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sc_lcdispositiondirection	A	What follows is an opinion from the Supreme Court of the United States. Your task is to determine whether the decision of the court whose decision the Supreme Court reviewed was itself liberal or conservative. In the context of issues pertaining to criminal procedure, civil rights, First Amendment, due process, privacy, and attorneys, consider liberal to be pro-person accused or convicted of crime, or denied a jury trial, pro-civil liberties or civil rights claimant, especially those exercising less protected civil rights (e.g., homosexuality), pro-child or juvenile, pro-indigent pro-Indian, pro-affirmative action, pro-neutrality in establishment clause cases, pro-female in abortion, pro-underdog, anti-slavery, incorporation of foreign territories anti-government in the context of due process, except for takings clause cases where a pro-government, anti-owner vote is considered liberal except in criminal forfeiture cases or those where the taking is pro-business violation of due process by exercising jurisdiction over nonresident, pro-attorney or governmental official in non-liability cases, pro-accountability and/or anti-corruption in campaign spending pro-privacy vis-a-vis the 1st Amendment where the privacy invaded is that of mental incompetents, pro-disclosure in Freedom of Information Act issues except for employment and student records. In the context of issues pertaining to unions and economic activity, consider liberal to be pro-union except in union antitrust where liberal = pro-competition, pro-government, anti-business anti-employer, pro-competition, pro-injured person, pro-indigent, pro-small business vis-a-vis large business pro-state/anti-business in state tax cases, pro-debtor, pro-bankrupt, pro-Indian, pro-environmental protection, pro-economic underdog pro-consumer, pro-accountability in governmental corruption, pro-original grantee, purchaser, or occupant in state and territorial land claims anti-union member or employee vis-a-vis union, anti-union in union antitrust, anti-union in union or closed shop, pro-trial in arbitration. In the context of issues pertaining to judicial power, consider liberal to be pro-exercise of judicial power, pro-judicial "activism", pro-judicial review of administrative action. In the context of issues pertaining to federalism, consider liberal to be pro-federal power, pro-executive power in executive/congressional disputes, anti-state. In the context of issues pertaining to federal taxation, consider liberal to be pro-United States and conservative pro-taxpayer. In miscellaneous, consider conservative the incorporation of foreign territories and executive authority vis-a-vis congress or the states or judcial authority vis-a-vis state or federal legislative authority, and consider liberal legislative veto. The lower court's decision direction is unspecifiable if the manner in which the Supreme Court took jurisdiction is original or certification; or if the direction of the Supreme Court's decision is unspecifiable and the main issue pertains to private law or interstate relations LOPER v. BETO, CORRECTIONS DIRECTOR, et al. No. 70-5388. Argued January 13, 1972 Decided March 22, 1972 Stewart, J., announced the Court’s judgment and delivered an opinion, in which Douglas, BrenNAN, and Marshall, JJ., joined. White, J., filed an opinion concurring in the result, post, p. 485. Burger, C. J., filed a dissenting opinion, in which Powell, J., joined, post, p. 485. BlackmuN, J., filed a dissenting opinion, post, p. 494. Rehnquist, J., filed a dissenting opinion, in which Burger, C. J., and BlackmuN and Powell, JJ., joined, post, p. 497. John T. Cabaniss, by appointment of the Court, 404 U. S. 954, argued the cause for petitioner. With him on the brief was Dan Q. Matthews. Robert Darden, Assistant Attorney General of Texas, argued the cause for respondents. With him on the brief were Crawford C. Martin, Attorney General, Nola White, First Assistant Attorney General, Alfred Walker, Executive Assistant Attorney General, and Robert C. Flowers, Assistant Attorney General. Mr. Justice Stewart announced the judgment of the Court and an opinion in which Mr. Justice Douglas, Mr. Justice Brennan, and Mr. Justice Marshall join. The petitioner, Otis Loper, was brought to trial in a Texas criminal court in 1947 upon a charge of statutory rape. The alleged victim, Loper’s 8-year-old stepdaughter, was the only witness who identified him as the perpetrator of the crime. The sole witness for the defense was Loper himself, who testified that he had not assaulted the victim in any way. For the purpose of impeaching Loper’s credibility, the prosecutor was permitted on cross-examination to interrogate Loper about his previous criminal record. In response to this line of questioning, Loper admitted in damaging detail to four previous felony convictions during the period 1931-1940, three in Mississippi and one in Tennessee. At the conclusion of the one-day trial the jury found Loper guilty as charged and sentenced him to a term of 50 years in prison. Loper initiated the present habeas corpus proceeding in the United States District Court for the Southern District of Texas in 1969. He alleged, among other things, that the previous convictions used to impeach his credibility at the trial were constitutionally invalid under Gideon v. Wainwright, 372 U. S. 335, because he had been denied the assistance of counsel in the Mississippi and Tennessee courts that had convicted him. His sworn testimony at the habeas corpus hearing confirmed these allegations. In addition, he produced court records to corroborate this testimony. The District Court denied habeas corpus relief, placing “little or no credence” in Loper’s testimony, and holding that in any event “the question does not rise to constitutional stature and is not subject to collateral attack.” On appeal, the Court of Appeals for the Fifth Circuit affirmed the judgment of the District Court. Although recognizing “the force of Loper’s argument to the effect that such convictions may have impaired his credibility in the minds of the jury as a witness in his own behalf,” the appellate court held that “the use of such convictions as evidence for purposes of impeachment which goes only to credibility, is not nearly so serious as the use of a conviction for enhancement, which may add years of imprisonment to the sentence of a defendant. . . . The issue presented raises an evidentiary question. The fact that there are possible infirmities in the evidence does not necessarily raise an issue of constitutional proportions which would require reversal.” 440 F. 2d 934, 937. We limited our grant of certiorari to a single constitutional question, worded as follows in the petition for certiorari: Does the use of prior, void convictions for impeachment purposes deprive a criminal defendant of due process of law where their use might well have influenced the outcome of the case? 404 U. S. 821. This is a recurring question that has received conflicting answers in the United States Courts of Appeals. It is a question that has also divided state appellate courts. The starting point in considering this question is, of course, Gideon v. Wainwright, 372 U. S. 335. In that case the Court unanimously announced a clear and simple constitutional rule: In the absence of waiver, a felony conviction is invalid if it was obtained in a court that denied the defendant the help of a lawyer. The Court dealt with a sequel to Gideon in Burgett v. Texas, 389 U. S. 109. There a Texas indictment charging the petitioner with assault contained allegations of previous felony convictions, that, if proved, would have increased the punishment for assault under the state recidivist statutes. The indictment was read to the jury at the beginning of the trial. Records of two of the previous convictions were offered in evidence during the course of the trial, and it appeared that at least one of these convictions had been obtained in violation of Gideon. In reversing the Texas judgment, the Court said: “To permit a conviction obtained in violation of Gideon v. Wainwright to be used against a person either to support guilt or enhance punishment for another offense ... is to erode the principle of that case. Worse yet, since the defect in the prior conviction was denial of the right to counsel, the accused in effect suffers anew from the deprivation of that . . . right.” 389 U. S., at 115. Earlier this Term we had before us a case in which it appeared that previous convictions obtained in violation of Gideon had played a part in the determination of the length of a convicted defendant’s prison sentence. United States v. Tucker, 404 U. S. 443. We there ruled that the Court of Appeals for the Ninth Circuit had been correct in holding that the teaching of Burgett required a remand of the case to the trial court for resentencing. The Tucker case involved only that aspect of Burgett that prohibits the use of invalid prior convictions to “enhance punishment.” The case now before us involves the use of such convictions “to support guilt.” For the issue of innocence or guilt in this case turned entirely on whether the jury would believe the testimony of an 8-year-old girl or that of Loper. And the sole purpose for which the prior convictions were permitted to be used was to destroy the credibility of Loper’s testimony in the eyes of the jury. Unless Burgett is to be forsaken, the conclusion is inescapable that the use of convictions constitutionally invalid under Gideon v. Wainwright to impeach a defendant’s credibility deprives him of due process of law. We can put the matter no better than in the words of the Court of Appeals for the First Circuit: “We conclude that the Burgett rule against use of uncounseled convictions ‘to prove guilt’ was intended to prohibit their use ‘to impeach credibility,’ for the obvious purpose and likely effect of impeaching the defendant’s credibility is to imply, if not prove, guilt. Even if such prohibition was not originally contemplated, we fail to discern any distinction which would allow such invalid convictions to be used to impeach credibility. The absence of counsel impairs the reliability of such convictions just as much when used to impeach as when used as direct proof of guilt.” Gilday v. Scafati, 428 F. 2d 1027, 1029. A dissenting opinion filed today suggests that our decision presses the “sound doctrine of retroactivity beyond the outer limits of its logic.” On the contrary, our decision in this case follows directly from the rationale under which Gideon v. Wainwright, supra, was given retroactive application. We have said that the principle established in Gideon goes to “the very integrity of the fact-finding process” in criminal trials, and that a conviction obtained after a trial in which the defendant was denied the assistance of a lawyer “lacked reliability.” Linkletter v. Walker, 381 U. S. 618, 639 and n. 20. Loper has “suffered anew” from this unconstitutional deprivation, Burgett v. Texas, supra, regardless of whether the prior convictions were used to impeach him before or after the Gideon decision. It would surely be unreasonable, as one dissenting opinion suggests, to expect the judge at Loper’s trial to have anticipated Gideon, just as it would have been unreasonable to have expected the judge at Gideon’s trial to have foreseen our later decision in that case. But a necessary result of applying any decision retroactively is to invalidate rulings made by trial judges that were correct under the law prevailing at the time the judges made them. If the retro-activity of Gideon is “sound,” then this case cannot be decided under the ill-starred and discredited doctrine of Betts v. Brady, 316 U. S. 455. The judgment before us is set aside, and the case is remanded to the Court of Appeals for further proceedings consistent with this opinion. It is so ordered. “Q. During the past ten years how many times have you been indicted and convicted in this State or any other State for a felony? “A. About twice in the past ten years. “Q. How about on May 7th, 1940, weren’t you arrested . . . “MR. LETTS: Your honor, I object to that, as to his being arrested, as that is not admissible in this case. “THE COURT: Well, let him finish the question, Mr. Letts. “Q. All right, On May 7th, 1940, what were you indicted and convicted for? “A. Burglary. “Q. Where was that? “A. Carthage, Mississippi. “Q. What did you get for that? “A. Five years in the penitentiary. “Q. On January 15th, 1935, what were you indicted and convicted for then? “A. Burglary. “MR. LETTS: We object, your honor, as that has been over ten years. “Q. What were you indicted, tried and convicted for then on January 15th, 1935, in Brushy Mountain Parish, Petros, Tennessee? Burglary. “Q. What did you get for that? “A. Four years. “Q. How about October 27th, 1931, what . . . “MR. LETTS: Your honor, we object to that and ask the Court to instruct the jury not to consider it. That reaches way back to 1931 and the Court knows it would prejudice and inflame the minds of the jury in this case. “THE COURT: Objection over-ruled. “Q. Where were you arrested on November 29th, 1934? “A. In Chattanooga, Tennessee. “Q. What about October 27th, 1931, what were you convicted for in Parchman, Mississippi, then? “A. Burglary. “Q. What did you get for that? “A. Six months, I think. “Q. There have been so many offenses you have committed that you can’t remember them straight, can you? “MR. LETTS: We object to that remark, your honor. “THE COURT: Objection sustained. “Q. It was for burglary in 1931? “A. Yes. “Q. Have you always gone by the name of Otis Loper? “A. Not always. “Q. What other names have you gone by? “A. Milton Cummings. “Q. That was in Mississippi, wasn’t it? “A. Yes sir. “Q. What were you indicted and tried for on that case in Mississippi in 1932? “A. Burglary. “Q. How much time did you get on that conviction? “A. Two years. “Q. And that was under the name of Milton Cummings? “A. Yes. “Q. And that is 4 times that you have been convicted of burglary, a felony? “A. Yes. “MR. DUGGAN: That’s all, no more questions.” Loper’s petition was originally dismissed by the District Court, but the Court of Appeals vacated the dismissal and remanded for an evidentiary hearing on the question whether Loper had been deprived of his right to appeal from the Texas judgment of conviction. 