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6158813

Aetna Life Insurance Company v. Hermina Bundscho

Aetna Life Insurance Co. v. Bundscho

1926-10-25

No. 538

716

716

273 U.S. 716

273

United States Reports

Supreme Court of the United States

United States

2021-08-10T17:41:41.505514+00:00

CAP

Aetna Life Insurance Company v. Hermina Bundscho.

No. 538. Aetna Life Insurance Company v. Hermina Bundscho. October 25, 1926. Mr. Charles Y. Freeman for petitioner. Mesérs. George I. Haight, Edmund D. Adcock) and T. W. Bramhall for respondent.

47

293

6158813 273 U.S. 716 Petition for a writ of certiorari to the Circuit Court of Appeals for the Seventh'Circuit denied.

230163

Schilling v. GRE Insurance Co. et al.

Schilling v. GRE Insurance

1993-11-01

No. 93-6229

958

958

510 U.S. 958

510

United States Reports

Supreme Court of the United States

United States

2021-08-10T19:08:00.974266+00:00

CAP

Schilling v. GRE Insurance Co. et al.

No. 93-6229. Schilling v. GRE Insurance Co. et al.

16

102

230163 510 U.S. 958 Ct. App. Ohio, Franklin County. Certiorari denied.

3001092

Salahudin MAJEED, Appellant, v. R. James NICHOLSON, Secretary of Veterans Affairs, Appellee

Majeed v. Nicholson

2006-03-09

No. 03-0747

525

532

19 Vet. App. 525

19

West's Veterans Appeals Reporter

United States Court of Appeals for Veterans Claims

United States

2021-08-11T00:19:40.706574+00:00

CAP

Before KASOLD, MOORMAN, and DAVIS, Judges.

Salahudin MAJEED, Appellant, v. R. James NICHOLSON, Secretary of Veterans Affairs, Appellee.

Salahudin MAJEED, Appellant, v. R. James NICHOLSON, Secretary of Veterans Affairs, Appellee. No. 03-0747. United States Court of Appeals for Veterans Claims. Argued Nov. 15, 2005. Decided March 9, 2006. John E. Howell,, of Washington, D.C., for the appellant. Richard Mayerick, with whom Tim S. McClain, General Counsel; R. Randall Campbell, Assistant General Counsel; and Carolyn F. Washington, Deputy Assistant General Counsel, all of Washington, D.C., were on the briefs for the appellee. Before KASOLD, MOORMAN, and DAVIS, Judges.

3719

22678

3001092 19 Vet. App. 525 On Appeal from the Board of Veterans' Appeals. KASOLD, Judge: Veteran Salahudin Majeed appeals through counsel a March 19, 2003, decision of the Board of Veterans' Appeals (Board) that determined that $24,039.94 was the proper amount of his separation pay to be recouped by the Secretary from the VA disability compensation otherwise due Mr. Majeed for his service-connected disabilities. For the reasons set forth below, that part of the Board's decision will be set aside, and the matter will be remanded. I. BACKGROUND Mr. Majeed served in the U.S. Army from December 1981 to September 1992, achieving the rank of staff sergeant. Record (R.) at 18. He left active duty pursuant to the Enlisted Voluntary Early Transition Program and was entitled to a special separation benefit (SSB) of exactly $30,058.67, from which $9,529.54 was withheld for repayment of debts to the Army. R. at 49. Mr. Majeed subsequently served on active duty for training as a first lieutenant from February to July 1993. R. at 17. In January 1994, he filed a claim for VA disability compensation. See R. at 67. In August 1994, the Atlanta, Georgia, VA regional office (RO) granted Mr. Majeeds's various claims for service-connected disability benefits and awarded him a 20% disability rating for diabetes mellitis, 10% for hearing loss, 10% for hypertension, and 0% for an appendectomy, all effective September 1993. R. at 20. The Atlanta RO, however, did not indicate the period of service for which the service-connected disabilities were associated. Id.; see also R. at 39-40. At some point shortly thereafter, although not reflected in the record on appeal, Mr. Majeed was advised that pursuant to 10 U.S.C. § 1174 his disability compensation would be offset by $30,058.67 in separation benefits he had received. See R. at 28. Mr. Majeed filed a Notice of Disagreement (NOD) to this offset decision. R. at 23. The Atlanta RO issued a Statement of the Case, wherein it determined that Mr. Majeed's disability compensation benefits "will- continue to be held until all of the $30,058.67 separation pay (SSB) has been recouped." R.' at 28. The RO also determined that all of Mr. Majeed's disabilities were incurred in "the same period of service for which the veteran was granted service connected disability compensation." Id. A February 1997 Board decision found that it was not clear from the Atlanta RO's decision whether service connection was established for diabetes mellitus and hypertension on a presumptive basis with regard to Mr. Majeed's first or second period of service and further found unclear the basis for the effective dates for all four awards of service connection. R. at 39-40. The Board, citing to 38 C.F.R. § 3.700(a)(5)(ii), remanded the matter to the Winston-Salem, North Carolina, RO to, inter alia, determine the appropriate amount to be recouped and to address the effective date for the award of compensation for Mr. Majeed's service-connected disabilities. R. at 38-41. In April 1998, after $30,049.92 in SSB had been recouped (see R. at 84), the Winston-Salem RO determined that, although Mr. Majeed was "entitled to Separation Pay (SSB) in the amount of $30,284.68," the "correct" amount to have been recouped in SSB was $20,755.14. It made this determination on the basis that "the Service Department deducted the amount of a re-enlistment bonus [$9,529.54] from his Separation Pay (SSB) entitlement [$30,284.68]" and therefore the "actual amount of the veteran's Separation Pay (SSB) amount to be recouped was $20,755.14." R. at 51. Since $30,049.92 had already been recouped, a check for $9,529.54 was issued to Mr. Majeed. R. at 50-51. The RO cited to 38 C.F.R. § 3.700(a)(5)(ii) and found again that all of Mr. Majeed's disabilities were incurred in his first period of service. The Winston-Salem RO returned the matter to the Board. R. at 56. In a July 1998 decision, the Board noted that the Winston-Salem RO's determination that $20,755.14 was the proper amount to be offset (i.e., $30,284.68 to which Mr. Ma-jeed was entitled, less $9,529.54 withheld as repayment of Mr. Majeed's re-enlistment bonus), was not an issue and it therefore made no specific findings on that issue. R. at 59. The Board also affirmed the Winston-Salem RO's determination that Mr. Majeed had incurred all of his disabilities in his first term of service, and it determined that the August 1994 Atlanta RO rating decisions assigning the effective date of September 1993 for each of Mr. Majeed's disability compensation awards was erroneous. The Board found that the correct effective date for each disability claim was January 24, 1994, the date he submitted his claims. R. at 67, 68. On appeal to the Court, Mr. Majeed joined the Secretary's motion to vacate the Board's July 1998 decision and to remand the matter to the Board for it to consider the impact of an intervening amendment to 10 U.S.C. § 1174(h)(2), which excluded from recoupment the amount of Federal taxes withheld from the SSB payment. R. at 71-76, 78. The joint motion specifically noted that the Board should consider both the old and the new provisions of law regarding recoupment under section 1174(h)(2). R. at 73. The Court granted the joint motion, vacated the Board's decision, and remanded the matter for readju-dication. R. at 80. Although the record is silent as to the proceedings at the Board on remand, the matter was ultimately returned to the RO. In September 1999, the Baltimore, Maryland, RO determined on remand that the proper computation of the amount to be recouped pursuant to the amended section 1174(h)(2) was the full amount of the SSB paid to Mr. Majeed minus Federal income taxes paid on that amount. The Baltimore RO found that (1) Mr. Majeed's discharge paperwork had shown an estimated SSB payment of $30,058.67, but that his Leave and Earnings Statement revealed the SSB payment to be $30,049.92, (2) $9,074.22 was deducted from the SSB for recoupment of a re-enlistment bonus, (3) $6,009.98 in Federal income taxes was withheld from the SSB, and (4) Mr. Ma-jeed had received an SSB check in the amount of $20,755.14. R. at 84. Applying amended section 1174(h)(2), the RO deter mined that "the amount of the veteran's Special Separation Benefit (SSB) subject to recoupment from VA benefits is the total SSB payable ($30,049.92), minus tax withheld ($6,009.98), which is $24,039.94." R. at 85. The Baltimore RO further determined that, because Mr. Majeed was "erroneously refunded $9,529.54 when he should have been refunded tax withheld from SSB payment, which was $6,009.98 i.. the veteran is overpayment [sic] of $3,519.56." R. at 85. The matter was again returned to the Board, which in August 2000 affirmed the Baltimore RO's finding that the amount' to be recouped was $24,039.94. R. at 119-25. In October 2002, on further appeal, the Court found the reasons and bases for the Board's determination to be inadequate, vacated the Board's decision, and remanded the matter for readjudication. See Majeed v. Principi, 16 Vet.App. 421 (2002). The Court focused primarily on the failure of the Board to consider several regulatory provisions — i.e., 38 C.F.R. § 1.912a (2001), 3.105(h) (2001), and 3.2600 (2001)— that were potentially applicable to the decision that $24,039.94 was the appropriate amount to recoup. See Majeed, 16 Vet.App. at 431-34. In the March 2003 decision on appeal, the Board determined that § 3.105(h) and § 3.2600 were not applicable to this case and that the Secretary had complied with the requirements of § 1.912a. Citing to 10 U.S.C. § 1174(h)(2), the Board found that the April 1998 Winston-Salem RO's determination that $20,755.14 was the amount to be recouped was erroneous and again determined that $24,039.94 was the proper amount to recoup. R. at 12-13. II. ANALYSIS A. Alleged Misapplication of 10 U.S.C. § 1174 Mr. Majeed argues that the Board's decision should be vacated on the basis that the recoupment of his entire SSB was made under an incorrect statutory authority. He points to the Board's citation to 10 U.S.C. § 1174 and particularly to subsection 1174(h)(2), which generally provide the statutory authority for recoupment of separation benefits paid to service members who were involuntarily discharged or denied reenlistment. See 10 U.S.C. § 1174(b). Mr. i Majeed asserts that he was neither involuntarily discharged nor denied reenlistment, as shown by the discharge code on his discharge paperwork and that the Board erred by applying section 1174 and specifically subsection (h)(2). As the Secretary conceded at oral argument, Mr. Majeed is correct in his assertion that section 1174 generally is not applicable to his SSB. Nevertheless, as more fully discussed in subsections II.B and II. C.l, below, it was appropriate for the Board to apply section 1174(h)(2). Section 1174a, title 10, U.S.Code, which does govern the payment of SSB to Mr. Majeed, as he conceded at oral argument, explicitly makes section 1174(h)(2) applicable to SSB paid under section 1174a. See 10 U.S.C. § 1174a(g) ("Subsections (e) through (h) . of section 1174 of this title shall apply in the administration of programs established under this section."). Accordingly, although the full statutory authority governing Mr. Majeed's SSB was not set forth in the Board's decision, the Board nevertheless cited the correct statutory authority under which Mr. Majeed's SSB was to be recouped. To the extent that there could be error for the failure to specifically cite section 1174a(g) and the cross-references between sections 1174 and 1174a, such error is harmless. See NLRB v. Wyman-Gordon Co., 394 U.S. 759, 766 n. 6, 89 S.Ct. 1426, 22 L.Ed.2d 709 (1969) (stating that judicial review of an agency's action should not be converted into "a ping-pong game" where remand is "an idle and useless formality"); Soyini v. Derwinski, 1 Vet.App. 540, 546 (1991) (strict adherence to the reasons-or-bases requirement "would result in this Court's unnecessarily imposing additional burdens on the [Board and the Secretary] with no benefit flowing to the veteran. This we cannot do."); see also 38 U.S.C. § 7261(b)(2) (Court shall take due account of the rule of prejudicial error); Conway v. Principi, 353 F.3d 1369, 1374-75 (Fed.Cir.2004) (same); Marciniak v. Brown, 10 Vet.App. 198, 201 (1997) (holding that, "[i]n the absence of demonstrated prejudice," remand unnecessary); Parker v. Brown, 9 Vet.App. 476, 481 (1996) (same). B. Scope of 10 U.S.C. § 1174(h)(2) Throughout the processing of his claim, Mr. Majeed has vigorously contested on various theories the validity of the Secretary's recoupment of his separation pay. Perhaps because the regulations that implement 10 U.S.C. § 1174 and 1174a, and in particular section 1174(h)(2), provide no guidance as to the process and procedure for making a recoupment determination, the entire matter has been handled on a piecemeal basis with a determination that Mr. Majeed incurred disabilities in his first term of service made at one juncture, a determination that the amount to be recouped was $20,755.14 at another juncture, and a determination that revised the amount to be recouped to $24,039.94 at yet another. As each of these piecemeal determinations was made, however, the various RO and Board decisions never addressed whether the disability compensation due to Mr. Majeed resulted from his first or second term of service. As discussed below, the Board failed to fully address the scope of the applicable statutory sections, particularly 1174(h)(2). See Schafrath v. Derwinski, 1 Vet.App. 589, 593 (1991) (Board is required to consider all evidence of record and to consider, and discuss in its decision, all "potentially applicable" provisions of law and regulation); see also 38 U.S.C. § 7104(a). Section 1174(h)(2) provides that a veteran who has received separation pay under sections 1174 or 1174a, and thereafter qualifies for disability compensation pay, shall have deducted from his disability compensation pay an amount equal to the total amount of separation pay minus Federal income tax withheld from the separation pay. See 10 U.S.C. § 1174(h)(2), 1174a(g); 38 C.F.R. § 3.700(a)(5)(i) (2005). Significantly, the recoupment of separation pay is permitted under the law only as to "disability compensation" that is related to a period of service for which separation pay is awarded. See 10 U.S.C. § 1174(h)(2), 1174a(g); 38 C.F.R. § 3.700(a)(5)(ii). Recoupment is not tied solely to a decision that a veteran's service-connected disability relates back to or was incurred in the specific period of service for which separation pay has been awarded; rather, it is tied to whether the disability compensation being paid is associated with the period of service for which separation pay was awarded. Both statutory section 1174(h)(2) and regulatory § 3.700(a)(5)(ii) make clear that only that part of a veteran's disability compensation that is directly associated with a period of service for which separation pay was awarded may be recouped against the separation pay. Any disability compensation associated with other periods of service may not be recouped against the veteran's separation pay. For example, if a veteran has a 0% (noncompensable) disability rating associated with a period of service for which separation pay was received and an additional 10% disability rating associated with a different period of service, no separation pay can be recouped. Similarly, if a veteran has a 20% disability rating associated with a period of service for which separation pay was received and an additional 10% disability rating associated with a different period of service, recoupment can be against only the compensation awarded for the 20% disability rating and not the compensation awarded for the 10% disability rating. In this second example, although the full amount of separation pay ultimately can be recouped, it would be accomplished at a slower rate than it would be if each of the compensable disability ratings, and thus all of the disability compensation, was associated with the period of service for which separation pay was received. Thus, as long as the veteran remains entitled to disability compensation associated with the period of service for which separation pay was received, any separation pay awarded will eventually be recouped against that compensation. C. Application of 10 U.S.C. § 1174(h)(2) The recoupment issues in this case are threefold. First, whether recoupment of the SSB is required in this case at all, which is a question that was never fully assessed by the Board. Second, assuming recoupment is appropriate in this case, whether the Board correctly determined the amount to be recouped. Third, again assuming recoupment is appropriate, whether .the July 1998 Winston-Salem RO determination of $20,755.14 as the correct amount to be recouped was properly revised upward by the September 1999 Baltimore RO decision that was affirmed by the August 2000 Board and reaffirmed by the Board decision on appeal. All three issues are discussed below, seriatim. 1. Is Recoupment Required? As previously noted, recoupment of SSB is only required, and only authorized, to be taken against disability compensation that has been awarded for the same period of service for which SSB has been paid. See 10 U.S.C. § 1174(h)(2); 38 C.F.R. § 3.700(a)(5)(ii). If the disability compensation is wholly associated with a different period of service, the SSB may not be recouped. Although it was determined in the proceedings below that Mr. Majeed's disabilities all arose in his first period of service, the Board failed to determine whether those disabilities rose to the level that would make them compensable at that time or whether they only became compen-sable subsequent to that first period of service. This determination must be made by the Secretary in the first instance, not by the Court. See Elkins v. Gober, 229 F.3d 1369, 1377 (Fed.Cir.2000). Therefore, remand is required. Inasmuch as the record is silent as to whether Mr. Majeed left his first period of service with any disabilities noted, the Board should also consider the applicability and effect of the presumptions of soundness and aggravation to this case. See 38 U.S.C. § 1111 (wartime presumption of soundness), 1132 (peacetime presumption of soundness), 1153 (presumption of aggravation of preexisting disabilities in service); 38 C.F.R. § 3.304 (post-1947 wartime and peacetime presumption of soundness), 3.306(a) (posU1947 wartime and peacetime presumption of aggravation of preservice disabilities); see also Natali v. Principi, 375 F.3d 1375 (Fed.Cir.2004); Wagner v. Principi, 370 F.3d 1089, 1097 (Fed.Cir.2004); Paulson v. Brown, 7 Vet.App. 466, 469-70 (1995) ("An individual who has served only on active duty for training must establish a service-connected disability in order to achieve veteran status."). 2. Determining the Amount to be Recouped. Assuming arguendo that recoupment of SSB is required in this case, the question of how to compute the amount to be recouped is a matter of interpretation of a statute, which the Court determines de novo. See Lane v. Principi, 339 F.3d 1331, 1339 (Fed.Cir.2003) ("interpretation of a statute or regulation is a question of law"); Butts v. Brown, 5 Vet.App. 532, 539 (1993) (en banc) (Court reviews "questions of law de novo without any deference to the Board's conclusions of law"). In Sabonis v. Brown, the Court held that the meaning of section 1174(h)(2), requiring the deduction from VA disability compensation an amount equal to the total amount of separation pay, was "unambiguous." 6 Vet.App. 426, 430 (1994). Thereafter, Congress amended section 1174(h)(2) to provide that the amount of disability compensation deducted would equal the total amount of separation pay, "less the amount of Federal income tax withheld from such pay." Pub.L. 104-201, § 653(a), 110 Stat. 2583 (1996). We again hold that the language of the statute, within the overall structure of the statute, is unambiguous. See Gardner v. Derwinski, 1 Vet.App. 584, 586-87 (1991) ("Determining a statute's plain meaning requires examining the specific language at issue and the overall structure of the statute." (citing Bethesda Hosp. Ass'n v. Bowen, 485 U.S. 399, 403-405, 108 S.Ct. 1255, 99 L.Ed.2d 460 (1988))), aff'd sub nom. Gardner v. Brown, 5 F.3d 1456 (Fed.Cir.1993), aff'd, 513 U.S. 115, 115 S.Ct. 552, 130 L.Ed.2d 462 (1994). Thus, the correct computation to determine the amount to be recouped (if any recoupment is to be had) is the full amount of the separation pay less the Federal income taxes paid on that amount, and the Board's application of section 1174(h)(2) in this manner was correct as a matter of law. With regard to the specific dollar amounts, the Board's factual findings that Mr. Majeed was entitled to $30,049.92 in SSB, that $6,009.98 was withheld in Federal income taxes from the SSB, and that $24,039.94 is the correct amount to be recouped, assuming recoupment is appropriate in this case, are supported by the record as a whole and are not clearly erroneous. See 38 U.S.C. § 7261(a)(4); Butts, 5 Vet.App. at 535 (1993); Gilbert v. Derwinski, 1 Vet.App. 49, 53 (1990). S. Revising the Initial Determination. Mr. Majeed argues that it was impermissible for the Board to find error in the Winston-Salem RO decision that originally determined that only $20,755.14 could be recouped. Appellant's Br. at 22-23. This argument is without merit. On appeal from the 1998 Board decision affirming the Winston-Salem RO's decision, Mr. Majeed joined in the Secretary's motion requesting the Court to remand the matter for consideration of both the new and the old provisions of section 1174(h)(2). See Pub.L. 104-201, § 653(a), 110 Stat. 2583 (1996). In so doing, even though the matter had not been argued to or addressed by the Board, Mr. Majeed clearly placed the issue of the amount to be recouped, if any, up for reconsideration, and it was proper for the Court to grant the joint motion for remand and for the Board to address the amount to be recouped. See Maggitt v. West, 202 F.3d 1370, 1380 (Fed.Cir.2000) (holding Court abused its discretion when it declined to remand claim to the Board to consider intervening change in law). III. CONCLUSION Upon consideration of the foregoing, that part of the 2003 Board's decision that $24,039.94 was the proper amount of Mr. Majeed's separation pay to be recouped from his VA disability compensation is SET ASIDE, and the matter is REMANDED to the Board to address in the first instance whether Mr. Majeed's disabilities arose to a compensable level during his first period of service. On remand, Mr. Majeed may present any additional evidence and argument in support of the matters remanded, and the Board must consider any evidence and argument so presented. See Kay v. Principi, 16 Vet.App. 529, 534 (2002). The Court expects that the Board will provide expeditious treatment of this matter on remand. See 38 U.S.C. § 7112. SET ASIDE and REMANDED. . Compare Record (R.) at 18 (showing separation entitlement as $30,058.67) with Supplemental R. at 1 (showing separation entitlement as $30,049.92). Variations exist throughout the record on appeal as to the exact dollar amounts. The Court will use the actual determinations as set forth in the relevant documents and note the discrepancies as necessary. . Section 3.700(a)(5)(ii) provides that tire "receipt of separation pay does not affect the payment of disability compensation based on a subsequent period of service. Compensation payable for service-connected disability incurred or aggravated in a subsequent period of service will not be reduced for the purpose of offsetting separation pay based on a prior period of service." 38 C.F.R. § 3.700(a)(5)(ii) (2005); see also 10 U.S.C. § 1174(h)(2). . The change from the Atlanta RO to the Winston-Salem RO was due to Mr. Majeed's relocation. See Appellant's Brief (Br.) at 2. . See note 1, supra. . See note 1, supra. . The change from the Winston-Salem RO to the Baltimore RO was due to Mr. Majeed's relocation. See Appellant's Br. at 3.

