14 (D.C.Cir.1998) (explaining history and structure of \\u00a7 271(c)(d)). Neither U S WEST nor Ameritech has received \\u00a7 271(d) approval for any state: each is therefore subject to the general \\u00a7 271(a) prohibition.\\nUnder Chevron U.S.A. Inc. v. NRDC, 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), we of course honor Congress's clearly expressed answer to the \\\"question\\\" confronted by the agency. See id. at 842-43, 104 S.Ct. 2778. Petitioners claim that \\u00a7 271(a)'s ban clearly cannot apply to any marketing arrangements; as the two Qwest arrangements are a form of market ing, they reason that the Commission necessarily erred in its expansive view of \\\"provide.\\\"\\nPetitioners base this claim on \\u00a7 272 of the Act. It requires that each BOC, even after receiving \\u00a7 271(d) approval, provide most interLATA services only through a separate affiliate. See 47 U.S.C. \\u00a7 272(a). Further, \\u00a7 272(g)(2) places the following restriction on the BOC and its affiliate:\\nA Bell operating company may not market or sell interLATA service provided by an affiliate required by this section within any of its in-region States until such company is authorized to provide interLATA services in such State under section 271(d) of this title.\\nId. \\u00a7 272(g)(2). The BOCs argue that since this section prevents them from marketing the interLATA service of an affiliate until they receive the go-ahead under \\u00a7 271(d), it carries a clear implication that they may, before that date, market the interLATA services of a non-affiliate such as Qwest. The Commission agreed \\u2014 to the extent of reading \\u00a7 272(g)(2) as showing that the forbidden \\\"provision]\\\" of \\u00a7 271(a) cannot cover all marketing relationships. See 13 FCC Red at 21,463, \\u00b6 32. But some arrangements that are marketing in the conventional sense of the word, it thought, could also qualify as provision of service forbidden under \\u00a7 271(a). See id. at 21,463-64, \\u00b6 33.\\nAddressing this precise question first, we think it plain that the Commission's reading of the two sections has not led it into any logical contradiction. So long as there remains some non-trivial range of marketing of non-affiliate services that does not fall under the \\u00a7 271(a) ban, the Commission preserves some scope for \\u00a7 272(g)(2)'s implicit authorization. The BOCs argue that the Commission in fact leaves no such room, pointing to language in the Order saying that although a BOC could offer its marketing services to a long distance supplier, it could not \\\"represent[ ] that [the marketed] product or service is associated with its name or services.\\\" Id. at 21,474, \\u00b6 50. Thus the Commission's view would, they say, allow a marketing arrangement only if it \\\"has no conceivable business purpose.\\\" The exact meaning of \\\"associated with its name or services\\\" is not before us, but we read the phrase together with the Commission's expression of concern about the BOCs' developing a \\\"first mover's advantage\\\" over long distance carriers in the as yet undeveloped full-service market. Id. at 21,467-68, 21,-473, \\u00b6 40-41, 49. Thus, although the Commission's view bars the BOCs from taking advantage of some of the synergies that their marketing of interLATA service might exploit, it cannot be said to cut the implicitly permissible marketing down to zero or its functional equivalent. For example, the Commission's decision explicitly allows a BOC to offer the services of its marketing department for sale of interLATA services, subject to the proviso noted above. The Commission cannot be said to have squeezed the life out of \\u00a7 272(g)(2)'s implied permission. Thus, the BOCs' argument from \\u00a7 272(g)(2) doesn't compel the narrow reading they claim for \\u00a7 271(d).\\nNor are there other reasons to suppose Congress clearly intended such a narrow interpretation. Unlike numerous other terms in the Telecommunications Act of 1996, neither the word \\\"provide\\\" nor the phrase \\\"provide interLATA services\\\" is anywhere defined in the Act. Cf. 47 U.S.C. \\u00a7 153 (definitions). \\\"InterLATA service\\\" is defined \\u2014 as \\\"telecommunications between a point located in a local access and transport area and a point located outside such area,\\\" id. \\u00a7 153(21)\\u2014 but that doesn't help: the definition does not specify some necessary relation of an actor to such telecommunications. Nor do any of the various ordinary meanings of \\\"provide\\\" appear necessarily superior in this context. See 13 FCC Red at 21,460, \\u00b6 27 (comparing dictionary definitions).\\nPetitioners also point to numerous other places where the Act uses the term \\\"provide\\\" or its cognates, see 47 U.S.C. \\u00a7 153(44) (\\\"provider of telecommunications services\\\"); id. \\u00a7 153(45) (\\\"provide telecom munications services\\\"); id. \\u00a7 271(c) (\\\"providing access and interconnection\\\"); id. \\u00a7 272(a) (\\\"provide\\\" various services, including interLATA services); id. \\u00a7 275 (\\\"provision of alarm monitoring services\\\"), arguing that the Commission's assignment of narrow meanings to \\\"provide\\\" in those instances compels equal narrowness here. But although we normally attribute consistent meanings to statutory terms, \\\"[ijdentical words may have different meanings where the subject-matter to which the words refer is not the same in the several places where they are used, or the conditions are different.\\\" Weaver v. USIA 87 F.3d 1429, 1437 (D.C.Cir.1996) (internal quotation omitted). As the Commission noted, no other section besides \\u00a7 271(a)-(b) uses \\\"provide\\\" to describe a restriction on BOCs' entry into a market where the lifting of the restriction depends on the BOCs themselves. 13 FCC Red at 21,462, \\u00b6 30. A narrow reading would thus tempt the BOCs to defer conduct that Congress hoped to accelerate \\u2014 acts facilitating the development of competition in the intraLATA market.\\nFCC's reading of \\\"provide\\\" to include the BOCs' actions here, moreover, appears clearly reasonable in the specific context of \\u00a7 271. See Chevron, 467 U.S. at 845, 104 S.Ct. 2778. As the Commission noted, \\u00a7 271 both gives the BOCs an opportunity to enter the long-distance market and conditions that opportunity on the BOCs' own actions in opening up their local markets. See 13 FCC Red at 21,645, \\u00b636. The Commission viewed the powerful incentive set up by this scheme as shedding light on the market entry prohibition:\\n[I]n order to determine whether a BOC is providing interLATA service within the meaning of section 271, we must assess whether a BOC's involvement in the long distance market enables it to obtain competitive advantages, thereby reducing its incentive to cooperate in opening its local market to competition.\\nId. at 21,465, \\u00b6 37.\\nThis seems reasonable as a general approach. Of course too-broad a notion of \\\"competitive advantage\\\" or ' incentive ' could make it nonsensical, turning it into an excuse to stifle the BOCs at every opportunity. But the FCC found that the arrangements here would have afforded the BOCs in question a serious advantage, namely a \\\"first mover's advantage\\\" over any non-BOC firms hoping to secure a position in the anticipated full-service market. See id. at 21,467-68, 21,473, \\u00b6 40-41, 49. By offering one-stop shopping for local and long distance under their own brand name and with their own customer care, see id. at 21,466, \\u00b6 38, U S WEST and Ameritech could build up goodwill as full-service providers, positioning themselves in these markets before \\u00a7 271 allows them actually to enter. There appears to have been specific congressional concern over the impact of jointly marketed local and long distance service; this is manifested in the \\u00a7 271(e) rule barring the major interLATA carriers from jointly marketing their interLATA service with local service obtained from a BOC, for three years or until the BOC in question gains access to the long distance market under \\u00a7 271, whichever is first. See id. at 21,473-74, \\u00b6 49; 47 U.S.C. \\u00a7 271(e)(1). If the BOCs could secure this advantage without opening their local service markets, the blunting of the intended incentive would be considerable \\u2014 or so the Commission could reasonably find.\\nPetitioners seek to press the \\u00a7 271(e) likeness further. They note that the Commission, despite what they claim is an incentive structure similar to \\u00a7 271(a)'s, relied on the First Amendment in allowing long distance carriers covered by \\u00a7 271(e) to engage in certain advertising activities paralleling what is forbidden here. See In the Matter of Implementation of the Non-Accounting Safeguards of Sections 271 and 272 of the Communications Act of 193k, as amended, 11 FCC Red 21905, 22,040-41, \\u00b6 279-80. But \\u00a7 271(e) allows the long distance carriers to (1) offer and market separately their long distance service plus resold BOC services, and (2) offer and market jointly their long distance service and local service not based on resold BOC services. In that context, the Commission allowed a covered carrier to proclaim its offers both of long distance and of resold BOC local service in a single ad, so long as it did not offer such service as a \\\"bundle\\\" or otherwise with \\\"one-stop\\\" shopping. Id. In short, it let them truthfully advertise the services they could lawfully provide, but no more. As the BOCs are barred from providing interLATA service until they have surmounted the \\u00a7 271(d) hurdles, the present case presents no real analogy.\\nContext also explains the Commission's application of the \\\"engage in the provision of alarm monitoring\\\" language of \\u00a7 275. The Commission and the petitioners spar over whether the Commission's approach here is genuinely different, but we need not resolve the clash, as the differences in the statutory contexts justify different outcomes. See 13 FCC Red at 21,462-63, \\u00b6 31. Incentives are not as crucial in a situation where the business prohibition will be lifted in a fixed time, as they will for alarm monitoring, see 47 U.S.C. \\u00a7 275(a)(1), as where its duration depends on the BOC's own actions.\\nThe Commission's action here of course does not represent a complete demarcation of the border between permitted marketing and forbidden provision. That is entirely reasonable. Apart from the Commission's general authority to choose between adjudication and rulemaking, see NLRB v. Bell Aerospace Co., 416 U.S. 267, 294, 94 S.Ct. 1757, 40 L.Ed.2d 134 (1974), it makes sense for it to proceed through case-by-case judgments of a questioned action's likely effect \\u2014 whether, for example, the marketing materials will cause consumers to identify the services with the BOC. While \\u2014 as we've noted \\u2014 some of the Commission's language on incentives is rather broad, it is not inconsistent with future judgments balancing the interests that are relevant under \\u00a7 271(a). We are also puzzled by the Commission's concern that the two BOCs in each instance laid down the terms for the transaction, which Qwest humbly accepted. 13 FCC Red at 21,449-50, 21,452, \\u00b6 10, 14. As the BOCs had unique advantages to offer Qwest, this course of events was hardly surprising; we cannot see that the issue of who first proposed what to whom has much bearing on the policy values at stake. But the Commission's detours on the subject do not appear to have played a decisive role in its decision.\\nPetitioners also assert a want of substantial evidence. They regard the Commission's ultimate finding as belied by Qwest's repeated identification in the BOCs' marketing materials as the long distance provider. But that identification is still consistent with the view that the materials as a whole would lead consumers to link long-distance service to the BOCs, particularly as long distance was offered only as part of a full-service package with a BOC brand name. Nor does it appear that the FCC, by pointing to various activities characterized as \\\"typically performed by those who resell interLATA services,\\\" 13 FCC Red at 21,471-73, \\u00b6 46, 48, was somehow suggesting that the ultimate finding of \\\"provider\\\" status depended on an intermediate finding of \\\"reseller\\\" status; petitioners' arguments that they are not actually resellers are thus misguided.\\nThe petitions are\\nDenied.\"}"

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+"{\"id\": \"3674587\", \"name\": \"Patricia KIDD, Appellant, v. DISTRICT OF COLUMBIA, et al., Appellees\", \"name_abbreviation\": \"Kidd v. District of Columbia\", \"decision_date\": \"2000-06-02\", \"docket_number\": \"Nos. 98-7075 & 98-7100\", \"first_page\": \"419\", \"last_page\": \"419\", \"citations\": \"341 U.S. App. D.C. 419\", \"volume\": \"341\", \"reporter\": \"United States Court of Appeals for the District of Columbia Circuit\", \"court\": \"United States Court of Appeals for the District of Columbia Circuit\", \"jurisdiction\": \"District of Columbia\", \"last_updated\": \"2021-08-11T00:45:07.507226+00:00\", \"provenance\": \"CAP\", \"judges\": \"BEFORE: EDWARDS, Chief Judge; SILBERMAN, WILLIAMS, GINSBURG, SENTELLE, HENDERSON, RANDOLPH, ROGERS, TATEL and GARLAND, Circuit Judges.\", \"parties\": \"Patricia KIDD, Appellant, v. DISTRICT OF COLUMBIA, et al., Appellees.\", \"head_matter\": \"214 F.3d 179\\nPatricia KIDD, Appellant, v. DISTRICT OF COLUMBIA, et al., Appellees.\\nNos. 98-7075 & 98-7100.\\nUnited States Court of Appeals, District of Columbia Circuit.\\nFiled On: June 2, 2000.\\nBEFORE: EDWARDS, Chief Judge; SILBERMAN, WILLIAMS, GINSBURG, SENTELLE, HENDERSON, RANDOLPH, ROGERS, TATEL and GARLAND, Circuit Judges.\", \"word_count\": \"306\", \"char_count\": \"1891\", \"text\": \"Chief Judge EDWARDS and Circuit Judges SENTELLE, TATEL and GARLAND would grant the petition.\\nA statement of Circuit Judge TATEL, dissenting from the denial of rehearing en banc, joined by Chief Judge EDWARDS and Circuit Judges SENTELLE and GARLAND, is attached.\\nCircuit Judge ROGERS did not participate in this matter.\\nORDER\\nPer Curiam\\nThe petition for rehearing en banc of amicus curiae and the response thereto have been circulated to the full court. The taking of a vote was requested. Thereafter, a majority of the judges of the court in regular active service did not vote in favor of the petition. Upon consideration of the foregoing, it is\\nORDERED that the petition be denied.\"}"

dc/3683239.json

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+"{\"id\": \"3683239\", \"name\": \"DIRECT MAIL/MARKETING ASSOCIATION, INC., Appellant, v. UNITED STATES POSTAL SERVICE\", \"name_abbreviation\": \"Direct Mail/Marketing Ass'n v. United States Postal Service\", \"decision_date\": \"1974-06-28\", \"docket_number\": \"No. 74-1272\", \"first_page\": \"157\", \"last_page\": \"162\", \"citations\": \"163 U.S. App. D.C. 157\", \"volume\": \"163\", \"reporter\": \"United States Court of Appeals for the District of Columbia Circuit\", \"court\": \"United States Court of Appeals for the District of Columbia Circuit\", \"jurisdiction\": \"District of Columbia\", \"last_updated\": \"2021-08-10T22:11:58.918639+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before WRIGHT and WILKEY, Circuit Judges, and JAMESON, Senior District Judge.\", \"parties\": \"DIRECT MAIL/MARKETING ASSOCIATION, INC., Appellant, v. UNITED STATES POSTAL SERVICE.\", \"head_matter\": \"501 F.2d 717\\nDIRECT MAIL/MARKETING ASSOCIATION, INC., Appellant, v. UNITED STATES POSTAL SERVICE.\\nNo. 74-1272.\\nUnited States Court of Appeals, District of Columbia Circuit.\\nArgued June 6, 1974.\\nDecided June 28, 1974.\\nDavid E. McGiffert, Washington, D. C., for appellant. Dana T. Ackerly, New Canaan, Conn., also entered an appearance for appellant.\\nStephen F. Eilperin, Atty., Dept of Justice, with whom Irving Jaffe, Acting Asst. Atty. Gen., Earl J. Silbert, U. S. Atty., and Michael H. Stein, Atty., Dept, of Justice, were on the brief, for appellee.\\nBefore WRIGHT and WILKEY, Circuit Judges, and JAMESON, Senior District Judge.\\nOf the United States District Court for the District of Montana, sitting by designation pursuant to 28 U.S.C. \\u00a7 294(d) (1970).\", \"word_count\": \"2700\", \"char_count\": \"17051\", \"text\": \"J. SKELLY WRIGHT, Circuit Judge:\\nDirect Mail/Marketing Association, Inc. (DMMA), plaintiff-appellant, sought in the District Court a declaration that a schedule of temporary mail rates implemented by the United States Postal Service violated Section 403(c) of the Postal Reorganization Act of 1970, 39 U.S.C. \\u00a7 403(c) (1970), by working an \\\"undue or unreasonable discrimination\\\" against users of regular third class mail service. The District Court dismissed the complaint for failure to state a claim but, apparently, also reached the merits to the extent of holding \\\"that there is no undue or unreasonable discrimination within the meaning of 39 U.S.C. 403(c) in the schedule of temporary rates .\\\" Because a schedule of temporary rates must meet the standard of Section 403(c), the complaint did state a cause of action. However, we affirm the holding on the merits that this schedule worked no unlawful discrimination.\\nI\\nThis court has already canvassed the complex procedures by which postal rates are set under the Act. See Assn of American Publishers, Inc. v. Governors of U.S. Postal Service, 157 U.S.App.D.C. 397, 485 F.2d 768 (1973); Direct Mail Advertising Assn v. U.S. Postal Service, 147 U.S.App.D.C. 394, 458 F.2d 813 (1972). See also Mail Advertising Corp. of America v. United States Postal Service, 148 U.S.App.D.C. 158, 459 F.2d 1182 (1972), which upheld the constitutionality of the procedures. In brief: The Postal Service initiates the process by requesting permanent rate changes, which request is adjudicated before the independent Postal Rate Commission. The Commission's decision is subject to review by the Governors of the Postal Service, and ultimately by the courts. For certain classes of mail, including third class mail, rate increases approved by the Governors must be introduced in gradual year-by-year steps if Congress appropriates money to cover the revenue fore gone by such \\\"phasing.