383 F. 2d 400. On remand, the District Judge, noting that Loper had filed numerous habeas corpus petitions over a period of 20 years, appointed counsel to represent Loper and directed him to raise any points that “conceivably might be raised in his behalf,” in order that a single evidentiary hearing could serve to put an end to postconviction litigation in Loper’s case. Loper, with the assistance of counsel, then advanced six claims, and the evidentiary hearing was directed to resolving all six contentions. The claim at issue here had not been raised in any of Loper’s previous petitions. “Q. Were you convicted in 1931 of burglary in Scott County, Mississippi? “A. Yes, sir. “Q. How old were you at this time? “A. I don’t remember, but I believe I was around 17 years, something around that age. I’m not for sure. “Q. Were you represented by an attorney in connection with that proceeding? “A. No, sir, I didn’t have an attorney. “Q. Were you advised that you had a right to an attorney whether you could afford one or not? “A. No, sir. “Q. Did you know that you were entitled to one whether you could afford one or not? “A. No, sir. “Q. Did you inform the court that you did not want to be represented by an attorney? “A. No, sir. “Q. Were you convicted in that proceeding? “A. Yes, sir. “Q. Were you convicted, Mr. Loper, of burglary in 1940 in Leake County, Mississippi? “A. Yes, sir. “Q. How old were you at the time that occurred? “A. I believe I was about 25 or 26, I don’t remember for sure. “Q. Let me ask you one more question about that Scott County, Mississippi, conviction. Did you plead guilty or not guilty? “A. I plead guilty. “Q. Were you sentenced to a term in prison? “A. Yes, sir. “Q. All right, sir. Now, in connection with the 1940 conviction, were you represented by an attorney? “A. No, sir. “Q. At any stage of the proceedings? “A. No, sir. “Q. Were you advised that you had a right to an attorney whether you could afford one or not? “A. No, sir. “Q. Could you in fact afford one? “A. I don’t believe I could have then. “Q. What about 1931, the conviction in Scott County, Mississippi, could you have afforded an attorney? “A. I couldn’t have, no, sir. “Q. Did you know in connection with the 1940 proceeding that you were entitled to be represented by counsel whether you could afford it or not? “A. No, sir. “Q. Did you inform the court that you did not want to be represented by an attorney? “A. No, sir. “Q. Was the 1940 proceeding in Leake County, Mississippi, did you plead guilty or not guilty? “A. Not guilty. “Q. Was a trial held? “A. Yes, sir. “Q. Who conducted the defense in that trial? “A. Well, there wasn’t anybody. I just didn’t know what to ask the people. I didn’t know anything about how to. “Q. Did you conduct your own trial? “A. As far as it was conducted, yes, sir. “Q. Why did you attempt to do so yourself? “A. Well, I didn’t have an attorney, and nobody to help me. I didn’t want to plead guilty to it.” A certified record of the 1940 proceeding in Leake County, Mississippi, recited that Loper appeared “in his own proper person.” A certified copy of the 1935 proceeding in Hamilton County, Tennessee, recited that Loper appeared “in person.” A certified copy of the 1931 proceeding in Scott County, Mississippi, recited simply that Loper and his eodefendants “entered pleas of guilty, as charged in the indictment.” No record was introduced of the 1932 conviction in Mississippi. The memorandum and order of the District Court are unreported. A dissenting opinion, post, at 502, implies that the District Court found that the petitioner did not meet his burden of proving that he had not waived his right to counsel in the Mississippi and Tennessee courts. But no such finding appears in the record. The District Court did say that “there is no evidence other than petitioner’s own statement that he was not represented by counsel at the time of his prior convictions, which evidence, as stated above, I decline to accept as credible.” (Emphasis added.) This statement is wholly incorrect, for Loper did introduce documentary evidence to corroborate his testimony that he had not been represented by counsel on at least two of his prior convictions. See n. 4, supra. Nowhere in the District Court’s opinion is there any finding of fact as to whether Loper might have waived counsel. And the fact that the challenged convictions occurred at a time when, under our decisions, state courts were under no constitutional obligation to provide lawyers to indigent defendants in all felony cases, would make any such finding highly unrealistic, in the face of the documentary evidence and the petitioner’s uncontradicted testimony. For, at the time of the petitioner’s previous convictions, there was no known constitutional right to be “waived.” Moreover, the judgment that we review today is not that of the District Court, but of the Court of Appeals. That court stated: “The convictions mentioned have been of record for a number of years, yet the record before us does not disclose that any attack has ever been made upon those convictions. Except for the assertions of Loper the record fails to furnish any conclusive information as to the facts and circumstances surrounding his former convictions. So far as the record before us reveals, there are outstanding, unchallenged, state court convictions of felonies in the States of Mississippi and Tennessee. ... [I]f the convictions possessed the infirmities which Loper claims, he has failed to make any effort to set them aside for over '30 years. No one else could have done so. Surely such an attack was available to him in view of the retroactive application of the Gideon decision which was decided over six years prior to the hearing under review.” 440 F. 2d, at 937. But despite these observations, the Court of Appeals, perhaps recognizing the error in the statement of the District Court quoted above, did not rest its decision on a finding that the petitioner had failed to meet his burden of proving the invalidity of the prior convictions. It reached the merits of the legal question involved, and we granted certiorari to review that decision. There is thus no basis in the record upon which we may either dismiss this case or affirm the decision below on the ground that the petitioner did not meet his burden of proving that the prior convictions were invalid. See Burgett v. Texas, 389 U. S. 109, 114-115; Losieau v. Sigler, 406 F. 2d 795, 803; Williams v. Coiner, 392 F. 2d 210, 212-213. The dissenting opinion relies upon our decision last Term in Kitchens v. Smith, 401 U. S. 847. Yet we held in that case that the petitioner on collateral review had sufficiently “proved he was without counsel due to indigency at the time of his [1944] conviction,” even though, unlike the present case, the petitioner “introduced no evidence other than his own testimony.” Id., at 849. Compare the decisions in this case and in Walker v. Follette, 443 F. 2d 167 (CA2 1971), with Gilday v. Scafati, 428 F. 2d 1027 (CA1 1970); Tucker v. United States, 431 F. 2d 1292 (CA9 1970); and Howard v. Craven, 446 F. 2d 586 (CA9 1971). Simmons v. State, 456 S. W. 2d 66 (Ct. Crim. App. Tex. 1970), holds that prior convictions obtained without the benefit of counsel may nevertheless be used for the purpose of impeachment. Most reported state decisions, however, hold the contrary. See Spaulding v. State, 481 P. 2d 389 (Alaska 1971); In re Dabney, 71 Cal. 2d 1, 452 P. 2d 924 (1969); Johnson v. State, 9 Md. App. 166, 263 A. 2d 232 (1970); White v. State, 11 Md. App. 423, 274 A. 2d 671 (1971); Subilosky v. Commonwealth, - Mass. -, 265 N. E. 2d 80 (1970) (semble). This constitutional rule is wholly retroactive. Pickelsimer v. Wainwright, 375 U. S. 2; Kitchens v. Smith, 401 U. S. 847. Under Texas law at the time, the jury, upon finding Loper guilty, was authorized in its absolute and unreviewable discretion to impose any punishment from five years in prison to death in the electric chair. Texas Pen. Code, Art. 1189 (1948). Thus, bringing the prior convictions to the attention of the jury may well also have served to enhance Loper’s punishment. This is not a case where the record of a prior conviction was used for the purpose of directly rebutting a specific false statement made from the witness stand. Cf. Walker v. Follette, 443 F. 2d 167, and see Harris v. New York, 401 U. S. 222; Walder v. United States, 347 U. S. 62. The previous convictions were used, rather, simply in an effort to convict Loper by blackening his character and thus damaging his general credibility in the eyes of the jury. That a record of prior convictions may actually do more than simply impeach a defendant’s credibility has been often noted. See. e. g., C. McCormick, Evidence § 43, p. 93 (1954): “The sharpest and most prejudicial impact of the practice of impeachment by conviction ... is upon one particular type of witness, namely, the accused in a criminal case who elects to take the stand. If the accused is forced to admit that he has a ‘record’ of past convictions, particularly if they are for crimes similar to the one on trial, the danger is obvious that the jury, despite instructions, will give more heed to the past convictions as evidence that the accused is the kind of man who would commit the crime on charge, or even that he ought to be put away without too much concern with present guilt, than they will to its legitimate bearing on credibility.1’ In the circumstances of this case there is little room for a finding of harmless error, if, as appears on the record now before us, Loper was unrepresented by counsel and did not waive counsel at the time of the earlier convictions. Cf. Subilosky v. Moore, 443 F. 2d 334; Tucker v. United States, 431 F. 2d 1292; Gilday v. Scafati, 428 F. 2d 1027. The reasoning of that dissenting opinion would dictate that the rule in Burgett must not be given retroactive application, at least to cases where the sentence was imposed prior to Gideon. Yet, by our disposition of Bates v. Nelson, 393 U. S. 16, where we vacated and remanded in light of Burgett a denial of habeas corpus following a 1957 conviction, we indicated that Burgett is retroactive in its application without regard to whether the use of the prior convictions was made prior to or after Gideon. Every federal court that has considered the question has held Burgett retroactive, and none has made the distinction suggested by the dissenting opinion. See, e. g., Walker v. Follette, 443 F. 2d 167 (CA2 1971); Losieau v. Sigler, 406 F. 2d 795 (CA8 1969); Tucker v. Craven, 421 F. 2d 139 (CA9 1970); Oswald v. Crouse, 420 F. 2d 373 (CA10 1969). Question: What is the ideological direction of the decision reviewed by the Supreme Court? A. Conservative B. Liberal C. Unspeciﬁable Answer:
songer_numresp	1	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Your specific task is to determine the total number of respondents in the case. If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. NATIONAL LABOR RELATIONS BOARD, Petitioner, v. LUNDY MANUFACTURING CORPORATION, Respondent. No. 94, Docket 26153. United States Court of Appeals Second Circuit. Argued Dec. 6, 1960. Decided Dec. 22, 1960. Allison W. Brown, Jr., Washington, D. C. (Stuart Rothman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Frederick U. Reel and Allison W. Brown, Jr., Attys., N. L. R. B., Washington, D. C., on the brief), for petitioner. Harold Dublirer, New York City (Dublirer & Haydon, New York City), for respondent. Before CLARK, WATERMAN and FRIENDLY, Circuit Judges. FRIENDLY, Circuit Judge. In March, 1957, respondent recognized Amalgamated Local Union 355, an independent union formerly affiliated with Allied International Workers, AFL-CIO, as collective bargaining agent for its production and maintenance employees; and on May 28,1957, it signed a contract with Local 355, predated to May 13, containing a union security clause, for a two-year period, subject to a 60-day notice reopening with respect to wages at the end of one year. There was evidence to support a finding that Local 355 either did not represent a majority of the employees in March 1957 or, if it did, that the majority was obtained by respondent’s assistance. On March 27, 1958, Local 355 requested reopening both as to wages and as to other matters. Negotiations ensued, leading to a draft agreement that was read to a meeting of the Local on July 15. Then disaffection appeared. A movement began for disaffiliation with Local 355 and affiliation with International Union of Electrical Workers, which advised respondent on July 23 or 24 that a majority of the employees had designated IUE as bargaining agent. As a result of what was found to be unlawful pressure by respondent on its employees, a revised contract with Local 355, again containing a union security clause and declared to be effective as of July 1, was ratified on July 30 and signed on July 31, 1958. Two employees were discharged on July 22 and one on July 24, allegedly because they had favored affiliation with IUE. The charge of unfair labor practices was filed July 30, 1958, and served on respondent August 1. The Board in a decision rendered in December, 1959, 125 NLRB No. 109, adopted a finding of its Examiner that: “Section 10(b) of the Act [29 U.S. C.A. § 160(b)] does not preclude a consideration of events antedating the charges by more than 6 months and Respondent’s conduct, within the 6-month period, of continuing and maintaining the aforedescribed 1957 contract and of executing and maintaining the 1958 contract, constitute violations of Section 8(a) (1), (2) and (3) of the Act [29 U.S.C.A. § 158(a) (1-3)]. Bryan Manufacturing Company, 119 NLRB 502, enforced [105 U.S.App.D.C. 102] 264 F.2d 575, C.A.D.C.” The Board also adopted findings of the Examiner that, in view of the appearance of IUE on the scene in July, 1958, respondent could not lawfully recognize or contract with Local 355 until the latter’s right to be recognized had been determined by a Board-supervised election, and that the discharges were likewise unlawful. Accordingly, it directed respondent to cease and desist from encouraging membership in Local 355 or discouraging membership in IUE and from giving effect to the 1958 contract with Local 355; to offer the three discharged employees reinstatement with back pay; and to reimburse its employees for dues and initiation fees to Local 355 deducted from their earnings “beginning with the applicable six-month period.” It here seeks enforcement of this order. The basis for the quoted finding, insofar as it related to the 1957 contract, was shattered when the Supreme-Court, on April 25, 1960, reversed the-Bryan Manufacturing case sub nom. Local Lodge No. 1424, I. A. M. v. N. L. R. B., 362 U.S. 411, 80 S.Ct. 822, 4 L.Ed.2d 832. Here, as there, in the absence of facts antedating the - six months period prior to the charge, the 1957 contract and its union security clause were “wholly benign,” 362 U.S. at page 417, 80 S.Ct. 827. The Board argues that, despite this, the order may stand, save for the reimbursement of dues antedating the charge, since there was sufficient evidence to demonstrate illegality as to the contract of July 31, 1958 apart from the claimed illegality of the 1957 contract. The latter may be so, but it was not the basis -on which the case was decided by the Board; and in contrast to our review of decisions of a lower court, “The grounds upon which an administrative order must be judged are those upon which the record discloses that its action was based.” Securities and Exchange Comm. v. Chenery Corp., 1943, 318 U.S. 80, 87, 63 S.Ct. 454, 459, 87 L.Ed. 626. If the 1957 contract with Local 355 was wholly lawful, the Board, under its contract bar rule, would have deemed the recognition of any other union in July, 1958 to be an unfair labor practice, see Marcus Trucking Co., 126 NLRB No. 131, now pending before us on petition for enforcement. Hence it would seem that, unless the Board should determine not to apply the rule in favor of a contract the making of which would be an unfair labor practice but for the time bar and may lawfully apply such a view retroactively, cf. Leedom v. International Brotherhood of Electrical Workers, Local Union No. 108, 1960, 107 U.S.App.D.C. 357, 278 F.2d 237, questions upon which we express no opinion, continued recognition of Local 355 and non-recognition of the IUE in July, 1958, would not be unlawful, unless the reopening of the May, 1957, agreement on a broad front deprived it of contract-bar protection. The Board’s counsel argues the reopening did precisely that, but we have been cited no pertinent authorities showing the Board would so determine. The Board also might treat the alleged discriminatory discharges differently in a setting wherein the 1957 agreement with Local 355 was entitled to the benefits of the contract bar rule. These are issues requiring determination by the Board, not by a reviewing court. We are not persuaded by the Board’s contention that respondent is precluded from seeking to avail itself of the reversal in Local Lodge because of alleged failure to urge the point before the Board, § 10(e), 29 U.S.C.A. § 160(e). Respondent consistently argued the validity of the 1957 contract; it is not fatal that respondent did not include among its arguments a specific criticism, necessarily futile at that stage, of a pertinent Board decision which had been enforced by a Court of Appeals. May Department Stores Co. v. N. L. R. B., 1945, 326 U.S. 376, 387 note 5, 66 S.Ct. 203, 90 L.Ed. 145; N. L. R. B. v. Revere Art Metal Co., 2 Cir., 1960, 280 F.2d 96, 105. Moreover, even if nothing had been said, the case would surely be one where “the failure or neglect to urge such objection shall be excused because of extraordinary circumstances,” § 10(e), 29 U.S.C.A. § 160(e). Remanded. Question: What is the total number of respondents in the case? Answer with a number. Answer:
songer_numresp	1	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Your specific task is to determine the total number of respondents in the case. If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. DELTA AIR LINES, INC., Petitioner, v. CIVIL AERONAUTICS BOARD, Respondent, Committee of Former Northeast Stewardesses, Intervenor. No. 76-1901. United States Court of Appeals, District of Columbia Circuit. Argued Oct. 4, 1977. Decided Jan. 20, 1978. Frank F. Rox and Robert S. Harkey, Atlanta, Ga., with whom Robert Reed Gray, Washington, D. C., was on the brief, for petitioner. Barbara Thorson, Atty., C. A. B., Washington, D. C., with whom James C. Schultz, Gen. Counsel, Jerome Nelson, Deputy Gen. Counsel, Glen M. Bendixsen, Associate Gen. Counsel, C. A. B. and Carl D. Lawson and Daniel J. Conway, Attys., Dept, of Justice, Washington, D. C., were on the brief, for respondent. J. Gordon Forester, Jr., Washington, D. C., for intervenor. Before BAZELON, Chief Judge, TAMM and WILKEY, Circuit Judges. Opinion for the court filed by Circuit Judge TAMM. TAMM, Circuit Judge: In June 1974, a Committee of Former Northeast Stewardesses (Committee) petitioned the Civil Aeronautics Board (Board) to direct Delta Air Lines, Inc., to submit to arbitration the integration of stewardess seniority lists following the merger of Northeast Airlines, Inc., into Delta. This appeal arises from the order of the Board granting the Committee’s petition. The basic question before this court is whether the Board abused its discretion by referring to the arbitrator the procedural issue of timeliness of the request for arbitration, rather than deciding that issue on the record before it. For the reasons stated below, we affirm the Board’s order. I In the spring of 1972, the Board approved the merger of Delta and Northeast, subject to certain labor protective provisions (LPP’s). Section 3 of those provisions states: Insofar as the merger affects the seniority rights of the carriers’ employees, provisions shall be made for the integration of seniority lists in a fair and equitable manner, including, where applicable, agreement through collective bargaining between the carriers and the representatives of the employees affected. In the event of failure to agree, the dispute may be submitted by either party for adjustment in accordance with section 13. Section 13(a) provides that any party may refer a dispute arising under the LPP’s to an arbitrator, and that “a decision shall be rendered within 90 days after the controversy arises, unless an extension of time is mutually agreeable to all parties.” Prior to the merger, which became effective on August 1,1972, the Transport Workers Union of America, AFL-CIO (TWU) had been the collective bargaining representative for the Northeast stewardesses. Between midsummer and early October of 1972, representatives of Delta and Delta stewardesses had a series of meetings with a group of former Northeast stewardesses to negotiate the integration of seniority lists, but no agreement was reached. During the month of October, Delta unilaterally integrated the seniority lists and informed all stewardesses of the results of that integration by letter dated October 31, 1972. In the meantime, after the impasse had developed in negotiations, the negotiating group of former Northeast stewardesses asked TWU to pursue their arbitration remedy. On September 29, 1972, TWU informed Delta that it intended “to seek the appropriate relief,” and on October 4, 1972, requested the National Mediation Board to furnish a panel of arbitrators for the integration dispute. Delta, however, refused to participate in the selection of an arbitrator, on the ground that TWU had not provided any evidence that it continued to represent any former Northeast stewardesses after the effective date of the merger. On January 30, 1973, TWU, on behalf of the stewardesses formerly employed by Northeast, petitioned the Board to direct arbitration of seniority list integration. Delta opposed the petition, still basing its opposition to arbitration on TWU’s failure to demonstrate its representational capacity. In an order dated September 11, 1973, the Board dismissed TWU’s petition. The Board held that TWU was not the representative of the former Northeast employees under the LPP’s merely because it was their collective bargaining representative prior to the merger. Furthermore, since Delta conceded its duty to arbitrate the seniority dispute upon demand of dissatisfied stewardesses or their authorized representative, the Board found that its immediate intervention was unnecessary. In a footnote, the Board specifically addressed Delta’s contention that no timely complaint against the integrated seniority list had been filed under the LPP’s, stating that such issues “are appropriate matters for resolution in the context of negotiation or an arbitration proceeding. . . . ” Because TWU did not appeal the Board’s order or attempt to present evidence to Delta of its representational authority, the Committee, which has intervened on this appeal, was formed to pursue arbitration. To that end, the Committee hired an attorney and sought representational authorization from other dissatisfied stewardesses. In a series of letters to Delta from March through May of 1974, the Committee requested that the seniority list integration dispute be submitted to arbitration, contending, in part, that the present request was “a continuum of those made of Delta as far back as October, 1972.” Delta renewed its assertion that the complaint was untimely, and the Committee petitioned the Board to compel arbitration. After an initial dismissal of the petition, an appeal from that order, and a remand by this court for a decision on the merits, the Board granted the Committee’s petition and ordered arbitration. In its mandate to the arbitrator, the Board included the initial “jurisdictional” question of “whether, under all of the circumstances, the claim to arbitration was asserted within a reasonable time.” In justifying the delegation of the timeliness issue to the arbitrator, the Board stated that, on the basis of the inadequate record before it, it was unable definitively to resolve certain issues which were possibly pertinent to the merits of Delta’s timeliness argument, such as the representational aspects of the dispute, the possibility that Delta contributed to delay, and the effect of Delta’s actual knowledge of employee dissatisfaction. Such issues, the Board stated, are the type “in which an experienced labor arbitrator may well be able to shed more light, more quickly than the Board.” We are now called upon to review the Board’s decision to refer the timeliness issue to arbitration. II In our review, we must initially determine whether the Board has the discretion to delegate procedural issues arising under the LPP’s, such as timeliness of arbitration complaints, to an arbitrator. If the Board does have such discretion and acted within its scope, we must then decide, on the basis of the administrative record, whether the Board abused its discretion. Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 415-16, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971); see 5 U.S.C. § 706(2)(A) (1970). It is clear that the Board has the authority to impose conditions on its approval of the merger of air carriers, Kent v. CAB, 204 F.2d 263, 265 (2d Cir.), cert. denied, 346 U.S. 826, 74 S.Ct. 46, 98 L.Ed. 351 (1953); see 49 U.S.C. § 1378(b) (1970), and that these conditions may include the duty to negotiate and arbitrate disputes over the integration of seniority lists of employees affected by the merger. Outland v. CAB, 109 U.S.App.D.C. 90, 94, 284 F.2d 224, 228 (1960). In American Airlines, Inc. v. CAB, 445 F.2d 891, 895 (2d Cir. 1971), cert. denied, 404 U.S. 1015, 92 S.Ct. 674, 30 L.Ed.2d 663 (1972), the court sanctioned the arbitration of such substantive disputes under LPP’s, stating, in part: The Board, like other agencies, operates on a limited budget, both of money and of time; it may properly decide that these scarce resources should be husbanded for the tasks for which it considers itself to be expert, rather than frittered away in an area more suitable for an experienced labor arbitrator. When called upon to interpret negotiated labor contracts, courts have repeatedly held that procedural issues, such as whether grievances were properly and timely filed, should be delegated to arbitration along with the substantive issues of labor disputes. John Wiley & Sons v. Livingston, 376 U.S. 543, 557, 84 S.Ct. 909, 11 L.Ed.2d 898 (1964); accord, Tobacco Workers International Union, Local 317 v. Lorillard Corp., 448 F.2d 949, 953-54 (4th Cir. 1971); Rochester Telephone Corp. v. Communication Workers of America, 340 F.2d 237, 238-39 (2d Cir. 1965). One rationale for approval of the delegation of procedural issues to arbitration is that the substantive and procedural aspects of labor controversies are normally so intertwined that dividing their resolution between arbitrators and courts would cause unnecessary delay and duplication of effort. John Wiley & Sons v. Livingston, 376 U.S. at 557-58, 84 S.Ct. 909. Furthermore, questions as to whether the procedural prerequisites to arbitration have been met “do not arise in a vacuum; they develop in the context of an actual dispute about the rights of the parties to the contract or those covered by it.” Id. at 556-57, 84 S.Ct. at 918. Therefore, the knowledge and expertise of an experienced labor arbitrator may be just as necessary to the efficacious disposition of the procedural problems of an arbitrable dispute as to the resolution of the substance of the labor controversy itself. Association of Industrial Scientists v. Shell Development Co., 348 F.2d 385, 389 (9th Cir. 1965); see Carey v. General Electric Co., 315 F.2d 499, 503 (2d Cir. 1963), cert. denied, 377 U.S. 908, 84 S.Ct. 1162, 12 L.Ed.2d 179 (1964). The reasoning of these labor contract decisions is equally applicable to procedural disputes arising under LPP’s imposed by the Board during mergers. Just as under negotiated labor contracts, both the procedural and substantive issues under the LPP’s normally involve labor relations law and custom, subjects in which the Board has neither experience nor specialized knowledge. See Outland v. CAB, 284 F.2d at 228. Once it is determined, therefore, that the subject matter of a controversy is subject to arbitration under the LPP’s, we believe that the Board has the discretion to refer to the arbitrator questions concerning the procedural propriety of the claims for arbitration of that controversy. In this case, it is clear that the dispute over the integration of the seniority lists was arbitrable. CAB Orders 72-5-73/74 (April 24, 1972); see American Airlines, Inc. v. CAB, 445 F.2d at 895. Delta’s refusal to participate in arbitration was based on the procedural contention that no proper request for arbitration of the dispute had been filed with it within the time limits established by section 13 of the LPP’s. Under these circumstances, it can reasonably be said that the Board, after finding the substance of the dispute arbitrable, acted within the scope of its discretion in delegating the procedural question to the arbitrator. The next step in our review is to determine whether the Board, although acting within the scope of its discretion, abused that discretion in this case by referring Delta’s timeliness contention to arbitration. To make this determination, we must carefully examine the administrative record, Camp v. Pitts, 411 U.S. 138, 142, 93 S.Ct. 1241, 36 L.Ed.2d 106 (1973), to ascertain, first, whether the Board considered the relevant factors, and second, whether it made “a clear error of judgment.” Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. at 416, 91 S.Ct. 814. From an inspection of the Board’s order and the material before it when its decision was made, it is plain that the Board considered those factors relevant to its choice to refer the procedural issue to the arbitrator. It took specific note of the policy underlying the arbitration clause in the LPP’s — to promote the expeditious settlement of labor disputes arising after mergers — and stated that its normal inclination would be to resolve the timeliness issue itself, rather than referring it to arbitration. However, after inspecting the record, the Board believed that, although there were certain undisputed facts which might appear dispositive of the procedural argument, there were also factual inadequacies on various issues which the Board perceived as possibly pertinent to the final outcome of the dispute. Moreover, the resolution of those labor issues would involve not only further factual investigation, but also the application of labor law principles in which the Board had no special knowledge or expertise. Our study of the Board’s order in this case thus reveals that the Board carefully considered those factors relevant to its final decision, balancing the general desire for speedy settlement under the LPP’s against the need in this particular case for further factual and legal determinations by an experienced labor arbitrator. The question remains, however, whether the Board made a clear error of judgment in declining to decide the timeliness issue on the record before it. In this regard, Delta asserts that all the facts necessary to a decision on the timeliness issue were undisputed and therefore that the Board’s reasons for delegating the procedural question were not supported by the record. We do not agree. The undisputed facts in the record before the Board do reveal that the Committee made no formal protest to Delta until many months after the Board’s September 1973 decision on TWU’s representational capacity. However, depending upon the arbitrator’s resolution of the issues posed by the Board, such a lapse of time could become irrelevant to the final outcome of the timeliness, dispute. For instance, the arbitrator might find that Delta contributed to delay in arbitration requests or had actual knowledge of stewardess dissatisfaction, and that such delay or knowledge caused Delta’s duty to arbitrate to arise within the LPP’s time limit. Moreover, if the arbitrator found that TWU or some other group or individual actually represented the former Northeast stewardesses and made a timely demand for arbitration, such factual and legal findings could eliminate any procedural deficiencies in the Committee’s subsequent requests. Because of its uncertainty as to the facts relating to these issues and their legal effect on Delta’s timeliness contention, the Board decided to refer the whole matter to the arbitrator, rather than to make a decision based on a record which it believed to be inadequate and grounded on labor principles with which it was unfamiliar. The outcome of this case might have been different if there had been no factual basis in the record for the issues raised by the Board or if the legal aspects of those issues had previously been settled. However, all the issues which the Board believed might ultimately be pertinent to the proper