6412570

Stanley v. United States

Stanley v. United States

1992-04-06

No. 91-7478

975

975

503 U.S. 975

503

United States Reports

Supreme Court of the United States

United States

2021-08-11T02:38:02.665269+00:00

CAP

Stanley v. United States.

No. 91-7478. Stanley v. United States.

12

73

6412570 503 U.S. 975 C. A. 5th Cir. Certiorari denied.

11182454

In re Smith

In re Smith

1998-12-18

No. 98-7323 (A-499)

1062

1062

525 U.S. 1062

525

United States Reports

Supreme Court of the United States

United States

2021-08-10T17:32:46.315718+00:00

CAP

In re Smith.

No. 98-7323 (A-499). In re Smith.

35

207

11182454 525 U.S. 1062 Application for stay of execution of sentence of death, presented to The Chief Justice, and by him referred to the Court, denied. Petition for writ of habeas corpus denied.

11826172

Rangel-Ibarra v. United States

Rangel-Ibarra v. United States

1996-05-13

No. 95-8544

1199

1199

517 U.S. 1199

517

United States Reports

Supreme Court of the United States

United States

2021-08-10T22:03:15.372879+00:00

CAP

Rangel-Ibarra v. United States.

No. 95-8544. Rangel-Ibarra v. United States.

12

79

11826172 517 U.S. 1199 C. A. 5th Cir. Certiorari denied.

6148385

Ex parte in the Matter of William Leather

Ex parte Leather

1927-02-28

661

661

273 U.S. 661

273

United States Reports

Supreme Court of the United States

United States

2021-08-10T17:41:41.505514+00:00

CAP

Ex parte in the Matter of William Leather.

No. —, original. Ex parte in the Matter of William Leather. February 28, 1927. Mr. Oliver J. Cook for petitioner.

34

193

6148385 273 U.S. 661 The motion for leave to file petition for a writ of mandamus herein is denied.

6089979

Carnegie Productions, Inc., Petitioner v. Commissioner of Internal Revenue, Respondent

Carnegie Productions, Inc. v. Commissioner

1973-02-05

Docket No. 1914-68

642

654

59 T.C. 642

59

Reports of the Tax Court of the United States

United States Tax Court

United States

2021-08-11T00:59:08.100294+00:00

CAP

TaNNENWAld and Hall, JJ., agree with this concurring opinion.

Carnegie Productions, Inc., Petitioner v. Commissioner of Internal Revenue, Respondent

Carnegie Productions, Inc., Petitioner v. Commissioner of Internal Revenue, Respondent Docket No. 1914-68. Filed February 5, 1973. Peter M. Fass, Jules Brody, Maurice 8.8panboc!e, and Reginald Leo Duff, for the petitioner. Stanley J. Goldberg, for the respondent.