\\\" If Congress does not appropriate this revenue foregone, the rate increases may be implemented instanter, without phasing.\\nThe Postal Service may, however, implement \\\"temporary\\\" rate increases before this elaborate procedure has run its course. Specifically, if the Commission fails to issue its decision within 90 days of the Postal Service's request for an increase in permanent rates, the Service may, upon 10 days notice in the Federal Register, \\\"place into effect temporary changes in rates of postage, [and] in fees for postal service it considers appropriate to carry out the provisions\\\" of the Act. 39 U.S.C. . \\u00a7 3641(a). The Service does not have carte blanche in setting temporary rates. A temporary rate\\nmay not exceed the lesser of (1) the rate or fee requested for such class or service, or (2) a rate or fee which is more than one-third greater than the permanent rate or fee in effect for that class or service at the time a permanent change in the rate or fee of such class or service is requested under section 3622 of this title.\\n39 U.S.C. \\u00a7 3641(c). The \\\"rate or fee requested\\\" \\u2014 the ceiling on temporary rates set in Section 3641(c)(1) \\u2014 refers to the full permanent rate requested, not to the \\\"phased\\\" level of that permanent rate. Thus Section 3641(c) does not embody the mandatory phasing requirement, which applies in terms only to permanent rates. Direct Mail Advertising Assn v. United States Postal Service, swpra. In addition to the \\\"ceiling\\\" requirement in Section 3641(c), the Act requires that temporary rates, like permanent ones, bear a reasonable relationship inter sese:\\nIn providing services and in establishing classifications, rates, and fees under this title, the Postal Service shall not, except as specifically authorized in this title, make any undue or unreasonable discrimination among users of the mails, nor shall it grant any undue or unreasonable preferences to any such user.\\n39 U.S.C. \\u00a7 403(c).\\nThe present case involves a schedule of temporary rates allegedly in violation of the nondiscrimination requirement in Section 403(c). The necessary background is quickly recited. The Postal Service gave notice on October 19, 1973 that it had requested an increase in permanent rates and that it would implement temporary rate increases on January 5, 1974 if the Commission had not acted on the request within 90 days. On December 21, 1973 the Service gave notice that, for the third class regular mail, the temporary rate would equal the requested permanent rate, but that all other classes of mail eligible for \\\"phasing\\\" would enjoy temporary rates at the \\\"phased\\\" (i. e. first step) level of the corresponding permanent rates requested. The Service made this distinction on the theory that Congress would pass supplemental appropriations to support phasing of all temporary rates except that for third class mail.\\nBecause of action by the Cost of Living Council, the temporary rates were implemented on March 2, 1974, rather than January 5, 1974, but they otherwise conformed to the prior announcement. In the meantime, the Service had in fact sought a supplemental appropriation to support phasing of the temporary rates \\u2014 including phasing of temporary third class rates. The Service asked for a total of $195 million \\u2014$84 million to support phasing of third class rates and $111 million to support phasing of other phasing-eligible rates. The President joined the request for $111 million but advocated omitting any appropriation to support phasing of third class rates. The House passed a $110 million appropriation, the Senate a $100 million appropriation, and the Conference Committee settled upon a $105 million figure, the legislation stating in its entirety r\\nFor an additional amount for \\\"Payment to the postal service fund\\\", $105,000,000.\\nPub.L. 93-245, 93d Cong., 1st Sess., 12 (January 3,1974).\\nII\\nThe question before us is whether the discrepancy between third class and other \\\"phasing-eligible\\\" rates, alleged to be discriminatory under 39 U.S.C. \\u00a7 403(c), can be justified by Congress' action in passing the $105 million supplemental appropriation. DMMA argues in the negative on two grounds: (1) that appropriations actions are irrelevant to assessing the legality of temporary rates, and (2) that, if the appropriations action is relevant, it nonetheless reflects congressional intent too ambiguously in this case to support the inter-rate discrepancy. We reject both arguments.\\nThe first argument rests upon Direct Mail Advertising Assn v. United States Postal Service, supra. There, as here, the Postal Service had established a temporary rate schedule in which third class mail charges were at the full permanent rate requested, rather than at the first \\\"phasing\\\" step of that rate. The District Court had ruled that all phasing-eligible rates must be phased, unless Congress fails to appropriate the necessary revenues, and that Congress had not failed to do so. On appeal by the Postal Service we held that phasing was not required for temporary rates but only for permanent rates. We reasoned that the phasing provisions are located in the subchapter on permanent rates, not the one on temporary rates, that the provisions take effect only after the first permanent rate decision (which had not then occurred), that recourse to congressional appropriations to support phasing of temporary rates would be cumbersome as a practical matter, and, finally, that the Act contains \\\"ceiling\\\" limitations peculiar to temporary rates, 39 U.S.C. \\u00a7 3641(c), which supplant the lower ceilings represented by \\\"phasing.\\\" 147 U.S.App.D.C. at 397-399, 458 F.2d at 816-818. As the temporary rate in question met the requirements of Section 3641(c), we sustained the Postal Service; we found it unnecessary to consider whether Congress had in fact failed to appropriate money to support phasing of that rate, \\\"[sjince we have concluded that, in any case, phasing is not required by the Act for temporary rates.\\\" 147 U.S.App.D.C. at 397 n. 9, 458 F.2d at 816 n. 9.\\nDMMA reads Direct Mail Advertising Assn broadly as holding that the phasing provisions have no application to temporary rates. If this were true, the temporary rate structure at issue in the present ease would lack the coherent rationale required by the nondiscrimination provision, 39 U.S.C. \\u00a7 403(c). The rate structure distinguishes between rates eligible and ineligible for phasing, and it distinguishes between third class and other phasing-eligible rates by relying on congressional appropriations action, as specified in the Act's phasing provisions. If those provisions have no application to temporary rates, none of these distinctions makes sense.\\nBut Direct Mail Advertising Assn cannot in fact be accorded a broad reading. As this court subsequently stated, in denying a motion to rehear that case, Direct Mail Advertising Assn was decided without considering the possible bearing of Section 403(c) on the question of whether the phasing provisions apply to schedules of temporary rates. This unresolved issue is before us now. Our conclusions are quite simple and straightforward. We agree with the earlier court that the Act does not require phasing of temporary rates. Consistent with Section 3641(c)(1), the Postal Service may set temporary rates equal to the corresponding permanent rates requested. When this is done throughout a schedule of temporary rates, there will presumably be no shortfall between temporary revenue collected and temporary revenue needed and, consequently, no occasion to petition Congress for supporting appropriations. But Section 3641(c)(1) establishes only a ceiling on temporary rates, not a floor. Thus it is open to the Service to introduce temporary rates some or all of which are at their phased levels. As a practical matter, this course will require supporting appropriations. When the Service chooses in this way to phase some or all of its temporary rates, and to seek appropriations as support, the phasing provisions, 39 U.S.C. \\u00a7 2401 (c), 3626, and 3627, come into play. The Service's choice vests in the Congress the power to determine, through the appropriations process, which temporary rates shall be phased and which shall not.\\nThis reading of the Act has a direct bearing on the nondiscrimination provision, 39 U.S.C. \\u00a7 403(c). That provision recognizes as legal any inter-rate discrepancy which is \\\"specifically authorized in this title.\\\" Obviously, any inter-rate discrepancies resulting from a proper invocation of the phasing provisions would be \\\"specifically authorized in this title.\\\" Therefore, the sole question before us is whether the discrepancy between third class and other phasing-eligible rates contained in the present schedule of temporary rates results from proper application of the phasing procedures. That is, we must determine whether Congress' appropriations action evinced an intent to ratify the inter-rate discrepancy pursuant to 39 U.S.C. \\u00a7 3627.\\nDMMA insists that Congress' action was ambiguous on this point. There is some merit in the argument. The supplemental appropriation came in a lump sum, with no explicit assignment of particular amounts to particular classes of mail. By so obscuring its will, Congress causes a great waste of administrative and judicial energies. Nevertheless, the congressional intent here is not beyond discernment. For reading congressional intent we have fashioned a very lenient standard:.\\nIt seems to us quite plain that if in good faith (which no one denies) the Postal Service specifies how many dollars it must get from Congress in order not to be in the hole with respect to carrying third class mail, then, regardless of Budget officials or others outside the Postal Service, the Postal Service's conclusion fixes the amount of revenue foregone in so far as that concept is used in 39 U.S.C. \\u00a7 3626 and 3627 or other parts of the Postal Service Act.\\nAssn of American Publishers, Inc. v. Governors of United States Postal Service, supra, 157 U.S.App.D.C. at 405, 485 F.2d at 776. The Postal Service did make a good faith request for $84 million to support phasing third class mail. By so doing the Service acquired the power to interpret Congress' response to that request, subject only to judicial review for arbitrariness or caprice. The House and the Senate separately, and the Conference Committee which resolved their differences, all embraced appropriations levels below that requested by the President, whose recommendation expressly excluded money for phasing third class mail. Though the House committee was silent on the issue, the Senate committee expressly noted that its recommended bill excluded any revenue for phasing third class mail rates. With this background, the Postal Service's interpretation of Congress' will was manifestly reasonable.\\nAccordingly, we find that the discrepancy between third class and other phasing-eligible rates was properly determined according to the phasing provisions of the Act and, being \\\"specifically authorized\\\" in this fashion, was not in violation of 39 U.S.C. \\u00a7 403(c).\\nAffirmed.\\n. An injunction was also sought, but the District Court's denial of that relief has not been appealed.\\n. 39 U.S.C. \\u00a7 101 et seq. (1970), Pub.L. 91-375, Aug. 12, 1970, 84 Stat. 719.\\n. Order of Feb. 21, 1974, Civil Action No. 74-254.\\n. The section applies to provision of all \\\"services\\\" and establishment of all \\\"classifications, rates, and fees under this title.\\\"\\n. 39 U.S.C. \\u00a7 3622, 3624.\\n. 39 U.S.C. \\u00a7 3621, 3625.\\n. 39 U.S.C. \\u00a7 3628.\\n. 39 U.S.C. \\u00a7 3626.\\n. 39 U.S.C. \\u00a7 3627.\\n. 38 Fed.Reg. 29198.\\n. 38 Fed.Reg. 35056.\\n. See 39 Fed.Reg. 1125 (Jan. 4, 1974).\\n. See Hearings, Subcommittee of the House Committee on Appropriations, on Fiscal Year 1974 Supplemental Appropriation, 93d Cong., 1st Sess., 1084-1085, 1101-1102 (1973) (hereinafter House Hearings) ; Hearings, Senate Committee on Appropriations, on 1974 Supplemental Appropriation, 93d Cong., 2d Sess., Part I, 378 (1973).\\n. The exact amount requested by the President, . via the Office of Management and Budget, was $111,603,000. See H.R.Doe. No.93-178, 93d Cong., 2d Sess. (1973), and House Hearings, supra note 13, at 1084 & 1101.\\n. The bills passed conformed to the pertinent committee recommendations. See H.R. Rep.No.93-663, 93d Cong., 1st Sess., 40 (1973), and S.Rep.No.93-614, 93d Cong., 1st Sess., 66 (1973).\\n.The petition for rehearing stressed that phasing of temporary rates would raise serious problems under \\u00a7 403(c) if the phasing provisions were in fact inapplicable to temporary rates, as the court had implied. In denying rehearing the court clarified its opinion as follows:\\nThe Court has considered the petition for rehearing or recall of the mandate, and the opposition thereto. We decline to order rehearing, but a clarification of our original opinion is in order. The allegation that the temporary rates for third class mail instituted by the Postal Service were discriminatory in violation of 39 U. S.C. \\u00a7 403 (1970) was not in issue when we first heard this case. It was therefore neither considered nor disposed of by the original opinion.\\nDirect Mail Advertising Assn v. United States Postal Service, D.C.Cir., No. 72-1065, order of March 15, 1972 (unreported).\\n. The Postal Service has assured us that the practical difficulties earlier perceived in utilizing the appropriations process to ratify temporary rate schedules have considerably diminished. Compare Direct Mail Advertising Assn v. United States Postal Service, 147 U.S.App.D.C. 394, 399, 458 F.2d 813, 818 (1972).\\n. The phasing provisions take effect only after the first permanent rate decision has been rendered under the Act. 39 U.S.C. \\u00a7 3626. That event has now occurred, but liad not done so at the time Direct Mail Advertising Assn was written.\\n. That is, Congress may either compel or veto phasing of any and all eligible temporary rates, contrary to the wishes of the Postal Service, once the Service makes the threshold choice to seek appropriations as support for a temporary rate schedule.\\n. In addition, the amount appropriated is not precisely equal to the amount necessary to phase all eligible rates other than the third class rate. This is of course a factor to be weighed in interpreting the purport of Congress' action, but it is not necessarily a dispositive factor.\\n. S.Rep.No.93-614, supra note 15, at 66.\"}"

dc/3688003.json

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+"{\"id\": \"3688003\", \"name\": \"UNITED STATES of America v. Alvin A. BECKWITH, Jr., A/K/A Alvin A. Beckwith, Appellant\", \"name_abbreviation\": \"United States v. Beckwith\", \"decision_date\": \"1975-01-22\", \"docket_number\": \"No. 74-1592\", \"first_page\": \"361\", \"last_page\": \"363\", \"citations\": \"166 U.S. App. D.C. 361\", \"volume\": \"166\", \"reporter\": \"United States Court of Appeals for the District of Columbia Circuit\", \"court\": \"United States Court of Appeals for the District of Columbia Circuit\", \"jurisdiction\": \"District of Columbia\", \"last_updated\": \"2021-08-11T00:19:17.527923+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before BAZELON, Chief Judge, and TAMM and ROBB, Circuit Judges.\", \"parties\": \"UNITED STATES of America v. Alvin A. BECKWITH, Jr., A/K/A Alvin A. Beckwith, Appellant.\", \"head_matter\": \"510 F.2d 741\\nUNITED STATES of America v. Alvin A. BECKWITH, Jr., A/K/A Alvin A. Beckwith, Appellant.\\nNo. 74-1592.\\nUnited States Court of Appeals, District of Columbia Circuit.\\nJan. 22, 1975.\\nRehearing Denied March 3, 1975.\\nCertiorari Granted June 16, 1975.\\nSee 95 S.Ct. 2627.\\nJohn G. Gill, Jr., Washington, D. C., for appellant.\\nEarl J. Silbert, U. S. Atty., John A. Terry, Barry W. Levine and Raymond J. Coughlan, Jr., Asst. U. S. Attys., were on the brief for appellee.\\nBefore BAZELON, Chief Judge, and TAMM and ROBB, Circuit Judges.\", \"word_count\": \"1389\", \"char_count\": \"8474\", \"text\": \"BAZELON, Chief Judge:\\nAgents of the Intelligence Division of the Internal Revenue Service visited appellant Alvin Beckwith at the home of a friend on August 2, 1972. On the basis of information obtained in that visit and of other information Beckwith was indicted and subsequently convicted on March 21, 1974, of one count of attempting to evade or defeat federal income taxation. On October 4, 1973, previous to this conviction, Beckwith moved to suppress all the statements made during the course of the interview conducted at his friend's home in August, 1972, charging that the interview violated his rights guaranteed by the Fifth Amendment to the Constitution. In particular, he alleged that since the Intelligence Division had singled him out for prosecution on the basis of his alleged gambling activities prior to the interview, the interview was in its nature coercive and tended to compel him to incriminate himself. The District Court rejected this argument and Beckwith now appeals from his conviction, arguing that the District Court was mistaken in this respect. We affirm.\\nBeckwith's argument is based upon Miranda v. Arizona, 884 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) as that case was applied to criminal tax investigations in Mathis v. United States, 391 U.S. 1, 88 S.Ct. 1503, 20 L.Ed.2d 381 (1968). However, those cases involved police interrogation in so-called \\\"custodial\\\" circumstances. Their reasoning is based in crucial part on this fact and cases following upon those seminal decisions have limited their principle to such \\\"custodial\\\" circumstances. Beckwith does not and could not reasonably assert that his interrogation was in custodial circumstances. While the meaning of \\\"custodial\\\" circumstances can include interrogation at a private home, it does not always. Rather the test is whether the suspect \\\"has been taken into custody or otherwise deprived of his freedom in any significant way.