resolution of Delta’s timeliness contention did have a factual basis in the record already before the Board and were unresolved at the time of its order. For instance, the question of whether TWU or other groups or individuals actually had the authority to represent former Northeast stewardesses was not answered clearly by the documents or assertions in the record and had not been resolved completely by the Board’s earlier order. Furthermore, the record indicates that Delta could have had actual knowledge of employee dissatisfaction in the fall of 1972 and that its continuing insistence on formal representational authorization could have contributed to the delay in arbitration requests. The administrative record in this case thus supports the factual existence of those issues which the Board believed might be important to the final disposition of the timeliness issue. Finding that further investigation and experience application of labor law principles were necessary to the proper resolution of these issues, both as to their factual basis and their legal effect, the Board referred the entire procedural problem to the arbitrator. On the basis of the record before us, we do not believe that such delegation constitutes a clear error of judgment. III Many of the problems posed by the present case are of the Board’s own making. A concise statement of the approved manner of filing requests for arbitration and of establishing representational capacity would eliminate confusion and delay in the settling of disputes under the LPP’s. Nevertheless, we find that the Board had the discretion to delegate to arbitration the resolution of the timeliness issue raised by Delta. We further hold, after reviewing the administrative record, that the Board did not abuse its discretion in doing so. The order of the Board is therefore Affirmed. . CAB Order 76-9-129 (Sept. 23, 1976), Joint Appendix (J.A.) at 17. This appeal was filed pursuant to 49 U.S.C. § 1486(a) (1970). . CAB Orders 72-5-73/74 (April 24, 1972), J.A. at 76, 79. . Id., Appendix I at 1, J.A. at 65. . Id., Appendix I at 9, J.A. at 73. . J.A. at 137. . Id. at 83. . Id. at 95, 100. . Id. at 106. . CAB Order 73-9-42 at 5 (Sept. 11, 1973), J.A. at 9. . Id. at 4, J.A. at 8. . Id. at 4 n.5, J.A. at 8 n.5. . J.A. at 207. . Id. at 187; see id. at 183, 189. . Id. at 187. . CAB Order 75-1-6 (Jan. 2, 1975), J.A. at 12. In this order, the Board stated that the courts, rather than the Board, were the proper forums for seeking enforcement of arbitration clauses in LPP’s. It also made specific reference to the footnote in its earlier order in which it had posited that the issue of timeliness should be dealt with in arbitration. Id. at 2-3, J.A. at 13 n.3, 14. . Committee of Former Northeast Stewardesses v. CAB, No. 75-1066 (D.C. Cir. May 27, 1975). . CAB Order 76-9-129 at 5 (Sept. 23, 1976), J.A. at 21. . Id. at 4-5, J.A. at 20-21. . Id. at 5, J.A. at 21. . In Citizens to Preserve Overton Park, the Supreme Court also suggested a third inquiry for review of an agency’s informal adjudication — whether the agency “followed the necessary procedural requirements.” 401 U.S. at 417, 91 S.Ct. 814. However, in this case there is no contention that the Board’s procedures were inadequate or erroneous. . CAB Order 76-9-129 at 4, 6 (Sept. 23, 1976), J.A. at 20, 22. . Id. at 5, J.A. at 21. . Id. . Brief of Petitioner at 16-17, 29. Delta also contends that the Board’s treatment of the record was inconsistent with its announced preference for resolving procedural issues itself in order to expedite the settlement of disputes under LPP’s. Id. at 29-33; see CAB Order 76-9-129 at 4, 6 (Sept. 23, 1976), J.A. at 20, 22. We do not believe, however, that the Board, by stating its “normal inclination” to decide such issues, was thereby setting a standard for itself from which it could not deviate without being found to have engaged in arbitrary and capricious action. Cf. City of Lawrence v. CAB, 343 F.2d 583, 588 (1st Cir. 1965) (in which the court cited and relied on cases in which the agency was held to have established such a standard). Rather, we believe that the Board was recognizing that it had the discretion either to resolve or to delegate the timeliness question, depending upon the adequacy of the record before it and the perceived need for specialized knowledge in labor matters to deal with the question. Furthermore, throughout the prolonged proceedings leading to this appeal, the Board had consistently stated that Delta’s particular timeliness argument should be resolved in negotiation and arbitration. . See notes 12 & 13 supra. . In this regard, although Delta has asserted throughout these proceedings that no proper request for arbitration was filed with it until 1974, see J.A. at 187, the Committee alleges that its request is merely a continuation of those lodged in the fall of 1972 by TWU, see id. at 183, 187. . See id. at 146-48, 169; CAB Order 73-9-42 (Sept. 11, 1973), J.A. at 5. In its order dismissing TWU’s petition, the Board confined its discussion of TWU’s authority to represent the former Northeast stewardesses to the issue of whether TWU’s representational status transcended the merger. . For instance, Delta was informed of TWU’s intention to pursue arbitration on behalf of the former Northeast stewardesses in September 1972, J.A. at 83, and of TWU’s requests to the National Mediation Board in October 1972, id. at 100. Actual knowledge of specific employee discontent can also be attributed to Delta at the time TWU filed its supplemental petition to the Board, with letters from five stewardesses to TWU voicing their dissatisfaction with the integrated seniority list. See id. at 141, 146-54. Furthermore, whether or not such action was legally justified, it cannot be denied that Delta’s demands for formal representational authorization delayed both TWU’s and the Committee’s pursuit of the arbitration remedy. See id. at 107-08, 183, 187. Question: What is the total number of respondents in the case? Answer with a number. Answer:
songer_genresp1	C	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task is to determine the nature of the first listed respondent. Michael FERCH, Appellant, v. LINCOLN NATIONAL LIFE INSURANCE COMPANY, a Corporation. No. 13095. Circuit Court of Appeals, Eighth Circuit. July 25, 1945. Lyche & Lyche, of Grand Forks, N. D., and B. H. Bowler and Edward P. Totten, both of Minneapolis, Minn., for appellant. Nilles, Oehlert & Nilles, of Fargo, N. D., for appellee. PER CURIAM. Appeal from District Court dismissed with prejudice, at costs of appellant, on stipulation of parties. Question: What is the nature of the first listed respondent? A. private business (including criminal enterprises) B. private organization or association C. federal government (including DC) D. sub-state government (e.g., county, local, special district) E. state government (includes territories & commonwealths) F. government - level not ascertained G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization) H. miscellaneous I. not ascertained Answer:
songer_genresp2	G	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task is to determine the nature of the second listed respondent. If there are more than two respondents and at least one of the additional respondents has a different general category from the first respondent, then consider the first respondent with a different general category to be the second respondent. Arnold R. JAGO, Superintendent, Petitioner-Appellant, v. UNITED STATES DISTRICT COURT, NORTHERN DISTRICT OF OHIO, EASTERN DIVISION AT CLEVELAND, and Harllel B. Jones, Respondents-Appellees. No. 77-3333. United States Court of Appeals, Sixth Circuit. Argued Oct. 7, 1977. Decided Feb. 2, 1978. William J. Brown, Atty. Gen. of Ohio, Columbus, Ohio, for petitioner-appellant. Gary T. Kelder, Syracuse, N. Y., Gordon S. Friedman, Cleveland, Ohio, Richard L. Aynes, Akron, Ohio, for respondents-appel-lees. Before CELEBREZZE and ENGEL, Circuit Judges, and GRAY, Senior District Judge. Hon. Frank Gray, Jr., Senior District Judge, United States District Court for the Middle District of Tennessee, sitting by designation. ENGEL, Circuit Judge. The Superintendent of the Southern Ohio Correctional Facility has petitioned this court for a writ of mandamus to compel the respondent district judge to withdraw a grant of bail to Harllel Jones, the successful petitioner for a writ of habeas corpus in the district. court. The federal habeas corpus petition challenged the validity of a 1972 conviction in an Ohio Court of Common Pleas for second degree murder and shooting with intent to kill or wound. Judgment in the habeas corpus proceeding was entered on February 10, 1977, granting the writ and ordering Jones’ release unless the state began a new trial within 90 days. On February 15 Jones applied for bail, and on March 2 petitioner Jago filed a notice of appeal and moved for a stay of execution of the judgment. The district court denied both the request for bail and the motion for a stay on March 7. Jago sought in this court a stay of the judgment, which was granted on April 19. Upon a renewed application for bail, the district court on June 24, 1977 ordered Jones released pending the appeal on the condition that he post bail in the amount of $10,000, ten percent deposit. In ordering Jones’ release, District Judge Frank J. Battisti noted that the 90-day period for a new trial had long since expired and that the appellate process promised to last several more months. He concluded: Under these circumstances, continued imprisonment of the petitioner by the state can no longer be justified. The petitioner is possessed of a final judgment that his trial did not meet constitutional standards of fairness and is by now entitled to release on bail while the state pursues its appeal. The state asserts that after he had originally denied bail and a notice of appeal had been filed, the district judge was without any power to act. At first blush this position appears to have much merit, especially in the light of the express language of Rule 23(d), Federal Rules of Appellate Procedure: An initial order respecting the custody or enlargement of the prisoner and any recognizance or surety taken, shall govern review in the court of appeals and in the Supreme Court unless for special reasons shown to the court of appeals or to the Supreme Court, or to a judge or justice of either court, the order shall be modified, or an independent order respecting custody, enlargement or surety shall be made. Relying upon a literal reading of the rule, the state argues that the district judge’s “initial” order denied release and thus must govern Jones’ custody during appeal unless changed by the court of appeals for “special reasons.” Furthermore, the state relies upon the general proposition that the filing of a notice of appeal divests the district court of jurisdiction and transfers such jurisdiction to the court of appeals, citing the following Sixth Circuit cases: Oak Construction Co. v. Huron Cement Co., 475 F.2d 1220 (6th Cir. 1973); Hogg v. United States, 411 F.2d 578 (6th Cir. 1969); Keohane v. Swarco, Inc., 320 F.2d 429 (6th Cir. 1963); United States v. Frank B. Killian Co., 269 F.2d 491 (6th Cir. 1959); Walker v. Felmont Oil Corp., 262 F.2d 163 (6th Cir. 1958), cert. denied, 361 U.S. 840, 80 S.Ct. 61, 4 L.Ed.2d 78 (1959). The order granting bail was entered after the notice of appeal had been filed and the case docketed in this court. Thus the state contends that the district court acted without jurisdiction. The earlier order denying bail, while also entered after the appeal was noted, is not subject to this defect, it urges, because an application had been made prior to the filing of the notice. The state also correctly points out that habeas corpus petitioners are not subject to the provisions of Rule 9, Federal Rules of Appellate Procedure, pertaining to admission to bail of defendants in direct criminal appeals. In considering similar arguments in the district court, Judge Battisti concluded: The respondent interprets this rule [23(d)] to mean that modification of an initial order respecting custody is limited to the appellate courts. But, clearly, this is a misreading of the provision. Though the rule indicates the truism that on review in the court of appeals or the Supreme Court an order can only be modified by a judge or justice of that court, it neither states nor implies that the district court is divested of jurisdiction to modify or reconsider its orders concerning custody. In fact this rule states a limitation on the discretion of appellate courts to modify initial orders and, thereby, reemphasizes the responsibility of the district court to determine the propriety of release pending appeal. According to this rule, absent “special reasons,” the appellate courts are, in fact, to be governed by the rulings made by the lower courts regarding custody. Hence, this court not only has jurisdiction to consider the petitioner’s motion by virtue of Rule 23(c), but also has a special obligation to modify, if the circumstances require, an order which the court of appeals might otherwise consider binding by virtue of Rule 23(d). Rule 23(c) states that a successful petitioner for habeas corpus “shall be enlarged” pending appeal, unless the court otherwise orders. After thorough review of the historical precedents to Rule 23(c), the Third Circuit Court of Appeals concluded in United States ex rel. Thomas v. New Jersey, 472 F.2d 735 (1973) that under Rule 23(c) there is “a very strong presumption that a petitioner holding a final judgment that his detention is unlawful should not be left in state custody” and, further, that the court should exercise its discretion to allow the state to retain custody only in “limited situations,” supra at 743. The issues raised by the superintendent’s petition are ones of first impression in this circuit and have considerable practical importance in the administration of the law of habeas corpus in the federal courts. A consideration of the historical role of habeas corpus generally and of Rule 23 in particular persuades us that Judge Battisti retained the power to release Jones under the circumstances here. Any consideration of the meaning of Rule 23 and of the retained authority of the district judge to enter orders affecting custody after filing of the notice of appeal must begin with the recognition that “[essentially, the proceeding is unique. Habeas corpus practice in the federal courts has conformed with civil practice only in a general sense.” Harris v. Nelson, 394 U.S. 286, 294, 89 S.Ct. 1082, 1087, 22 L.Ed.2d 281 (1969); accord, Schlanger v. Seamans, 401 U.S. 487, 490 n. 4, 91 S.Ct. 995, 28 L.Ed.2d 251 (1971). While there may be a justifiable inclination to consider contemporary habeas corpus proceedings in federal court primarily as vehicles for the resolution of knotty constitutional issues, the writ is essentially a very physical one. This is its fundamental nature even today. Above all it deals with the issue of personal freedom from imposed restraints. In its most literal terms, a writ commands a custodian to bring the aggrieved party into the presence of the judge issuing the writ and at that time to justify the detention. Historically the judge then inquired into the custodian’s reasons, and if he found them unlawful or inadequate, he ordered the immediate release of the person so held and the matter was closed. Immediacy was and is its essence: This is a high prerogative writ, and therefore by the common law issuing out of the court of the king’s bench not only in term-time, but also during the vacation, by a fiat from the chief justice or any other of the judges, and running into all parts of the king’s dominions: for the king is at all times entitled to have an account, why the liberty of any of his subjects is restrained, wherever that restraint may be inflicted. 