4830

30209

6089979 59 T.C. 642 Quealy, Judge: The Commissioner determined deficiencies in petitioner's income taxes and additions to the tax thereon in the amounts and for the taxable years shown below: TYB Jan. SI— Deficiency Addition to tax under sec. 6651(a)[ ] 1962_ $21, 712. 89 $5, 428. 22 1963_ 998.75 _ 1964_ 36, 504. 38 _ 1965_ 27, 554. 57 _ Total_ 86, 770. 59 5, 428. 22 In the redetermination of the tax liability of the petitioner for the taxable years set forth above, the principal issue presented for decision relates to the question (1) whether the petitioner was entitled to claim depreciation on account of a certain motion picture entitled "The Goddess" and, if so, (2) the method and useful life to be applied in computing such depreciation. A decision with respect to that issue will be determinative of the other issues relating to the petitioner's reporting of the receipts and expenses resulting from the distribution of the picture. FINDINGS OF FACT Some of the facts have been stipulated. The stipulation of facts and exhibits attached thereto are incorporated herein by this reference. Carnegie Productions, Inc. (hereinafter referred to as the petitioner), is a corporation organized under the laws of the State of New York. At all times material herein, its principal place of business was in New York, N.Y. The petitioner filed its Federal corporation income tax returns on the accrual basis for the fiscal years ended January 31, 1962 to 1965, inclusive, with the district director of internal revenue, Manhattan District, New York. Paddy Chayefsky owned 67 percent and Susan Chayefsky, his wife, owned 33 percent of the issued and outstanding stock of the petitioner. On April 19,1956, Paddy Chayefsky entered into a letter agreement with Columbia Pictures Corp. (hereinafter referred to as Columbia) to produce and deliver to Columbia a new and original motion picture subsequently entitled "The Goddess." The letter agreement incorporated by reference the terms and conditions for the production and distribution of another motion picture entitled "Middle of the Night" except as specifically modified therein. Chayefsky was author of the screenplay for "Middle of the Night" and that picture had been produced by Sudan Co., Inc., the stock of which was owned by him. By agreement dated July 3,1957, Chayefsky assigned to petitioner his right, title, and interest in the letter agreement relating to the picture entitled "The Goddess," with the consent of Columbia. In order to obtain such consent, Chayefsky further agreed to perform for petitioner the services which he had been obligated to perform pursuant to said letter agreement and to vest in petitioner all of his right, title, and interest therein. Pursuant to the letter agreement, including the terms and conditions embodied therein (hereinafter referred to as the production-distribution agreement), the parties thereto agreed as follows: (1) Petitioner would produce a new and original feature-length motion picture to be a class A talking picture of first-class quality in black and white. Chayefsky would author the screenplay and select the producer and the principal actors and actresses after consultation with Columbia. An amount not to exceed $75,000 would be paid to Chayefsky as associate producer and writer of the screenplay for his services. Petitioner further agreed to seek or to compel performance of any employment agreements entered into in the production of said motion picture and, upon the request of Columbia, to prosecute any legal or equitable action to enforce such agreements. In the event of the failure of petitioner to do so, Columbia reserved the right to sue in the name of petitioner. (2) Carnegie would submit to Columbia the final screenplay upon which the picture is based immediately upon completion and give good faith consideration to any recommendations made by Columbia, but petitioner's decision was final. The petitioner would also submit a budget of the estimated costs and expenses to be incurred in the production of the picture, which would be subject to approval by Columbia. In the event that the actual costs exceeded the amount budgeted, petitioner's participation in the net proceeds from the distribution of the picture would be reduced in accordance with a predetermined formula. If the costs exceeded the budgeted amount and the petitioner was unable to complete the picture, Columbia reserved the right, at its election, to take over supervision of the production of the picture. In such event, Columbia was obligated to advance all funds necessary to complete the picture. (3) Columbia would provide the funds for the production of the picture either by direct loans to the petitioner or by guaranteeing pe titioner's loans from such banks as might be approved by Columbia. Interest was chargeable on all loans at the prevailing rate. Disbursements of the funds borrowed by petitioner would be subject to control jointly by petitioner and Columbia. The amounts borrowed by petitioner would be repayable only out of the net profits from the distribution of the picture. Petitioner assumed no liability for the repayment of any amount. (4) As security for the performance of the production-distribution agreement' and for the repayment of any and all sums advanced by Columbia, petitioner assigned and granted all of its rights, title, and interest in the picture to Columbia and granted Columbia a first and continuing lien thereon. In the event that Columbia was not repaid for >any and all sums advanced prior to the expiration of 7 years from the date of the production-distribution agreement, Columbia had the right to foreclose the lien in order to secure repayment of all sums then unpaid. In the event of a breach of the agreement by petitioner, Columbia then had the right and option to declare all sums advanced immediately due and payable and to foreclose the lien. (5) Upon completion and approval of the picture, Columbia would acquire the sole, exclusive, and irrevocable right to rent, lease, license, exhibit, distribute and otherwise dispose of, or trade and deal in and with the picture, and all rights therein of every kind and nature throughout the entire world, for the duration of the copyright but in no event less than 28 years, which term is renewable. (6) The proceeds realized by Columbia from the sale or distribution of the picture would be allocated, in the order of priority to the payment of fees and taxes, to the payment of distribution fees at the amounts or percentages specified in the agreement, to reimburse Columbia for amounts expended and advances made in the distribution of the picture, to repay bank loans with interest, to repay amounts loaned by Columbia or paid by Columbia on account of bank loans with interest, and for any and all other amounts advanced or expended by Columbia in the production of the picture, including overhead. Following the payment of such amounts, any amount remaining would be distributed 50 percent to Columbia and 50 percent to Carnegie, with the percentage due petitioner to be adjusted by formula in the event that the production costs exceeded the budget. (7) In the event that Columbia committed a breach of the production-distribution agreement and/or failed to make any payments provided therein, and after notice by petitioner of such breach, petitioner had the right to proceed against Columbia for money damages. However, in no event were the rights acquired by Columbia subject to termination notwithstanding such breach or default on Columbia's part. (8) The parties agreed that the contract in no way shall constitute a partnership or a joint venture, nor shall either party be bound or become liable because of any representation, action, or omission by the other party. Columbia recognized that for all purposes thereunder, petitioner was an independent contractor producing the picture for distribution by Columbia. By letter dated July 17, 1957, petitioner advised Columbia that the estimated budget cost for "The Goddess" would be $696,298. Upon approval of such ¡budget by Columbia, provisions were thereupon made to provide the necessary financing. Petitioner thereupon obtained a loan of $375,000 from the Security First National Bank of Los Angeles, bearing interest at the rate of 5 percent per annum payable quarterly, with provision that the full amount of principal and interest remaining unpaid shall be due and payable on July 15, 1959. Columbia undertook to advance the remaining funds necessary for the production of "The Goddess." The loan to the petitioner from the Security First National Bank of Los Angeles was evidenced by a promissory note, dated August 2, 1957, repayment of which by petitioner was subject ¡to the following: In the event of a default in the payment of the principal or interest of this note, the remedies of the holder hereof shall he limited to satisfying such indebtedness out of the production share of the gross receipts (as such term is defined in the Production-Distribution Agreement dated April 19, 1956 between Columbia Pictures Corporation and Sudan Company, Inc.). In order to induce the Security First National Bank of Los Angeles to make said loan to petitioner, Columbia unconditionally guaranteed repayment of the principal and interest of said note at maturity, irrespective of any limitation of liability of petitioner. Columbia further agreed that until said note and interest had been paid in full, the proceeds from the distribution of the picture, after payment of distribution fees and expenses, would be paid to the bank. In accordance with the agreement between petitioner and Columbia, the motion picture entitled "The Goddess" was completed and released for public viewing in motion-picture theaters in May 1958. The total expended by petitioner in the production of the picture amounted to $785,400.73. These costs included the sum of $50,000 paid to Chayefsky pursuant to the agreement for his services as author of the screenplay and associate director of the picture. The remaining $25,000 due to Chayefsky was deferred. Of the total of $735,400.73 chargeable to the production of the picture, $375,000 represented funds secured from the Security First National Bank of Los Angeles and the balance of $360,400.73 was advanced from time to time by Columbia. Petitioner's note of $375,000 plus interest was thereafter paid by Columbia in installments with final payment on July 17,1959. Upon its initial showing, the motion picture entitled "The Goddess" was acclaimed for its artistic merit. However, within a few months thereafter, it became apparent that the net profits from its distribution probably would not be sufficient to repay the amounts expended in its production. During the period from the picture's release to January 31, 1965, the income and distribution of the picture were as follows: In its corporation income tax return for the taxable year ended January 31,1960, petitioner reported a net loss of $469,583.80. In computing said loss, petitioner deducted the sum of $460,053.80 as depreciation on account of the motion picture entitled "The Goddess" and the sum of $9,000 on account of legal and accounting fees relating thereto. The depreciation claimed was computed as follows: Total production costs per agreement_$735,400. 73 Less: Legal and accounting fees_ 9, 000.00 Cost of picture- 726,400.73 Less: Residual value (5 percent)_ 36,320.03 Depreciable cost_ 690,080.70 Depreciation allowable 12/18_ 460, 053. 80 Remaining cost_$230,026. 90 In addition, there was attached to said return for the taxable year ended January 31, 1960, a schedule showing "Motion Picture Film Dentals" of $243,257.74 less "Distribution Expenses" of $272,996.75 resulting in a loss of $29,739.11 on account of rental of the motion picture "The Goddess," with the following notation: Note: The above loss is not deducted on this tax return inasmuch as the contract with the Distributor (Columbia Pictures Corporation) does not obligate Carnegie Productions, Inc., to reimburse the Distributor for Distribution Expenses incurred in excess of Income Received. The amounts reflected in the schedule were the ewrrmlatwe rentals after distribution fees and cumulative distribution expenses to January 31,1960. In its corporation income tax return for the taxable year ended January 31,1961, petitioner reported a net loss of $230,089.99. In computing said loss, petitioner deducted the remaining cost of $230,026.90 as depreciation on account of the motion-picture film "The Goddess." There was also attached to said return a schedule showing "Motion Picture Film Rentals" of $265,092.32 less "Distribution Expenses" of $283,286.24 resulting in a loss of $18,193.92 on account of the rental of the motion picture "The Goddess" with same notation as to why this loss was not deducted on the return. Again, the amounts reported were the cumulative rentals and expenses to January 31,1961. In its corporation income tax return for the taxable year ended January 31,1962, petitioner reported gross receipts of $61,865.49 which included gross income from the rental of the motion picture "The Goddess" and reported cost of goods sold in the amount of $38,572.84 which included distribution fees of $4,247.61 on account of said rentals, thereby reflecting income in the sum of $7,878.09. In said return, petitioner deducted a net operating loss of $699,673.79 carried forward from prior taxable years. In its corporation income tax return for the taxable year ended January 31,1963, petitioner reported gross receipts of $48,459.58 which included gross income from the rental of the motion picture "The Goddess" in the amount of $9,414.61 and reported cost of goods sold of $36,904.56 which included distribution fees on account of said rentals in the amount of $3,008.49. Petitioner also claimed other deductions of $12,744.61 which included distribution expenses of $11,346.70 on account of said rentals with the result that a net loss of $4,940.58 for the taxable year ended January 31, 1963, was charged against other income. In addition, the petitioner claimed a net operating loss deduction in the amount of $690,148.06 computed as follows: Net Operating Loss Deduction Net loss — FYE 1/31/59_ $25.00 Less: Applied to taxable income of FYE 1/31/62- 25.00 Balance available_ 0 Net loss — FYE 1/31/60_ 469, 583. 80 Less: Applied to taxable income of FYE 1/31/62 _ 27, 719.65 Balance available_ $441, 864.15 Net loss — FYE 1/31/61_ 230, 089. 99 (as filed) Add: Adjustment of distribution costs reflected as debit to surplus on tax return for FYE 1/31/62_ 18,193.92 248,283.91 Total_ 690,148.06 In its corporation income tax return for the fiscal year ended January 31, 1964, petitioner reported gross receipts of $119,466.85 which included gross income from the rental of the motion picture "The Goddess" of $6,228.03 and reported cost of goods sold of $66,242.45 which included distribution fees on account of said rentals of $2,040.97. Petitioner also claimed other deductions of $14,761.71 which included distribution expenses on account of said rentals of $2,544.92. In addition the petitioner claimed a net operating loss deduction in the amount of $694,061.70, computed as follows: Net Opekating Loss Deduction Net loss — EWE 1/31/59_ $25. 00 Less: Applied to taxable income of EYE 1/ 31/62_'_ 25.00 Balance available_ 0 Net loss — EYE 1/31/60_ 469, 583. 80 Less: Applied to taxable income of EYE 1/31/62_ 27,719.65 Balance available_ $441, 864.15 Net loss — EYE 1/31/61 (as filed)_ 230,089.99 Add: Adjustment of distribution costs reflected as debit to surplus on tax return for EYE 1/31/62 _ 18,193.92 248, 283.91 Net loss — FYE 1/31/62_ 3, 913. 64 Total_ 694,061.70 In its corporation income tax return for the fiscal year ended January 31, 1965, petitioner reported gross receipts of $260,975.52 which included gross income from the rental of the motion picture "The Goddess" of $95,853.61 and reported cost of goods sold of $146,-561.98 which included claimed distribution fees on account of said rentals of $33,503.21. Petitioner also claimed other deductions of $13,-910.92 which included claimed distribution expenses on account of said rentals of $3,035.14. In addition, the petitioner claimed a loss deduction in the amount of $662,867.47, computed as follows: Net Operating Loss Deduction Net loss — EYE 1/31/60_ $469, 583. 80 Less: Amounts applied to taxable income— EYE 1/31/62_ $27, 719. 65 EYE 1/31/64_^_ 31,194.23 58,913.88 Balance available_ $410, 669. 92 Net loss — EYE 1/31/61_ 248, 283.91 Net loss — EYE 1/31/63_ 3, 913.64 Total_ 662, 867.47 In his notice of deficiency, the respondent has disallowed the deductions claimed 'by the petitioner on account of depreciation of the production costs of the motion picture "The Goddess" in the amount of $460,053.80 for the taxable year ended January 31, 1960, and in the amount of $230,026.90 for the taxable year ended January 31,1961, in computing the petitioner's net operating loss deduction for subsequent years. In addition, the respondent has excluded from gross receipts the rentals reported in the petitioner's returns on account of the distribution of the picture and disallowed as deductions the expenses relating to such distribution, including the deduction of $9,000 as legal and accounting expense for the taxable year ended January 31,1960, on the grounds that the receipts and expenses were chargeable to Columbia. In addition to contesting the respondent's determination with respect to the depreciation and other receipts and expenses attributable to the motion picture, by amendment to the petition the petitioner seeks to accrue and deduct during each of the taxable years 1960 to 1965, inclusive, interest at the rate provided for in the production-distribution agreement on the sum of $135,400.73 advanced by Columbia. The petitioner was granted an extension to July 31,1962, for the filing of its corporation income tax return for the year ended January 31, 1962. Said return was not filed until March 4,1963. The petitioner has not established that the failure timely to file such return was due to reasonable cause. OPINION In this case, the Court must first determine whether the petitioner is entitled to recover, as depreciation or amortization under section 167, the production costs of the motion picture "The Goddess" amounting to $735,400.73. A deduction for depreciation of property used in a trade or business or held for the production of income is allowable under section 167 which provides, in part, as follows: SEO. 167. DEPRECIATION. (a) General Rule.' — There shall be allowed as a depreciation deduction a reasonable allowance for the exhaustion, wear and tear (including a reasonable allowance for Obsolescense) —- (1) of property used in the trade or business, or (2) of property held for the production of income. Section 167(g) of the Code provides that the basis for the depreciation deduction is the adjusted basis provided in section 1011 for pur poses of determining gain or loss on the sale or other disposition of such property. Section 1011 (a) provides that the basis is determined under section 1012, which provides that: "The basis of property shall be the cost of such property." In turn, the cost of such property is generally the amount paid for such property in cash or other property. Sec. 1.1012-1, Income Tax Kegs. The petitioners' claim to depreciation is predicated on its role as producer of the picture under a so-called Production-Distribution Agreement between the petitioner and Columbia. Petitioner argues that it produced a depreciable property at a cost of $735,400.73, albeit with borrowed money, and upon delivery of the picture to Columbia the petitioner had a basis in that amount, subject to recovery through depreciation, citing cases such as Crane v. Commissioner, 331 U.S. 1 (1947), and Manuel D. Mayerson, 47 T.C. 340 (1966). Following this logic, petitioner, beginning in its fiscal year 1962, undertook to reflect in its returns the net rentals from and expenses attributable to the distribution of the picture. The respondent argues that Columbia was the real "owner" of the picture. The petitioner was merely an independent contractor engaged by Columbia to produce a picture. Columbia put up all the money. Once the picture was completed, petitioner was left with bare legal title and the right ultimately to share in any profits from the distribution of the picture. Since the petitioner invested nothing for that right, the respondent contends that the petitioner had nothing to depredate. By agreement, the petitioner undertook to produce a film to be entitled "The Goddess." The petitioner would contribute the services of Chayefsky who would write the screen play and act as "associate producer" of the picture. The sum of $75,000 would be paid to Chayefsky for such services. Columbia undertook to provide the funds which would be required to produce the picture. It was contemplated from the outset that these funds would be supplied in part by a bank loan, repayment of which would be the responsibility of Columbia, and the remainder directly by Columbia. These advances would be recoverable solely out of the net profits from tbe distribution of tbe picture. Petitioner assumed no liability for tbe repayment of any amount. Tbus tbe total cost for tbe picture amounting to $735,400.73 came from Columbia, either directly or on account of its assumption of the obligation to repay tbe amount loaned by the bank. Tbe nature of the transaction is aptly characterized by both tbe petitioner and the respondent as a "production-distribution agreement." In other words, there are embodied in the agreement two separate contracts. One contract governs the production of the picture. The other contract governs the distribution of the picture. Under the production contract, the petitioner agreed to provide the services of Chayefsky, who would write a screenplay and supervise the production of a motion-picture film. The petitioner was given the right to make all decisions with respect to the filming and content of the picture. Columbia would supply the funds, the disbursement of which would be subject to the joint control of the petitioner and Columbia. Once the picture was completed, the roles of the parties were reversed. Columbia acquired the sole, exclusive, and irrevocable right to rent, lease, license, exhibit, distribute, and otherwise dispose of, or trade and deal in and with the picture. At most, petitioner was left with the bare legal title and the right to share in the profits, if any, from the distribution of the picture after there had first been repaid all loans, advances, investments, and expenses incurred by Columbia, with interest thereon. Notwithstanding the contractual provision negativing any intent to form a joint venture, the contract whereby Chayefsky would contribute his services and Columbia would provide the financing for the production of the motion picture, would most likely be so characterized for Federal tax purposes. Tompkins v. Commissioner, 97 F. 2d 396 (C.A. 4, 1988); Kleinschmidt v. United States, 146 F. Supp. 253 (D. Mass. 1956); Harry Klein, 18 T.C. 804 (1952); cf. Lucia Chase Ewing, 20 T.C. 216 (1953), affirmed on other grounds 213 F. 2d 438 (C.A. 2, 1954). In this respect, the facts are distinguishable from the facts in Lucia Chase Ewing, supra, where the role of the taxpayer who advanced the funds was limited to just that. Irrespective, however, of whether during the production phase of the agreement, the petitioner is regarded as a joint venturer, an independent contractor, or as sole owner of the motion picture, once the picture had been completed and acepted by Columbia, the only remaining interest of the petitioner in the picture was to share in any future profits. By the express terms of the "production-distribution •agreement," Columbia was given the "sole, exclusive and irrevocable right to rent, lease, 'license, exhibit, distribute and otherwise dispose of, or trade and deal in or with the picture and all rights therein of every kind and nature" and those rights granted Columbia expressly included "all so-called 'theatrical' as well as 'non-theatrical' rights in the picture (as those terms are commonly understood in the motion picture industry) Such an unrestricted transfer of rights by the petitioner operates as an assignment of the full copyright in the motion picture. Houghton Mifflin Co. v. Stackpole Sons, Inc., 104 F. 2d 306 (C.A. 2, 1939), certiorari denied 308 U.S. 597 (1939); Murphy v. Warner Bros. Pictures, 112 F. 2d 746 (C.A. 9, 1940). In addition, unlike the situation in G. Ricordi & Co. v. Paramount Pictures, 189 F. 2d 469 (C.A. 2, 1951), certiorari denied 342 U.S. 849 (1951), where it was held that the initial holder of the copyright may renew and transfer the rights thereunder on his own behalf where the original contract of Sale is silent as to renewal, here the rights in the picture for the renewal period of the copyright were expressly granted to Columbia as well. See also Edward B. Marks M. Corp. v. Charles K. Harris M. P. Co., 255 F. 2d 518 (C.A. 2, 1958), certiorari denied 358 U.S. 831 (1958); Von Tilzer v. Jerry Vogel Music Co., 53 F. Supp. 191 (S.D. N.Y. 1943), affirmed sub nom. Gumm v. Jerry Vogel Music Co., 158 F. 2d 516 (C.A. 2, 1946). Columbia's right to renew in his name could only be extinguished, if at all, by the death of Ohayef sky prior to the expiration of the initial term. See Miller Music Corp. v. Daniels, Inc., 362 U.S. 373 (1960). All rights that Chayefsky or petitioner held in "The Goddess" were thus transferred irrevocably to Columbia. Columbia took over complete control of the distribution of the picture and undertook to discharge all obligations incurred in its production. From the terms of the contract and an examination of the actions of the parties, the conclusion is inescapable that Columbia became the real "owner" of "The Goddess." The petitioner retained no incidents of ownership upon which the allowance of a deduction for depreciation may be based. Further, while it might be said that the petitioner retained a right or interest in the profits from "The Goddess," if any such profits were ever realized, any amortization or depreciation thereof would be allowable only to the extent of the petitioner's cost or basis in that right. Since petitioner's basis was "zero" there was nothing to amortize. By amendment to the petition, the petitioner also seeks to accrue and to deduct interest on account of the production costs paid by Columbia. Not only has such interest never been paid, but it is highly unlikely that it ever will be. There is nothing to accrue. Pierce Estates v. Commissioner, 195 F. 2d 475 (C.A. 3, 1952); American Bemberg Corporation v. United States, 253 F. 2d 691 (C.A. 3, 1958); Guardian Investment Corporation v. Phinney, 253 F. 2d 326 (C.A. 5, 1958). In order that there be interest, it is axiomatic that there must be "indebtedness." Here, there was no indebtedness. If the motion picture "The Goddess" should ultimately produce sufficient profit to repay Columbia for its advances, the retention thereafter by Columbia of an amount equivalent to interest on such advances would not constitute "interest" but merely a measure of the amount Columbia is entitled to retain before the petitioner receives anything. With respect to the other adjustments set forth by the respondent in his notice of deficiency, either (1) petitioner has presented no proof of error or (2) adjustments follow from the determination that the petitioner had neither income nor expenses from the distribution of the motion-picture film "The Goddess." Since the petitioner has failed to establish that the delay in the filing of petitioner's return for the year ended January 81,1962, was due to reasonable cause and not to willful neglect, the respondent's determination of an addition to the tax under section 6651(a) must be sustained. Delores Bussabarger, 52 T.C. 819 (1969); Estate of Saul Krampf, 56 T.C. 293 (1971). Decision will be entered for the respondent. Eeviewed by the Court. All statutory references are to the Internal Revenue Code of 1954, as amended, unless otherwise indicated. SEC. 167 (g). Basis for Depreciation. — The basis on which exhaustion, wear and tear, and obsolescense are to be allowed In respect of any property shall be the adjusted basis provided In section 1011 for the purpose of determining the gain on the sale or other disposition of such property. SBC. 1011. adjusted BASIS FOR DETERMINING GAIN .OR LOSS. (a) General Rule. — The adjusted basis for determining the gain or loss from the sale or other disposition of property, whenever acquired, shall be the basis (determined under section 1012 or other applicable sections of this subchapter and subchapters G (relating to corporate distributions and adjustments), K (relating to partners and partnerships), and P (relating to capital gains and losses)), adjusted as provided in section 1016. Sec. 1.1812-1. Basis of Property. (a) General Rule. In general, the basis of property is the cost thereof. The cost is the amount paid for such property in cash or other property. Petitioner improperly deducted $9,000 of the total as a direct expense for legal and accounting. However, this amount was a part of the production costs agreed upon by the parties to the agreement.

6134323

Hyster Co., a.k.a., Nacco Materials Handling Group Inc., Independent Lift Truck Builders Union, International Assoc. of Machinists and Aerospace Workers, International Union, Allied Industrial Workers of America (AFL-CIO), and United Shop And Service Employees, plaintiffs v. United States, defendant, and Nissan Motor Co., Ltd., et al., Toyota Motor Sales, U.S.A., Inc., and Toyo Umpanki Co., Ltd., defendant-intervenors

Hyster Co. v. United States

1994-06-23

Court No. 92-03-00133

589

593

18 Ct. Int'l Trade 589

18

United States Court of International Trade Reports

United States Court of International Trade

United States

2021-08-11T02:43:33.323451+00:00

CAP

Hyster Co., a.k.a., Nacco Materials Handling Group Inc., Independent Lift Truck Builders Union, International Assoc. of Machinists and Aerospace Workers, International Union, Allied Industrial Workers of America (AFL-CIO), and United Shop And Service Employees, plaintiffs v. United States, defendant, and Nissan Motor Co., Ltd., et al., Toyota Motor Sales, U.S.A., Inc., and Toyo Umpanki Co., Ltd., defendant-intervenors

858 F.Supp. 202 Hyster Co., a.k.a., Nacco Materials Handling Group Inc., Independent Lift Truck Builders Union, International Assoc. of Machinists and Aerospace Workers, International Union, Allied Industrial Workers of America (AFL-CIO), and United Shop And Service Employees, plaintiffs v. United States, defendant, and Nissan Motor Co., Ltd., et al., Toyota Motor Sales, U.S.A., Inc., and Toyo Umpanki Co., Ltd., defendant-intervenors Court No. 92-03-00133 (Dated June 23, 1994) Collier, Shannon, Rill & Scott (Paul C. Rosenthal, Mary T. Staley and David C. Smith, Jr.), for plaintiffs. Frank W. Hunger, Assistant Attorney General, David Cohen, Director, Civil Division, Commercial Litigation Branch, U.S. Department of Justice (Jeffrey M. Telep), Priya Alagiri, Attorney-Advisor, Office of the Deputy Chief Counsel for Import Administration, U.S. Department of Commerce, of Counsel, for defendant. Arnold & Porter (Lawrence A. Schneider and Susan T. Morita), for defendant-interve-nors Nissan Motor Co. et al. Dorsey & Whitney (John B. Rehm, Munford Page Hall, II and L. Daniel Mullaney), for defendant-intervenor Toyota Motor Sales, U.S.A., Inc. O ’Melveny & Myers (Grey son Bryan, Craig L. McKee and Bruce Hirsh), for defendant-intervenor Toyo Umpanki Co., Ltd.