\\\" Here Beckwith was neither arrested nor detained against his will. He was not subject to formal interrogation before a grand jury. The record reflects no use of any police interrogation techniques or any sort of browbeating. He was free to leave at any time and in fact was out of the agents' presence more than once. Indeed, one of Beckwith's complaints is that the meeting was so friendly that he was deceived into believing that he was not incriminating himself.\\nThe major thrust of Beckwith's argument is that the principle of Miranda and Mathis should be extended to cover interrogation in non-custodial circumstances after a police investigation has focused on the suspect. We are not impressed with this argument in the abstract nor as applied to the particular facts of Beckwith's interrogation. His interview had none of the indicia of coercion that motivated the Miranda scrutiny of investigative methods and thus it cannot be seriously argued that Beckwith was \\\"compelled\\\" to answer any questions. Furthermore, the agents did give Beckwith a modified Miranda warning which while not in full compliance with Miranda does give the suspect some notice that his statements might be used against him. The extent to which such a warning must be given is not implicated in this case. Beckwith's argument apparently confuses the requisites of compulsion which bring to bear Fifth Amendment interests with the requisites of a waiver of Fifth Amendment rights once those rights attach. The fact that a statement might be made in such a manner as to raise doubts that it constitutes a voluntary and intelligent waiver of the right to counsel and the right to remain silent does not necessarily mean that it was coerced or compelled within the intendment of the Self-Incrimination clause. Therein lies Beckwith's error. In Miranda and Mathis the Court found that custodial interrogations were inherently coercive and statements made therein necessarily compelled. Once having made that judgment, it followed inexorably that only a complete waiver of the Fifth Amendment and Sixth Amendment rights during interrogation would cleanse such statements from the taint of compulsion. But Beckwith's statements need not be found to be a waiver since no right had attached which he was in a position to waive.\\nIt follows from the preceding discussion that the proper inquiry is not whether Beckwith waived anything but whether his statements to the agents were voluntary. We find that they are. There is no claim that Beckwith's mental condition or education were so limited that he was particularly susceptible to interrogation. Furthermore, a modified warning was given, no unusual interrogation techniques were employed and the agents did not, contrary to Beck-with's claim, mislead him as to their purpose in interrogating him. The entire interview was free of coercion and it follows that the District Court properly refused to suppress Beckwith's statements. Beckwith's conviction is, therefore,\\nAffirmed.\\n. See 26 U.S.C. \\u00a7 7201 (1970). Beckwith was indicted for two counts, sent to trial on the first and after conviction the second count was dropped.\\n. See 384 U.S. at 444-450, 86 S.Ct. 1602.\\n. See Orozco v. Texas, 394 U.S. 324, 89 S.Ct. 1095, 22 L.Ed.2d 311 (1969); Hoffa v. United States, 385 U.S. 293, 304, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966); United States v. Scully, 415 F.2d 680 (2d Cir. 1969); cf. Michigan v. Tucker, 417 U.S. 433, 94 S.Ct. 2357, 41 L.Ed.2d 182 (1974). See also the reasoning of United States v. Stamp, 147 U.S.App.D.C. 340, 458 F.2d 759 (1971), cert. denied, 406 U.S. 975, 92 S.Ct. 2424, 32 L.Ed.2d 675 (1972); United States v. Robinson, 142 U.S.App.D.C. 43, 439 F.2d 553 (1970); United States v. Wong, No. 74-1636 (9th Cir. Sept. 23, 1974) (coercion in grand jury interrogation). This has been repeatedly emphasized in tax investigation cases. See, e. g., United States v. Robson, 477 F.2d 13 (9th Cir. 1973); United States v. Engle, 458 F.2d 1017 (8th Cir.), cert. denied, 409 U.S. 875, 93 S.Ct. 122, 34 L.Ed.2d 127 (1972); United States v. Jaskiewicz, 433 F.2d 415 (3d Cir. 1970), cert. denied, 400 U.S. 1021, 91 S.Ct. 582, 27 L.Ed.2d 632 (1971); United States v. Squeri, 398 F.2d 785 (2d Cir. 1968).\\n. Orozco v. Texas, 394 U.S. 324, 89 S.Ct. 1095, 22 L.Ed.2d 311 (1969).\\n. Miranda v. Arizona, 384 U.S. 436, 477, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).\\n. The following warning was given;\\nUnder the Fifth Amendment to the Constitution of the United States, I cannot compel you to answer any questions or to submit any information if such answers or information might tend to incriminate you in any way. I also advise you that anything which you say and any information which you submit may be used against you in any criminal proceeding which may be undertaken. I advise you further that you may, if you wish, seek the assistance of an attorney before responding.\\n. Cf. Michigan v. Tucker, 417 U.S. 433, 444, 94 S.Ct. 2357, 41 L.Ed.2d 182 (1974).\\n. Cf. United States v. Stamp, 147 U.S.App.D.C. 340, 458 F.2d 759, 780-781 (1971), cert. denied, 406 U.S. 975, 92 S.Ct. 2424, 32 L.Ed.2d 675 (1972). The only case supporting Beckwith's argument is United States v. Dickerson, 413 F.2d 1111 (7th Cir. 1969). That case might be distinguished since no warnings whatsoever were given and the court might well have been simply too broad in its remedial assertion that the full panoply of Miranda rights attached in a noncustodial interrogation. In any event, we are not impressed with the assertion that Beckwith's interrogation was coercive within the intendment of Miranda whatever may have been the factual situation in Dickerson.\\n. See Frazier v. Cupp, 394 U.S. 731, 89 S.Ct. 1420, 22 L.Ed.2d 684 (1969); United States v. Stamp, 147 U.S.App.D.C. 340, 458 F.2d 759 (1971), cert. denied, 406 U.S. 975, 92 S.Ct. 2424, 32 L.Ed.2d 675 (1972); United States v. Robinson, 142 U.S.App.D.C. 43, 439 F.2d 553 (1970); United States v. Jaskiewicz, 433 F.2d 415 (3d Cir. 1970) and authorities cited.\"}"

dc/3704069.json

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+"{\"id\": \"3704069\", \"name\": \"Sharon BONDS, et al., Appellees, v. DISTRICT OF COLUMBIA and Margaret A. Moore, Appellants\", \"name_abbreviation\": \"Bonds v. District of Columbia\", \"decision_date\": \"1996-11-25\", \"docket_number\": \"No. 95-7207\", \"first_page\": \"60\", \"last_page\": \"60\", \"citations\": \"323 U.S. App. D.C. 60\", \"volume\": \"323\", \"reporter\": \"United States Court of Appeals for the District of Columbia Circuit\", \"court\": \"United States Court of Appeals for the District of Columbia Circuit\", \"jurisdiction\": \"District of Columbia\", \"last_updated\": \"2021-08-11T00:27:05.979266+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before: EDWARDS, Chief Judge, GINSBURC and ROGERS, Circuit Judges.\", \"parties\": \"Sharon BONDS, et al., Appellees, v. DISTRICT OF COLUMBIA and Margaret A. Moore, Appellants.\", \"head_matter\": \"105 F.3d 674\\nSharon BONDS, et al., Appellees, v. DISTRICT OF COLUMBIA and Margaret A. Moore, Appellants.\\nNo. 95-7207.\\nUnited States Court of Appeals, District of Columbia Circuit.\\nNov. 25, 1996.\\nBefore: EDWARDS, Chief Judge, GINSBURC and ROGERS, Circuit Judges.\", \"word_count\": \"67\", \"char_count\": \"434\", \"text\": \"ORDER\\nPER CURIAM.\\nUpon consideration of appellees' petition for rehearing filed September 23, 1996, and of the response thereto, it is\\nORDERED that the petition be denied.\"}"

dc/3710792.json

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+"{\"id\": \"3710792\", \"name\": \"ESSENTIAL INFORMATION, INC., et al., Appellants, v. UNITED STATES INFORMATION AGENCY, Appellee\", \"name_abbreviation\": \"Essential Information, Inc. v. United States Information Agency\", \"decision_date\": \"1998-02-10\", \"docket_number\": \"No. 97-5017\", \"first_page\": \"341\", \"last_page\": \"348\", \"citations\": \"328 U.S. App. D.C. 341\", \"volume\": \"328\", \"reporter\": \"United States Court of Appeals for the District of Columbia Circuit\", \"court\": \"United States Court of Appeals for the District of Columbia Circuit\", \"jurisdiction\": \"District of Columbia\", \"last_updated\": \"2021-08-10T21:04:34.748924+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before: HENDERSON, RANDOLPH and TATEL, Circuit Judges.\", \"parties\": \"ESSENTIAL INFORMATION, INC., et al., Appellants, v. UNITED STATES INFORMATION AGENCY, Appellee.\", \"head_matter\": \"134 F.3d 1165\\nESSENTIAL INFORMATION, INC., et al., Appellants, v. UNITED STATES INFORMATION AGENCY, Appellee.\\nNo. 97-5017.\\nUnited States Court of Appeals, District of Columbia Circuit.\\nArgued Dec. 9, 1997.\\nDecided Feb. 10, 1998.\\nColette G. Matzzie, Washington, DC, argued the cause for the appellants. David C. Vladeck, Washington, DC, was on brief.\\nDouglas N. Letter, Attorney, United States Department of Justice, Washington, DC, argued the cause for the appellee. Frank W. Hunger, Assistant Attorney General, and Mary Lou Leary, Acting United States Attorney, Washington, DC, were on brief.\\nBefore: HENDERSON, RANDOLPH and TATEL, Circuit Judges.\", \"word_count\": \"4791\", \"char_count\": \"31310\", \"text\": \"Opinion for the court filed by Circuit Judge KAREN LeCRAFT HENDERSON.\\nConcurring opinion filed by Circuit Judge KAREN LeCRAFT HENDERSON.\\nDissenting opinion filed by Circuit Judge TATEL.\\nKAREN LeCRAFT HENDERSON, Circuit Judge:\\nThe appellants, who identify themselves as \\\"researchers, scholars, organizers and journalists,\\\" Appellant's Brief at 6, seek disclosure under the Freedom of Information Act, 5 U.S.C. \\u00a7 552 et seq., (FOIA) of internet addresses and programming materials generated by the United States Information Agency (USIA). The district court granted summary judgment in favor of USIA on the ground that USIA's records \\\"are exempted from disclosure by statute,\\\" 5 U.S.C. \\u00a7 552(b)(3)(B), namely by the Smith-Mundt Act (Act), which prohibits USIA from \\\"disseminating]\\\" \\\"information\\\" or \\\"distributing]\\\" \\\"program material\\\" within the United States, 22 U.S.C. \\u00a7 1461, 1461-la. See Essential Info., Inc. v. USIA C.A. No. 96-1194 (D.D.C. Nov. 27, 1996) (Mem. Op.). We affirm the district court's judgment on this ground.\\nThe FOIA requires generally that \\\"each agency, upon any request for records which (i) reasonably describes such records and (ii) is made in accordance with published rules stating the time, place, fees (if any), and procedures to be followed, shall make the records promptly available to any person.\\\" 5 U.S.C. \\u00a7 552(a)(3). FOIA Exemption 3 shields from the general disclosure requirement \\\"matters that \\u2014 . are exempted from disclosure by statute (other than section 552b of this title), provided that such statute (A) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or (B) establishes particular criteria for withholding or refers to particular types of matters to be withheld.\\\" 5 U.S.C. \\u00a7 552(b)(3)(B). A \\\"central aim\\\" of the FOIA is \\\"to substitute legislative judgment for administrative discretion.\\\" American Jewish Congress v. Kreps, 574 F.2d 624, 628 n. 30 (D.C.Cir.1978) (citing S. Rep. 89-813, at 3-6 (1965)). The aim is apparent in subsection (A) of Exemption 3 which, \\\"on its face, is too rigorous to tolerate any decision making on the administrative level.\\\" Id. at 628. When \\\"Congress has made plain its concern with a specific effect of publicity ., Exemption 3 is to honor that concern.\\\" Id. at 629. The Congress has expressed its concern plainly in the SmithMundt Act and we must therefore apply Exemption 3.\\nSection 1461 of the Act directs that \\\"information about the United States, its people, and its policies\\\" that USIA prepares or disseminates abroad \\\"shall not be disseminated within the United States, its territories, or possessions\\\" until twelve years after its preparation or dissemination when the Archivist of the United States (Archivist) is to oversee its \\\"domestic distribution.\\\" 22 U.S.C. \\u00a7 1461(a), (b). Similarly, section 1461-1a provides that \\\"no program material prepared by [USIA] shall be distributed within the United States\\\" \\\"[e]xcept as provided in section 1461,\\\" id. \\u00a7 1461-la. Each provision contains a flat ban on \\\"dissemination\\\" or \\\"distribution\\\" for a twelve-year period. See 5.Rep. No. 92-754, at 82-85 (1972) (declaring that section 1461 \\\"is a blanket prohibition barring public distribution of any and all materials produced by the United States Information Agency\\\"). The Act even prescribes who may merely examine the materials. Thus, on its face the Act appears to be \\\"the sort of nondisclosure statute contemplated by FOIA exemption 3\\\" because it is \\\"a statute specifically exempting certain matters from disclosure to the general public and leaving [USIA] with no discretion to reveal those matters publicly.\\\" Tax Analysts v. Internal Revenue Serv., 117 F.3d 607, 611 (D.C.Cir.1997).\\nThe statute's plain language is reinforced by the Congress's repeated amendment of the Act to clarify and strengthen the ban on domestic distribution of USIA materials. See Pub.L. No. 92-352, \\u00a7 204, 86 Stat. 489, 494 (1972) (inserting express prohibition in section 1461 to remedy \\\"obvious need for a specific prohibition against the domestic dissemination of any USIA materials,\\\" S.Rep. No. 92N54, at 85); Pub.L. No. 99-93, \\u00a7 208, 99 Stat. 405, 431 (1985) (enacting section 1461-1a); Pub.L. No. 101-246, \\u00a7 202, 104 Stat. 15, 49 (1990) (adding section 1461(b) which directs USIA to deliver materials to Archivist \\\"for domestic distribution\\\" after 12 years, changing \\\"[c]urrent law\\\" which \\\"prohibited] the domestic release of almost all USIA materials,\\\" S. Rep. 101-46, 31 (1989)); Pub.L. No. 103-236, \\u00a7 232, 108 Stat. 382, 424 (1994) (amending section 1461-la to make clear that ban does not prohibit responding to public inquiries). Particularly enlightening are the circumstances surrounding the 1972 amendment which first made the domestic distribution ban explicit. A member of the United States Senate had requested and obtained a USIA film which he intended to broadcast to his constituents. See S.Rep. No. 92-754, at 82-85. In direct response to the proposed broadcast, the Congress amended the Act to prohibit dissemination and distribution generally and to restrict its own members' access to USIA materials to \\\"examination only.\\\" See H.R.Rep. No. 1145, at 16 (1972) (\\\"provision was amended . to clarify . that U.S.I.A. materials are to be made available to Members of Congress for examination only and not for dissemination\\\"). If the general citizenry were permitted to obtain the forbidden materials through the FOIA, as the appellants urge, the purpose of the 1972 amendment would be thwarted.\\nThe appellants argue that the Act is not a qualifying \\\"nondisclosure\\\" statute because the prohibited acts, \\\"dissemination\\\" and \\\"distribution,\\\" are different from \\\"disclosure.\\\" The former two, they argue, necessarily entail a broad unsolicited dispersal rather than release of materials in response to specific, individual requests. We disagree. While the terms may be so distinguishable under some circumstances, the Act itself demonstrates that the Congress intended no such distinction here. Section 1461's prohibition against domestic dissemination of USIA information is expressly made \\\"[s]ubjeet to subsection (b)\\\" of section 1461 which directs USIA, under the heading \\\"Dissemination of information within United States,\\\" to \\\"make available\\\" program material, twelve years after its initial dissemination or preparation, to the Archivist \\\"for domestic distribution\\\" to \\\"persons seeking its release in the United States.\\\" 22 U.S.C. \\u00a7 1461(b) (emphasis added). The domestic \\\"distribution\\\" and \\\"dissemination\\\" contemplated-in this provision plainly encompass disclosure to individual requesters. It seems unlikely that the two terms were meant to bear different meanings in the immediately preceding prohibition. Perhaps more importantly, the Congress had no need to make an exception for such disclosure after 12 years unless the general dissemination and distribution bans otherwise prohibited it. In sum, the Act is an emphatic non disclosure statute forbidding all domestic distribution and dissemination except insofar as the Act itself makes exceptions and it is only via the exceptions that the Act can be said to \\\"specifically require[] disclosure.\\\" See Dissent at 346.\\nThe appellants also contend that the Act is not a nondisclosure act because it does not prohibit all disclosure of records but only disclosure to persons in this country. This argument must fail as well. The court has previously found that a limitation on the persons to whom disclosure is prohibited does not remove a nondisclosure statute from Exemption 3's ambit. See Church of Scientology of Calif. v. Internal Revenue Serv., 792 F.2d 146, 148-50 (D.C.Cir.1986) (holding Exemption 3 embraces statute prohibiting disclosure of taxpayer records excepting, inter alia, \\\"disclosure to specified private individuals (e.g., taxpayer to whom information relates) or government officials, rather than to the public at large\\\"). So too here.\\nFinally, the appellants argue that the Congress could not have intended \\\"so irrational a system\\\" that would allow some United States residents, such as those close to a national border or with friends abroad, to obtain USIA records while denying other residents access to them. We find nothing irrational in the system the Congress has established. USIA has been directed \\\"to provide for the preparation, and dissemination abroad, of information about the United States, its people, and its policies.\\\" 22 U.S.C. \\u00a7 1461(a). When USIA carries out this mandate, in some eases individuals within the United States will be able to obtain access to the information disseminated, as Congress has elsewhere explicitly recognized. See 22 U.S.C. \\u00a7 1465bb (directing that USIA \\\"shall provide for the open communication f of information and ideas through the use of television broadcasting to Cuba\\\" \\\"notwithstanding the limitation of section 1461 of this title with respect to the dissemination in the United States of information prepared for dissemination abroad to the extent such dissemination is inadvertent\\\"). The Act's prohibition of domestic dissemination by USIA is a reasonable means of minimizing such access.