3 W. Blackstone, Commentaries on the Laws of England 131 (E. Christian ed. 1822) (footnotes omitted). It is true that in the great bulk of cases in the federal courts prisoners in state custody remain physically in the state institution while their petitions for release under the writ are processed through the district courts and any subsequent appeals. It is important to remember, however, that the prisoners in state correctional institutions are not the only potential beneficiaries of the writ or of the laws authorizing federal judges to issue it. The Supreme Court has commented, “It is not now and never has been a static, narrow, formalistic remedy; its scope has grown to achieve its grand purpose — the protection of individuals against erosion of their right to be free from wrongful restraints upon their liberty.” Jones v. Cunningham, 371 U.S. 236, 243, 83 S.Ct. 373, 377, 9 L.Ed.2d 285 (1963). The underlying physical nature of habeas corpus proceedings has been well stated by Judge Hastie, concurring in Johnston v. Marsh, 227 F.2d 528, 532 (3rd Cir. 1955): Unique procedure characterizes the administration of the remedy of habeas corpus. When a court with jurisdiction of the subject matter receives a petition for habeas corpus which is not inadequate on its face, normal procedure is to issue a writ of habeas corpus, ordering the person who is detaining the petitioner to bring him before the court for hearing and decision whether he is unlawfully deprived of his liberty. The district court issued such an order here and in obedience thereto the state warden produced his prisoner. At that juncture the body of the petitioner came under the lawful control of the district court. In legal contemplation that control continues pending decision whether to free the petitioner or to return him to state custody. During that period detention is by force of the writ of habeas corpus, and the antecedent detaining authority is superseded for the time being. Normally, where the petitioner is a prisoner serving a sentence upon conviction of crime, the court before which he is brought by writ of habeas corpus directs the warden to hold him until the court can decide the case. But this procedure is not in derogation of the controlling concept that the body is being held pen-dente lite under authority and subject to order of the court which has issued the writ. Once this concept is recognized, it becomes clear that the particular interim disposition which the court makes of the body is a judicial function of that court to be discharged, absent any controlling statute, in the exercise of judicial discretion, all relevant circumstances considered. The court is under no ministerial duty to direct or permit the person who produces the petitioner to continue to hold him during this period. Johnston v. Marsh typifies the problems concerning physical custody which must necessarily be faced in a very practical way by the habeas corpus judge where there is delay in reaching a disposition of the petitioner’s case. In Johnston the petitioner was admitted to bail pending disposition on the merits by the district court, where it was shown that he was an advanced diabetic and was, under the conditions of confinement, rapidly progressing toward total blindness. The state prisoner thus required hospitalization, and the court conditioned the admission to bail upon his going to and remaining in a private hospital. Judge Goodrich’s opinion in Johnston traced to some extent the exercise of the authority to admit to bail in habeas corpus cases, pending decision on the merits, as recognized in England and in the United States: One of the inherent powers of the judiciary with regard to proceedings before it has been the admission of a prisoner to bail where, in the exercise of his discretion, the judge deems it advisable. It is clear that at common law courts had the inherent power to grant bail. See, e. g., Queen v. Spilsbury, [1898] 2 Q.B. 615, 620. This authority was exercised in habeas corpus cases pending decision on the merits. In re Kaine, 1852, 14 How. 103, 133, 55 U.S. 103, 133, 14 L.Ed. 345 (dissent); Barth v. Clise, 1870, 12 Wall. 400, 402, 79 U.S. 400, 402, 20 L.Ed. 393; 16 English & Empire Digest 268 (1923). Our Federal judiciary has consistently recognized that at common law this inherent power existed. See, e. g., United States ex rel. Carapa v. Curran, 2 Cir., 1924, 297 F. 946, 954, 36 A.L.R. 877; United States v. Evans, C.C., 1880, 2 F. 147, 152; Ewing v. United States, 6 Cir., 1917, 240 F. 241, 248. Yet whether Federal courts have this authority has been the subject of considerable controversy. The principal cases are compiled in Principe v. Ault, D.C.N.D. Ohio 1945, 62 F.Supp. 279, 281. On apparently the only occasion at which this question has been presented to it, the Supreme Court, in dicta, said that it was unwilling to hold that circuit courts do not have this inherent power. Wright v. Henkel, 1903, 190 U.S. 40, 63, 23 S.Ct. 781, 47 L.Ed. 948. We believe that the basic misconception in those decisions denying this authority lies in their view that since Federal courts have limited, statutory jurisdiction, their powers in proceedings involving this jurisdiction are necessarily limited and must be statutory. See Principe v. Ault, D.C.N.D.Ohio 1945, 62 F.Supp. 279, 282. This, as already indicated, is not our view of the matter. 227 F.2d at 531 (footnote omitted). The general rule that an appeal to the circuit court deprives the district court of jurisdiction as to any matters involved in the appeal is neither “a creature of statute” nor “absolute in character.” Hoffman v. Beer Drivers & Salesmen’s Local Union 888, 536 F.2d 1268, 1276 (9th Cir. 1976). Contrary to the contention of the state, the question concerning physical custody of the defendant pending review does not affect the matters involved in the appeal itself. The habeas petitioner is not physically transferred to the appellate court, though the issues concerning his petition are presented there. The order from which the appeal is taken provided that because of a constitutional violation in his state court trial, the petitioner should be granted the writ unless the state retried him in ninety days. This decision did not in any way relate to or concern the matter of his custody pending the appeal, although his personal freedom was at issue in each instance. In this respect, the case is not unlike many others in which the district court has of necessity a retained power to act even though a judgment in the case may be the subject of a pending appeal. See 9 Moore’s Federal Practice ¶ 203.11 at 734-35 (2d ed. 1975). In Hogg v. United States, supra, we recognized that a district court continues to have jurisdiction to act in aid of the appeal as authorized under the federal rules. 411 F.2d at 580. Certainly if the physical welfare of the petitioner is the responsibility of the district court during the appeal and if the question of his custody does not affect the merits of the appeal itself, it is not unreasonable to believe that there is a retained power in the district court to aid the appeal by undertaking that responsibility, at least in the absence of its exercise by an appellate court. In Hoffman v. Beer Drivers, supra, the Ninth Circuit went so far as to permit the district court’s alteration of a preliminary injunction in a labor dispute even though that very injunction was then pending in the court of appeals. The court reasoned that because there was a continuing necessity to maintain a status quo in light of new facts which developed after the entry of the original order, the district court ought to be allowed to retain supervisory control as the circumstances dictated. 536 F.2d at 1276. A similar responsibility for custody decisions is reserved in the district court for direct criminal appeals by the express provisions of Rule 9(b), Federal Rules of Appellate Procedure. Release pending an appeal must be first sought in the district court even after an appeal has been noted from the judgment of conviction. See 9 Moore’s Federal Practice ¶ 209.01[2] at 1504, ¶ 209.06 at 1512 (2d ed. 1975). We believe that a proper understanding of the history of Rule 23 supports a conclusion that it, also, preserves in the district judge authority to issue one or more orders regarding the custody or enlargement of a prisoner pending the review of the decision in the habeas corpus action. The district court does not lose his jurisdiction when an appeal is noted from the decision. However, on motion by a party, the court of appeals or a single judge of the court may modify any such order, or make an independent custody order, but only where “special reasons” are found to do so. A good summary of the history of Rule 23, particularly subdivision (c) which is applicable in this case, is found in United States ex rel. Thomas v. New Jersey, 472 F.2d 735 (3rd Cir.), cert. denied, 414 U.S. 878, 94 S.Ct. 121, 38 L.Ed.2d 123 (1973). There the district court had granted a petition for a writ of habeas corpus to a state prisoner and ordered that if no appeal was taken by the state and no retrial was begun within 60 days, the petitioner was to be released. The order also stated that during the pending appeal the state county court was to entertain an application for bail by the petitioner, which was to be fixed in a reasonable amount. The prisoner then applied to the state court which declined to entertain the application. Therefore the district court amended the initial order to provide that the prisoner would be released from custody on the posting of a bond of a designated amount with the state court. On appeal the Third Circuit held that it was improper for the district court to order a state trial court to admit the petitioner to bail and remanded the case to the district court for a hearing as to the amount of any bond which would be deposited in the federal court as a condition of release. Notwithstanding the language of Rule 23, the Third Circuit gave no indication that the district court was without power to modify the earlier order. It observed: The equivalent of that Rule [Rule 23(c)] has been in effect since at least 1886. In that year the Supreme Court adopted a rule: “Ordered, That the following regulations be established under section 765 of the Revised Statutes: RULE 34. CUSTODY OF PRISONERS ON HABEAS CORPUS. ****** 3. Pending an appeal from the final decision of any court or judge discharging the prisoner, he shall be enlarged upon recognizance, with surety, for appearance to answer the judgment of the appellate court, except where, for special reasons, sureties ought not to be required.” 117 U.S. 708. This rule or its equivalent has been a part of the rules of the Supreme Court ever since. Its present equivalent is Rule 49(3) of the Supreme Court Rules. The reference to Revised Statutes, § 765 is to the statute which gave the Supreme Court general authority to regulate habeas corpus proceedings, including regulations “for the custody and appearance of the person alleged to be restrained of his or her liberty.” Act of Feb. 5, 1867, ch. 28, § 1, 14 Stat. 385. Rule 34 became Rule 42 in the 1925 Rules, 266 U.S. 685, Rule 45 in the 1928 Rules, 275 U.S. 629, and Rule 49 in the 1954 Rules, 346 U.S. 999. Revised Statutes, § 765 was repealed in the 1948 revision of title 28, but the statutory authority for Rule 49(3) of the Supreme Court Rules cannot be doubted. See 28 U.S.C. § 2071 (rule making); 28 U.S.C. § 2101(f) (stays); 28 U.S.C. § 2251 (stays in habeas corpus cases); 28 U.S.C. § 1651 (all writs). When in 1967 the Supreme Court promulgated the Federal Rules of Appellate Procedure, it included in Rule 23 a rule identical in language with its own Rule 49. Thus, Rule 23(c) is in direct succession from the original Supreme Court Rule 34(3) adopted in 1886. Even though until 1967 it appeared in the Supreme Court rules, at all times it has dealt with the duty of the district courts in habeas corpus cases. In 1886 the language requiring the enlargement of the successful habeas corpus petitioner was mandatory. The only discretion was in deciding whether a surety on his recognizance ought to be required. The mandatory language with respect to enlargement of the successful petitioner was carried forward until 1967. In that year, however, Rule 49(3) was revised to provide that the successful petitioner “shall be enlarged upon his recognizance, with or without surety, unless the court or justice or judge rendering the decision, or the court of appeals or this court, or a judge or justice of either court, shall otherwise order.” The revised language was carried into Rule 23(c), Fed.R.App.P. Thus from 1886 to 1967 a judge granting habeas corpus relief was under a flat mandate to enlarge the petitioner pending appeal. In United States ex rel. Collins v. Claudy, 204 F.2d 624 (3rd Cir. 1953) this court, reversing the denial of a habeas corpus petition and ordering that the writ issue, recognized that the state might seek a reversal in the Supreme Court. It held, therefore, “. . .we will entertain a request for the enlargement of the petitioner on bail pending final disposition of this case if any further proceedings shall postpone the issuance of the mandate of this court in normal course. See our Rule 15(3); Supreme Court Rule 45(3).” Id. at 630. Since 1967 an order such as was entered in the Collins case would not be mandatory. But it is clear from the history of the rule prior to the 1967 change that there is still a very strong presumption that a petitioner holding a final judgment that his detention is unlawful should not be left in state custody. The 1967 change was not intended to adopt a general rule in favor of custody pending appeal, but only to substitute discretion, to be exercised in limited situations, for what was formerly a mandatory release requirement. See E. Bosky and E. Gress-man, The 1967 Changes in the Supreme Court’s Rules, 42 F.R.D. 139, 161 (1967). There is no question, then, that the district court had the power to order Thomas’ enlargement from state custody pending the state’s appeal. 472 F.2d at 742-43 (footnote omitted). The Supreme Court rule which governed release of prisoners pending appeal in habe-as corpus cases between 1954 and 1967 was more capable of the construction sought here by the state than the present rule. Rule 49(3) of the Supreme Court Rules during that period stated: 3. Pending review of a decision discharging a prisoner on habeas corpus, he shall be enlarged upon recognizance, with surety, for his appearance to answer and abide by the judgment in the appellate proceeding; and if in the opinion of the court in which the case is pending, or of a judge or justice thereof, surety ought not to be required the personal recognizance of the prisoner shall suffice. 