2015

13502

6134323 18 Ct. Int'l Trade 589 Opinion Carman, Judge: Plaintiffs contest certain aspects of the U.S. Department of Commerce's (Commerce) Final Results of Redetermination Pursuant to Court Remand (April 11, 1994) (Remand Results). Plaintiffs request the Court to remand the action to Commerce. The Court retained jurisdiction over this matter during the pendency of Commerce's remand investigation. Background Plaintiffs NACCO Materials Handling Group, Inc., Independent Lift Truck Builders Union, International Association of Machinists and Aerospace Workers, International Union, Allied Industrial Workers of America (AFL-CIO), and United Shop and Service Employees (collectively "NACCO") are a U.S. manufacturer of internal-combustion, industrial forklift trucks and domestic unions representing workers who are engaged in the manufacture of internal-combustion, industrial forklift trucks in the U.S. The three defendant-intervenors, Nissan, Toyota, and Toyo, are manufacturers/exporters of the internal-combustion, industrial forklift trucks from Japan under review. In the original action, plaintiffs contested Commerce's final results in Certain Internal-Combustion, Industrial Forklift Trucks from Japan, 57 Fed. Reg. 3167 (Dep't Comm. 1992) (FinalResults). The Court held in Hyster that Commerce properly (1) determined it is not required to conduct a test of consumer tax incidence; (2) determined the Japanese consumption tax was included in the price of defendant-intervenors' forklift trucks; (3) selected a model match methodology; (4) determined Toyo's purchases from suppliers were at arm's length; (4) accepted Nissan's accounting methodology pertaining to Nissan's U.S. value-added costs; (5) treated Toyota's fringe benefits; (6) determined verification of Nissan's and Toyo's cost of production was unnecessary; (7) treated Nissan's home market rebates; and (8) accounted for Toyota's value-added labor costs and product liability premiums. Hyster Co. v. United States, 18 CIT 119, 136, 848 F. Supp. 178, 192 (1994). Additionally, the Court remanded the case to Commerce and ordered the agency to eliminate the use of 19 U.S.C. § 1677b(a)(4)(B) (1988) in accounting for the "multiplier effect," and to consider any further adjustments to USP consistent with Zenith Elecs. Corp. v. United States, 11 Fed. Cir. (T)_, 988 F.2d 1573 (1993) and title 19 which the agency deemed appropriate. Hyster, 18 CIT at 136, 848 F. Supp. at 192. The Court also ordered Commerce to point to substantial evidence on the record in support of its determination that Nissan and Toyota's related-party transfer prices were arm's length, and if it is unable to point to such evidence, to make any necessary adjustments. Id. at 136, 848 F. Supp. at 192. Finally, the Court directed Commerce to correct the errors in Toyo's database. Id. at 136, 848 F. Supp. at 192. Pursuant to the Court's order, Commerce changed its methodology for calculating the United States price tax. Remand Results at 3. On remand, Commerce could not identify substantial evidence in support of its determination that Nissan and Toyota related-party transfer prices were at arm's length. Id. at 6, 9. Commerce, therefore, adjusted the transfer prices paid for certain components to ensure they represented fair market value for the respective components. Id. at 8,10. Commerce also corrected errors in Toyo's computer database as directed by the Court's remand order. Id. at 10-11. As a result of the changes made on remand, Commerce recalculated the respondents' respective dumping margins and assigned the following margins for the period November 24,1987 through May 31,1989: Nissan 7.39%, Toyota 13.75%, and Toyo 6.74%. Id. at 11. Contentions of the Parties While plaintiffs agree with Commerce's substantive discussion in the Remand Results, they argue this matter should be remanded to the agency in order to correct several clerical errors in the agency's computer program which have significantly reduced the dumping margins. According to plaintiffs, some errors resulted from Commerce's remand calculations and others occurred in the underlying proceeding and again on remand. Additionally, plaintiffs contend a remand is necessary for Commerce to adjust Nissan's related suppliers' transfer prices to reflect arm's length transactions. Commerce asks the Court to sustain its Remand Results. Commerce argues plaintiffs' allegations of clerical errors should be dismissed as untimely. According to Commerce, the alleged errors all originally arose in the final results and a request for correction should have been made at that time. With respect to Nissan's related supplier transfer prices, Commerce claims it selected a methodology which reasonably establishes the fair market value of Nissan's forklift components and protects against distortions in Nissan's cost of manufacturing. Toyo complains the Court should not have ordered Commerce to correct errors in its database when Commerce had already determined plaintiffs made untimely requests for the corrections. Toyo, therefore, asks the Court to remand the action to Commerce for an explanation as to why the agency's finding of untimeliness was unsupported by substantial evidence and not in accordance with law. In the alternative, Toyo requests the Court to reconsider its remand order directing Commerce to correct the errors and issue an opinion which addresses whether Commerce properly determined plaintiffs' request was untimely. Because Toyo is concerned with the protracted nature of this action, however, it consents to withdraw its request for reconsideration by the Court or remand for Commerce to explain its finding if doing so will help end these proceedings. Nissan contends plaintiffs should not be permitted to complain about alleged clerical errors at this late date. According to Nissan, Commerce did not make the alleged errors relating to it and Toyo on remand, but instead the alleged errors were part of Commerce's computer program used in the Final Results. Nissan argues, therefore, 19 C.F.R. § 353.28 (1992) required plaintiffs to request any corrections "five business days after the date of disclosure," and not more than two years after Commerce issued the Final Results as plaintiffs sought to do in this case. Furthermore, Nissan supports the methodology that Commerce used to adjust Nissan's related-supplier transfer prices. Nissan claims Commerce's methodology is supported by substantial evidence and is otherwise in accordance with law. Standard of Review The appropriate standard for the Court's review of Commerce's Remand Results is whether the agency's determination is supported by substantial evidence on the record and is otherwise in accordance with law. 19 U.S.C. § 1516a(b)(l)(B) (1988). "Substantial evidence is something more than a 'mere scintilla,' and must be enough reasonably to support a conclusion." Ceramica Regiomontana S.A. v. United States, 10 CIT 399, 405, 636 F. Supp. 961, 966 (1986), aff'd, 5 Fed. Cir. (T) 77, 810 F.2d 1137 (1987) (citations omitted). "When applying the substantial evidence standard, the court may not substitute its judgment for that of the agency when the choice is between two fairly conflicting views, even though the court would justifiably have made a different choice had the matter been before it de novo." Budd Co. v. United States, 14 CIT 595, 600, 746 F. Supp. 1093, 1097 (1990) (quotations and citations omitted). Furthermore, as long as the methodology and procedures used by Commerce are "reasonable means of effectuating the statutory purpose, and there is substantial evidence in the record supporting the agency's conclusions, the court will not impose its own views as to the sufficiency of the agency's investigation or question the agency's methodology." National Knitwear & Sportswear Assoc. v. United States, 15 CIT 548, 553, 779 F. Supp. 1364, 1369 (1991) (quotation and citation omitted). Discussion A. Nissan's Related-Party Transfer Prices: On remand Commerce determined it could not rely on Nissan's transfer prices. Remand Results at 7. Commerce, therefore, calculated the percentage by which Nissan's total standard cost of manufacturing should be increased to reflect adequately arm's length prices. Id. at 8. Plaintiffs argue Commerce should have instead adjusted the transfer prices themselves to reflect arm's length transactions. Plaintiffs maintain Commerce was required to explain why it believed the [ ] represented arm's length prices. According to plaintiffs, Commerce itself recognized this data did not represent arm's length prices because the agency did not rely on the data to calculate Nissan's costs for those transfer prices which were [ ]. The Court finds plaintiffs argument meritless. Commerce is not required to treat data which is based on substantial evidence on the record ([ .]) in the same fashion as data which the agency determines is not supported by substantial evidence. Because Commerce concluded it could not rely on transfer prices which were [ ], it adjusted the prices in order to comply with the statute and the Court's remand order. It is not for this Court to direct Commerce to choose one methodology over another where both methodologies are reasonable. While plaintiffs articulate another possible methodology, they fail to demonstrate to the Court how the methodology used by Commerce is unreasonable, not based on substantial evidence or not in accordance with law The Court need not address the merits of plaintiffs' suggested methodology because the Court holds Commerce's methodology is supported by substantial evidence on the record and is otherwise in accordance with law. See PPG Indus., Inc. v. United States, 14 CIT 522, 532, 746 F. Supp. 119, 129 (1990) ("[T]he chosen methodology need not be the most reasonable though it must reasonably and accurately reflect factual information in the administrative record.") (quotations and citations omitted). B. Errors in Toyo's Database: Plaintiffs do not challenge Commerce's correction of errors in Toyo's database, but rather present new bases of error. The Court, however, refuses to permit another remand in this already lengthy proceeding. Based on Commerce's regulations, plaintiffs' request is untimely. The applicable regulation provides in relevant part: § 353.28 Procedures for the correction of ministerial errors. (b) Time limits. Comments must be filed within five business days after the date of disclosure unless the Secretary extends the time limit based upon a written request for extension that is filed within five business days after the date of disclosure and showing cause for such extension . 19 C.F.R. § 353.28. Whether Commerce made the errors on remand or during the underlying investigation, plaintiffs have not satisfied the time requirements of this regulation nor have they provided this Court with a reason why their request for correction was not timely made. This Court has noted "Congress intended final determinations to be precisely that. Indeed, if determinations were constantly subject to amendment, it would be difficult to answer the question as to when a final determination would ever be made." Koyo Seiko Co. v. United States, 14 CIT 680, 682, 746 F. Supp. 1108, 1110 (1990) (quotations and citation omitted) (emphasis in original). Accordingly, the Court denies plaintiffs' request for a remand to correct alleged errors. Conclusion After considering all of plaintiffs', defendant's and defendant-inter-venors' arguments, the Court holds Commerce (1) complied with the Court's remand order by adjusting Nissan's related-party transfer prices to reflect fair market value and (2) properly rejected plaintiffs' request to correct alleged errors in Toyo's database. The Court sustains Commerce's Final Results of Redetermination Pursuant to Court Remand (April 11,1994) in all respects and denies plaintiffs' and Toyo's requests for another remand. This case is dismissed. During the course of this litigation, plaintiff changed its name from Hyster Co. to NACCO Materials Handling Group, Inc. Defendant-intervenors Nissan Motor Co., Ltd., NiBsan Industrial Equipment Corp. and Barrett Industrial Trucks, Inc. will be referred to collectively as "Nissan."

6099442

Fundicao Tupy S.A., and Tupy American Foundry Corp., plaintiffs v. United States, defendant, and Cast Iron Pipe Fittings Committee, defendant-intervenor

Fundicao Tupy S.A. v. United States

1988-03-16

Court No. 86-06-00765

231

233

12 Ct. Int'l Trade 231

12

United States Court of International Trade Reports

United States Court of International Trade

United States

2021-08-11T01:44:37.833210+00:00

CAP

Fundicao Tupy S.A., and Tupy American Foundry Corp., plaintiffs v. United States, defendant, and Cast Iron Pipe Fittings Committee, defendant-intervenor

Fundicao Tupy S.A., and Tupy American Foundry Corp., plaintiffs v. United States, defendant, and Cast Iron Pipe Fittings Committee, defendant-intervenor Court No. 86-06-00765 (Dated March 16, 1988) Freeman, Wasserman & Schneider (Patrick C. Reed and Bernard J. Babb) for plaintiffs. James M. Spears, Acting Assistant Attorney General; David M. Cohen, Director, Commercial Litigation Branch, Civil Division, U.S. Department of Justice (Elizabeth C. Seastrum, Attorney, Commercial Litigation Branch); Craig L. Jackson, Attorney-Adviser, International Trade Administration, U.S. Department of Commerce; and (Edwin J. Madai, Jr. Attorney, Office of the General Counsel), U.S. International Trade Commission, for defendant.

801

5072

6099442 12 Ct. Int'l Trade 231 Memorandum Opinion and Order Watson, DiCarlo, and Tsoucalas, Judges: The plaintiffs move under Rules 7 and 62 of the Rules of this Court for a stay of the Court's judgment of January 12, 1988 (Slip Op. 88-3) and an injunction pending appeal of that decision. That final judgment rejected the plaintiffs' challenge to the administrative determinations which supported the issuance of an ántidumping duty order against malleable cast iron pipe fittings from Brazil. In Fundicao Tupy S.A. v. United States, 11 CIT 561, 669 F. Supp. 437 (1987), appeal dismissed, March 14, 1988, this Court denied plaintiffs' motion for a preliminary injunction because the plaintiffs did not request an administrative review under section 751 of the Tariff Act of 1930, as added by section 101 of the Trade Agreements Act of 1979, 19 U.S.C. § 1675 (1982 & Supp. Ill 1985). Later this Court granted an injunction pending appeal of that decision to the Court of Appeals for the Federal Circuit. Fundicao Tupy S.A. v. United States, 11 CIT 635, 671 F. Supp. 27 (1987). That appeal having now been dismissed and the associated injunction having been ipso facto dissolved, this Court is left only with the question of whether an injunction should issue to stay the liquidation of entries pending appeal of the final judgment on the merits. The government argues that this Court lacks jurisdiction to enter an injunction, and even if the Court has jurisdiction, the plaintiffs' application does not meet the criteria needed to grant an injunction. These are the same arguments that this Court considered and rejected in granting the prior injunction. Fundicao Tupy S.A. v. United States, 11 CIT 635, 671 F. Supp. 27 (1987). Not considered in this Court's earlier opinion is the plaintiffs' likelihood of success on the merits. Plaintiffs raise issues concerning cumulation and differences in level of trade. In the opinion which assigned this case to a three-judge panel, Chief Judge Re found the issues presented in this action as to the International Trade Commission's interpretation and application of a newly-enacted cumulation statute presented broad and significant questions of law as to the administration of the customs law and additional issues of major importance to this country's obligations under the General Agreement on Tariffs and Trade. Fundicao Tupy S.A. v. United States, 11 CIT 23, 652 F. Supp. 1538 (1987). An additional issue on the merits concerned the authority of the International Trade Administration of the Department of Commerce to determine what proof is necessary to adjust foreign market value whenever United States sales and home market sales occur in different commercial levels of trade, an issue of first impression in this Court. Although the Court has upheld the government's positions on these issues of cumulation and level of trade, the Court cannot say that the plaintiffs have no likelihood of success in their appeal. The Court adheres to its prior decision concerning the issues of balancing of hardships and the public interest. In short, it appears that plaintiffs will be immediately and irreparably harmed by the liquidation of entries subject to the decision being appealed; no harm can come to the government from the granting of this injunction and the balance of public interest favors the granting of the injunction. For these reasons and upon reading and filing plaintiffs' motion for a stay of judgment and an injunction pending appeal; upon the response of defendant, upon all papers and proceedings had herein, and upon due deliberation, it is hereby Ordered that the plaintiffs' motion be, and it hereby is, granted; and it is further Ordered that the judgment entered in this action on January 12, 1988 (Slip Opinion 88-3) be, and hereby is, stayed during the pen-dency of the appeal before the U.S. Court of Appeals for the Federal Circuit from that judgment, and it is further Ordered that the United States, its officers, agents, employees and delegees be, and hereby are, enjoined from liquidating entries of plaintiffs' merchandise that were entered between January 14, 1986 and April 30, 1987 and that are subject to the appeal before the U.S. Court of Appeals for the Federal Circuit from the judgment entered in this action on January 12, 1988 (Slip Opinion 88-3). This Order shall be effective immediately.

11813961

Zukowski v. State Bar Grievance Board of Michigan

Zukowski v. State Bar Grievance Board

1973-12-03

No. 73-110

1058

1059

414 U.S. 1058

414

United States Reports

Supreme Court of the United States

United States

2021-08-10T19:09:28.409842+00:00

CAP

Zukowski v. State Bar Grievance Board of Michigan.

No. 73-110. Zukowski v. State Bar Grievance Board of Michigan.

39

233

11813961 414 U.S. 1058 Appeal from C. A. 6th Cir. dis missed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.

6694729

Protests 961176-G, etc., of Geo. S. Bush & Co. Inc. (Seattle)

Protests 961176-G of Geo. S. Bush & Co.

1939-12-04

No. 42746

487

487

3 Cust. Ct. 487

3

United States Customs Court Reports

United States Customs Court

United States

2021-08-11T01:44:39.694869+00:00

CAP

Protests 961176-G, etc., of Geo. S. Bush & Co. Inc. (Seattle).

No. 42746. Protests 961176-G, etc., of Geo. S. Bush & Co. Inc. (Seattle).

36

218

6694729 3 Cust. Ct. 487 Opinion by Dallinger, J. On the record presented the cloisonné ware in question was held dutiable at 40 percent under paragraph 339 as claimed.