\\nFor the preceding reasons we hold that the material sought by the appellants is within FOIA Exemption 3 and therefore not required to be disclosed because it is \\\"exempted from disclosure\\\" by the Smith-Mundt Act, 22 U.S.C. \\u00a7 1461, 1461-la. Accordingly, the judgment of the district court is\\nAffirmed.\\n. The appellants are: Essential Information, Inc, The Multinational Monitor, Taxpayers Asset Project, Consumer Project on Technology, The Center for the Study of Responsive Law, James Love and Manon Ress.\\n. The appellants sought an electronic copy of the WIRELESS FILE, USIA's daily electronic news service, for the period July 1, 1995 through February 9, 1996, transcripts of Voice of America and Worldnet Television broadcasts for the same period and internet addresses for sites where USIA overseas programming materials are available.\\n. In light of our disposition we need not reach the district court's holding that internet addresses are not \\\"records\\\" subject to FOIA disclosure. If USIA's internet addresses are \\\"records\\\" \\u2014 and not simply \\\"a means to access\\\" records, as the district court characterized them, Mem. Op. at 2 (emphasis original), and as they seem to be \\u2014 the information they contain is exempt from disclosure to the same extent as the other USIA information and program material disseminated or distributed abroad. We also note that, according to the USIA, the appellants already have access to its only international website.\\n. The dissent's assertion that Exemption 3 is limited to \\\"statutes that protect confidential, private, or proprietary information,\\\" Dissent at 347, is without basis in the statutory language, legislative history or case law.\\n. Section 1461(a) provides in full:\\n(a) Dissemination of information abroad\\nThe Director is authorized, when he finds it appropriate, to provide for the preparation, and dissemination abroad, of information about the United States, its people, and its policies, through press, publications, radio, motion pictures, and other information media, and through information centers and instructors abroad. Subject to subsection (b) of this section, any such information (other than \\\"Problems of Communism\\\" and the \\\"English Teaching Forum\\\" which may be sold by the Government Printing Office) shall not be disseminated within the United States, its territories, or possessions, but, on request, shall be available in the English language at the Agency, at all reasonable times following its release as information abroad, for examination only by representatives of United States press associations, newspapers, magazines, radio \\u2022 systems, and stations, and by research students and scholars, and, on request, shall be made available for examination only to Members of Congress.\\n22 U.S.C. \\u00a7 1461(a) (emphasis added). For the text of section 1461(b), see infra note 7.\\n. Section 1461-la provides in full:\\nBan on domestic activities by United States Information Agency\\nExcept as provided in section 1461 of this title and this section, no funds authorized to be appropriated to the United States Information Agency shall be used to influence public opinion in the United States, and no program material prepared by the United States Information Agency shall he distributed within the United States. This section shall not apply to programs carried out pursuant to the Mutual Educational and Cultural Exchange Act of 1961 (22 U.S.C. 2451 et seq.). The provisions of this section shall not prohibit the United States Information Agency from responding to inquiries from members of the public about its operations, policies, or program.\\n22 U.S.C. \\u00a7 1461-1a.\\n. Although not permitted to distribute or disseminate the material for twelve years, USIA is required to make it available \\\"for examination only\\\" to representatives of the press, \\\"research students,\\\" \\\"scholars\\\" and members of the Congress. 22 U.S.C. \\u00a7 1461(a) (set out supra in note 4).\\n. The dissenting opinion also attempts to distinguish \\\"distribution/dissemination\\\" from \\\"disclosure\\\" on the ground that the former includes \\\"actively broadcasting or distributing information\\\" while the latter is limited to \\\"passively responding to individual requests to disclose.\\\" Dissent at 347. We are at a loss to understand how producing information in response to a request is more \\\"passive\\\" than broadcasting the same information sua sponte. Each activity (and each is an activity) involves \\\"dealing out\\\" or \\\"exposing to view\\\" USIA materials. See Dissent at 346.\\n. Section 1461(b) provides in full:\\n(b) Dissemination of information within United States\\n(1)The Director of the United States Information Agency shall make available to the Archivist of the United States, for domestic distribution, motion pictures, films, videotapes, and other material prepared for dissemination abroad 12 years after the initial dissemination of the material abroad or, in the case of such material not disseminated abroad, 12 years after the preparation of the material.\\n(2) The Director of the United States Information Agency shall be reimbursed for any attendant expenses. Any reimbursement to the Director pursuant to this subsection shall be credited to the applicable appropriation of the United States Information Agency.\\n(3) The Archivist shall be the official custodian of the material and shall issue necessary regulations to ensure that persons seeking its release in the United States have secured and paid for necessary United States rights and licenses and that all costs associated with the provision of the material by the Archivist shall be paid by the persons seeking its release. The Archivist may charge fees to recover such costs, in accordance with section 2116(c) of Title 44. Such fees shall be paid into, administered, and expended as part of the National Archives Trust Fund.\\n22 U.S.C. \\u00a7 1461(b).\"}"

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+"{\"id\": \"3712813\", \"name\": \"SBC COMMUNICATIONS INC., et al., Appellant, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee, AT&T Corporation, et al., Intervenors\", \"name_abbreviation\": \"SBC Communications Inc. v. Federal Communications Commission\", \"decision_date\": \"1998-03-20\", \"docket_number\": \"No. 97-1425\", \"first_page\": \"133\", \"last_page\": \"144\", \"citations\": \"329 U.S. App. D.C. 133\", \"volume\": \"329\", \"reporter\": \"United States Court of Appeals for the District of Columbia Circuit\", \"court\": \"United States Court of Appeals for the District of Columbia Circuit\", \"jurisdiction\": \"District of Columbia\", \"last_updated\": \"2021-08-10T23:09:05.983770+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before: SILBERMAN, WILLIAMS, and SENTELLE, Circuit Judges.\", \"parties\": \"SBC COMMUNICATIONS INC., et al., Appellant, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee, AT&T Corporation, et al., Intervenors.\", \"head_matter\": \"138 F.3d 410\\nSBC COMMUNICATIONS INC., et al., Appellant, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee, AT&T Corporation, et al., Intervenors.\\nNo. 97-1425.\\nUnited States Court of Appeals, District of Columbia Circuit.\\nArgued Jan. 9, 1998.\\nDecided March 20, 1998.\\nMichael K. Kellogg argued the cause for appellants, with whom James D. Ellis, Robert M. Lynch, San Antonio, TX, and Martin E. Grambow, Washington, DC, were on the briefs.\\nChristopher J. Wright, General Counsel, Federal Communications Commission, argued the cause for appellee, with whom William E. Kennard, General Counsel, John E. Ingle, Deputy Associate General Counsel, and James M. Carr, Counsel, Washington, DC, were on the brief.\\nDavid W. Carpenter argued the cause for intervenors AT&T Corporation, et al., with whom Mark E. Haddad, Peter D. Keisler, Washington, DC, Mark C. Rosenblum, Roy E. Hoffinger, Basking Ridge, NJ, Anthony C. Epstein, Sue D. Blumenfeld, Washington, DC, Michael Finn, Leon Kestenbaum, Jay Keithley, Washington, DC, Charles C. Hunter, Catherine M. Hannan, Bowie, MD, Glenn B. Manishin, Washington, DC, Christy C. Kunn, John D. Windhausen, Jr., Silver Spring, MD, Gary M. Cohen, Jeffrey Blumenfeld, Genevieve Morelli, Alexandria, VA, Danny E. Adams, Steven A. Augustino, Washington, DC, Richard J. Metzger, Arlington, VA, Emily M. Williams, Daniel L. Brenner, Neal M. Goldberg, David L. Nicoll, Werner K. Hartenberger, Laura H. Phillips, and J.G. Harrington Washington, DC, were on the brief. Donald B. Verrilli, Jr. Washington, DC, entered an appearance.\\nMickey S. Moon, Assistant Attorney General, State of Oklahoma, Oklahoma City, OK, was on the brief for intervenor Office of the Oklahoma Attorney General\\nJeffrey W. Sarles, Chicago, IL, was on the brief for amicus curiae Ameritech Corporation.\\nJames R. Young and Michael E. Glover, Arlington, VA, were on the brief for intervenors Bell Atlantic Telephone Companies and Bell Atlantic Communications, Inc.\\nBefore: SILBERMAN, WILLIAMS, and SENTELLE, Circuit Judges.\", \"word_count\": \"7141\", \"char_count\": \"44916\", \"text\": \"Opinion for the Court filed by Circuit Judge SILBERMAN.\\nSILBERMAN, Circuit Judge:\\nAppellant SBC Communications contends that in denying its application to provide long-distance telephone service in the State of Oklahoma, the Federal Communications Commission has erroneously interpreted the provisions governing Bell operating company entry into the long-distance market in their home region states (to be codified at 47 U.S.C. \\u00a7 271(c)(1)(A), (B)). We affirm.\\nI.\\nSBC Communications provides local telephone exchange (intraLATA) service in the States of Arkansas, California, Kansas, Missouri, Nevada, Oklahoma, and Texas through its subsidiaries Nevada Bell, Pacific Bell, and Southwestern Bell. It is a combination of local telephone companies that AT&T was required to divest pursuant to the Modification of Final Judgment (MFJ), a consent decree between the government and the then-integrated AT&T, as modified by the district court, in settlement of the Justice Department's 1974 antitrust suit. See United States v. American Tel. & Tel. Co., 552 F.Supp. 131, 227 (D.D.C.1982), aff'd sub nom. Maryland v. United States, 460 U.S. 1001, 103 S.Ct. 1240, 75 L.Ed.2d 472 (1983). Divestiture was called for, in large part, because it was thought \\\"that a corporation that enjoyed a monopoly on local calls would ineluctably leverage that bottleneck control in the interexchange (long distance) market.\\\" United States v. Western Elec. Co., 969 F.2d 1231, 1238 (D.C.Cir.1992). The newly independent Bell operating companies (BOCs) were given AT&T's local network assets, and thus control of the \\\"bottleneck\\\" monopoly (so named because interexchange calls are routed to homes through the local network). See SBC Communications Inc., v. FCC, 56 F.3d 1484, 1491 (D.C.Cir.1995).\\nOut of concern that the BOCs might similarly leverage that local monopoly to their competitive advantage, the MFJ forbad them from offering long-distance service. See United States v. American Tel. & Tel. Co., 552 F.Supp. at 188 (\\\"there are many ways in which the company controlling the local exchange monopoly could discriminate against competitors in the interexehange market\\\"). The MFJ provided that the ban might be .lifted if the BOCs lost their monopoly over local service, either by \\\"technological developments\\\" or \\\"changes in the structures of competitive markets\\\"; the Department of Justice was to report to the district court on whether the restriction continued to be necessary. See id. at 194-95. But subscriber plant equipment (also known as the \\\"local loop\\\") \\u2014 inside wiring and equipment, and the wireline connecting each household to a local switching office, see MCI Telecommunications Corp. v. FCC, 750 F.2d 135, 137 (D.C.Cir.1984) \\u2014 is very costly to install. And, state regulators helped sustain the BOCs' bottleneck control, arguably because they preferred the \\\"subsidies and price-averages\\\" the local monopoly allowed. See M. Kellogg, et al., Federal Communications Law 68 (1992). The Department of Justice, indeed, came to believe that \\\"the BOCs' bottleneck monopolies persist[ed] primarily because of local regulation.\\\" United States v. Western Elec. Co., 900 F.2d 283, 292 (D.C.Cir.1990) (per curiam). Nevertheless, the BOCs, with the FCC's support, moved in 1987 to have the interLATA restriction removed. We agreed with the government in opposition that \\\"the BOCs failed to show that there was no substantial possibility that they could use their monopoly power to impede competition in the interexchange market.\\\" Id. at 301. The restriction remained in force for the duration of the MFJ.\\nThe Congress \\u2014 responding, in part, to the argument that competition in the huge telecommunications industry should no longer be governed by an antitrust consent decree administered by a single federal district judge, see S.Rep. No.104-23, at 5, 9 (1995) \\u2014 set forth a new legislative framework, the Telecommunications Act of 1996, Pub.L. No. 104-104, 110 Stat. 56 (1996). Section 601 of the Act provided that the \\\"restrictions and obligations imposed\\\" by the MFJ were to give way (the district judge terminated the MFJ as of February 8, 1996, see United States v. Western Elec. Co., 1996 WL 255904 (D.D.C. Apr.11, 1996)). Congress hoped the Act would \\\"provide for a pro-competitive, deregulatory national policy framework . by opening all telecommunications markets to competition.\\\" H.R. Conf. Rep. No. 104-458, at 1 (1996). The question of how best to achieve that goal, however, was the subject of great debate. Some thought that the local and long-distance markets should be open to all competitors immediately. Others believed that the BOCs should have to wait until actual competition was introduced in their local markets before providing interLATA sendee, since it was claimed that the long-distance market is already competitive. As might be expected for an issue of this economic significance, an extended lobbying struggle ensued. The end product was a compromise between the competing factions.\\nStates and localities were no longer to sanction local monopolies; they are now barred from \\\"prohibiting the ability of any entity to provide . intrastate telecommunications service.\\\" 47 U.S.C.A. \\u00a7 253(a) (West Supp.1997). The BOCs are obliged to provide any requesting carrier with nondiscriminatory interconnection to their networks and nondiseriminatory access to unbundled network elements at reasonable rates, terms, and conditions; they must also offer telecommunications services at wholesale rates for resale to end users. 47 U.S.C.A. \\u00a7 251(c).\\nInterexchange carriers may immediately begin providing local telephone service, and the BOCs may provide longdistance service originating from out-of-region states without the FCC's approval. See id. at \\u00a7 271(b)(2). A BOC must apply to the Commission, however, for authorization to provide interLATA services in any of its in-region states under section 271(d)(1). In evaluating any such application, the FCC must consult with the United States Attorney General and the relevant State commission, see id. at \\u00a7 271(d)(2), and must approve or deny the application within 90 days of receipt. See id. at \\u00a7 271(d)(3). The FCC may not approve a BOC's request unless it finds that the criteria set forth at 47 U.S.C.A. \\u00a7 271(d)(3) are satisfied.\\nAs the first step in meeting the section 271(d)(3) criteria, the BOCs must satisfy either 47 U.S.C.A. \\u00a7 271(c)(1)(A) or 47 U.S.C.A. \\u00a7 271(c)(1)(B), which the parties refer to as \\\"Track A\\\" and \\\"Track B,\\\" respectively. Track A provides:\\nA [BOC] meets the requirements of this subparagraph if it has entered into one or more [approved] binding agreements . specifying the terms and conditions under which the [BOC] is providing access and interconnection to its network facilities for the network facilities of one or more unaffiliated competing providers of telephone exchange service . to residential and business subscribers. For the purpose of this subparagraph, such telephone exchange service may be offered by such competing providers either exclusively over their own telephone exchange service facilities or predominantly over their own telephone exchange service facilities in combination with the resale of the telecommunications services of another carrier.\\n47 U.S.C.A. \\u00a7 271(e)(1)(A) (emphasis added). Put simply then, Track A visualizes a demonstration of a competitor in the local exchange market. Track B, which first became avail able 10 months after the date of enactment (ie., on Dec. 8, 1996), is satisfied, on the other hand, if \\\"3 months before . the [BOC] makes its application\\\" to the FCC, \\\"no such provider has requested the access and interconnection described\\\" in Track A, so long as \\\"a statement of the terms and conditions that the [BOC] generally offers to provide such access and interconnection has been approved or permitted to take effect by the State commission.\\\" 47 U.S.C.A. \\u00a7 271(c)(1)(B). As is apparent, Track B is only available to a BOC as a default mechanism if \\\"no such provider\\\" has requested the access and interconnection Track A contemplates. Just what the characteristics of such a provider are and how they are measured \\u2014 \\u2022 in other words, how useful is Track B to the BOC's \\u2014 is the key issue in this litigation.\\nOn April 11, 1997, SBC applied to the Commission for authorization to provide interLATA service originating from its in-region State of Oklahoma. Prior to submitting its application, SBC received the Oklahoma Corporation Commission's (OCC) approval of several negotiated access and interconnection agreements, one of which was made with Brooks Fiber Communications. Before the FCC, SBC contended that it satisfied Track A by virtue of its agreement with Brooks. At the time SBC made its application, Brooks owned and operated local telecommunications networks in Tulsa and Oklahoma City, providing service to 20 business customers (13 in Oklahoma City and 7 in Tulsa), and to three Tulsa residents and one other residential customer \\u2014 each a Brooks employee. This service alone, SBC urged, meant that Brooks qualified as a Track A provider. To bolster its argument, SBC claimed that the tariff Brooks had filed with the OCC obligated Brooks, under Oklahoma law, to provide residential service over its own facilities to any requesting customer in its areas of operation. The OCC had cryptically opined that SBC had satisfied Track As requirements, and SBC argued that the FCC was obliged to defer to the OCC's decision.