346 U.S. at 1000 (emphasis added). Subsection 5 of the same rule indicated that the “court in which the case is pending” meant the appellate court, after a notice of appeal had been filed: 5. This rule applies only to cases arising or pending in courts of the United States. For the purpose of this rule, a case is pending in the court possessed of the record until a notice of appeal or a petition for writ of certiorari has been filed, or until the time for such filing has expired, whichever is earlier; and is pending on review in the appellate court after the notice of appeal or the petition for writ of certiorari has been filed. Id. (emphasis added). Thus, in Lewis v. Henderson, 356 F.2d 105 (6th Cir. 1966), our circuit tacitly indicated agreement with a district court determination that it was without jurisdiction under Rule 49(5) to release the petitioner on recognizance pending appeal after the notice of appeal had been filed. See also Hash v. Henderson, 262 F.Supp. 1016 (E.D.Ark.), aff’d 385 F.2d 475 (8th Cir. 1967). A contrary result, however, was reached by the Fifth Circuit in Jimenez v. Aristi-guieta, 314 F.2d 649 (5th Cir. 1963), under this earlier version of the rule. There a former chief executive of Venezuela contested a district court order revoking bail on the same day the Fifth Circuit affirmed the district court’s order dismissing a habe-as corpus petition. While observing that the order of revocation was in strict accordance with the original order of the district court and came after the appellate court had provided in its decision that the mandate was to be issued forthwith, the court of appeals did not hesitate to acknowledge the continuing authority of the district court to address questions concerning the petitioner’s custody pending appeal and noted with approval numerous necessary modifications of the first order which had been entered by the district court during the process of the appeal. 314 F.2d at 651-52. Other decisions appear, at least by inference, to have recognized the authority in the district court to enter a custody order after an appeal has been noted. E. g., Aronson v. May, 85 S.Ct. 3, 13 L.Ed.2d 6 (Douglas, Circuit Justice, 1964); United States ex rel. Barnwell v. Rundle, 461 F.2d 768 (3rd Cir. 1972); Byrd v. Smith, 407 F.2d 363 (5th Cir. 1969); O’Brien v. Lindsey, 202 F.2d 418 (1st Cir. 1953); United States ex rel. Paetau v. Watkins, 164 F.2d 457 (2d Cir. 1947); York ex rel. Davidescu v. Nicolls, 159 F.2d 147 (1st Cir. 1947); Smith v. Caldwell, 339 F.Supp. 215 (S.D.Ga.) aff’d mem., 458 F.2d 160 (5th Cir. 1972). See R. Stern & E. Gressman, Supreme Court Practice § 17.15 at 563 (4th ed. 1969). Similarly, other cases have implicitly indicated that the district court may enter more than one order concerning a prisoner’s custody. Ar-onson v. May, supra; United States ex rel. Kwong Hai Chew v. Colding, 105 F.Supp. 857 (E.D.N.Y.1952). The ultimate question which will be decided in this court’s ruling on the merits of the habeas corpus appeal will be Jones’ freedom, and while in a very real sense the district court’s June 24 order achieves the same immediate but tentative result, we do not see admission to bail as interfering with the appellate court’s power of review. In any event we believe that the application of any generalized rule must yield to the unique nature of habeas corpus proceedings. In this regard we agree again with Judge Goodrich in Johnston v. Marsh, supra, 227 F.2d at 530: We think the basis of the judge’s authority in this case is the fact that there is a prisoner before him over whom he has jurisdiction and where his power to act judicially is expressly conferred by statute. (footnotes omitted). The suggestion by the district judge in his opinion that Rule 23 states a “limitation on the discretion of appellate courts to modify initial orders” rather than a limitation on the power of the district court to issue them has considerable merit and is a view which was recognized in Jimenez v. Aristi-guieta, supra, 314 F.2d at 652. Given this history and the express limitation upon the powers of Congress contained in Article I of the Constitution, it seems to us that any uncertainty should be resolved in favor of the retained power of the district judge. We also believe that Judge Battisti’s construction of Rule 23(d) is consistent with the other subdivisions of the rule. Rule 23(a) provides: Pending review of a decision in a habe-as corpus proceeding commenced before a court, justice or judge of the United States for the release of a prisoner, a person having custody of the prisoner shall not transfer custody to another unless such transfer is directed in accordance with the provisions of this rule. Upon application of a custodian showing a need therefore, the court, justice or judge rendering the decision may make an order authorizing transfer and providing for the substitution of the successor custodian as a party. An understanding of this portion of the rule, in the light of habeas corpus law generally, shows that it was designed in part to preserve the district judge’s power over the physical custody of the petitioner by prohibiting the custodian from transferring custody of the prisoner to another, without the authorization of the “court, justice or judge rendering the decision.” The language in no manner implies that any power to make that decision is lost or transferred to the appellate court because of the pendency of the appeal. See 9 Moore’s Federal Practice ¶ 223.03 at 3505 (2d ed. 1975). If, therefore, authority is retained in the district judge to make this decision, it is difficult to argue that it was lost with respect to other immediate problems concerning custody by the filing of the notice. Finally, one authority has indicated that the 1967 amendments to Supreme Court Rule 49, which is the source of the exact language in Rule 23, Fed.R. App.P., were in fact intended to ensure that a district court could make custody orders after a notice of appeal had been filed: A group of amendments to the various paragraphs of Rule 49 makes it possible for the court or Justice or judge who has heard the habeas corpus application to issue orders respecting custody or enlargement of the prisoner pending appeal. Under the former provisions of Rule 49, once a notice of appeal was filed, such authority was vested solely in appellate courts or appellate judges or Justices. B. Boskey & E. Gressman, “The 1967 Changes in the Supreme Court’s Rules,” 42 F.R. Question: What is the nature of the second listed respondent whose detailed code is not identical to the code for the first listed respondent? A. private business (including criminal enterprises) B. private organization or association C. federal government (including DC) D. sub-state government (e.g., county, local, special district) E. state government (includes territories & commonwealths) F. government - level not ascertained G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization) H. miscellaneous I. not ascertained Answer:
songer_respond2_1_2	C	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the second listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to classify the scope of this business into one of the following categories: "local" (individual or family owned business, scope limited to single community; generally proprietors, who are not incorporated); "neither local nor national" (e.g., an electrical power company whose operations cover one-third of the state); "national or multi-national" (assume that insurance companies and railroads are national in scope); and "not ascertained". Ernest QUICK, Appellant, v. George C. MARTIN et al., Appellees. William L. MASSEY et al., Appellant, v. GEORGE C. MARTIN, INC., et al., Appellees. Nos. 20925, 21003. United States Court of Appeals District of Columbia Circuit. Argued Oct. 19, 1967. Decided Feb. 27, 1968. Mr. Joseph H. Koonz, Jr., Washington, D. C., with whom Messrs. Martin E. Gerel and Lee C. Ashcraft, Washington, D. C., were on the brief, for appellant in No. 20,925. Mr. Leonard Schaitman, Attorney, Department of Justice, of the bar of the Court of Appeals of New York, pro hac vice, by special leave of court, with whom Acting Asst. Atty. Gen., Carl Eardley, Messrs. David G. Bress, U. S. Atty., and Morton Hollander, Attorney, Department of Justice, were on the brief, for appellants in No. 21,003. Mr. Frank Q. Nebeker, Asst. U. S. Atty., also entered an appearance for appellants in No. 21,-003. Mr. Philip J. Lesser, Washington, D. C., with whom Messrs. I. Irwin Bolotin and Gerald Herz, Washington, D. C., were on the brief for appellees. Before Prettyman, Senior Circuit Judge, and McGowan and Leventhal, Circuit Judges. LEVENTHAL, Circuit Judge: Appellant Quick, a construction worker, was 'injured when a form for concrete weighing thirty-five pounds dropped from some five feet above him, striking him on the head. Appellees, his employer and its insurance company, voluntarily paid him temporary disability benefits through June of 1964. Payments were discontinued thereafter on the ground that Quick was no longer disabled. Alleging “permanent brain damage” and a “conversion neurosis,” Quick filed a claim for permanent total disability benefits under the Longshoremen’s and Harbor Workers’ Act. Appellant Deputy Commissioner Massey, after holding a hearing, awarded temporary total disability payments, but this award was challenged by appellees, who brought an action in the District Court to set it aside. That court accepted appellees’ contentions, ruling that while there was evidence to support a finding of partial disability, there was none that would support a finding of total disability. The case was remanded for consideration by the Deputy Commissioner of whether an award should be made for partial disability. These consolidated appeals follow. We rule that the District Court erred in setting aside the award. We begin with the settled doctrines that findings of the Deputy Commissioner are entitled to great deference by the courts and must stand if supported by substantial evidence. Appellees do not challenge these fundamentals, but reiterate here the contention accepted by the District Court — that no evidence supports the finding of total rather than partial disability. The difference between total and partial disability is important for the employer and its insurance carrier, even to the point where, as here, the employer is contesting the total disability finding though it would apparently acquiesce in a determination of, say, 90% disability. Section 14(m) of the Act limits the employer’s liability to $24,000 for any one “injury,” but that limit is inapplicable to an injury resulting in permanent total disability. Although the Deputy Commissioner awarded only temporary total disability benefits, appellees fear from past experience that once the finding of total disability is made even with a “temporary” modifier it is likely to be ultimately converted to one of permanent total disability. The Deputy Commissioner urges that appellees did not raise before him the issue of the extent of claimant’s disability, and hence it was error for the District Court to permit that question to be raised on appeal. Thus appellees’ counsel at the outset of the hearing stated that the ground for controversion of Quick’s claim was that “the claimant is not disabled as a result of the injury of September 7, 1962, and that he is not in need of medical care as a result of this injury * * The Deputy Commissioner nailed the point down more specifically. “I take it that the issues will be a question of casually related disability, that will be the sole issue * * ?” Counsel replied, “Yes, sir.” Appellees’ subsequent case was built on a theory that claimant was no longer suffering an injury from his accident, and that he was faking insofar as he claimed that he was unable to work. The Commission’s counsel protests that at the hearing the employer’s point was that claimant was malingering, and he should not be permitted to complain of procedural inadequacies of the record in regard to the extent of injury. Appellees respond that they had been paying claimant for a while but discontinued the payments when their doctor concluded he had erred in his diagnosis of conversion hysteria. We are told on argument that when the employer filed its Valid Basis to Controvert, a Bureau form, in order to justify discontinuance of payment, it stated as its reason that the claimant was no longer disabled, and it is contended that this included, without need for further particularity, the defense that if the claimant was disabled at all, he was only partially disabled, and put the claimant to his proof that he was disabled and if so to what extent. Certainly an employer may not complain to the court of paucity of evidence on a point that, either expressly or by fair implication, he did not maintain as an issue in the administrative stage. But we are reluctant, at least without better understanding of the practice in the Bureau, to accept the Commissioner’s argument put to us as a jurisdictional bar. When the employer asserts a valid basis to controvert, the Commissioner has the duty of making necessary determinations. Often the only proceeding is an informal conference. Hearings are held in a minority of cases. Otherwise the administrative system might well collapse. We do not choose to consider whether and to what extent the claimant has the duty to introduce evidence, or may invoke statutory presumptions at this stage. Under Bureau practice, we are told, the fact is that the claimant does put on evidence in some if not most cases. There is apparently not so much attention as in court cases to the order of putting on evidence. The Commissioner strives for expedition and informality, and there is no telling from one case to another just who will put on evidence first. Furthermore, the Commissioner typically holds the record open for supplementary evidence. Assuming, however, that the extent of disability was technically preserved at the hearing as a basis to challenge the award, the reality is that appellees’ case at the hearing was that Quick was not suffering from any work-related injury whatever. Appellees’ witnesses did not address themselves to whether, if valid, the conversion reaction claimed was less than totally disabling. In that setting the Deputy Commissioner’s finding of temporary total disability was supported by substantial evidence. That an issue is not seriously contested has implications for the quantity of evidence that must be adduced to support a finding. Evidence that might seem too skimpy to count in support of a finding on a hotly contested issue looms larger when the factual dispute in question is but dimly alluded to at hearing. This is application as a matter of substantive rather than procedural doctrine of the policy that administrative determinations will not be upset by the courts for reasons not fairly presented at the administrative level. Had the dispute as to these issues been focused, “It is likely that * * abundant evidence would have been forthcoming.” Metropolitan Casualty Insurance Co. v. Hoage, 67 App.D.C. 54, 56, 89 F.2d 798, 800 (1937). Appellant Quick had an enviable work record prior to the accident, and was characterized as a “hardworking” man with “a lot of get-up-and-go, and a lot of drive and a lot of initiative.” Since the accident, if his testimony is believed, he suffers from numbness in his left side, spells, headaches, and a ringing in his ears. He wants to return to work, but feels completely unable to do anything. He held two jobs since the accident, but both briefly, because his nervousness and “spells” made him an unsatisfactory worker. His medical expert testified that Quick was disoriented and is “convinced he is helpless.” Appellees lean heavily on two items of testimony. Claimant said he thought that he could plow behind a mule — as he did in his youth in North Carolina — and the assertion is that this testimony shows his suitability for general farm labor if he will repair to a less urbanized setting. In context, we think his comment is not so much a statement of suitability for labor generally as a lament that the only work possible without paralyzing fear is now performed by tractor, a cruel reminder that things are not now what they used to be. Our increasingly complex and automated culture has unfortunately relegated to the unemployable bin many men who in past years could have worked productively. One cost of this progress is the need to compensate many who could formerly fend for themselves. Appellees also rely on the statement of appellant’s medical expert that claimant is capable of