6487962

Clancy et al. v. Jartech, Inc., et al.; Clancy et al. v. Jartech, Inc., et al.; Gunter et ux. v. Hutcheson et al.; Thompson v. Covington Housing Development Corp. et al.; Chestnutt et al. v. Fogel et al.; Greyhound Lines, Inc. v. Price; Local 66, Boston Teachers Union, AFT, AFL-CIO v. Boston School Committee et al.; Ellerbe v. Otis Elevator Co.; Rexroat v. Thorell; Stepak v. Rutgers Medical School et al.; Miskovsky v. Oklahoma Publishing Co.; Fields v. Texas; Michaelis v. Nebraska State Bar Assn.; Cape v. Zant, Superintendent, Georgia Diagnostic Classification Center; Williams v. Indiana; Christensen v. Utah; John v. Government of the Virgin Islands; Knott v. Mabry, Director, Arkansas Department of Correction; Din v. Long Island Lighting Co.

Clancy v. Jartech, Inc.

1982-11-29

No. 81-2095; No. 81-2096; No. 81-2114; No. 81-2143; No. 81-2163; No. 81-2210; No. 81-2306; No. 81-2310; No. 81-2346; No. 81-2389; No. 81-2407; No. 81-6480; No. 81-6710; No. 81-6777; No. 81-6779; No. 81-6818; No. 81-6837; No. 81-6918; No. 81-6930

1059

1059

459 U.S. 1059

459

United States Reports

Supreme Court of the United States

United States

2021-08-11T02:37:53.680593+00:00

CAP

Clancy et al. v. Jartech, Inc., et al., Clancy et al. v. Jartech, Inc., et al., Gunter et ux. v. Hutcheson et al., Thompson v. Covington Housing Development Corp. et al., Chestnutt et al. v. Fogel et al., Greyhound Lines, Inc. v. Price, Local 66, Boston Teachers Union, AFT, AFL-CIO v. Boston School Committee et al., Ellerbe v. Otis Elevator Co., Rexroat v. Thorell, Stepak v. Rutgers Medical School et al., Miskovsky v. Oklahoma Publishing Co., Fields v. Texas, Michaelis v. Nebraska State Bar Assn., Cape v. Zant, Superintendent, Georgia Diagnostic Classification Center, Williams v. Indiana, Christensen v. Utah, John v. Government of the Virgin Islands, Knott v. Mabry, Director, Arkansas Department of Correction, Din v. Long Island Lighting Co.,

No. 81-2095. No. 81-2096. No. 81-2114. No. 81-2143. No. 81-2163. No. 81-2210. No. 81-2306. No. 81-2310. No. 81-2346. No. 81-2389. No. 81-2407. No. 81-6480. No. 81-6710. No. 81-6777. No. 81-6779. No. 81-6818. No. 81-6837. No. 81-6918. No. 81-6930. Clancy et al. v. Jartech, Inc., et al., Clancy et al. v. Jartech, Inc., et al., Gunter et ux. v. Hutcheson et al., Thompson v. Covington Housing Development Corp. et al., Chestnutt et al. v. Fogel et al., Greyhound Lines, Inc. v. Price, Local 66, Boston Teachers Union, AFT, AFL-CIO v. Boston School Committee et al., Ellerbe v. Otis Elevator Co., Rexroat v. Thorell, Stepak v. Rutgers Medical School et al., Miskovsky v. Oklahoma Publishing Co., Fields v. Texas, Michaelis v. Nebraska State Bar Assn., Cape v. Zant, Superintendent, Georgia Diagnostic Classification Center, Williams v. Indiana, Christensen v. Utah, John v. Government of the Virgin Islands, Knott v. Mabry, Director, Arkansas Department of Correction, Din v. Long Island Lighting Co.,

220

1302

6487962 459 U.S. 1059 ante, p. 879; ante, p. 826; ante, p. 826; ante, p. 828; ante, p. 828; ante, p. 831; ante, p. 881; ante, p. 802; ante, p. 837; ante, p. 804; ante, p. 923; ante, p. 841; ante, p. 804; ante, p. 882; ante, p. 808; ante, p. 802; ante, p. 848; ante, p. 851; and ante, p. 852. Petitions for rehearing denied.

362823

Falkenstein v. New York

Falkenstein v. New York

1950-04-10

No. 427, Misc.

936

936

339 U.S. 936

339

United States Reports

Supreme Court of the United States

United States

2021-08-10T21:17:04.354674+00:00

CAP

Falkenstein v. New York.

No. 427, Misc. Falkenstein v. New York. Appellate Division of the Supreme Court of New York.

18

112

362823 339 U.S. 936 Certiorari denied.

11657

Garcia et vir v. United States

Garcia v. United States

1993-05-24

No. 92-1442

935

935

508 U.S. 935

508

United States Reports

Supreme Court of the United States

United States

2021-08-10T19:39:38.651661+00:00

CAP

Garcia et vir v. United States.

No. 92-1442. Garcia et vir v. United States.

38

221

11657 508 U.S. 935 C. A. 9th Cir. Certiorari granted, judgment vacated, and ease remanded for further consideration in light of Republic Nat. Bank of Miami v. United States, 506 U. S. 80 (1992).

3930639

Helvering, Commissioner of Internal Revenue v. Henry B. Babson; Same v. Gustavus Babson; and Same v. Fred K. Babson

Helvering v. Babson

1934-10-08

No. 293; No. 294; No. 295

571

571

293 U.S. 571

293

United States Reports

Supreme Court of the United States

United States

2021-08-11T01:08:44.884837+00:00

CAP

Helvering, Commissioner of Internal Revenue v. Henry B. Babson; Same v. Gustavus Babson; and Same v. Fred K. Babson.

No. 293. No. 294. No. 295. Helvering, Commissioner of Internal Revenue v. Henry B. Babson; Same v. Gustavus Babson; and Same v. Fred K. Babson. October 8, 1934. Solicitor General Biggs for petitioner. Mr. George K. Bowden for respondents.

55

336

3930639 293 U.S. 571 Petition for writs of certiorari to the Circuit Court of Appeals for the Seventh Circuit denied.

11017027

Jesse W. George

George

1900-06-04

No. 17965

642

642

35 Ct. Cl. 642

35

United States Court of Claims Reports

United States Court of Claims

United States

2021-08-10T19:52:34.566080+00:00

CAP

Jesse W. George.

Jesse W. George. No. 17965. June 4, 1900.

11

62

11017027 35 Ct. Cl. 642 Land entry. $75.20.

6070644

Stokes Milling Co., Petitioner, v. Commissioner of Internal Revenue, Respondent

Stokes Milling Co. v. Commissioner

1928-12-28

Docket No. 20298

950

953

14 B.T.A. 950

14

Reports of the United States Board of Tax Appeals

United States Board of Tax Appeals

United States

2021-08-11T00:46:18.920052+00:00

CAP

Stokes Milling Co., Petitioner, v. Commissioner of Internal Revenue, Respondent.

Stokes Milling Co., Petitioner, v. Commissioner of Internal Revenue, Respondent. Docket No. 20298. Promulgated December 28, 1928. A. E. Foley, Esq., for the petitioner. A. II. Fast, Esq., for the respondent.

997

5840

6070644 14 B.T.A. 950 OPINION. Lansdon : The controversies over invested capital and the cost of depreciable assets at issue here both hinge on the actual cash value of the property paid in for stock when the petitioner was incor porated. The respondent has not held that the provisions of section 331 of the Revenue Act of 1918 are applicable in the determination of the petitioner's invested capital, nor is there any dispute over the rates of depreciation. The statutory provisions for the computation of invested capital applicable here are set forth in the Revenue Act of 1918, as follows: Sec. 326. (.a) That as used in this title the term "invested capital" for any year means (except as provided in subdivisions (b) and (c) of this section) : (1) Actual cash bona fide paid in for stock or shares; (2) Actual cash value of tangible property, other than cash, bona fide paid in for stock or shares, at the time of such payment, but in no case to exceed the par value of the original stock or shares specifically issued therefor, unless the actual cash value of such tangible property at the time paid in is shown to the satisfaction of the Commissioner to have been clearly and substantially in excess of such par value, in which case such excess shall be treated as paid-in surplus In support of its contention as to the value of the property paid in for stock at the date of incorporation the petitioner relies on the testimony of one James H. Hammill, who has been a practicing mill engineer for 38 years. As evidence of his qualification to form an opinion of the value of mill properties this witness testified that he designed a 4,000-barrel capacity mill for the Pillsburys of Minneapolis, three mills of 3,000-barrel capacity for Quaker Oats at Cedar Rapids, a 2,000-barrel mill at Ontario, two 1,000-barrel mills at Ogden, and one at Spokane, and redesigned 12,000 and 6,000 barrel capacity mills at Washburn and Marmel; that he has designed, built and started the operation of many mills; and that he has appraised the plants of the Larrabee Milling Co., Wellington, Hutchinson, St. Joseph, and Sioux Falls,-and several mills for fire-loss purposes at Jackson, Scandia, and Greensburg; that he has sold and installed flour-milling machinery' from coast to coast; that he is frequently called on to readjust interior mill arrangements. During the operation of the property in question by the predecessor of the petitioner, which he has known for about 16 years, he was called on three or four times a year for the purpose of making adjustments required by changes of the types of milling wheat and other conditions. He installed most of the machinery of the Stokes mill and at one time operated it for several days. In the opinion of Hammill the mill buildings of the petitioner had a value of at least $100,000 at April 1, 1916, and at the same date the installed machinery and equipment had a value of $120,000. He based his opinion on his information and experience as a mill engineer, from which he concludes that the buildings necessary to the successful operation of a 1,000-barrel mill cost $100 and the machinery and equipment $120 per barrel capacity, respectively. It appears that the Commissioner accepted neither the book value nor the cost of the assets to the prior owners as his basis for the computation of invested capital, but based his determination on the par value of the stock issued for the property. The sale of the mill by Stokes to the incorporators for $50,000 cash does not appear to have been an arm's-length transaction. Stokes was losing money in the operation of the property. He needed cash for use in his deals in real estate. He was old and anxious to be relieved of the responsibilities and labors incident to the operation of a large manufacturing plant. One of the vendees had been secretary of the old corporation; another, W. H. Stokes, Jr., was a near relative. In these circumstances we can not hold that the sale of the property for $50,000 in cash is conclusive evidence of its actual cash value. On the other hand, it seems unlikely that it appreciated so much in the hands of the vendees that it was worth more than $200,000 a few days later. That it was worth more to the group of active business men who acquired it and had the credit necessary to secure operating capital than it was in the hands of Stokes is certain, but that it was worth four times the purchase price is very doubtful. The Commissioner has allowed an appreciation of 100 per cent over the purchase price. The expert witness testified to cost of reproduction rather than to actual cash value. In all the circumstances we are of the opinion that the record here fails to overcome the presumption that the Commissioner's computation of invested capital was correct. The petitioner is entitled to depreciation on the cost of assets acquired subsequent to March 1, 1913. The assets in question were purchased for stock in 1916. The effect of our decision approving the Commissioner's computation of invested capital is to determine that the stock was worth par, or $100, per share. Its depreciable assets, therefore, cost the petitioner $85,000, and oh that basis, at rates not in dispute, it is entitled to annual deductions from income on account of depreciation. On this issue the respondent is affirmed. The evidence adduced by the petitioner shows no abnormality in income or invested capital in the year 1920 and, therefore, the Commissioner's refusal to compute the tax liability for such year, in conformity with section 328 of the Revenue Act of 1918 is approved. Decision will he entered for the respondent.

372942

Stelloh v. Wisconsin

Stelloh v. Wisconsin

1953-03-09

No. 344

913

913

345 U.S. 913

345

United States Reports

Supreme Court of the United States

United States

2021-08-10T23:38:19.820522+00:00

CAP

Stelloh v. Wisconsin.

No. 344, Misc. Stelloh v. Wisconsin.

12

84

372942 345 U.S. 913 Supreme Court of Wisconsin. Certiorari denied.

4330315

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 2303, Petitioner, v. FEDERAL LABOR RELATIONS AUTHORITY, Respondent

American Federation of Government Employees, Local 2303 v. Federal Labor Relations Authority

1987-04-03

No. 85-1248

287

292

259 U.S. App. D.C. 287

259

United States Court of Appeals for the District of Columbia Circuit

United States Court of Appeals for the District of Columbia Circuit

District of Columbia

2021-08-11T00:44:58.898950+00:00

CAP

Before ROBINSON and STARR, Circuit Judges, and WRIGHT, Senior Circuit Judge.

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 2303, Petitioner, v. FEDERAL LABOR RELATIONS AUTHORITY, Respondent.

815 F.2d 718 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 2303, Petitioner, v. FEDERAL LABOR RELATIONS AUTHORITY, Respondent. No. 85-1248. United States Court of Appeals, District of Columbia Circuit. Argued Jan. 15, 1986. Decided April 3, 1987. Margaret Pena, with whom Mark D. Roth was on the brief, for petitioner. Pamela P. Johnson, Attorney, Federal Labor Relations Authority, with whom Ruth E. Peters, Sol., and Steven H. Svartz, Deputy Sol., Federal Labor Relations Authority, were on the brief, for respondent. Before ROBINSON and STARR, Circuit Judges, and WRIGHT, Senior Circuit Judge.