\\nAlternatively, SBC claimed that it satisfied Track B because if the Commission determined that Brooks did not qualify as a Track A provider, neither did any other carrier. (SBC had filed a statement of terms and conditions at which it offered access and interconnection generally, which the OCC allowed to take effect by failing to complete its review within the 60 day requirement imposed by the Act. See 47 U.S.C.A. \\u00a7 252(f)(3).) As it happened, a large number of carriers had \\\"requested\\\" access and interconnection agreements of the sort described in Track A, but none of those requests foreclosed Track B's availability to SBC because SBC interpreted the phrase \\\"such provider\\\" to mean a competing local exchange carrier that was already providing the kind of service described in Track A \\u2014 local telephone service to residential and business subscribers exclusively or predominantly over its own facilities based network \\u2014 at the time it made its request. SBC acknowledged an exception, however, for a requesting carrier who did not have that position at the time of its request but nevertheless 'achieved it no later than three months before the BOC applied to the FCC for interLATA authorization.\\nThe Commission concluded that appellant had not yet met either Track A or Track B and denied SBC's application. Application by SBC Communications Inc., Pursuant to Section 271 of the Communications Act of 1934, as amended, to Provide In-Region, InterLATA Services in Oklahoma (Oklahoma Application), 12 F.C.C.R. 8685, at \\u00b6 2, 68 (1997). Regarding Track A, the FCC concluded that Brooks \\u2014 the only potentially Track A satisfying provider that SBC identified \\u2014 was not a competing provider of telephone exchange service to residential subscribers. The Commission construed Track A's phrase \\\"competing provider\\\" to mean that there be an \\\"actual commercial alternative to the BOC.\\\" Oklahoma Application at \\u00b6 14. Since the four customers to which Brooks provided residential service were its employees, and the service was provided on a test basis free of charge, Brooks did not qualify. A \\\"competing provider must actually be in the market, and, therefore, beyond the testing phase.\\\" Id. at \\u00b6 17. The Commission also concluded that the terms \\\"telephone exchange service\\\" and \\\"subscribers\\\" as used in Track A meant that the persons receiving the service had to pay for it. Id.\\nThe FCC acknowledged its obligation to consult with the State commissions, but pointed out that the Act is silent as to how much weight it should place on the advice it receives. As the \\\"expert agency charged with implementing\\\" the statute, the Commission decided that it was required to make an independent determination on the matter. Id. at \\u00b6 15. It thought the OCC's recommendation unpersuasive because the OCC failed to provide the basis or reasoning in support of its decision. Id. at \\u00b6 16. The Commission then determined that whatever legal obligations Brooks had under Oklahoma law, those obligations could not supply evidence of actual competition. Brooks' own executive vice president had averred that Brooks was \\\" 'not now offering . nor had it ever offered residential service in Oklahoma.' \\\" Id. at \\u00b6 18 (quoting affidavit of John C. Shapleigh). And because it lacked the necessary facilities, Brooks was not \\\" 'accepting any request in Oklahoma for residential service.' \\\" Id. Accordingly, the Commission said Brooks \\\"at present has at most paper commitments to furnish service.\\\" Id. at \\u00b6 14. In reaching this conclusion, the Commission explicitly relied upon the comments of the United States Department of Justice, whose recommendations the FCC must give \\\"substantial weight.\\\" See 47 U.S.C.A. \\u00a7 271(d)(2)(A).\\nThe Commission went on to decide that Track B was not open to SBC. The Commission understood Track B to be foreclosed to a BOC if a provider had made a request that if implemented would satisfy Track A. The phrase \\\"such provider\\\" was not limited, as SBC claimed, to a provider who was already providing the very service contemplated at the time of its request (or one who achieved that status three months before a BOC's application), but rather included one who after implementation of its requested access and interconnection agreement would be a competitor. The Commission recognized, to be sure, that whether such a request satisfied this standard was a potentially difficult question that obliged the Commission to rely on its predictive judgment as an expert agency. See id. at \\u00b6 57. On the record before it, the Commission found that SBC had received 45 requests for interconnection, id. at \\u00b6 62; \\\"at the very least, . several [of which were] qualifying requests for access and interconnection that foreclose[d] Track B.\\\" Id. at \\u00b6 61. The Commission identified four of the requesting carriers \\u2014 Brooks, Cox Communications, Inc., ICG Telecom Group, Inc., and U.S. Long Distance \\u2014 as having made interconnection agreements that if implemented would satisfy Track A, id. at \\u00b6 62; two of which \\u2014 Brooks and Cox \\u2014 had \\\"already taken affirmative steps to enter the residential and business local exchange markets.\\\" Id. at \\u00b663.\\nThe FCC rejected SBC's narrow reading of \\\"such provider\\\" in Track B, primarily because under that interpretation, BOCs would have a considerable incentive to delay and prevent interconnection so that they could apply under Track B immediately on December 8, 1996. See id. at \\u00b6 29. The Commission thought that \\\"Congress intended Track B to serve as a limited exception to the Track A requirement of operational competition,\\\" id. at \\u00b6 46, and believed that its reading \\\"best furthered] Congress' goal of introducing competition in the local exchange market by giving BOCs an incentive to cooperate with potential competitors in providing them the facilities they need to fulfill their requests for access and interconnection.\\\" Id. at \\u00b628. The Commission also discarded what it called the \\\"equally unreasonable\\\" position advanced by SBC's potential competitors\\u2014that \\\"any request for access and interconnection submitted by a potential new entrant to a BOC is a qualifying request [that] precludes the BOC from proceeding under Track B\\\"\\u2014as that interpretation would allow potential competitors to effectively deny the BOC's entry into the inter LATA market by submitting requests that might never satisfy Track A even if implemented. Id. at V 29.\\nAfter deciding that SBC could not satisfy either Track A or Track B, the FCC declined to address whether SBC's application could satisfy the remainder of section 271(d)'s requirements. See id. at \\u00b6 65. SBC appealed, and we have exclusive jurisdiction to hear that appeal under 47 U.S.C.A. \\u00a7 402(b)(9).\\nII.\\nSBC reiterates its statutory interpretation arguments before us, but alternatively argues that even if the Commission permissibly construed both Tracks A and B, it was arbitrary and capricious not to go on to determine whether SBC's application otherwise satisfied the requirements of section 271(d)(3), see supra note 5, so that at least appellant would have adequate guidance.\\nTrack A\\nWe do not think much of appellant's argument that the Commission was obliged to conclude that Brooks was a \\\"competing provider\\\" in the local residential market merely because four Brooks employees were provided free residential service and under Brooks' tariff it is legally bound to offer such service. Track A does not indicate just how much competition a provider must offer in either the business or residential markets before it is deemed a \\\"competing\\\" provider. Nor does the legislative history offer any guidance. Under those circumstances, the Commission's interpretation of the ambiguous phrase \\\"competing provider\\\" is certainly entitled to Chevron deference.\\nIt is at least permissible, within the meaning of Chevron Step II, for the Commission to interpret \\\"competing provider\\\" as meaning that a Track A satisfying provider must offer \\\"an actual commercial alternative to the BOC.\\\" Oklahoma Application at \\u00b6 14. Indeed, we doubt that appellant's interpretation, even if adopted by the Commission, would be thought reasonable. Test service provided to only four employees is hardly a commercial alternative, and Brooks was not accepting requests for further residential service in Oklahoma. Id. at \\u00b6 18. SBC nevertheless insists that Brooks is required, by virtue of its tariff, to offer local residential service to all who request it. We cannot quarrel, however, with the FCC's conclusion that before a competing local carrier is deemed to offer \\\"an actual commercial alternative,\\\" it must have more than \\\"at most paper commitments to furnish service.\\\" Id. at \\u00b6 14. The Commission reasonably interprets the statute to mean that it must ask not whether Brooks is required to provide residential service under state law (which, incidentally, intervenor Office of the Oklahoma Attorney General disputes), but rather whether Brooks was in fact providing such service at the time SBC made its application.\\nNor is the Commission obliged to defer to the OCC's judgment that SBC satisfied Track A. Although the Commission must consult with the State commissions, the statute does not require the FCC to give the State commissions' views any particular weight. Unless the FCC concludes to its own satisfaction that the applying BOC has satisfied either Track A or Track B, as well as the other statutory requirements, it \\\"shall not approve the authorization.\\\" 47 U.S.C.A. \\u00a7 271(d)(3). Louisiana Public Service Commission v. FCC, 476 U.S. 355, 106 S.Ct. 1890, 90 L.Ed.2d 369 (1986), which holds that matters in connection with intrastate service are \\\"fence[d] off from FCC reach,\\\" simply does not apply in this ease. Congress has clearly charged the FCC, and not the State commis sions, with deciding the merits of the BOCs' requests for interLATA authorization, and interLATA service is typically interstate. For these reasons, we uphold the Commission's determination that SBC's application did not satisfy Track A's requirements.\\nTrack B\\nSince appellant's argument is primarily a linguistic one, we think it useful to set forth section 271(c)(1)(B) in its entirety.\\n(B) Failure to request access. A Bell operating company meets the requirements of this subparagraph if, after 10 months after February 8, 1996, no such provider has requested the access and interconnection described in subparagraph (A) before the date which is 3 months before the date the company makes its application under subsection (d)(1) of this section, and a statement of the terms and conditions that the company generally offers to provide such access and interconnection has been approved or permitted to take effect by the State commission under section 252(f) of this title. For purposes of this subparagraph, a Bell operating company shall be considered not to have received any request for access and interconnection if the State commission of such State certifies that the only provider or providers making such a request have (i) failed to negotiate in good faith as required by section 252 of this title, or (ii) violated the terms of an agreement approved under section 252 of this title by the provider's failure to comply, within a reasonable period of time, with the implementation schedule contained in such agreement.\\n47 U.S.C.A. \\u00a7 271(c)(1)(B) (emphasis added).\\nAppellant contends that because the phrase \\\"such provider\\\" in Track B necessarily refers back to the \\\"competing providers\\\" in Track A, Track B must be available to a BOC unless an actual competing provider is on the scene and has requested or entered into binding agreements with a BOC to provide access and interconnection. In SBC's view, it will be recalled, Track B can only be foreclosed if a requesting provider has begun competing in the local telephone market over its own faeilities-based network before even asking for an access and interconnection, or, alternatively, if the requesting provider becomes an actual faeilities-based competitor at least three months before the BOC makes its application to provide interLATA service (of course, at that point it would not matter if Track B were foreclosed to the BOC because Track A would be available). If the Commission is correct in determining that Brooks is not \\\"such a provider\\\" because it is not sufficiently competitive, then it follows, according to appellant \\u2014 since no other carrier is claimed to have achieved greater competitive status \\u2014 that Track B is open to SBC. As we have noted, the Commission read \\\"such provider\\\" differently; it thought that Track B was foreclosed the moment a provider requested interconnection so long as it could predict that the carrier would, after implementing the agreement, provide competitive service to both residential and business customers, at least predominantly over its own facilities.\\nRegardless of which of these two interpretations is correct, the Commission would still have authority to determine whether a BOC met the other section 271(d)(3) criteria, including whether a BOC's entry into the inter-exchange market in an in-region state was in the public interest. Still, appellant, intervenors, amicus, and the Commission regard this threshold question as of great significance. Appellant argues that the Commission's interpretation makes Track B virtually useless to BOCs because of the flood of interconnection requests. The record showed that SBC received 45 such requests in Oklahoma, and the Commission concluded that four of those would meet the faeilitiesbased competitive standard after being implemented. And SBC asserts that it does not know of any state where no carrier expressing a desire to become a facilities-based competitor requested interconnection. The Commission, on the other hand, contends that appellant's reading would nullify Track A, which it believes Congress intended as the primary path for a BOC seeking to enter the inter LATA market.\\nCarefully parsing the language of the two sections, we come to the conclusion that it is not apparent on their face whether \\\"such provider\\\" in Track B is intended to mean a carrier who has met the requirements of Track A \\u2014 ie., is actually providing service, either on its own, or under an access and interconnection agreement with a BOC \\u2014 or one who has requested such an agreement but has not yet implemented it and begun providing the requisite service. There seems to be an ambiguity as to how close to competitive status a provider must be when the request is made.\\nWe do see an immediate weakness in appellant's argument. SBC's basic contention \\u2014 that the statute requires the characteristics of \\\"such providers\\\" to be measured at the time they make their requests \\u2014 is considerably undermined by its concession that a provider such as Brooks can gain the requisite characteristics and foreclose Track B's availability after it makes a request, so long as that occurs at least three months before the date that the BOC makes its application. It would be one thing for appellant to argue that the term \\\"such provider\\\" must refer to a provider with the characteristics described in Track A at the time it makes its request. Under that construction, the statutory requirement that it make its request \\\"3 months before\\\" the BOC makes its application would be an added condition. But by construing the three months clause as an exception to its basic contention, SBC destroys the linguistic coherence of its argument, and instead simply illustrates Track B's ambiguity concerning the time as of which the characteristies of \\\"such provider\\\" are to be assessed.\\nThe Commission's counsel argued that the draftsmen's words were deliberately and specifically intended to lead to the Commission's interpretation. He noted that in Track A, after setting forth the competing provider requirement, that subsection then states \\\"such telephone exchange service may be offered by such competing providers either exclusively . or predominantly over their own telephone exchange service facilities.\\\" 47 U.S.C.A.' \\u00a7 271(c)(1)(A) (emphasis added). But in Track B, the word \\\"competing\\\" is omitted between \\\"such\\\" and \\\"provider.\\\" That omission indicated that Congress did not require that a requesting carrier be a competing provider at the time it made the request. Appellant protests that this argument is not made in the Commission's decision and therefore should be disregarded. Alternatively, it offers an explanation: the omission of \\\"competing\\\" in Track B was necessary to incorporate Track A's requirements that the provider not only be competing but also be facilities-based. In Track A, \\\"such competing provider\\\" is used to identify which providers must provide service over their own facilities. If Track B had said \\\"such competing provider,\\\" Track B may have incorporated only Track A's competitive requirements, to the exclusion of the facilities-based requirement.\\nAppellant is of course correct that we do not normally accept counsel's post hoc rationalizations. This principle, grounded in the reasoning of SEC v. Chenery Corporation, 318 U.S. 80, 63 S.Ct. 454, 87 L.Ed. 626 (1943) and Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971), requires that courts adjudicate agency actions based solely on the grounds relied upon by the agency. Nevertheless, we must determine on our own whether the statute is ambiguous without regard to the FCC's reasoning, see Rettig v. Pension Benefit Guar. Corp., 744 F.2d 133, 141 (D.C.Cir.1984), and we take counsel's point as an added indication of ambiguity, if not support for the Commission's interpretation.