performing routine repetitive tasks. In context, particularly in view of the doctor’s subsequent testimony that claimant might be emotionally disabled from such work as digging a ditch, this testimony does not show ability to work. For the rest, appellees point to testimony of their experts that claimant is not physically disabled. Such testimony is beside the point, since concededly there was ample evidence supporting the Deputy Commissioner’s finding that claimant suffered a conversion reaction. That the limbs may be capable of performing the motions does not mean the human organism-can do the job. The concept of “total disability” is economic as well as medical. It is not fatal that there was no medical testimony expressly stating that the disability was total. The Deputy- Commissioner — accepting the medical testimony that claimant was disoriented and confused — could properly have inferred total disability from claimant’s testimony that he wanted very much to Work, as he willingly had in the past, but simply could not. Our conclusion that the Deputy Commissioner did not act improperly is underscored by the fact that his award was only one of temporary total disability benefits. The issue of the extent of claimant’s disability may be questioned in future proceedings should the Commissioner give consideration to conversion of the award to permanent total disability. At oral argument, we were advised that the carrier ceased paying compensation due under the award as of the date of the District Court’s order. We explored the question whether interest should be awarded for amounts accrued and unpaid under the award. Counsel for appellees concedes that it should be, and we so hold. The theory of the Longshoremen’s and Harbor Workers’ Act is that compensation is due, even without an award, unless there is a valid basis for controverting the workman’s claim, 33 U.S.C. § 914(a) (1964). Moreover, compensation must be paid under an award even during the pendency of a review proceeding unless thé employer can demonstrate irreparable damage if he continues payments, 33 U.S.C. § 921(b) (1964). Any stay or injunction would be permissible only if it provided for making the employee whole should the award be upheld, and such provision would include interest payments. We see no reason why the District Court order, insofar as it has the same effect as such an injunction in causing a suspension of payments, should not carry with it the obligation to pay interest should the award ultimately be vindicated on appeal. Reversed. Senior Circuit Judge PRETTYMAN concurs in the result. . 33 U.S.C. §§ 901-950 (1964) made applicable in 1928 to the District of Columbia, see 36 D.C.Code § 501 (1967). . 33 U.S.C. § 914 (m) (1964). . 33 U.S.C. § 914(a) (1964). . Britton v. Great Am. Indem. Co., 110 U.S. App.D.C. 190, 290 F.2d 381, cert, denied, 368 U.S. 900, 82 S.Ct. 178, 7 L.Ed.2d 95 (1961); Metropolitan Cas. Ins. Co. v. Hoage, 67 App.D.C. 54, 56, 89 F.2d 798, 800 (1937). . To tlie extent that appellee’s claims of no substantial evidence are largely based on the fact that no one specifically stated the disability was “total,” this formal objection obviously could have been remedied if clearly and seasonably articulated at the administrative level. . See, e. g., Eastern S.S. Lines, Inc. v. Monahan, 110 F.2d 840 (1st Cir. 1940) ; Employers Liability Assurance Corp. v. Hughes, 188 F.Supp. 623 (S.D.N.Y.1959) (Weinfeld, J). . The record does not indicate whether the termination of payments was pursuant to an injunction granted on showing of irreparable injury. If the employer determined unilaterally that the District Court order setting aside the award and remanding for determination of extent of disability permitted it to cease payments even though an appeal by the employee was pending (or imminent), the question would arise whether this course was permissible in view of 33 U.S.C. § 921(b) (1964), which contemplates payments until “final decision in any such proceeding.” On that point, without benefit of briefs or arguments, we intimate no view. Nor need wo consider whether, in the event a statutory penalty should be held assessable for wrongful nonpayment, the interest herein provided would constitute an offset against such penalty. Question: This question concerns the second listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". What is the scope of this business? A. local B. neither local nor national C. national or multi-national D. not ascertained Answer:
songer_circuit	B	What follows is an opinion from a United States Court of Appeals. Your task is to identify the circuit of the court that decided the case. UNITED STATES of America, Plaintiff-Appellee, Charles M. Carberry, Investigations Officer, Appellee, v. INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, AFL-CIO; the Commission of La Cosa Nostra; Anthony Salerno, also known as Fat Tony; Matthew Ianniello, also known as Matty the Horse; Anthony Provenzano, also known as Tony Pro; Nunzio Provenzano, also known as Nunzi Pro; Anthony Corallo, also known as Tony Ducks; Salvatore Santoro; Christopher Furnari, Sr., also known as Christie Tick; Frank Manzo; Carmine Persico, also known as Junior, also known as The Snake; Gennaro Langella, also known as Gerry Lang; Philip Rastelli, also known as Rusty; Nicholas Marangello, also known as Nicky Glasses; Joseph Massino, also known as Joey Messina; Anthony Ficarotta, also known as Figgy; Eugene Boffa, Sr.; Francis Sheeran; Milton Rockman, also known as Maishe; John Tronolone, also known as Peanuts; Joseph John Aiuppa, also known as Joey O’Brien, also known as Joe Doves, also known as Joey Aiuppa; John Phillip Cerone, also known as Jackie the Lackie, also known as Jackie Cerone; Joseph Lombardo, also known as Joey the Clown; Angelo LaPietra, also known as The Nutcracker; Frank Balistrieri, also known as Mr. B.; Carl Angelo DeLuna, also known as Toughy; Carl Civella, also known as Corky; Anthony Thomas Civella, also known as Tony Ripe; General Executive Board, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America; Jackie Presser, General President; Weldon Mathis, General Secretary-Treasurer; Joseph Trerotola, also known as Joe T., First Vice President; Robert Holmes, Sr., Second Vice President; William J. McCarthy, Third Vice President; Joseph W. Morgan, Fourth Vice President; Edward M. Lawson, Fifth Vice President; Arnold Weinmeister, Sixth Vice President; John H. Cleveland, Seventh Vice President; Maurice R. Schurr, Eighth Vice President; Donald Peters, Ninth Vice President; Walter J. Shea, Tenth Vice President; Harold Friedman, Eleventh Vice President; Jack D. Cox, Twelfth Vice President; Don L. West, Thirteenth Vice President; Michael J. Riley, Fourteenth Vice President; Theodore Cozza, Fifteenth Vice President; Daniel Ligurotis, Sixteenth Vice President; Salvatore Provenzano, also known as Sammy Pro, Former Vice President, Defendants, Joseph Cimino, Jr., Appellant. No. 1094, Docket 91-6280. United States Court of Appeals, Second Circuit. Argued March 12, 1992. Decided May 27, 1992. Elkan, Abramowitz, New York City (Lawrence S. Bader, Morvillo, Abramowitz, Grand, Iason & Silberberg, P.C., of counsel), for appellant. Christine H. Chung, Asst. U.S. Atty., New York City (Roger S. Hayes, Acting U.S. Atty., S.D.N.Y. and Gabriel W. Goren-stein, Asst. U.S. Atty., of counsel), for plaintiff-appellee. Theodore L. Hecht, New York City (Charles M. Carberry, of counsel), for appellee. Before: OAKES, Chief Judge, WALKER, Circuit Judge, and POLLACK, District Judge. Honorable Milton Pollack, U.S. District Judge for the Southern District of New York, sitting by designation, OAKES, Chief Judge: In this appeal, we are asked to decide whether internal union disciplinary sanctions should be upheld against Joseph Cimino, Jr., former President and Business Agent of Local 107 of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (“IBT”), AFL-CIO, in Philadelphia. The sanctions were imposed for Cimino’s violation of the IBT Constitution through his knowing association with the Boss of the Philadelphia Family of La Cosa Nostra, Nicodemo Scarfo; the violation was proved essentially by three hearsay statements from former La Cosa Nostra members. Cimino appeals from an order of the United States District Court for the Southern District of New York, David N. Edelstein, Judge, upholding the sanctions imposed on him. 777 F.Supp. 1130. For the reasons set forth below, we affirm. I. Background On March 14, 1989, Judge Edelstein approved a Consent Decree that settled civil racketeering charges brought by the Government against the IBT and members of the IBT General Executive Board. We have previously discussed this litigation in detail, as well as the disciplinary provisions of the Consent Decree. See United States v. International Brotherhood of Teamsters (Yellow Freight Systems, Inc.), 948 F.2d 98, 100 (2d Cir.1991); United States v. International Brotherhood of Teamsters (Friedman & Hughes), 905 F.2d 610, 612-13 (2d Cir.1990). On August 30, 1990, the Investigations Officer charged Joseph Cimino, Jr., then President and Business Agent of Local 107 in Philadelphia, with violating Article II, section 2(a) and Article XIX, section 6(b) of the IBT Constitution through his knowing association with Nicodemo Scarfo, the boss of the Philadelphia Family of La Cosa Nostra, during the time he was an officer of Local 107. The Independent Administrator held a hearing on the charge against Cimino on November 29, 1990. In support of the charges, the Investigations Officer relied primarily on the declaration of Special Agent James T. Maher of the Federal Bureau of Investigation, to which extensive evidence was appended as exhibits. In the declaration, Special Agent Maher summarizes Cimino’s association with the Philadelphia Family of La Cosa Nostra and particularly with Nicodemo Scarfo. Special Agent Maher’s declaration is based largely on three hearsay declarations from admitted former members of the Philadelphia Family of La Cosa Nostra — former underboss Philip Leonetti, former capo Lawrence Merlino, and former soldier Nicholas Caramandi. Each statement offers a disheartening glimpse into Cimino’s relationship with the Philadelphia Family in general and with Scarfo in particular. For example, Leonetti characterizes Cimino as “the primary point of contact for the Philadelphia Family with the Teamsters Union in the vicinity of Philadelphia.” He goes on to describe various favors which Cimino performed for Scarfo, such as using his union position to arrange for employment of individuals referred to him by members and associates of La Cosa Nostra. In return, Cimino received the support of the Philadelphia Family in his union office. He also describes a meeting which he attended during which Scarfo told Cimino that he “should not be worried in light of the recent murder of John McCullough, a Roofers Union official, because Cimino was under the protection of the Philadelphia Family, and could rely on the family for whatever assistance he or his union might require.” The declarations of Merlino and Caramandi provide similar examples of the association between Cimino and Scarfo, the former of which includes perhaps the most disturbing allegation — that Cimino nodded in agreement when Scarfo proclaimed to him at a meeting, “I’m the union; I run Local 107.” The Investigations Officer also submitted two FBI surveillance reports, one of which states that a Special Agent and a student intern observed Cimino and a fellow union officer at a Philadelphia restaurant on October 19, 1982 with members of the Philadelphia Family. The agent reported that the groups conversed and that the La Cosa Nostra members bought drinks for Cimino and his colleague. In his defense, Cimino offered his own testimony denying the allegations. He also introduced the testimony of six witnesses and submitted three affidavits. Most of the live witnesses offered only their opinions of Cimino’s character. Some of this testimony, however, disputed the characterizations of particular events in the three hearsay declarations. On May 28, 1991, after reviewing the hearing evidence and post-hearing submissions, the Independent Administrator (“IA”) concluded in a written decision that the Investigations Officer satisfied his burden of proving that Cimino had associated knowingly with Scarfo. The IA found that “the evidence reveals a close relationship between Cimino and IBT Local 107 on the one hand, and Scarfo and the Philadelphia Family on the other.” In particular, he found that “Cimino met with members of La Cosa Nostra on numerous occasions, performed services for the Philadelphia Family in exchange for its support, and met with Scarfo or his underlings over a period of years in a variety of places to discuss union business.” As a sanction, the IA banished Cimino permanently from the IBT, ordered Cimino to relinquish all of his IBT-affiliated union positions, and prohibited him from drawing any money from the IBT or any IBT-affiliated source. In addition, the IA ordered that no IBT or IBT-affiliated entity should make any further contributions on Cimino’s behalf to any employee health, pension, and welfare plans, and directed that neither Local 107 nor any other IBT-affiliated entity should make any contributions to Cimino’s legal expenses in connection with this matter. On October 16, 1991, the district court affirmed the IA’s decision in all respects. Cimino now appeals from the district court’s order. II. Discussion The precise standard of appellate review under the consent decree is difficult to identify. The decree provides in Paragraph 16 that the district court, when reviewing the actions of the Independent Administrator, “shall apply the same standard of review applicable to review of final federal agency action under the Administrative Procedure Act.” Pursuant to this provision, the district court reviewed the IA’s decision here to determine if it was arbitrary or capricious. See 5 U.S.C. § 706 (1988) (scope of review under the Administrative Procedure Act (APA)). The consent decree offers no similar guidance on the standard of review for issues raised in this court. Previously, we have not found it necessary to recite an exact standard of appellate review, and we need not do so today. See Friedman & Hughes, 905 F.2d at 616-17 (district court’s order should be affirmed under “any reasonable standard of review”). Under even the supposedly more searching standard of review provided in the APA, which permits agency findings to be set aside only if they are “unsupported by substantial evidence”, the district court’s order must be sustained. “Substantial evidence is more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 217, 83 L.Ed. 126 (1938). The parties do not dispute that reliable hearsay is admissible in IBT union disciplinary hearings, see United States v. International Brotherhood of Teamsters (Senese & Talerico), 941 F.2d 1292, 1297-98 (2d Cir.), cert. denied, — U.S. -, 112 S.Ct. 76, 116 L.Ed.2d 50 (1991), or that reliable hearsay may constitute substantial evidence to support an administrative decision. See Richardson v. Perales, 402 U.S. 389, 402-06, 91 S.Ct. 1420, 1427-30, 28 L.Ed.2d 842 (1971). Rather, Cimino argues that the three incriminating hearsay statements of former Philadelphia Family La Cosa Nostra members are not sufficiently reliable to support the IA’s conclusion that Cimino associated knowingly with Nicodemo Scarfo. We disagree. At the outset, appellant argues that we should consider the statements presumptively unreliable, because the declarants made their statements pursuant to cooperation agreements with the Government. See, e.g., Lee v. Illinois, 476 U.S. 530, 541, 106 S.Ct. 2056, 2062, 90 L.Ed.2d 514 (1986) (“[Wjhen one person accuses another of a crime under circumstances