3522

22279

4330315 259 U.S. App. D.C. 287 Opinion for the Court filed by Circuit Judge SPOTTSWOOD W. ROBINSON, III. SPOTTSWOOD W. ROBINSON, III, Circuit Judge: Local 2303 of the American Federation of Government Employees challenges an order of the Federal Labor Relations Authority dismissing as untimely the union's petition for review of a collective bargaining dispute over the negotiability of certain issues under provisions of the Civil Service Reform Act of 1978. We find that FLRA's decision was neither arbitrary nor capricious, and we therefore affirm. I In 1984, AFGE Local 2303 was engaged in bargaining with the Federal Aviation Administration over the status of employees at National and Dulles Airports. On August 24 of that year, the union submitted a request for a written allegation concerning the negotiability of a proposal that the agency provide, under certain conditions, overtime compensation and travel expenses to employees commuting to the airports. The agency replied on August 31 by declaring the proposal to be inconsistent with federal regulations and thus outside the duty to bargain. Instead of then appealing the decision to the Authority, the union continued to bargain, and on October 15 submitted to the agency a second, abridged proposal. The latter, in response, asserted that the new proposal contained only language it had already deemed nonnegotiable, reaffirmed its August 31 position, and announced that "[a] separate allegation of nonnegotiability [was] not appropriate." Resigned to seeking the Authority's intercession, the union, on October 29, 1984, petitioned for review of the agency's non-negotiability allegation. The petition would have been timely had the statutorily-prescribed fifteen-day time limit been measured from the date of the agency's rejection of the second proposal, but the Authority held that the October 23 letter "was, in essence, only a restatement of the earlier allegation." The Authority thus deemed the petition a belated attempt to seek review of the August 31 allegation of nonnegotiability and accordingly dismissed the petition as untimely. II We are to sustain the Authority's order unless it is arbitrary, capricious, an abuse of discretion, or otherwise unlawful. The potential locus of arbitrariness in the present litigation is the Authority's conclusion that the union's second proposal "effected no changes in the substance or language" of the original proposal. The union contends that the revised proposal was "materially different" from the original, and that the agency's letter of October 23 should therefore have triggered a new fifteen-day appeal period. The union concedes that the second proposal contained no new language, but insists that its elimination of specific provisions regarding travel-time compensation was sufficient to differentiate the two proposals and qualify the truncated submission for an independent negotiability allegation. Lack of explication in the agency's August 31 letter, the union says, left it unable to ascertain the agency's view of the asserted conflict between the first proposal and federal law; without guidance, the union adds, it was left to speculate as to the nature of the agency's negotiability objections, and was led to make the deletions whereby the second proposal was fashioned from the first in an effort to respond to them. The union maintains that it acted reasonably when it chose to continue negotiations in an attempt to modify the proposal to the agency's satisfaction, and that it should not be penalized for its failure to comprehend the breadth of the agency's objection. For its part, the Authority simply reiterates its conclusion that the union's second proposal merely omitted portions of its first proposal, which the agency had al ready declared nonnegotiable in its entirety. In its opinion dismissing the union's petition for review as untimely filed, the Authority characterized the second proposal as "merely a recombination of some of the parts of the original three part proposal which the Agency previously determined, on August 31, 1984, to be nonnegotiable," and expressed the view that "[t]he recombination of those parts effected no changes in the substance or language of the parts." In announcing this decision, the Authority provided no test for determining whether one proposal is the same as another; instead, the Authority rested its opinion on the narrow judgment that the abridged proposal came within the scope of the agency's original allegation of nonnegotiability. Although under other circumstances a more elaborate statement of the Authority's reasoning might be necessary, we cannot disturb its conclusion in this case. The Authority is free to proceed on a case-by-case basis without formally articulating rules of general applicability, and its expert constructions and applications of its organic statute are generally entitled to considerable deference. Here the Authority determined that in light of the agency's unqualified allegation of non-negotiability in response to the union's first proposal, the union's second submission, which lacked any new proposition or language, was in essence a resubmission of the same proposal for purposes of Section 7117(c)(2)'s filing deadline. The Authority's judgment was reasonable under all the circumstances, and we decline to overturn it. Ill Perhaps conscious of the fragility of its principal challenge, the union also makes several arguments purporting to demonstrate dire consequences for collective bargaining posed by the Authority's decision. According to the union, the decision will disrupt the collective bargaining process by arming agencies with the means to force immediate and time-consuming appeals of nonnegotiability allegations — thus suspending further negotiations over issues touched on by the contested proposals, obstructing bargaining generally, and ensnaring unions into a fruitless cycle of agency objection and appeal. The Authority's decision, the union claims, impedes the give- and-take between negotiating parties that is a necessary part of the bargaining process. We have often chided the Authority for its tardiness in processing appeals, but this case does not involve any claim of unreasonable delay. More to the point, the union's fear that the Authority's decision invites manipulation by agencies is unjustified because the decision to trigger the review process, whose stringent time limit the union here protests, remains in the hands of the bargaining union, not the agency. The Authority's regulations clearly inform that the fifteen-day period for appealing agency allegations does not begin to run until the union receives an agency's written allegation of nonnegotiability which has been issued in response to a written union request for a negotiability determination; the union itself thus controls commencement of the appeal period. Where an agency issues an allegation not solicited by a bargaining union, the Authority holds it starts the running of the fifteen-day period only if the union chooses to bring an immediate appeal; the union may, instead, continue to negotiate and then launch the review process by formally requesting a written allegation. Finally, and perhaps most importantly, informal oral assessments of negotiability of proposals advanced during negotiations may be elicited from the agency without activating the formal appeal process. As the Authority has observed, [b]y providing that an agency's allegation that a union's proposal is not within the duty to bargain must be made only in response to the union's request for an allegation, the Rule ensures that a union will not be diverted from further negotiations and forced to file an appeal before it wishes to do so, simply to avoid losing its right of appeal by the running of the time limit. Rather, the Rule preserves the union's right until it requests an allegation, thereby enabling it first to propose alternatives or to bargain over agency counterproposals as a means of resolving the dispute without invoking third-party intervention. The Authority's decision in this case in no measure diminishes a union's control over initiation of the appeal process. The union further suggests that the Authority's order compromises the integrity of the process established by Congress for collective bargaining. By contrast, it appears to us that concerns of procedural integrity support the disposition the Authority made here. The procedure governing appeals of nonnegotiability allegations obviously demands some judgment as to whether serial proposals are identical or distinct, for otherwise the time limits of Section 7117(c) would become meaningless. Without a judgment of the sort the Authority exercised in this case, a union could resubmit any number of substantially identical proposals for agency allegation and thereby extend indefinitely the period during which it is eligible to file for review of that allegation. The union objects additionally to the Authority's decision on the grounds that it impedes the give-and-take necessary for effective collective bargaining. The latitude the union seeks in appealing might, as a practical matter, facilitate bargaining in some instances, but it does not comport with the scheme Congress established in Section 7117(c) to ensure speedy resolution of negotiability disputes. Congress did not leave judgments on proper timing of agency review to the union's discretion; once a union has solicited a formal written negotiability allegation, it must appeal from that allegation, if it so wishes, within the fifteen-day period Congress prescribed. As this court has observed, "[t]he appeals procedure is . intended to resolve negotiability disputes speedily, thereby minimizing the interruption of normal collective bargaining. If Congress' purpose is to be achieved, the statutory time limits for filing union appeals, agency statements and union responses must be strictly observed." The Authority's exercise of judgment in this case was necessary to preserve the integrity of this process, and appears to us reasonable in all respects. The union freely chose to request from the agency a written allegation concerning the negotiability of its initial proposal. By its own action it thus set into motion the review process in which it then failed timely to participate. The union's objection to time-barring of its appeal is therefore rejected, and the Authority's order in this case is Affirmed. . 5 U.S.C. § 7101-7135 (1982 & Supp. II 1984). . Letter from John W. Mulholland, AFGE, to Betsy L. Gaston, FAA (Aug. 24, 1984), Supplemental Appendix (Supp.App.) 11. . Letter from Betsy L. Gaston, FAA, to John W. Mulholland, AFGE (Aug. 31,1984), Joint Appendix (J.App.) 5. The precise basis for the agency's allegation is impossible to discern; the letter asserted in the most general of terms that § 6 and 7 of the proposal conflicted with provisions of the "Federal Travel Regulations" and "the Federal Personnel Manual, 5 C.F.R. 551." Id. The adequacy of the legal support for the . allegation of nonnegotiability would have been a matter for the Authority to determine had it not adjudged the union's petition untimely. For present purposes it is sufficient to note that however vague the agency may have been in alleging grounds of inconsistency, it unequivocally stated its view that the proposal was nonnegotiable because inconsistent with provisions of federal law, identifying the sections of the proposal giving rise to the alleged conflict. . Letter from John W. Mulholland, AFGE, to Betsy L. Gaston, FAA (Oct. 15, 1984), Supp.App. 6. . Letter from Betsy L. Gaston, FAA, to John W. Mulholland, AFGE (Oct. 23, 1984), J.App. 4. . Letter from John W. Mulholland, AFGE, to Henry Frazier, FLRA (Oct. 29, 1984), J.App. 1. . 5 U.S.C. § 7117(c)(2) (1982); 5 C.F.R. § 2424.3 (1986). . AFGE Local 2303 & Metropolitan Washington Airports, FAA, 17 F.L.R.A. No. 8, 17, 18 (1985) (order dismissing petition for review). . . Id. . 5 U.S.C. § 7123(c) (1982) (incorporating by reference § 706 of the Administrative Procedure Act). See National Treasury Employees Union v. FLRA, 223 U.S.App.D.C. 364, 369, 691 F.2d 553, 558-559 (1982). . AFGE Local 2303 & Metropolitan Washington Airports, FAA, supra note 8, 17 F.L.R.A. at 18. The union asserts that "the FLRA clearly erred as a matter of fact," Brief for Petitioner at 11, and so would appear to suggest that the Authority's conclusions are findings of fact reviewable for conformity to the "substantial evidence" standard, see 5 U.S.C. § 7123(c) (1982), or perhaps under a more rigorous "clearly erroneous" standard. To the contrary, it is settled that an agency's interpretation of a written document is a determination of a question of law, which courts may, but need not, adopt. City of Ukiah v. FERC, 234 U.S.App.D.C. 307, 310, 729 F.2d 793, 796 (1984); Federal-Mogul Corp. v. NLRB, 566 F.2d 1245, 1256 (5th Cir.1978); Danks v. Fields, 696 F.2d 572, 575 (8th Cir.1982). When, however, an interpretation implicates factors within the area of an agency's expertise, deference is due the agency's construction. See NLRB v. Hasbro Indus., 672 F.2d 978, 983-984 & 984 n. 8 (1st Cir.1982) (construing employer's pre-election letters to organizing employees) ("[t]he Board's assessment of the overall import of the employer's comments in the industrial setting is entitled to respect"). Moreover, the pivotal issue is whether, for purposes of § 7117(c)(2)'s deadline, the union's first and second proposals are to be viewed as identical, or rather as distinct. Determination of this question ultimately requires consideration of the competing policies — collective bargaining over disputes, and expeditious resolution — which Congress sought to effectuate by means of the appeals procedure detailed in the statute. See Part III infra. Adjudications of this character must rest in the first instance with the Authority and we must sustain them unless arbitrary or capricious. See note 20 infra. Cf. NLRB v. Gissel Packing Co., 395 U.S. 575, 617-618, 620, 89 S.Ct. 1918, 1941-1943, 23 L.Ed.2d 547, 580-586 (1969) (where statutory scheme requires balancing of employer's right to free expression and employees' right to organize, "reviewing court must recognize the Board's competence in the first instance to judge the impact of utterances made in the context of the employer-employee relationship") (citation omitted). . Brief for Petitioner at 16. . See note 3 supra. . Brief for Petitioner at 13-14. . Brief for Petitioner at 17-19. . The original proposal read as follows: Proposal I (Section 6) a. Details, temporary duty and reassignments, etc., for periods of less than 6 months shall not be deemed as changing the designated post of duty. "Designated post of duty" may mean either Dulles Airport or National Airport, but not both. When a Police Officer is detailed, reassigned, etc., from one designated post of duty to the other for less than 6 months, he/she will be compensated for extra time spent in travel, and for extra mileage if he/she opts to use his/her POV. b. For FLSA purposes, each trip from home shall be deemed to be a "one-day trip" in accordance with FPM Letter 551-10 of April 30, 1976. Thus, when Police Officers are required to report to a TDY station on a 1-day trip at a time which corresponds to the commencement of their workday, they will be compensated at the overtime rate from the time they leave their designated post of duty until they reach the TDY station or commence work. c. When a Police Officer leaves from his/her residence to report directly to a TDY station, his/her normal commuting time between his her [sic] residence and designated post of duty will be subtracted from his/her travel time to determine that amount of time, if any, to be compensated at the overtime rate. The reverse procedure will be utilized to determine what amount of overtime, if any is appropriate for the trip back to the designated post of duty, or to the Police Officer's residence. Proposal II (Section 7) In similar fashion, and in accordance with 41 CFR 101, et seq., mileage will be payable at the highest rate then authorized by the CFR for all excess miles driven. "Excess miles" are defined to be all miles from the designated post of duty to the TDY station or, when a Police Officer leaves from his/her residence to report directly to a TDY station, his/her normal mileage between his/her residence and designated post of duty will be subtracted from his/her mileage actually driven to determine that amount of mileage, if any, to be paid. Police Officers who utilize public transportation will have their time and fares computed in parallel fashion. When the reassignment is for more than 6 months, relocation expenses will be paid. Brief for Petitioner at 3-4. The revised proposal combined all of § 6a with the first sentence of § 6b, and excised the remainder. Id. . AFGE Local 2303 & Metropolitan Washington Airports, FAA, supra note 8, 17 F.L.R.A. No. 8 at 18. . Had, for example, the agency claimed nonnegotiability with respect to only a portion of a proposal, or clearly stated specific grounds for its allegation that a proposal was inconsistent with federal law, a union's subsequent submission of a proposal retaining some sections unaltered but deleting other potentially objectionable sections would, we think, call for more extended analysis by the Authority before we could accept its determination that the proposals were materially the same for purposes of § 7117(c)(2)'s filing deadline. Here, by contrast, the agency, unqualifiedly alleged nonnegotiability with respect to both "[sjections 6 and 7." See Letter from Betsy L. Gaston, FAA, to John W. Mulholland, AFGE (Aug. 31, 1984), J.App. 5. The Authority may, in appropriate circumstances, treat abridgements or recombinations of the constituent elements of a proposal deemed nonnegotiable as a resubmission of that proposal for purposes of § 7117(c)(2)'s filing deadline. Such a judgment is implicit in its observation that "[the parts of the original proposal] effected no changes in the substance or language of the parts." AFGE Local 2303 & Metropolitan Washington Airports, FAA, supra note 8, 17 F.L.R.A. No. 8 at 18. While the Authority might have made plainer the basis of its decision, we think it made clear enough the principles informing its judgment for purposes of review. In this regard, we heed the Supreme Court's counsel that "[w]hile we may not supply a reasoned basis for the agency's action that the agency itself has not given ., we will uphold a decision of less than ideal clarity if the agency's path may reasonably be discerned." Bowman Transp. v. Arkansas-Best Freight Sys., 419 U.S. 281, 285-286, 95 S.Ct. 438, 442, 42 L.Ed.2d 447, 456 (1974) (citing SEC v. Chenery Corp., 332 U.S. 194, 196, 67 S.Ct. 1575, 1577, 91 L.Ed. 1995, 1998 (1947); Colorado Interstate Gas Co. v. FPC, 324 U.S. 581, 595, 65 S.Ct. 829, 836, 89 L.Ed. 1206, 1219 (1945)); accord Miller v. Lehman, 255 U.S.App.D.C. 278, 283, 801 F.2d 492, 497 (1986). By no means do we wish, however, to voice approval of the style of Authority decisions, which, as we have already had occasion to observe, tend in a most troubling fashion, toward conclusory assertion rather than reasoned justification. See National Fed'n of Fed. Employees, Local 1669 v. FLRA, 240 U.S.App.D.C. 329, 332-333, 745 F.2d 705, 708-709 (1984). . SEC v. Chenery Corp., supra note 18, 332 U.S. at 202, 67 S.Ct. at 1580, 91 L.Ed.2d at 2002 ("[n]ot every principle essential to the effective administration of a statute can or should be cast immediately into the mold of a general rule. Some principles must await their own development, while others must be adjusted to meet particular, unforeseeable situations"). . Bureau of Alcohol, Tobacco & Firearms v. FLRA, 464 U.S. 89, 97, 104 S.Ct. 439, 444, 78 L.Ed.2d 195, 202 (1983); American Fed'n of Gov't Employees v. FLRA, 250 U.S.App.D.C. 229, 235, 778 F.2d 850, 856 (1985); Defense Logistics Agency v. FLRA, 244 U.S.App.D.C. 22, 32-33, 754 F.2d 1003, 1013-1014 (1985); National Treasury Employees Union v. FLRA, supra note 10, 223 U.S.App.D.C. at 369-370, 691 F.2d at 558-559; see also Chevron U.S.A. v. Natural Resources Defense Council, 467 U.S. 837, 843, 104 S.Ct. 2778, 2782, 81 L.Ed.2d 694, 703 (1984) (where a "statute is silent or ambiguous with respect to [a] specific issue, the question for the court is whether the agencys answer is based on a per missible construction of the statute"); American Fed'n of Gov't Employees v. FLRA, 255 U.S.App. D.C. 94, 97, 798 F.2d 1525, 1528 (1986). . Brief for Petitioner at 18-20. . See, e.g., In re American Fed'n of Gov't Employees, 252 U.S.App.D.C. 294, 790 F.2d 116 (1986); FLRA v. Office of Personnel Management, 250 U.S.App.D.C. 223, 225, 778 F.2d 844, 846 (1985); National Fed'n of Fed. Employees, Local 167 v. FLRA, 220 U.S.App.D.C. 371, 377-378, 681 F.2d 886, 892-893 (1982). . 5 C.F.R. § 2424.3 (1986). . Production Employees Union, Local 1276 & Defense Logistics Agency, 9 F.L.R.A. No. 127, 919, 920-921 (1982). . See id. at 920 (emphasizing role of written requests in triggering formal appeals process); see also American Fed'n of Gov't Employees, Local 3385, & Federal Home Loan Bank Bd., 7 F.L.R.A. No. 58, 398, 400 (1981) (major objective of the regulations is to "foster[] the amicable settlement of disputes through collective bargaining rather than through utilization of the Authority's process"). . Id. at 400-401. . See 5 U.S.C. § 7117(c)(2) (1982). . National Fed'n of Fed. Employees, Local 167 v. FLRA, supra note 22, 220 U.S.App.D.C. at 375, 681 F.2d at 890.

1332794

Carr v. Lewis, Director, Arizona Department of Corrections, et al.

Carr v. Lewis

1994-10-03

No. 94-5295

894

894

513 U.S. 894

513

United States Reports

Supreme Court of the United States

United States

2021-08-10T19:01:49.759124+00:00

CAP

Carr v. Lewis, Director, Arizona Department of Corrections, et al.

No. 94-5295. Carr v. Lewis, Director, Arizona Department of Corrections, et al.

18

114

1332794 513 U.S. 894 C. A. 9th Cir. Certiorari denied.

3396602

Sakar International, Inc., Plaintiff, v. United States, Defendant

Sakar International, Inc. v. United States

2006

Court No. 06-00025

183

186

30 Ct. Int'l Trade 183

30

United States Court of International Trade Reports

United States Court of International Trade

United States

2021-08-10T20:15:14.866193+00:00

CAP

Sakar International, Inc., Plaintiff, v. United States, Defendant.