\\nLooking further to the structure of the sections to understand their meaning, we see that Track B provides that a BOC will be deemed not to have received an interconnection request if a State commission determines that a requesting provider negotiated in bad faith or violated the terms of an interconnection agreement by delaying its implementation unreasonably. We think that provision supports the Commission's interpretation. As should be apparent, the BOCs have an incentive to protect their local markets from competition, just as the long-distance carriers have one to prevent the BOCs from entering the interexchange market. The bad faith and unreasonable delay exceptions explicitly contemplate and seek to deal with the problem that SBC identifies\\u2014 that a provider might request interconnection only to prevent a BOC from using Track B. If SBC's reading of the statute were correct, a BOC, merely by refusing to enter into an interconnection agreement, could easily prevent a competing facilities-based provider from emerging, thus preserving Track B's availability. To be sure, another provision of the statute obliges the BOCs (as well as requesting carriers) to negotiate access and interconnection agreements in good faith. See 47 U.S.C.A. \\u00a7 251(c)(1). But only the requesting carriers are penalized for negotiating in bad faith in the Track A and B subsections; there is no reciprocal provision that prevents a BOC from using Track B if it in bad faith refused to allow interconnection. Under SBC's reading, the draftsmen would have left an inexplicable loophole in the legislative scheme, one inconsistent with the treatment of requesting providers acting in bad faith.\\nThe Track B exceptions clause poses another difficulty with SBC's interpretation of \\\"such provider.\\\" As the Commission pointed out in its order, the very inclusion of the Track B exceptions for a requester's bad faith or unreasonable delay is an indication that Congress thought \\\"there would be a period during which good-faith negotiations are taking place, interconnection agreements are being reached, and the potential competitors are becoming operational by implementing their agreements.\\\" Oklahoma Application at \\u00b6 45. Under SBC's alternative reading, as the Commission observes, this process would have to occur in the first seven months from the date of enactment (assuming the BOC requested in-region interLATA authorization at its first opportunity, on December 8, 1996). Id. at \\u00b6 53. Even supposing that there were competitors able to provide the facilities-based service Track A contemplates without an access and interconnection agreement, as SBC surmises, those providers \\\"would need interconnection from the BOC prior to becoming operational in order to complete calls to, and receive calls originating from, BOC customers.\\\" Id. at \\u00b6 33. SBC appears to have conceded as much before the Commission, where it argued that providers \\\"would be full competitors in the local market only after they implement interconnection' agreements.\\\" It seems unlikely that Congress would have seen the need to include the Track B exceptions had it thought that the negotiation and implementation of agreements would take substantially less than seven months, especially given that Congress gave the FCC six months to promulgate regulations implementing the Act's interconnection requirements. See 47 U.S.C.A. \\u00a7 251(d)(1). If Congress really meant for Track B to be readily available to the BOCs after 10 months, as SBC contends, it is very difficult to see why the exceptions clause would be included at all.\\nAppellant and amicus Ameritech Corporation vigorously protest that Track B's device to protect it against the possible bad faith and unreasonable delay of requesting providers is palpably inadequate for two reasons. First, the unreasonable delay clause is worthless unless the BOCs are entitled to insist that a requesting carrier negotiate an implementation schedule as part of its access and interconnection agreement (Ameritech seems to go so far as to argue that when an agreement with a requesting provider does not include an implementation schedule, the requesting provider is necessarily delaying implementation unreasonably). We think the BOCs make a good point; denial of such freedom to the BOCs would undermine the reasonableness of the FCC's interpretation. But the Commission appears to agree. In its order, the Commission said that the \\\"BOCs are free to negotiate implementation schedules for their interconnection agreements.\\\" Oklahoma Application at \\u00b6 37 n. 109. And the FCC noted further that \\\"nothing in the Commission's rules precludes [the BOCs] from negotiating, or states from imposing in arbitration, schedules for the implementation of the terms and conditions by the parties to the agreement.\\\" Id. SBC also argues that there could be a number of requesting providers who qualify under the Commission's predictive appraisal, and it is unduly burdensome to show that each is acting in bad faith. It should be remembered, however, that the determination of whether requesting carriers are negotiating in bad faith or unreasonable delaying implementation of their agreements is solely in the hands of the State commissions, which traditionally have not been hostile to the BOCs. In any event, this argument does not really go to congressional purpose as revealed by the structure of the statute but rather to the adequacy of the remedy Congress provided.\\nAt bottom, appellant's reading of Track B rests on its contention, drawn from the legislative history, that Congress understood that there were carriers in existence at the time the statute was passed which were actually competing in the local exchange market, or at least that requesting carriers would quickly become facilities-based competitors, before a BOC was first eligible to file under Track B. In support of the first proposition, SBC points to the Conference Report's acknowledgment that Cablevision and New York Telephone had entered into an interconnection agreement. H.R. Conf. Rep. No. 104-458, at 148. As the Commission noted in its order, \\\"it is not obvious from this reference in the legislative history whether Cablevision either actually provided telephone exchange service to both residential and business subscribers on the date of enactment or intended to do so in the future.\\\" Oklahoma Application at \\u00b6 51. Congress did not find that there were actual competitors in the local market. If anything, the legislative history suggests the opposite; Track B \\\"is intended to ensure that a BOC is not effectively prevented from seeking entry into the interLATA services market simply because no facilities-based competitor that meets the criteria set out in [Track A] has sought to enter the market.\\\" H.R. Conf. Rep. No. 104-458, at 148 (emphasis added).\\nNor is there much support for SBC's alternative contention that the Congress expected cable companies and others to quickly fill the role. Although there was mention of the possibility that cable companies could provide meaningful facilities-based competition in the Conference Report, id., we see no indication that the Congress believed that cable companies, or anyone else, had such near term capability. While SBC argues that competition in the local exchange market has emerged in nine states since the Act became law, it can point to only one such provider\\u2014 Brooks in the State of Michigan \\u2014 as one that satisfies the facilities-based competitive requirements of Track A. Even if Congress thought facilities-based competition existed or at least would develop quickly in nine states, we doubt that it would have ignored conditions in the remaining states and enacted Track B so as to permit the BOCs to successfully apply to provide interLATA service in those states after December 8, 1996, when the 10 month moratorium that section provides had elapsed.\\nIn truth, neither the statute itself nor the legislative history focuses specifically on the issue this case presents. If the draftsmen had so focused, it seems to us quite unlikely that the language of Track B would have been written as it was. Indeed, it is flatly inconceivable to us that a competent draftsman would have chosen the language of Track B if he or she had consciously intended SBC's interpretation. It would have been all too easy to have said something more than \\\"such provider\\\" to make clear that this referred to a provider who at the time of its request (or some specific later date) had satisfied the Track A criteria. Track B, like Track A, is ambiguous and therefore under Chevron we must give deference to the Commission's interpretation if it is a permissible reading. We have no doubt that it passes that test; it may again be the only reasonable interpretation.\\n\\nThere remains appellant's argument that the Commission was arbitrary and capricious in not proceeding to give it more guidance \\u2014 and certainty \\u2014 by determining whether, in the event SBC had satisfied Track A or B, it would also have met the balance of the section 271(d) criteria \\u2014 the so-called competitive checklist, the separate affiliate requirement, and the public interest standard. Although we can well understand SBC's desire for clarity as to the criteria it must meet, we do not see how a reviewing court can fault the Commission for refusing to' answer what on this record could be thought a hypothetical question. Inherent in an agency's ability to choose adjudication rather than rulemaking, see SEC v. Chenery Corp., 332 U.S. 194, 67 S.Ct. 1575, 91 L.Ed. 1995 (1947), is the option to make policy choices in small steps, and only as a case obliges it to. For similar reasons, we reject amicus Ameritech's complaint that the FCC's use of its predictive judgment to determine whether a requesting provider would be a real competitor if it implemented its interconnection agreement is too imprecise a standard. Ameritech and appellant's complaint that it will be too great a burden on the BOCs to show, at the time they apply for interLATA authorization, that none of many requestors could qualify after implementation likewise fails. These contentions boil down to the proposition that the Commission cannot be trusted to fairly implement the statute to draw an acceptable balance between the interests of the BOCs in breaking out into the interexchange market and the interests of the interexchange carriers in delaying that eventuality. The Commission, to be sure, has on occasion engaged in unprincipled decisionmaking when its policy or political inclinations came into conflict with legal restraints, see, e.g., Bechtel v. FCC, 10 F.3d 875 (D.C.Cir.1993); Bechtel v. FCC, 957 F.2d 873 (D.C.Cir.1992); Meredith Corp. v. FCC, 809 F.2d 863 (D.C.Cir.1987), and this has been so even in the telecommunications field. See American Tel. & Tel. Co. v. FCC, 978 F.2d 727 (D.C.Cir.1992). Still, Congress quite clearly gave the Commission the primary responsibility to make delicate judgments under this statute and we may not presume that the Commission will perform that task in bad faith. The Commission's order is affirmed.\\n. All former Bell System territory has been divided into Local Access and Transport Areas, or \\\"LATAs.\\\" See United States v. Western Elec. Co., 569 F.Supp. 990 (D.D.C.1983). InterLATA service refers to what consumers know as long-distance service; intraLATA to what they know as local service (although some intraLATA calls may he \\\"toll\\\" calls, depending upon classifications made by the state regulatory bodies). See generally M. Kellogg, et al., Federal Communications Law 227-34 (1992).\\n. Under the approved reorganization plan, 22 of AT&T's 24 local telephone companies became what are known as the Bell operating companies (BOCs). The BOCs were consolidated into seven (as the result of mergers, now only five, see Alarm Indus. Communications Comm. v. FCC, 131 F.3d 1066, 1067 (D.C.Cir.1997)) regional holding companies (RBOCs), of which SBC is one. The remaining two local companies, in which AT&T owned a minority interest, became separate corporations. See H.R. Rep. No. 104-204, pt. 1, at 48-49 (1995).\\n. The Commission's regulations implementing these provisions were upheld in part in Iowa Utilities Board v. FCC, 120 F.3d 753 (8th Cir. 1997), cert. granted, -U.S.-, 118 S.Ct. 879, 139 L.Ed.2d 867 (1998).\\n. A particular state is \\\"in-region\\\" if it is one of the states in which the RBOC controls a local bottleneck \\u2014 in SBC's case, the States of Arkansas, California, Kansas, Missouri, Nevada, Oklahoma, and Texas. See 47 U.S.C.A. \\u00a7 271(i)(1).\\n.The Commission must also determine that: (1) the petitioning BOC has complied with the so-called \\\"competitive checklist\\\" set forth at 47 U.S.C.A. \\u00a7 271(c)(2)(B), designed to ensure that the BOC is providing access and interconnection of a particular sort; (2) the BOC's requested authorization will be carried out by a separate subsidiary and otherwise in accordance with 47 U.S.C.A. \\u00a7 272; and (3) granting the application would be in the \\\"public interest, convenience, and necessity.\\\" See 47 U.S.C.A. \\u00a7 271(d)(3)(A)-(C).\\n. That exception to SBC's general interpretation helps SBC to claim that Brooks was a Track A provider although it had not been providing all of its relied upon service at the time it made its request. According to SBC, although Brooks did not qualify when it submitted its request in March 1996, it began providing service of the kind described in Track A on January 15, 1997. Since SBC had made its application on April 11 of that year, Brooks became \\\"such provider\\\" a few days too late to foreclose Track B.\\n. Given this conclusion, the FCC thought it \\\"unnecessary to reach the issue of whether Brooks [was] a competing provider of telephone ex change service to business subscribers.\\\" Oklahoma Application at \\u00b6 13.\\n. The Commission noted that SBC did not dispute that the requests it had received would \\\"lead to the type of telephone exchange service described in [Track A],\\\" preferring to rest upon its interpretation of Track B. Id. at \\u00b6 60.\\n. 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).\\n. We need not consider whether, as SBC argues, free service provided to a customer can be \\\"telephone exchange service\\\" or that a customer receiving such service is a \\\"subscriber\\\" within the meaning of the statute.\\n. In making this prediction, the FCC must have at least implicitly determined that the four providers would satisfy Track A's facilities-based requirement. Yet, what it means for a carrier to offer service \\\"exclusively . or predominantly over their own telephone exchange service facili ties,\\\" 47 U.S.C.A. \\u00a7 271(c)(1)(A), is nowhere spelled out in the text or by the Commission (it is clear that pure \\\"resale of the BOC's telephone exchange service does not qualify,\\\" H.R. Conf. Rep. No. 104-458, at 148). Indeed, the FCC claimed not to have addressed the issue. Oklahoma Application at \\u00b6 22. We are puzzled by the FCC's reasoning, but no party has raised this point, so the FCC's interpretation of what it means to be predominantly facilities-based remains for another case.\\n. At oral argument, FCC's counsel stated that the General Counsel's Office agreed with SBC's reading. Counsel for intervenor AT&T, et al. agreed that \\\"the Commission made it very explicit that the BOCs can get implementation schedules and if they are violated [the] BOCs would then qualify for Track B.\\\" He also agreed that Congress included this provision to address \\\"their concern that long distance carriers and others would hold back.\\\"\\n. As the issue was so heavily lobbied on both sides with the support of quite competent lawyers, we must assume that this ambiguity was noticed, but for an undisclosed reason, not addressed in the drafting stage.\"}"