Sakar International, Inc., Plaintiff, v. United States, Defendant. Court No. 06-00025

981

6079

3396602 30 Ct. Int'l Trade 183 MEMORANDUM OPINION AND ORDER Stanceu, Judge: Plaintiff Sakar International, Inc. ("Sakar") has filed a Motion for Stay of Execution of Penalty Enforcement or Collection ("Motion for Stay") pertaining to an administrative penalty proceeding conducted by the U.S. Department of Homeland Security, Bureau of Customs and Border Protection ("Customs"). Following the signature line of the Motion for Stay, plaintiff included a Notice of Motion for Oral Argument, which Sakar states it will execute unless defendant stipulates to the stay. For the reasons discussed herein, the court concludes that plaintiff has failed to satisfy the requirements for preliminary injunctive relief and, accordingly, that the Motion for Stay must be denied. I. Background Sakar filed a summons and a complaint in this court on January 25, 2006, seeking "judicial review and a judgment reversing, setting aside, and vacating" a Customs administrative decision issued on December 29, 2005 by the Director of the Office of Fines, Penalties and Forfeitures, Newark/New York Area. Compl. at 1. The Customs administrative decision assessed a mitigated penalty of $67,775 "under the provisions of 19 U.S.C. § 1526(f)" and provided Sakar 30 days in which to pay the mitigated penalty. Compl. Ex. 1. Concurrent with the filing of the summons and complaint in this action, Sakar also filed the Motion for Stay, in which it moves the court, specifically, "[t]o order a Stay of any enforcement or collection of any Customs and Border Protection ('CBP') Civil Penalty amount, in issue by the instant action, by defendant United States as against plaintiff pending judicial review to finality." Motion to Stay ¶ 1. Defendant United States, on February 16, 2006, filed an opposition to plaintiff's Motion for Stay and moved, pursuant to U.S.C.I.T. R. 12(b), to dismiss the complaint for lack of subject matter jurisdiction and for failure to state a claim upon which relief can be granted. The time period for the filing of a response to defendant's motion to dismiss, as provided in the Rules of this Court, has not yet expired. II. Discussion Because plaintiff has moved for a stay of agency action "pending judicial review to finality," the court has evaluated plaintiff's motion according to the showing required for a motion for a preliminary injunction under U.S.C.I.T. R. 65(a) and applicable case law. To obtain a preliminary injunction, plaintiff must establish: (1) a likelihood of success on the merits; (2) that it will suffer immediate and irreparable harm if preliminary injunctive relief is not granted; (3) that the balance of hardships favors the plaintiff, i.e., that the potential harm to the moving party in the absence of a preliminary injunction would outweigh the harm that a preliminary injunction would cause to the non-moving party; and (4) that the public interest would be better served by the granting of a preliminary injunction. See U.S. Assoc. of Imps. of Textiles & Apparel v. Dep't of Commerce, 413 F.3d 1344, 1347 (Fed. Cir. 2005). Plaintiff has failed to make the required showing under any of these four factors. Plaintiff has failed to show a likelihood of success on the merits of its underlying claim, in which Sakar attempts to obtain an order of this court vacating an administrative penalty decision. This administrative penalty decision, according to plaintiff's own pleadings, has not yet ripened into a collection action in any court. Plaintiff, although alleging that this court has subject matter jurisdiction under 28 U.S.C. § 1581(i), has alleged no facts, and provided no legal argument, establishing that its claim on the merits is within the scope of this jurisdictional provision. See Compl. ¶ 1. Therefore, on grounds of both ripeness and subject matter jurisdiction, plaintiff thus far has failed to make any showing that this court would have jurisdiction to hear its claim on the merits. Plaintiff's argument concerning immediate and irreparable harm is confined to the statement that "significant if not drastic financial harm would be irreparably done to plaintiff movant if penalty collection were allowed to proceed pendente lite." Motion for Stay ¶ 1. However, Sakar has made no showing, and has failed even to allege facts, that would allow this court to assess the validity of its claim of irreparable harm. A litigant's failure to show a likelihood of success on the merits and irreparable harm precludes this court from issuing á preliminary injunction, regardless of any showing made on the remaining two factors. See Reebok Int'l v. J. Baker, Inc., 32 F.3d 1552, 1556 (Fed. Cir. 1994). The court observes, however, that plaintiff has not satisfied either of the remaining two factors. Concerning the balance of hardships, Sakar asserts that, while it would be drastically harmed should penalty collection proceed, "no prejudice or harm will be done to defendant by virtue of such Stay." Motion for Stay ¶ 1. Plaintiff has not demonstrated that the balance of hardships tips in its favor. Sakar, as discussed previously, has made no showing that it will be irreparably harmed absent a stay or preliminary injunction but, in effect, asks this court to presume that the United States would not be affected adversely if this Court were to halt collection action on a penalty claim that defendant presumably is entitled to pursue judicially. Finally, the Motion to Stay fails to address the public interest factor. III. Conclusion and Order For the foregoing reasons, the court concludes that plaintiff has failed to make a showing entitling it to a stay or preliminary injunction pending a decision on the merits of this action. Accordingly, it is hereby ORDERED that plaintiff's Motion for a Stay of Execution of Penalty Enforcement or Collection, filed on January 25, 2006, is DENIED; and it is further ORDERED that plaintiff's Notice of Motion requesting oral argument on the Motion for a Stay of Execution of Penalty Enforcement or Collection is DENIED as moot.

6085742

Appeal of JULES BREUCHAUD

Appeal of Breuchaud

1925-06-25

Docket No. 2978

162

163

2 B.T.A. 162

2

Reports of the United States Board of Tax Appeals

United States Board of Tax Appeals

United States

2021-08-11T02:46:46.405687+00:00

CAP

Before Jamies, LittletoN, Smith, and Tktjssell.

Appeal of JULES BREUCHAUD.

Appeal of JULES BREUCHAUD. Docket No. 2978. Submitted May 28, 1925. Decided June 25, 1925. Ellis W. Manning, Esq., for the Commissioner. Before Jamies, LittletoN, Smith, and Tktjssell.

290

1641

6085742 2 B.T.A. 162 OPINION. James: Of the deficiencies above set forth, that asserted by the Commissioner for the year 1918 is not in controversy. In his petition the taxpayer alleged, but failed to prove, a value on March 1, 1913, of the stock of the Underpinning and Foundation Co. of $240,744. He also alleged, but failed to prove, a cost of the.stock of that company of $118,000. The loss so claimed by the taxpayer must therefore be disallowed, not only upon the ground that the case is governed by the decision of the Supreme Court in the case of United States v. Flannery, 268 U. S. 98, but also upon the ground that the taxpayer has failed both to prove the cost of the stock upon which the loss is claimed and the March 1, 1913, value thereof. The taxpayer claims a loss for the year 1920 of $16,600, based upon an exchange of stock of a par value of $34,800 for stock of a par value of $18,200, without proof of value of the stock received in exchange. Section 202 (b) of the Revenue Act of 1918 provides specifically : When in connection witli the reorganization, merger, or consolidation of a corporation a person receives in place of stock or securities owned by him new stock or securities of no greater aggregate par or face value, no gain or loss shall be deemed to occur from the exchange, The above section of the statute clearly disposes of the taxpayer's contention that he is entitled to deduct the loss of $16,600 claimed for the year 1920.

727336

DALTON & BALCH, INCORPORATED, v. THE UNITED STATES

Dalton & Balch, Inc. v. United States

1934-11-05

No. K-872

29

35

80 Ct. Cl. 29

80

United States Court of Claims Reports

United States Court of Claims

United States

2021-08-11T00:08:08.682920+00:00

CAP

Whalet, Judge; Littleton, Judge; Green, Judge; and Booth, Chief Justice, concur.

DALTON & BALCH, INCORPORATED, v. THE UNITED STATES

DALTON & BALCH, INCORPORATED, v. THE UNITED STATES [No. K-872. Decided November 5, 1934] Mr. John E. Hughes for the plaintiff. Mr. James A. Cosgrove, with whom was Mr. Assistant Attorney General Frank J. Wideman, for the defendant.

806

4663

727336 80 Ct. Cl. 29 Williams, Judge, delivered the opinion of the court: This is an automobile " parts or accessories " case. The rule as to what constitutes a part or accessory for an automobile is announced by the Supreme Court in Universal Battery Co. v. United States, 281 U. S. 580, and has been uniformly followed by this and other courts in numerous cases, unnecessary to cite here. The test is the primary adaptability of the article sought to be taxed for use in motor vehicles. If it is primarily adapted for such use it is to be regarded as a part or accessory for an automobile even though there are other uses of the article for which it is not so well adapted. On the other hand an article equally adapted to a variety of uses and commonly put to such uses, one of which is use in motor vehicles, cannot be .so classified. Plaintiff paid taxes on the sales of all its gears generally without reference to type, size, or purpose for which the particular gear was used. It is clear the gears sold to manufacturers of industrial machinery for use by them in the manufacture of their own products cannot be classified as parts or accessories for automobiles. Neither can the standard types of gears sold to jobbers, which were equally adapted to a variety of uses and commonly put to such uses, including use in motor vehicles, be so classified. Frost Gear & Forge Co. v. United States, 73 C. Cls. 750, 52 Fed. (2d) 1022. It is likewise clear that plaintiff's silent " D & B timing gears listed in its various catalogues as replacement, parts for automobiles were primarily adapted for that use' and fall within the court's definition of " parts or accessories " for automobiles. Perfection Gear Co. v. United States, 70 C. Cls. 422, 41 Fed. (2d) 561. The taxes having been paid on sales of gears generally,, some of which were taxable as parts or accessories for automobiles, and some of which were not, plaintiff can recover only such amount as has been shown, with a reasonable degree of accuracy, to have been paid on sales of gears not subject to the tax. Plaintiff kept no record of the particular types of gears comprising the various sales upon which the taxes were paid, other than the original invoices of sales. These have been, lost or destroyed, and plaintiff has not been able from its-books and records to make a detailed segregation of the-gears sold. There is no other proof upon which such segregation can be made with any reasonable certainty. There-is, therefore, no satisfactory proof upon which a finding can be made as to the total amount of the taxes paid by plaintiff on sales of gears other than those primarily adapted for use-on automobiles. It is, however, clearly established by parole-testimony that 60 percent of the sales upon which the taxes were paid was made to manufacturers of industrial machinery. It is further shown that many of the gears sold to-manufacturers were larger and more expensive than the-standard types of similar gears sold to jobbers. It is evident that at least 60 percent of the taxes involved was paid on sales of gears to manufacturers, and we have so found., None of these gears were primarily adapted for use on automobiles, and the plaintiff is entitled to recover the amount of the taxes paid on such sales. The remaining 40 percent of the taxes was paid on sales of gears to jobbers. These sales included both gears primarily adapted for use on automobiles and gears not primarily adapted to such use. As has been stated, plaintiff made no segregation on its books and records of the types, of gears included in any of the yarious sales upon which the taxes were paid. The parole testimony of the case fails to establish with the reasonable certainty required to support a finding the exact amount, or even the approximate amount, •of the taxes paid on sales of gears to jobbers, other than such as were primarily adapted for use on automobiles. This failure of proof precludes recovery of any part of the taxes paid by plaintiff on sales of gears to jobbers. Plaintiff is entitled to recover only the amount of the taxes paid on sales of gears to manufacturers, which is 60 percent of the respective monthly payments set out in finding II, amounting in all to $22,500.12. It is therefore ordered that judgment be awarded plaintiff in the sum of $22,500.12, with interest as provided by law. Whalet, Judge; Littleton, Judge; Green, Judge; and Booth, Chief Justice, concur.

6595863

The Gruen Watch Company v. United States

Gruen Watch Co. v. United States

1950-03-01

C. D. 1216

101

105

24 Cust. Ct. 101

24

United States Customs Court Reports

United States Customs Court

United States

2021-09-21T20:02:18.861595+00:00

Harvard

Before Cline, Ekwall, and Johnson, Judges

The Gruen Watch Company v. United States

(C. D. 1216) The Gruen Watch Company v. United States United States Customs Court, Third Division (Decided March 1, 1950) Taft, Stettinius & Hollister (Alan B. Vogeler and John H. Clippinger of counsel) for the plaintiff. David N, Edelstein, Assistant Attorney General (Joseph F. Donohue and Michael Stramiello, Jr., special attorneys), for the defendant. Before Cline, Ekwall, and Johnson, Judges

2314

13694

6595863 24 Cust. Ct. 101 Ekwall, Judge: This case primarily involves the question of the proper rate at which the currency of the invoices covering certain watch cases imported from Switzerland should be converted into United States dollars under the provisions of section 522 (c) of the Tariff Act of 1930 (31 U. S. C. 1940 ed. § 372). In substance, the pleadings allege that after the merchandise was appraised an attempted second appraisement was made, that said second appraisement was illegal, and that the collector in liquidating upon the basis of said second appraisement also acted illegally. Further, it is alleged that the liquidation made in conformity with an appraisement in "free Swiss francs" under instructions from the Secretary of the Treasury is a nullity and that the action of the Federal Reserve bank in retroactively certifying to the Secretary a buying rate for the period covered by the importations here involved is invalid and such rate cannot legally be used in valuing imports and assessing duties thereon. The facts as established by a stipulation of counsel (exhibit 1) and the testimony, insofar as pertinent, are as follows. The plaintiff imported from Switzerland in the year 1943 certain watch cases, movements, and parts and entered the same at the port of Cincinnati, Ohio. This merchandise was covered by three invoices which were made out in Swiss francs. On entry, the customs broker who prepared the entry papers expressed the value in United States dollars. The merchandise was examined and appraised in June 1944, the entered value being approved, as indicated by a check mark on the summary sheet. At the time of the appraisal, the Secretary of the Treasury had received from the Federal Reserve bank no certification of the buying rate for Swiss francs. Therefore, the collector of customs, when the papers were transmitted to him, was without either estimated or proclaimed values for Swiss francs, as provided by section 522 (c), sufra. Importation having been made at the subport of Cincinnati, the papers were transmitted by the acting appraiser at Cincinnati, who made the appraisement, to the headquarters port of Cleveland. Due to the fact that no certified rates of exchange for Swiss francs were available to the collector, he withheld liquidation until 1946, at which time the Treasury Department issued instructions for the conversion of Swiss francs. (T. D. 51398.) After receipt of these instructions the papers were returned to the appraiser at Cincinnati for action in conformity therewith. The appraiser at Cincinnati thereupon altered the Summary of Examination and Appraisement sheet by drawing a red-ink line through the date of the original appraisement and the name of the acting appraiser who had made that appraisement, inserted a date in 1946 and his own name as appraiser of merchandise, and in the column headed "Remarks" wrote the words "Free Swiss Fes. T. D. 51398." It is claimed on the part of the plaintiff that this amounted to a second appraisement and therefore was illegal. The Government in its brief concedes the correctness of this claim on authority of the case of United States v. Gothic Watch Co., 23 Cust. Ct. 235, Reap. Dec. 7712, where, upon a state of facts on all fours with the case at bar, a special division of this court, sitting in reappraisement, held that the attempted reappraisement was illegal, null, and void, that the original report of the appraiser was complete and legal, and that since no appeal for reappraisement was taken therefrom within the time provided by statute, it became final and conclusive on all parties. (Section 501, Tariff Act of 1930, as amended by the Customs Administrative Act of 1938.) In connection with the original and only legal appraisement in this case, the acting appraiser testified that the currency in which such appraisement was made was "Swiss francs"; that at the time of appraisal he had no specific knowledge of the existence of a "Free" or an "Official" rate for Swiss francs; that he did not take into consideration the value of the Swiss franc for the reason that such action is not within his authority; that he left that to the collector. His action is in line with the provisions of the Customs Manual of 1943, section 14.2 (i). The court in the Gothic Watch Co. case, supra, discussed the duty of the appraiser under the statute as follows: It is the duty of the appraiser to find the value of the merchandise in the unit of quantity in which the merchandise is usually bought and sold and to express such value in that currency of the country of exportation in which such or similar merchandise is usually bought and sold in the ordinary course of trade in such country. (Section 500, Tariff Act of 1930; section 14.2 (e) and (/), Customs Manual of 1943.) Therefore, if the merchandise was usually bought and sold in a currency for which no value had been proclaimed or certified, the appraiser would nevertheless have to appraise in terms of that currency and it would be the duty of other agencies of the Government to establish the value of that currency in United States funds. The only time the appraiser has anything to do with conversion of the currency is when the merchandise is sold in different currencies in the country of exportation, in which case conversion may be made for purposes of comparison. (Klingerit, Inc. v. United States, 14 Cust. Ct. 435, Reap. Dec. 6159; section 14.2 (h), Customs Manual of 1943.) Otherwise, the only currency question for determination by the appraiser is how many units of the currency in which the goods are appraised are necessary to make market value on the date of exportation. (Section 14.2 (i), Customs Manual of 1943.) In other words, it is the duty of the appraiser to value the goods as of the time of exportation in the currency of the country from which they are imported and it is the duty of the collector to convert that valuation into United States currency at the proclaimed or certified rate. Masson v. United States, 1 Ct. Cust. Appls. 149, T. D. 31209. Note also Giovanni Ascione v. United States, 32 Treas. Dec. 725, T. D. 37252, where the court said (p. 729) : The appraiser in arriving at the value has nothing to do with the conversion of money at any time or any part of the proceeding. He must find the value of the merchandise in the ordinary course of trade in the country of exportation in the currency used by the people of that country. No fine-spun theory as to depreciated currency is within his jurisdiction whatever. There is another officer who will take care of that proposition. That case also passed upon the question of whether there were two classes of currencies in use in Switzerland at the time this merchandise was exported, as follows: In the instant case there is no evidence that the merchandise was bought and sold in Switzerland in more than one currency. The currency used was Swiss francs in all cases, the only difference being that the Swiss francs were bought at different rates of exchange. The appraiser's report of January 6, 1944, therefore complied with the regulations in appraising the merchandise as entered in Swiss francs. It was then the duty of the collector to ascertain the value of said Swiss francs in American currency in accordance with the.rates proclaimed by the Director of the Mint or certified by the Federal Reserve bank. In cases where a rate has not been certified, the collector is directed to request a rate from the Customs Information Exchange. (Section 16.4, Customs Manual of 1943.) The collector of customs who made the liquidation testified that his action was based upon the attempted second appraisement which was made in "Free Swiss francs." It is therefore apparent that the liquidation was based upon an illegal appraisement and is itself illegal and void. United States v. Tampa Box Co., 15 Ct. Cust. Appls. 360, T. D. 42561; Carey & Skinner v. United States, 16 Ct. Cust. Appls. 382, T. D. 43118; United States v. Alex. Murphy & Co., id. 461, T. D. 43210; James S. Kean v. United States, 20 C. C. P. A. (Customs) 388, T. D. 46186. The increased duties having been based upon a void act of the collector, the Government had no legal claim against plaintiff for the same at the time such demand was made. We cannot speculate upon what action the collector will adopt in making a legal liquidation and therefore express no opinion as to the validity of the instructions contained in T. D. 51398, supra. In view of our conclusion, it would serve no useful purpose for this court to pass upon the various interesting legal points which have been so ably presented in the briefs filed. In arriving at our conclusion, we are not unmindful of the problems confronting the customs officials in the abnormal currency situations precipitated by the war. However, the court must interpret the law as it exists and leave to the legislative body the task of enacting such laws as may be necessary in view of the changed world situation. We therefore sustain plaintiff's claim that the so-called appraisement upon which the collector based his liquidation is illegal, that the liquidation is likewise illegal, null, and void, and further that a legal liquidation should be had which would form the basis for a protest in which, should it so desire, the importer may litigate any questions presented by such action under section 514 of the Tariff Act of 1930 (19 U. S. C. 1940 ed. § 1514). Judgment will be rendered accordingly. Section 522 (c) provides: "(c) Market Bate When no Proclamation — If no such value has been proclaimed, or if the value so proclaimed varies by 5 per centum or more from a value measured by the buying rate in the New York market at noon on the day of exportation, conversion shall be made at a value measured by such buying rate. If the date of exportation falls upon a Sunday or holiday, then the buying rate at noon on the last preceding business day shall be used. For the purposes of this subdivision such buying rate shall be the buying rate for cable transfers payable in the foreign currency so to be converted; and shall be determined by the Federal Beserve Bank of New York and certified daily to the Secretary of the Treasury, who shall make it public at such times and to such extent as he deems necessary. In ascertaining such buying rate such Federal reserve bank may in its discretion (1) take into consideration the last ascertainable transactions and quotations, whether direct or through exchange of other currencies, and (2) if there is no market buying rate for such cable transfers, calculate such rate from actual transactions and quotations in demand or time bills ofexchange." We quote a portion of the instructions as follows; * "In the case of each importation in which appraisement has been withheld, is incomplete, or in which liquidation has been suspended pending certification by the Federal Reserve bank of a rate or rates for the Swiss franc for a date between August 2,1943, and June 30,1944, both inclusive, the appraiser and collector shall proceed, respectively, with the appraisement and liquidation as follows: "1. No rate of exchange shall be used for customs currency conversion purposes except a rate certified by the Federal Reserve bank for the date of exportation of the merchandise, even if information be presented to show that a transaction was consummated in some alleged class of currency for which no rate has been certified. "2. Where the importation consists of merchandise other than clocks, watches, or parts, movements, or cases thereof, the only type of Swiss franc in which appraisement shall be made shall be the official franc and the official rate for the date of exportation shall be used for customs purposes, unless the appraiser or collector has reason to believe that the free rate actually was used in connection with the payment or conversion of the amount paid for the merchandise and that such use of the free rate was permissible or required under Swiss law, in which event the case shall be referred to the Commissioner of Customs. "3. Where the importation consists of clocks, watches, or parts, movements, or cases thereof, the only type of Swiss franc in which appraisement shall be made shall be the free franc and the free rate for the date of exportation shall be used for customs purposes. "4. For purposes of appraisement, when there are both a foreign and an export value and they are in different currencies, the appraiser shall apply the appropriate rate to the value expressed in dollars in order to obtain a corresponding value expressed in francs for the purpose of comparing the export value with the foreign value." Section 14.2 (i) reads as follows: "Appraising officers have no authority to state in a report to the collector the value of the currency of ap-praisement. The only currency question ordinarily for determination by the appraiser is how many units of the currency in which the goods are appraised are necessary to make market value on the date of exportation. "When a rate of exchange has been agreed upon between the exporter and the importer, that fact is of interest to appraising officers only insofar as it indicates the true currency in which the transaction is effected. V*

9362540

Peabody Coal Co. v. Groves et al.

Peabody Coal Co. v. Groves

2003-01-13

No. 02-249

1147

1147

537 U.S. 1147

537

United States Reports

Supreme Court of the United States

United States

2021-08-10T22:13:48.691136+00:00

CAP

Justice Scalia took no part in the consideration or decision of this petition.

Peabody Coal Co. v. Groves et al.

No. 02-249. Peabody Coal Co. v. Groves et al.

28

159

9362540 537 U.S. 1147 C. A. 6th Cir. Certiorari denied. Justice Scalia took no part in the consideration or decision of this petition.

12419122

Avitia-Guillen v. United States

Avitia-Guillen v. United States

2012-10-09

No. 12-6183

957

957

568 U.S. 957

568

United States Reports

Supreme Court of the United States

United States

2021-08-11T02:20:14.465461+00:00

CAP

Avitia-Guillen v. United States.

No. 12-6183. Avitia-Guillen v. United States.

12

81

12419122 568 U.S. 957 C. A. 10th Cir. Certiorari denied.

374620

Washington Terminal Co. v. Boswell et al.

Washington Terminal Co. v. Boswell

1942-03-30

No. 964

795

796

315 U.S. 795

315

United States Reports

Supreme Court of the United States

United States

2021-08-10T21:16:34.353695+00:00

CAP

Washington Terminal Co. v. Boswell et al.

No. 964. Washington Terminal Co. v. Boswell et al. March 30, 1942.

76

438

374620 315 U.S. 795 Petition for writ of certiorari to the Court of Appeals for the District of Columbia granted. In view of the act of August 24,1937 (c. 754,50 Stat. 751), the Court hereby certifies to the Attorney General of the United States that the constitutionality of the Railway Labor Act is drawn in question in this cause. Messrs. John Dickinson and Guy W. Knight for petitioner.

11810396

Hull v. St. Elizabeths Hospital et al.

Hull v. St. Elizabeths Hospital

1973-11-19

No. 73-5442

1043

1043

414 U.S. 1043

414

United States Reports

Supreme Court of the United States

United States

2021-08-10T19:09:28.409842+00:00

CAP

Hull v. St. Elizabeths Hospital et al.

No. 73-5442. Hull v. St. Elizabeths Hospital et al.

16

88

11810396 414 U.S. 1043 C. A. D. C. Cir. Certiorari denied.

1564472

Ekwunife v. United States

Ekwunife v. United States

1995-06-26

No. 94-9403

1167

1167

515 U.S. 1167

515

United States Reports

Supreme Court of the United States

United States

2021-08-10T23:14:05.741057+00:00

CAP

Ekwunife v. United States.

No. 94-9403. Ekwunife v. United States.

12

74

1564472 515 U.S. 1167 C. A. 5th Cir. Certiorari denied.

5882564

Retta-Hernandez v. United States

Retta-Hernandez v. United States

2004-10-12

No. 04-6235

939

939

543 U.S. 939

543

United States Reports

Supreme Court of the United States

United States

2021-08-11T02:30:41.062703+00:00

CAP

Retta-Hernandez v. United States.

No. 04-6235. Retta-Hernandez v. United States.

12

81

5882564 543 U.S. 939 C. A. 5th Cir. Certiorari denied.

12438108

Suquamish Indian Tribe, Petitioner v. Upper Skagit Indian Tribe, et al.

Suquamish Indian Tribe v. Upper Skagit Indian Tribe

2010-10-18

No. 10-33

322

322

178 L. Ed. 2d 322

178

United States Supreme Court Reports, Lawyers' Edition

Supreme Court of the United States

United States

2021-08-11T02:36:12.882006+00:00

CAP

Suquamish Indian Tribe, Petitioner v. Upper Skagit Indian Tribe, et al.

No. 10-33. Suquamish Indian Tribe, Petitioner v. Upper Skagit Indian Tribe, et al. 562 U.S. 981, 131 S. Ct. 414, 178 L. Ed. 2d 322, 2010 U.S. LEXIS 8230. October 18, 2010.

55

304

12438108 178 L. Ed. 2d 322 Petition for writ of certiorari to the United States Court of Appeals for the Ninth Circuit denied. Same case below, 590 F.3d 1020.

3672975

J. F. Shultz, Plaintiff in Error, v. Fred W. Ritterbusch, County Treasurer, etc., et al.

Shultz v. Ritterbusch

1914-03-09

No. 817

719

720

232 U.S. 719

232

United States Reports

Supreme Court of the United States

United States

2021-08-10T17:40:15.869792+00:00

CAP

J. F. Shultz, Plaintiff in Error, v. Fred W. Ritterbusch, County Treasurer, etc., et al.

No. 817. J. F. Shultz, Plaintiff in Error, v. Fred W. Ritterbusch, County Treasurer, etc., et al. In error to the Supreme Court of the State of Oklahoma. Motion to dismiss or affirm or place on summary docket, submitted February 24, 1914. Mr. Milton Brown for the plaintiff in error. Mr. D. C. Westenhaver for the defendants in error. Decided March 9, 1914.

107

616

3672975 232 U.S. 719 Per Curiam. Dismissed for want of jurisdiction. (1) Consolidated Turnpike Company v. Norfolk & Ocean View Railroad Co., 228 U. S. 596, 600, and cases cited. (2) Louisville & N. R. R. Co. v. Barber Asphalt Paving Company, 197 U. S. 430, 434, and cases cited.

9425932

Taylor v. Cain, Warden

Taylor v. Cain

2000-06-05

No. 99-6035 (99A957)

1226

1226

530 U.S. 1226

530

United States Reports

Supreme Court of the United States

United States

2021-08-10T20:39:47.547821+00:00

CAP

Taylor v. Cain, Warden,

No. 99-6035 (99A957). Taylor v. Cain, Warden,

35

219

9425932 530 U.S. 1226 529 U.S. 1088. Application for stay of execution of sentence of death, presented to Justice Scalia, and by him referred to the Court, denied. Petition for rehearing denied.

12458173

John Joseph Laffiteau, Petitioner v. Management and Legal Agents for Camelot Inn

Laffiteau v. Management & Legal Agents for Camelot Inn

2011-03-07

No. 10-8230

508

508

179 L. Ed. 2d 508

179

United States Supreme Court Reports, Lawyers' Edition

Supreme Court of the United States

United States

2021-08-11T02:31:11.354633+00:00

CAP

John Joseph Laffiteau, Petitioner v. Management and Legal Agents for Camelot Inn.

No. 10-8230. John Joseph Laffiteau, Petitioner v. Management and Legal Agents for Camelot Inn. 562 U.S. 1275, 131 S. Ct. 1609, 179 L. Ed. 2d 508, 2011 U.S. LEXIS 1934, March 7, 2011.

57

322

12458173 179 L. Ed. 2d 508 Petition for writ of cer-tiorari to the United States Court of Appeals for the Fourth Circuit denied. Same case below, 381 Fed. Appx. 303.

6516139

WESTERMANN et al. v. NELSON, ATTORNEY GENERAL OF ARIZONA

Westermann v. Nelson

1972-10-20

No. A-412

1236

1237

409 U.S. 1236

409

United States Reports

Supreme Court of the United States

United States

2021-08-11T02:37:31.002329+00:00

CAP

WESTERMANN et al. v. NELSON, ATTORNEY GENERAL OF ARIZONA

WESTERMANN et al. v. NELSON, ATTORNEY GENERAL OF ARIZONA No. A-412. Decided October 20, 1972

263

1503

6516139 409 U.S. 1236 Mr. Justice Douglas, Circuit Justice. Petitioners are candidates of the American Independent Party who complain of their inability to get on the ballot in Arizona for the November 7, 1972, election. They brought suit in the District Court but their complaint was dismissed. They desire to appeal to the Court of Appeals but were denied a preliminary injunction by a judge of that court. They now apply to me as Circuit Justice. The complaint may have merit. But the time element is now short and the ponderous Arizona election machinery is already under way, printing the ballots. Absentee ballots have indeed already been sent out and some have been returned. The costs of reprinting all the ballots will be substantial and it may well be that no decision on the merits can be reached by the Court of Appeals in time to reprint the ballots excluding petitioners, should they lose on the merits. I have been unable to hear oral argument and have only the papers of the parties before me. On the basis of these papers I have concluded that in fairness to the parties I must deny the injunction, not because the cause lacks merit but because orderly elec tion processes would likely be disrupted by so late an action. The time element has plagued many of these election cases; but one in my position cannot give relief in a responsible way when the application is as tardy as this one. So I deny the injunction.

353758

Knight v. Barnhart, Commissioner of Social Security

Knight v. Barnhart

2002-04-29

No. 01-9182

1041

1041

535 U.S. 1041

535

United States Reports

Supreme Court of the United States

United States

2021-08-10T18:38:06.882120+00:00

CAP

Knight v. Barnhart, Commissioner of Social Security.

No. 01-9182. Knight v. Barnhart, Commissioner of Social Security.

15

100

353758 535 U.S. 1041 C. A. 4th Cir. Certiorari denied.

11951329

Baker v. United States

Baker v. United States

1992-10-05

No. 91-8701

856

856

506 U.S. 856

506

United States Reports

Supreme Court of the United States

United States

2021-08-10T20:32:10.158323+00:00

CAP

Baker v. United States.

No. 91-8701. Baker v. United States.

12

71

11951329 506 U.S. 856 C. A. 3d Cir. Cer-tiorari denied.

6495650

Big Spring Independent School District et al. v. Griffen

Big Spring Independent School District v. Griffen

1983-12-05

No. 83-378

1008

1008

464 U.S. 1008

464

United States Reports

Supreme Court of the United States

United States

2021-08-11T00:57:08.638301+00:00

CAP

Big Spring Independent School District et al. v. Griffen.

No. 83-378. Big Spring Independent School District et al. v. Griffen.

17

104

6495650 464 U.S. 1008 C. A. 5th Cir. Certiorari denied.

12098793

Sanks et al. v. Georgia et al.

Sanks v. Georgia

1970-11-16

No. 28

914

914

400 U.S. 914

400

United States Reports

Supreme Court of the United States

United States

2021-08-10T23:58:26.820484+00:00

CAP

Sanks et al. v. Georgia et al.

No. 28. Sanks et al. v. Georgia et al.

43

250

12098793 400 U.S. 914 Appeal from Sup. Ct. Ga. [Probable jurisdiction noted, 395 U. S. 974; restored to calendar] 399 U. S. 922.] Further consideration of appellees' suggestion of mootness postponed to hearing of case on the merits.

715006

JONESBORO GROCER CO. v. UNITED STATES

Jonesboro Grocer Co. v. United States

1929-10-14

768

768

69 Ct. Cl. 768

69

United States Court of Claims Reports

Supreme Court of the United States

United States

2021-08-11T01:55:26.033869+00:00

CAP

JONESBORO GROCER CO. v. UNITED STATES

JONESBORO GROCER CO. v. UNITED STATES [66 C. Cls. 320 ; 280 U. S. 562]

28

153

715006 69 Ct. Cl. 768 Petition for writ of certiorari was denied by the Supreme Court October 14, 1929.

6451777

Wills v. Illinois

Wills v. Illinois

1975-12-01

No. 75-5501

999

999

423 U.S. 999

423

United States Reports

Supreme Court of the United States

United States

2021-08-10T23:07:54.589971+00:00

CAP

Wills v. Illinois.

No. 75-5501. Wills v. Illinois.

10

65

6451777 423 U.S. 999 Sup. Ct. Ill. Certiorari denied.

1486358

Liggett & Myers Tobacco Co. v. De Parcq

Liggett & Myers Tobacco Co. v. De Parcq

1936-05-25

No. 962

680

680

298 U.S. 680

298

United States Reports

Supreme Court of the United States

United States

2021-08-10T22:50:29.491057+00:00

CAP

Liggett & Myers Tobacco Co. v. De Parcq.

No. 962. Liggett & Myers Tobacco Co. v. De Parcq. May 25, 1936. Mr. F. H. Stinchfield for petitioner. Mr. Mortimer H. Boutelle for respondent.

40

238

1486358 298 U.S. 680 Petition for writ of certiorari to the Circuit Court of Appeals for the Eighth Circuit denied.

6585138

Caracul Fur Co. et al. v. United States

Caracul Fur Co. v. United States

1957-06-28

No. 60965; protests 852509-G, etc. (New York)

338

338

39 Cust. Ct. 338

39

United States Customs Court Reports

United States Customs Court

United States

2021-08-11T01:44:45.756484+00:00

CAP

Caracul Fur Co. et al. v. United States,

No. 60965. protests 852509-G, etc. (New York). Caracul Fur Co. et al. v. United States,

131

714

6585138 39 Cust. Ct. 338 Opinion by Wilson, J. In accordance with stipulation of counsel that the merchandise consists of kidskin plates the same in all material respects as those the subject of Kung Chen Fur Corpn. v. United States (29 Cust. Ct. 266, C. D. 1480) or Prime Fur Corp. v. United States (37 Cust. Ct. 83, C. D. 1802) and lambskin plates similar to those the subject of A. S. Gold & Bro., Inc. v. United States (33 Cust. Ct. 120, C. D. 1643) or C. D. 1802, supra, the claim for free entry under paragraph 1681 was sustained.

6704036

Protest 979648-G of Evangeline Products, Inc. (New York)

Protest 979648-G of Evangeline Products, Inc.

1939-05-31

No. 41459

728

728

2 Cust. Ct. 728

2

United States Customs Court Reports

United States Customs Court

United States

2021-08-11T02:43:58.596958+00:00

CAP

Protest 979648-G of Evangeline Products, Inc. (New York).

No. 41459. Protest 979648-G of Evangeline Products, Inc. (New York).

63

358

6704036 2 Cust. Ct. 728 Opinion by McClelland, P. J. It was stipulated that the merchandise consists of brushes used for cleaning shoes the same as those passed upon in Sears v. United States (26 C. C. P. A. 161, C. A. D. 11). They were therefore held dutiable at only 50 percent under paragraph 1506 as claimed.