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+"{\"id\": \"3782706\", \"name\": \"John Arthur WAGER, Appellant, v. Maynard J. PRO; John Arthur WAGER v. Maynard J. PRO, Appellant, (two cases.)\", \"name_abbreviation\": \"Wager v. Pro\", \"decision_date\": \"1979-07-27\", \"docket_number\": \"Nos. 78-1444 to 78-1446\", \"first_page\": \"423\", \"last_page\": \"430\", \"citations\": \"195 U.S. App. D.C. 423\", \"volume\": \"195\", \"reporter\": \"United States Court of Appeals for the District of Columbia Circuit\", \"court\": \"United States Court of Appeals for the District of Columbia Circuit\", \"jurisdiction\": \"District of Columbia\", \"last_updated\": \"2021-08-10T23:25:08.898600+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before WRIGHT, Chief Judge, MacKINNON, Circuit Judge, and AUBREY E. ROBINSON, Jr., United States District Court Judge for the District of Columbia.\", \"parties\": \"John Arthur WAGER, Appellant, v. Maynard J. PRO. John Arthur WAGER v. Maynard J. PRO, Appellant, (two cases.)\", \"head_matter\": \"603 F.2d 1005\\nJohn Arthur WAGER, Appellant, v. Maynard J. PRO. John Arthur WAGER v. Maynard J. PRO, Appellant, (two cases.)\\nNos. 78-1444 to 78-1446.\\nUnited States Court of Appeals, District of Columbia Circuit.\\nArgued April 26, 1979.\\nDecided July 27, 1979.\\nKenneth M. Raisler, Asst. U. S. Atty., Washington, D.C., with whom Earl J. Silbert, U. S. Atty., John A. Terry and William H. Briggs, Jr., Asst. U. S. Attys., Washington, D.C., were on brief, for appellant in Nos. 78-1445 and 78-1446 and appellee in No. 78-1444.\\nEd Wilhite, Washington, D.C., for appellee in Nos. 78-1445 and 78-1446 and cross appellant in No. 78-1444.\\nBefore WRIGHT, Chief Judge, MacKINNON, Circuit Judge, and AUBREY E. ROBINSON, Jr., United States District Court Judge for the District of Columbia.\\nSitting by designation pursuant to 28 U.S.C. \\u00a7 292(a).\", \"word_count\": \"3755\", \"char_count\": \"22570\", \"text\": \"Opinion for the Court filed by MacKINNON, Circuit Judge.\\nMacKINNON, Circuit Judge:\\nIn his complaint commenced in the Superior Court of the District of Columbia in 1973 Wager alleged that Pro was grossly negligent in ordering Wager to solicit a bribe from a defendant in a pending criminal case in which some of the evidence was then being examined by the Alcohol, Tobacco and Firearms Laboratory. Pro had the ease removed to the United States District Court for the District of Columbia pursuant to 28 U.S.C. \\u00a7 1442(a) and 1446 which furnishes the basis for federal jurisdiction. The District Court initially disposed of the case on summary judgment for Pro, finding that Wager and Pro were in pari delicto. Wager v. Pro, 391 P.Supp. 752 (D.D.C.1975). This Court reversed the summary judgment and remanded to the District Court. We find that two genuine issues of material fact existed based on the then record: (1) was the bribery scheme illegal or immoral, and (2) was Wager less at fault than Pro, assuming the illegality or immorality of the scheme. Wager v. Pro, 188 U.S.App.D.C. 1, 575 F.2d 882 (1976). The case was submitted to a jury, which returned a verdict for Wager in the sum of $3,360 plus costs. Both parties appeal this judgment.\\nI.\\nWe set forth the facts most favorable to Wager, the prevailing party, but do not intend thereby to ignore the fact that Pro offered evidence that materially contradicted that of Wager. We express no opinion as to where the truth lies.\\nJohn A. Wager retired from the military in September, 1969. After numerous and varied short term jobs, Wager was hired in February, 1970 by Maynard J. Pro as a GS-5 Handwriting Analyst Trainee in the Alcohol, Tobacco and Firearms Laboratory (ATF) in Washington, D. C. Wager was to be trained to become a handwriting analyst. (Tr. 189-90). The sole function of the laboratory was to examine evidence such as handwriting samples. It had no criminal investigative powers or responsibilities (Tr. 150, 160).\\nWager testified that on July 23,1970 Pro discussed the pending Angelo Bruno case with him. The Bruno case was scheduled to go to trial in September, 1970, and ATF was performing certain document examinations in connection with that case. According to Wager, Pro told him how important the Bruno case was to the laboratory, but that the government evidence against Bruno was very weak. Pro then asked him to go to Philadelphia to see if he could induce Mr. Copper-Smith (Bruno's accountant and a defendant in the Bruno case) to bribe Wager. Pro was allegedly attempting to \\\"get these people on something else.\\\" (Tr. 21)\\nWager explained to Pro that he believed this act would constitute entrapment, which he considered to be immoral. However, because he was only a probationary employee, Wager claims he decided to go along with the scheme. They determined that Wager would give the individuals involved in the Bruno case worthless evidence to \\\"drive them up the wall.\\\" (Tr. 22) Wager was instructed to let Copper-Smith know he was willing to accept money in return for the worthless information.\\nOn the day following this conversation, Wager flew to Philadelphia and called Copper-Smith, who happened to be out of town. After failing to contact Copper-Smith Wager determined on his own that he should contact one of the other defendants in the Bruno case. Since he had forgotten their names, he went to the city's main library and researched the case. Upon findinjg a newspaper article regarding it, Wager got the name of an attorney who was a defendant in the case, a Mr. Levin. Wager then contacted Levin, met with him and told him how weak the defendant's case was. He offered to let him have the worthless ATF information. Levin told Wager he would get back to him on the matter.\\nWager later made several calls to Levin, and then finally called Levin's attorney, Mr. Lorry, who asked Wager to send him some of the laboratory's evidence. Wager sent him a non-sensitive newsletter involving laboratory activities. Pursuant to another phone conversation with Mr. Lorry, Wager sent additional worthless evidence along with a letter requesting a $15,000 loan.\\nOn August 18, 1970, Pro asked Wager to accompany him to the office of the Director of ATF. Wager testified that on the way to the office, Pro instructed Wager not to say anything about the scheme and Pro would handle it. Wager agreed not to say anything. In the Director's office Wager was arrested and later indicted on two counts of soliciting a bribe. Wager never explained the scheme to the police, and Pro never came forward with any information.\\nATF terminated Wager from his position in August, 1970. He was tried in 1972 on the charge of soliciting a bribe and was acquitted by the jury. Wager contended that when Pro testified in Wager's criminal trial, he denied knowing anything about the scheme.\\nWager testified that he believed the scheme was stupid and morally wrong, but not illegal. He knew he was enticing people to break the law, but he assumed Pro had the authority to order this. Wager opined that his action of sending worthless information to Levin would have sidetracked the defense in the Bruno case, and caused Levin to put on a defense that was patently wrong. (Tr. 90)\\nRaymond E. Makowski, prosecutor for the Department of Justice in the criminal case against Wager, testified that the scheme of a government official contacting defendants in an ongoing case in the hope of entrapping that individual into bribing the official constituted governmental misconduct. This would especially be true where contacting a defendant in a criminal case was completely outside the powers and responsibilities of the laboratory.\\nDonald Bacon, former Assistant Commissioner of Compliance for the Internal Revenue Service testified that Wager's scheme was \\\"completely unheard of and highly improper.\\\" (Tr. 152) The ATF laboratory had no independent investigative functions, and no direct contact with defendants in pending investigations. Such a scheme, had it been successful, would have destroyed the laboratory's reputation.\\nRex Davis, former Acting Director of ATF, also testified as to the impropriety of Wager's actions, noting that it was the clearest kind of entrapment and clearly outside the scope of the laboratory's activities.\\nII.\\nThis is a very difficult case to treat as a negligence case because of the obvious intentional criminal conduct involved in the bribery scheme. When the trial court first disposed of the case on a motion for summary judgment, it did not reach the issue as to the basic nature of the tort, i.e. whether the plaintiff Wager stated a cause of action for gross negligence. Instead, it relied on the common-law principle that parties to an illegal or immoral transaction may not seek redress in a court for wrongs suffered as a result of the transaction. Wager v. Pro, 391 F.Supp. at 754. This is clearly the law in the District of Columbia for both tort and contract actions. See Hunter v. Wheate, 53 App.D.C. 206, 289 F. 604 (1923). The trial court impliedly determined that the bribery scheme was illegal and immoral, thus precluding Wager's recovery from Pro because they were in pari deiicto.\\nOn appeal, this Court likewise concentrated on the illegality and immorality and in pari delicto issues. We reversed and remanded the case holding that whether an alleged entrapment scheme is illegal is a question of fact which involves the defendant's predisposition to commit crimes of the kind solicited. Wager v. Pro, 188 U.S.App. D.C. at 3, 575 F.2d at 884; Sherman v. United States, 356 U.S. 369, 382, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958). We also determined that a finding that the parties were in pari deiicto was not a complete defense. Instead, it triggers the question of whether one party was less at fault than another. If the answer to that question is affirmative, then it is still possible for the party less at fault to recover from the other. Wager v. Pro, 188 U.S.App.D.C. at 3-4, 575 F.2d at 884-85.\\nOn remand, the trial court refused the defendant's request to instruct the jury as to the illegality of the bribery scheme. It submitted the question to the jury, instructing that if it found the parties' actions to be illegal or immoral, it should then decide the issue of comparative fault to determine Pro's ultimate liability. Pro appealed the trial court's action, arguing that it commit ted prejudicial error by not instructing the jury as to the illegality and immorality of the scheme. In so doing, the trial court allowed the jury to avoid deciding the comparative fault issue identified by this Court. After examining all of the evidence presented at trial, we agree with Pro and thus reverse and remand the trial court's judgment.\\nIII.\\nThis Court recently recognized that the entrapment defense in criminal trials is normally a jury question as to the defendant's predisposition to commit the crime. United States v. Burkley, 192 U.S.App.D.C. 294, 302, 591 F.2d 903, 911 (1978). However, we recognized the long-standing controversy in the Supreme Court on this issue, culminating in its most recent enunciation on the issue in Hampton v. United States, 425 U.S. 484, 96 S.Ct. 1646, 48 L.Ed.2d 113 (1976). In Hampton, the divided majority held that for the government to supply contraband does not constitute entrapment per se, and that the issue of the defendant's predisposition must be submitted to the jury. However, two of the five member majority stated that their opinion would not necessarily extend to situations where there is a demonstrable level of outrageous governmental conduct in the entrapment scheme. The result under those circumstances had likewise been left undecided in United States v. Russell, 411 U.S. 423, 431-32, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973).\\nThe Fifth Circuit addressed the issue of entrapment per se when there is governmental misconduct in United States v. Graves, 556 F.2d 1319 (5th Cir. 1977), cert. denied, 435 U.S. 923, 98 S.Ct. 1485, 55 L.Ed.2d 516 (1978). The Graves Court upheld the trial court's entertainment of the defendant's pretrial motion to dismiss on the ground of governmental misconduct. The case concerned actions by various Federal Housing Administration officials who were so involved in the corruption alleged that the government should be precluded from bringing the prosecution. The Court determined that this question was one for the court, not the jury. It cited a similar ruling by the Eighth Circuit.\\n[Gjovernmental participation may be so outrageous or fundamentally unfair as to deprive the defendant of due process of law or to move the courts in the exercise of their supervisory jurisdiction over the administration of criminal justice to hold that the defendant was \\\"entrapped\\\" as a matter of law . . . (citation omitted) A claim of entrapment on the basis of outrageous government involvement does not present any question for a jury to decide but solely a question of law for the court.\\nUnited States v. Quinn, 543 F.2d 640, 648 (8th Cir. 1976). See also United States v. Szycher, 585 F.2d 443, 445 (10th Cir. 1978); United States v. Prairie, 572 F.2d 1316 (9th Cir. 1978).\\nThe conduct of Pro and Wager in their bribery solicitation scheme was so outrageous that the trial court, upon reviewing all the evidence, should have instructed the jury as to the scheme's illegality. Entrapment, normally recognized as a defense in criminal cases, can be so outrageous as to be illegal because it deprives the defendant of due process of law. All of the witnesses testifying on this issue, including Wager, agreed that Wager's actions constituted the clearest form of entrapment where abso lutely no predisposition was claimed to exist. Wager stated that he believed the scheme to be immoral, and stupid. He also opined that the worthless evidence sent to Levin was meant to sidetrack his defense in \\u2022 the pending Bruno case. The purpose according to Wager was obviously to confuse the defendants and weaken their presentation , in that case. An attorney for the Department of Justice stated that this scheme constituted governmental misconduct. He also commented that had the full scope of the scheme been evident, i. e. Pro's involvement, he would have recommended filing other criminal charges against both Wager and Pro. Other terms used during the trial to describe the scheme were \\\"completely unheard of'', \\\"improper\\\", and \\\"outside the scope of ATF's authority.\\\" Finally, it is noteworthy that Wager failed to introduce one iota of evidence at trial to rebut the above conclusions of misconduct, or to exhibit the legality of the scheme.\\nThe evidence at trial, therefore, is so clear that Wager and Pro were involved in an illegal scheme as a matter of law, that the jury should have been so instructed on this issue. By allowing the jury to determine the illegality question, it may never have reached the comparative fault issue.\\nThe Court recognizes that its holding in this case is extremely narrow. We are not going so far as to say that in criminal cases a court may designate a similar scheme entrapment per se. That issue is still left open after Burkley. However, in a civil tort case where the issue of whether a particular act was illegal or immoral so as to present the in pari delicto defense, the Court should instruct the jury, where plaintiff's claim is as clear as here, that the outrageous misconduct of those without any law enforcement authority in setting up an entrapment scheme is illegal. Thus, the case is reversed and remanded.\\nIV.\\nWe also find that Wager simply has not made out a cause of action for gross negligence. After reviewing all of the evidence presented at trial, it is clear that if a tort action arises from this bribery scheme at all, it is an intentional tort.\\nTo demonstrate the distinction between intentional and negligent torts, it is essential to look at the very most basic definitions of both. \\\"Intent\\\", as it is used in intentional torts, has been defined as the desire to bring about a result that will invade the interests of another. W. Prosser, Law of Torts \\u00a7 8, at 31 (1971). In contrast, gross negligence implies an \\\"extreme departure from the ordinary standard of care.\\\" Id. at 184. Dean Prosser elaborated on the differences between intentional and negligent tortious acts.\\nIn negligence, the actor does not desire to bring about the consequences which follow, nor does he know that they are substantially certain to occur, or believe that they will. There is merely a risk of such consequences, sufficiently great to lead a reasonable man in his position to anticipate them, and to guard against them. If an automobile driver runs down a man in the street before him, with the desire to hit him, or with the belief that he is certain to do so, it is an intentional battery; but if he has no such desire or belief, but merely acts unreasonably in failing to guard against a risk which he should appreciate, it is negligence.\\nId. at 145.\\nIt is clear that Wager's allegations regarding Pro's instigation of the bribery scheme, if taken as true, exhibit an intent on Pro's part to bring about the consequences. Or at least it could be said that he was substantially certain that they would occur. According to Wager, Pro intended him to solicit the bribe from the Bruno defendants. He intended that Wager should perform this task entirely on his own, since he directed Wager to say nothing to others in the ATF office and to the police. And, more importantly, he intended Wager to take the entire blame for his acts. Pro's failure to come forward and describe his connection with the scheme at the time of Wager's arrest certainly can not be described as a negligent act, or as a failure to act with due care. According to the plaintiff's contentions Pro intended that Wager should take the full blame for the bribery scheme when he remained silent about his participation during Wager's criminal prosecution, and when he allegedly committed perjury on the stand by denying any knowledge of the scheme.\\nTherefore, because Pro's actions were intentional from start to finish, as were his desires to bring about the consequences to the Bruno defendants and to Wager, they should be described as an intentional tort.\\nV.\\nThe trial court instructed the jury, over the defendant's objection, on the issue of last clear chance. Since this doctrine only applies to negligence torts, it should not be applied in the instant case, involving an intentional tort. Thus, the trial court committed prejudicial error when it instructed the jury on the last clear chance doctrine.\\nEven if this were a negligence case, we do not consider it an appropriate kind of ease to apply the doctrine. The Court agrees with the reasoning of the Ninth Circuit in County of Maricopa v. Maberry, 555 F.2d 207, 210-17 (9th Cir. 1977), which notes that only a few cases have attempted to apply the doctrine to non-mechanical instrumentality cases, and all were reversed on appeal. The doctrine was originally designed for negligence cases involving mechanical instrumentalities like automobiles.\\nIn addition, the doctrine is often criticized because it \\\"merely transfers from the plaintiff to the defendant an entire loss due to the fault of both.\\\" W. Prosser, Law of Torts \\u00a7 66, at 428 (1971). Although we recognize that the last clear chance doctrine is the law in this Circuit in negligence cases, Bowman v. Redding & Co., 145 U.S.App.D.C. 294, 300-01, 449 F.2d 956, 962-63 (1971) rehearing 145 U.S.App.D.C. 316, 449 F.2d 968, it really is inapplicable to an intentional tort and it would be error to apply it in the instant case, because it would greatly confuse the jury when applied with the in pari delicto and comparative fault defenses.\\nVI.\\nFinally, Wager cross-appealed on the issue of whether the trial court was in error by refusing to permit the jury to award punitive damages. It is clear that Wager could not be awarded such damages in a recovery based on gross negligence. In Knippen v. Ford Motor Co., 178 U.S.App.D.C. 227, 236-37, 546 F.2d 993, 1002-03 (1976) we said that gross negligence will not support punitive damages, since \\\"[t]he most extreme negligence lacks the essential element of conscious indifference to consequences.\\\" Id.\\nHowever, since we have determined that this case must be brought as an intentional tort, if the case is presented to the jury an award of punitive damages would not be denied because of the nature of the action. See Id.; Nader v. Allegheny Airlines, Inc., 167 U.S.App.D.C. 350, 372-73, 512 F.2d 527, 549-50 (1975), rev'd on other grounds, 426 U.S. 290, 96 S.Ct. 1978, 48 L.Ed.2d 643 (1976).\\nIn conclusion, we find that the trial court committed prejudicial error by not instructing the jury as to the illegality of Wager and Pro's bribery scheme. In addition, Wager failed to prove a cause of action for gross negligence, since Pro's actions, if Wager's allegations are taken as true, constituted an intentional tort. For this reason, the court's instruction to the jury on the last clear chance doctrine also constituted error. Finally, we affirm the trial court in refusing to allow the jury to consider an award of punitive damages, a form of recovery which would not be prevented in an intentional tort case if the facts otherwise allowed it. We therefore reverse and remand for proceedings not inconsistent with this opinion.\\nJudgment accordingly.\\n. In Burkley, we determined that\\nFor our purposes, the importance of Hampton is that once again five Justice accepted the view that, in those instances in which \\\"[pjolice overinvolvement in crime\\\" does not \\\"reach a demonstrable level of outrageousness,\\\" predisposition is the dispositive issue.\\nUnited States v. Burkley, 192 U.S.App.D.C. at 302, 591 F.2d at 911, citing Hampton v. United States, 425 U.S. at 495 n.7, 96 S.Ct. 1646 (Powell, J., joined by Blackmun, J. concurring).\\n. The Court is not presuming to designate entrapment by outrageous governmental misconduct as an independent crime which may be prosecuted in criminal court. However, such conduct may certainly be deemed \\\"illegal\\\" where the claim is made in a tort case that the parties who have no law enforcement authority or responsibility are in pari delicto.\\n. Prosecutor Makowski concluded that such conduct would possibly constitute an obstruction of justice or a violation of the defendant's civil rights under 18 U.S.C. \\u00a7 241. See Trial Transcript, February 27, 1978, at 124-25.\\nThis Court also notes the possibility that Wager and Pro violated 18 U.S.C. \\u00a7 1503 and 18 U.S.C. \\u00a7 371. The interference with a pending criminal trial bears some similarity to the offense charged in the indictment to which Charles Colson plead guilty in 1974, United States v. Charles Colson, Crim.No. 74-116, United States District Court for the District of Columbia. The information against Colson charged him with \\\"devising and implementing a scheme to defame and destroy the public image and credibility of Daniel Ellsberg with the intent to influence, obstruct, and impede the conduct and outcome of the criminal prosecution then being conducted in the United States District Court for the Central District of California.\\\" [Against Ellsberg]. Ellsberg was being tried under indictment in United States v. Russo, Crim.No. 9373 in the United States District Court for the Central District of California. Colson was also charged with having \\\"endeavored to and did release defamatory and derogatory allegations concerning one of the attorneys engaged in the legal defense of Daniel Ellsberg for the purpose of publicly disseminating said allegations, the known and probable consequences of which would be to influence, obstruct, and impede\\\" Ellsberg's trial.\"}"

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+"{\"id\": \"3794264\", \"name\": \"Sam NARROL, Appellant, v. Margaret M. HECKLER, Secretary, Department of Health and Human Services\", \"name_abbreviation\": \"Narrol v. Heckler\", \"decision_date\": \"1984-02-24\", \"docket_number\": \"No. 82-1827\", \"first_page\": \"204\", \"last_page\": \"208\", \"citations\": \"234 U.S. App. D.C. 204\", \"volume\": \"234\", \"reporter\": \"United States Court of Appeals for the District of Columbia Circuit\", \"court\": \"United States Court of Appeals for the District of Columbia Circuit\", \"jurisdiction\": \"District of Columbia\", \"last_updated\": \"2021-08-10T19:55:13.694001+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before ROBINSON, Chief Judge, WILKEY, Circuit Judge, and BAZELON, Senior Circuit Judge.\", \"parties\": \"Sam NARROL, Appellant, v. Margaret M. HECKLER, Secretary, Department of Health and Human Services.\", \"head_matter\": \"727 F.2d 1303\\nSam NARROL, Appellant, v. Margaret M. HECKLER, Secretary, Department of Health and Human Services.\\nNo. 82-1827.\\nUnited States Court of Appeals, District of Columbia Circuit.\\nArgued March 23, 1983.\\nDecided Feb. 24, 1984.\\nSteven M. Schneebaum, Washington, D.C., with whom Thomas D. Roberts and Michael R. Schuster, Washington, D.C., were on brief, for appellant.\\nJohn C. Martin, Asst. U.S. Atty., Washington, D.C., with whom Stanley S. Harris, U.S. Atty., Washington, D.C., at the time brief was filed, Royce C. Lamberth and R. Craig Lawrence, Asst. U.S. Attys., Washington, D.C., were on brief, for appellee.\\nBefore ROBINSON, Chief Judge, WILKEY, Circuit Judge, and BAZELON, Senior Circuit Judge.\", \"word_count\": \"2205\", \"char_count\": \"13861\", \"text\": \"Opinion PER CURIAM.\\nPER CURIAM:\\nThis case involves an appeal from a judgment of the U.S. District Court for the District of Columbia dismissing appellant's action for review of a final decision by the Secretary of the Department of Health and Human Services denying appellant's claim for disability benefits under the Social Security Act. Because we find that appellant was denied a fair hearing at the administrative level, we vacate the judgment of the district court and remand for further proceedings.\\nBackground\\nAppellant, Sam Narrol, age 62, co-owned and operated a small printing business in New York City for twenty-two years. Mr. Narrol now suffers from a horrible range of illnesses: Parkinson's disease, a herniated disc (causing pelvic pain), sciatica (causing severe pain on his right side), and cataracts on both eyes (causing blurring of vision). Although the Parkinson's disease is under control with the drug Sinemet, Narrol continues to exhibit many of the classic traits of the disease\\u2014a shuffling walk, impaired coordination, stumbling and falling. In addition, Narrol claims that the drugs he takes for Parkinson's and sciatica cause severe blurring of vision upon any sustained period of close reading and may have con tributed to the development of his cataracts.\\nFrom the time his Parkinson's disease was diagnosed in 1975, Narrol's ability to perform his functions at work gradually deteriorated. By 1979, he was able to put in only a few hours a day. He was no longer able to drive, and commuting on the New York subway system had become a nightmare; his instability often caused him to fall. At work, his duties consisted primarily of billing, proofreading, and proof-press operation. His blurred vision rendered proofreading and billing most difficult. Moreover, sitting for a sustained period of more than fifteen to twenty minutes not only was painful but also frequently caused him to fall when he rose. He attempted to alternate periods of sitting and standing by adding to his duties the operation of a proof-press\\u2014a heavy piece of machinery requiring use of his legs\\u2014but was unable to perform this function for more than five minutes at a time due to severe pelvic pain. Finally, one day in late 1979, Narrol, heeding the urgings of his partners, simply stopped going into work.\\nNarrol's subsequent application for Social Security disability benefits was denied. Narrol then requested and received a hearing before an administrative law judge (ALJ). Although he had been advised of his right to representation by counsel at his own expense, Narrol was not represented by an attorney but was assisted only by his friend and former business partner, Kenneth Webster. At the hearing, both Narrol and Webster testified as to the nature of Narrol's disability and its effects on his ability to perform the functions of his job. The written evidence in favor of Narrol included medical reports filed by his neurologist, Dr. Melvin Yahr, his internist, Dr. Allan Aronson, and his ophthamologist, Dr. Gerald Pierce. Dr. Yahr's reports, though tersely worded, described Narrol's symptoms of Parkinson's disease as well as his adverse reactions to his medications and concluded that it was \\\"unknown\\\" when Narrol would be able to return to work. App. 130, 134-36. Dr. Aronson, who regularly followed Narrol for high blood pressure, observed that Narrol's\\nmain disability which is a very obvious one, is from his Parkinson's Disease\\u2014 which is undoubtedly severe . There is no question in my mind that his Parkinson's Disease entitles him to a complete disability. He has difficulty in walking in my office, he shuffles and has all the classical signs of Parkinson's Disease.\\nApp. 121. Dr. Aronson concluded that Narrol was \\\"not in any way capable of carrying on an occupation.\\\" App. 113. The ophthamologist reported that Narrol's visual acuity was correctable to 20/50 in the right eye and 20/30 in the left but that Narrol suffered from early cataracts in both eyes. App. 129, 131. In addition to the medical reports, the written record before the ALJ contained a list of the medications Narrol was taking, App. 133, as well as the reports of the Social Security Contact Representatives who had interviewed Narrol, indicating their personal observations of his difficulty in sitting and walking. App. 88, 96, 101.\\nThe only piece of evidence against Narrol was the written report of a consultative neurological examination performed on contract to the New York State Bureau of Disability Determinations (the Disability Bureau) by Dr. Gary Korenman. Dr. Korenman reported that Narrol's \\\"[gjait, pallor and coordination are normal\\\" and that his \\\"[ejxtraparamital disorder [is] under excellent control with Sinemet.\\\" App. 116. Dr. Korenman also completed a \\\"Residual Functional Capacity Evaluation,\\\" in the form of a checklist preprinted by the Disability Bureau, in which he indicated that Narrol was capable of sitting for eight hours a day, standing and walking for six hours, lifting and carrying over fifty pounds, and frequently bending, squatting, crawling, and climbing. App. 118.\\nPlacing nearly exclusive reliance upon Dr. Korenman's evaluation, see App. 39\\u201440, the ALJ found that\\nclaimant's residual functional capacity is consistent with sedentary and light physi cal activity. Since his former job involved sedentary and light physical activity, there is no impairment shown in this case which, either singly or in combination, has prevented or would prevent the claimant, for a continuous period of 12 months, from returning to his former work doing billing, telephone work and proofreading where he had the option to sit or stand at will. Accordingly, the claimant is found \\\"not disabled\\\" as defined in the Social Security Act.\\nApp. 41. The findings of the ALJ were affirmed by the Appeals Council of the Social Security Administration. Narrol's subsequent complaint seeking review of the Administration's determination was dismissed by the district court following cross-motions for summary judgment.\\nDiscussion\\nThe federal regulations prescribing the conduct of disability hearings that were in force at the time Narrol's hearing was held required that the \\\"presiding officer . inquire fully into the matters at issue and . receive in evidence the testimony of witnesses and any documents which are relevant and material to such matters.\\\" 20 C.F.R. \\u00a7 404.927 (1980). Thus, the ALJ had an affirmative duty \\\"to investigate fully all matters in issue, and to develop the comprehensive record required for a fair determination . This duty to probe and explore scrupulously all the relevant facts is particularly strict when the claimant, as here, is not represented by an attorney.\\\" Diabo v. Secretary of Health, Education and Welfare, 627 F.2d 278, 281-82 (D.C.Cir.1980); see Cutler v. Weinberger, 516 F.2d 1282, 1286 (2d Cir.1975); Gold v. Secretary of Health, Education and Welfare, 463 F.2d 38, 43 (2d Cir.1972); Clemmons v. Weinberger, 416 F.Supp. 623, 625 (W.D.Mo.1976). The ALJ in this case failed in several respects to fulfill this duty to probe and bring out the evidence.\\nMost glaring among the defects in the ALJ's decision was the judge's failure to explore evidence casting doubt upon the results of the Disability Bureau's consultative examination. The ALJ's opinion dis-positively relied on the findings of Dr. Gary Korenman, the doctor under contract to the Bureau, who found Narrol fully capable of continuing on the job. At the hearing, Narrol strenuously objected to the admission of Dr. Korenman's report, arguing that Dr. Korenman had no basis for his findings. Narrol testified that Dr. Korenman saw him for about fifteen minutes during which time the doctor never saw him walk. Although Dr. Korenman had Narrol perform some finger exercises, the doctor never had him lift anything or get up and walk around so that his gait and coordination could be observed. App. 51-53. Nevertheless, Dr. Korenman reported not only that Narrol's gait and coordination were normal, but that in the course of an eight-hour day Narrol could sit for eight hours, stand for six hours, walk for six hours, frequently bend, squat, crawl, and climb, and periodically lift fifty-pound weights. Nothing in the report itself indicates how the doctor arrived at these conclusions. However, the ALJ failed to discuss this issue at all, simply taking the report at face value.\\nThe suspicious character of Dr. Korenman's assessment of Narrol's physical abilities is reinforced by the fact that it contradicts every other scrap of evidence in the record. Narrol's two doctors submitted reports showing that he had tremendous difficulties in walking and sitting. Because those doctors had much greater familiarity with Narrol's condition, their reports should have been accorded substantial weight. Fruge v. Harris, 631 F.2d 1244, 1246 (5th Cir.1980). Yet, the ALJ either mischaracterized or ignored many of their findings, and he gave no reason for accepting Dr. Korenman's report as more probative than those of Narrol's doctors. Moreover, the ALJ ignored the testimony of Narrol and his business partner. Their testimony painted a grim picture of a man wracked by disabling pain, of a man who frequently could barely stand, of a man who simply could not function any more. Courts have demanded that such testimony be given serious and fair consideration. Smith v. Califano, 637 F.2d 968, 972 (3d Cir.1981). The ALJ gave no reason for discounting this testimony but apparently gave it little weight. Finally, the observations of the Social Security Contact Representatives indicated that Narrol's coordination and his ability to walk and to sit for more than a few minutes at a time were markedly impaired. This evidence too was entirely ignored in the ALJ's opinion.\\nThe ALJ also failed to probe adequately the evidence concerning Narrol's blurred vision. Roughly half of Narrol's work duties consisted of proofreading and billing, both of which involve close reading. Narrol testified that blurred vision prevented him from performing these functions: he stated that the problem could have been caused either by his cataracts or by the five medications he was taking. Although the ophthamologist's report indicated that Narrol's visual acuity was correctable to 20/50 on the right and 20/30 on the left, it indicated that Narrol had early cataracts in both eyes with recent progression in the right eye. App. 131. Narrol also submitted in evidence a list of five medications he was required to take regularly at the time of the hearing. App. 133. Had he consulted the standard medical reference materials, the AU would have discovered that four of the five medications Narrol was taking are capable of causing blurred vision or visual disturbances. Physician's Desk Reference 630, 1263, 1305, 1334 (1983). Yet the ALJ apparently did not investigate this evidence of blurred vision; instead, he found that Narrol had \\\"adequate visual acuity\\\" and was therefore capable of proofreading.\\nFinally, the ALJ's opinion reflects a lack of understanding of the demands of Narrol's job and the implications of Narrol's combination of disabilities for his ability to perform that job. For example, the ALJ relied in part upon Narrol's freedom to sit or stand at will while working, yet never mentioned that Narrol was required to operate a heavy piece of equipment, the proof-press, while standing. Neither did the ALJ mention that sciatic pain and pelvic pain (apparently from the herniated disc) prevented Narrol from operating the proof-press for more than a few minutes at a time. The ALJ observed that a treating physician had reported a diagnosis of the herniated disc, but continued, \\\"[t]here are no objective medical findings to substantiate the diagnosis.\\\" App. 40-41. If the ALJ required further evidence of the herniated disc or of its effect on Narrol's residual functional capacity, he could have informed Narrol of the need to submit further documentation. 20 C.F.R. \\u00a7 404.944 (1983) (ALJ may stop hearing temporarily and continue it at later date if he or she believes there is material evidence missing at hearing). Instead, he apparently totally discounted the existence of the herniated disc and concluded, in the face of testimonial evidence to the contrary, that Narrol could continue to perform certain aspects of his job while standing without describing what those aspects might be.\\nConclusion\\nFor the reasons expressed above, we vacate the judgment below and remand the case to the district court for remand in turn to the Secretary of the Department of Health and Human Services. The Secretary should be instructed to rehear this case at which time the adequacy of the consultative physician's report should be fully explored. In addition, the law judge on rehearing should obtain additional information concerning Narrol's symptoms of blurred vision, his herniated disc, and his sciatic pain, and should explore the effect of these conditions, in combination with the Parkinson's disease, upon Narrol's ability to get to, and perform the full spectrum of functions of, his job.\\nVacated and remanded.\"}"