in which the declarant stands to gain by inculpating another, the accusation is presumptively suspect and must be subjected to the scrutiny of cross-examination.”). However, the concept of presumptive unreliability in our Sixth Amendment jurisprudence is inapposite where, as here, there is no danger of a criminal conviction based on unreliable evidence. See id. at 543, 106 S.Ct. at 2063. We are concerned only with whether this evidence was sufficiently reliable such that its admission does not call into question the “integrity and fundamental fairness” of Cimino’s internal union disciplinary hearing. Richardson, 402 U.S. at 410, 91 S.Ct. at 1431. A number of factors support the IA’s and the district court’s conclusion that the statements are reliable. As the IA noted, the statements corroborate each other in crucial respects. First, each declarant maintains that a close relationship existed between Cimino and Local 107, and Scarfo and the Philadelphia Family of La Cosa Nostra. Declaration of Leonetti (“Cimino acted as the primary point of contact for the Philadelphia Family with the Teamsters Union in the vicinity of Philadelphia.”); Declaration of Caramandi (“Scarfo was Cimino’s primary point of contact with the Philadelphia Family ... Cimino’s relationship to Scarfo and the Philadelphia Family was general knowledge among members of the Philadelphia Family.”); Declaration of Merlino (“It was generally understood that the Philadelphia Family used Cimino and his position in the Teamsters to perform favors for the benefit of mob members and associates as needed.”). Moreover, Merlino and Caramandi both state that Scarfo believed Local 107 was part of the Philadelphia Family and that he controlled the union. Furthermore, the statements paint a consistent picture of certain details regarding the relationship between Cimino and Searfo. For example, each declarant asserts that Cimino arranged union job assignments for individuals referred to him by members and associates of the Philadelphia Family. Two of the declarants indicate that Cimino and Scarfo took precautions not to be seen together. Two of the declarants also identify the Saloon restaurant in Philadelphia as an afternoon meeting place where Cimino and Scarfo, or members communicating on Scarfo’s behalf, discussed union business. An FBI surveillance report of October 19, 1982, introduced through Special Agent Maher’s declaration, supports this claim by placing Cimino in the company of Philadelphia Family members at the Saloon on that afternoon. In addition, portions of the former La Cosa Nostra members’ statements describing the structure of the Philadelphia Family of La Cosa Nostra match portions of FBI Special Agent Maher’s declaration where he undertakes a similar description. Each statement is also signed by the declarant, witnessed by at least one federal law enforcement official, and contains an attestation clause indicating that the statement was given voluntarily and is “true and accurate.” Finally, the three declarants faced possible criminal sanctions for making false statements to the FBI. See 18 U.S.C. § 1001 (1988). For these reasons, we conclude that the three hearsay statements were reliable. Moreover, alone they constitute “such relevant evidence as a reasonable mind might accept as adequate to support [the] conclusion” that Cimino associated knowingly with Nicodemo Scarfo while serving as President and Business Agent of Local 107. Consolidated Edison, 305 U.S. at 229, 59 S.Ct. at 216. Although the precise details of Cimino’s association with Scarfo provided in each declaration differ, the three statements taken together present a clear image of the influence Nicodemo Scarfo exercised over Local 107 through his relationship with Joseph Cimino. Cimino also contends that his disciplinary sanctions should be overturned because the IA should have credited his testimony denying any involvement with Scarfo or the Philadelphia Family, the testimony of his six witnesses, and the testimony of his three affiants over the three hearsay declarations of the former La Cosa Nostra members. However, when reviewing the IA’s decisions, we do not reweigh the evidence presented at the disciplinary hearing; instead, we look only to see whether adequate evidence was presented to support the IA’s conclusion. See Consolo v. Federal Maritime Comm’n, 383 U.S. 607, 620, 86 S.Ct. 1018, 1026, 16 L.Ed.2d 131 (1966) (“[T]he possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s finding from being supported by substantial evidence.”). Here, the three hearsay declarations of the former La Cosa Nostra members were adequate to support the IA’s conclusion. Moreover, the IA found that Cimino’s denials were “self-serving” and that he was not a credible witness. We find no reason to question this credibility determination, especially given the IA’s superior vantage point. Cf. NLRB v. American Geri-Care, Inc., 697 F.2d 56, 60 (2d Cir.1982) (“[Credibility findings ... will not be overturned unless they are ‘hopelessly incredible’ or they ‘flatly contradict’ either the ‘law of nature’ or ‘undisputed documentary testimony.’ ”) (quoting NLRB v. Columbia Univ., 541 F.2d 922, 928 (2d Cir.1976)), cert. denied, 461 U.S. 906, 103 S.Ct. 1876, 76 L.Ed.2d 807 (1983). Cimino bases his final claim for reversal on the IA’s failure to make explicit credibility findings with respect to Cimino’s other witnesses. However, there was no reason for the IA to make explicit findings on their credibility because four of Cimino’s six witnesses offered only their opinions of his good character, rather than offering conflicting testimony that Cimino did not associate with Scarfo based on direct knowledge. The other two witnesses offered alternative explanations for a few events detailed in the hearsay declarations of the former La Cosa Nostra members. Because this testimony did not call into question the bulk of the allegations in the three hearsay declarations, a finding that these witnesses were not credible was unnecessary. Based on the foregoing, the order of the district court affirming the IA’s decision in all respects is affirmed. . Article II, section 2(a) of the IBT Constitution requires every IBT member to "conduct himself ... in a manner so as not to bring reproach upon the Union." Article XIX, Section 6(b) of the IBT Constitution provides a non-exhaustive list of the bases for charges against IBT members, including "violation of [the] oath of office or of the oath of loyalty to the Local Union and the International Union." . But see Association of Data Processing v. Board of Governors, 745 F.2d 677, 683-84 (D.C.Cir.1984), where then Judge Scalia explained: When the arbitrary or capricious standard is performing th[e] function of assuring factual support, there is no substantive difference between what it requires and what would be required by the substantial evidence test, since it is impossible to conceive of a "nonarbitrary” factual judgment supported only by evidence that is not substantial in the APA sense____ Question: What is the circuit of the court that decided the case? A. First Circuit B. Second Circuit C. Third Circuit D. Fourth Circuit E. Fifth Circuit F. Sixth Circuit G. Seventh Circuit H. Eighth Circuit I. Ninth Circuit J. Tenth Circuit K. Eleventh Circuit L. District of Columbia Circuit Answer:
songer_geniss	B	What follows is an opinion from a United States Court of Appeals. Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Consider the following categories: "criminal" (including appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence), "civil rights" (excluding First Amendment or due process; also excluding claims of denial of rights in criminal proceeding or claims by prisoners that challenge their conviction or their sentence (e.g., habeas corpus petitions are coded under the criminal category); does include civil suits instituted by both prisoners and callable non-prisoners alleging denial of rights by criminal justice officials), "First Amendment", "due process" (claims in civil cases by persons other than prisoners, does not include due process challenges to government economic regulation), "privacy", "labor relations", "economic activity and regulation", and "miscellaneous". Richard ATTREAU, Plaintiff-Appellant, v. Joseph MORRIS, Francis J. Bailey, Arthur P. Lindsey, Lester M. Anglin, Jesse J. Word, Edwin E. Williams, Alvin J. Palmer, William D. Crowell, David Mozee, Samuel Mosely, Columbus C. Brooks, Jr., Defendants-Appellees. No. 15105. United States Court of Appeals Seventh Circuit. March 21, 1966. Rehearing Denied April 19,1966. Enoch, Circuit Judge, dissented. James P. Chapman, Chicago, 111., for appellant. Raymond F. Simon, Corp. Counsel, Sydney R. Drebin, Marvin E. Aspen, Chicago, 111., for appellees. Before SCHNACKENBERG, KNOCH and SWYGERT, Circuit Judges. SCHNACKENBERG, Circuit Judge. Richard Attreau, plaintiff, has appealed, from an order of the district court dismissing with prejudice his complaint charging Joseph Morris and other defendants with violating his rights under the federal civil rights act, 42 U.S. C.A. § 1983, and the fourteenth amendment of the constitution of the United States. It is plaintiff’s contention that the district court committed error in ruling that the complaint failed to state a cause of action. We now consider the facts as alleged in the complaint. Plaintiff, of Chicago, Illinois, a citizen of the United States, was and is employed by that municipal corporation, as a police officer with the rank of patrolman. Defendants were also police officers of said city and were assigned to the “internal investigation unit” of its police department. With regard to the wrongs complained of, plaintiff avers that defendants were acting in the course of their employment and in performance of their duties as such police officers, under color of the statutes, ordinances, regulations, constitution and usages of the city of Chicago, county of Cook and state of Illinois; and that, on or about February 5, 1962, an anonymous letter to the superintendent of police of the city charged that said defendants and other police officers were guilty of accepting “payoffs” to permit violations of law to take place without police interference, in the Englewood police district. Shortly after receipt of this letter, defendants questioned plaintiff as to any evidence in his possession about misconduct or dereliction of duty by any officer assigned to the Englewood police district and were advised by plaintiff that he had no such knowledge. Thereupon, to embarrass Captain Bra-band, commanding that district, because of their personal dislike for him and other officers in that district, defendants embarked upon a plot to exculpate themselves from the charges in said letter, and defendants Morris, Bailey and Mozee sought to compel plaintiff to accuse Bra-band and detective John Sexton, assigned to said district, of malfeasance and misfeasance, threatening plaintiff that they would cause him to be arrested, prosecuted and discharged from his position if he did not make such accusations. When plaintiff refused to accede to these threats, defendants, in furtherance of their plot, in concert did the following things: (1) On March 13, 1962, defendants Morris, Bailey and Mozee arrested plaintiff without a warrant or probable cause or other lawful authority and, with the cooperation of the other defendants, detained him for twelve hours at their unit headquarters. No charges were filed against plaintiff as a result of this arrest and detention. (2) During the arrest on March 13, 1962, defendants threatened to cause plaintiff’s imprisonment and discharge from his employment. (3) On May 2, 1962, defendants were instrumental in causing the return of an indictment in the Criminal Court of Cook County against plaintiff, based on perjured testimony, which indictment falsely charged plaintiff with the crime of “Official Misconduct.” (4) Defendants were also instrumental in causing the superintendent of police to file charges against plaintiff before the police board. These charges falsely accused plaintiff with violation of certain state criminal statutes and rules and regulations of the police department of the city. (5) Defendants Morris, Bailey, Lindsey, Anglin, Word, Williams, Palmer, Mozee and Mosley caused plaintiff to be suspended from his position as a police officer from the day of his arrest, March 13, 1962, until April 11, 1963, when he was ultimately fully cleared by the police board and restored to duty. The complaint further alleged that on January 27, 1963, plaintiff’s case was called for trial in the Criminal Court of Cook County, Illinois, and he, with his counsel, was present and answered that he was ready, but the state’s attorney made a motion of nolle prosequi, which was granted, thus ending the proceeding. The complaint asserts that the foregoing constituted a plot against him by defendants under color of law and that he was thereby deprived of his liberty, pursuit of happiness and property without due process of law. In particular, he states that his reputation, credit and standing became a subject of scandal and disgrace among those who knew him and that he incurred expense in procuring his discharge from custody and in defending himself, and lost wages which he would otherwise have earned. Defendants’ motion to strike the complaint and dismiss the cause of action is based on two grounds: (1) Plaintiff’s complaint is replete with immaterial allegations and conclusions. (2) Plaintiff’s complaint does not indicate any violation of 42 U.S.C.A. § 1983 or the fourteenth amendment of the constitution of the United States. 1. In this court defendants argue that an invalid arrest is not in and of itself a violation of the federal civil rights act. We are not called upon to decide the correctness of this abstract proposition. The arrest and detention for twelve hours, without a warrant or probable cause or other lawful authority, as alleged in the complaint, accompanied by threats that plaintiff would be imprisoned and discharged from his employment, the procuring of his indictment, his suspension as a police officer for nearly thirteen months, and the charging that plaintiff had violated various statutes and rules and regulations of the police department, must all be considered together in determining whether the complaint sufficiently charges a violation of the civil rights act. We hold that the complaint contains sufficient allegations to support this charge. Our conclusion is not in any way at variance with Magee v. Williams, 7 Cir., 329 F.2d 470 (1964), where we held that a police officer of the city of Chicago could not maintain an action, 28 U.S.C.A. §§ 1331 and 1343, and 42 U.S.C.A. §§ 1981, 1983, 1985 and 1986. There, plaintiff was a city motorcycle policeman who stopped a speeding car driven by one Williams, who was actually a member of the internal investigation division of the Chicago police department (the same organizational unit as here involved). Magee rejected an offer of a bribe by Williams. Magee, believing that he had reasonable grounds for so doing, compelled Williams to submit to a search of his person, by reason of what appeared to be a gun. Thereupon Magee discovered a hidden recording device installed on Williams’ person, intended to record Magee’s conversation and his anticipated acceptance of a bribe offer. Magee was prevented from taking the recording device from Williams by two other city policemen who came and seized the device, informing Magee that it was police department property. Later Magee was told by a superior officer to release Williams, together with all articles taken from him. Magee did so and returned to his assigned duty. We held that there was no attempted entrapment of Magee and, at page 475, we said: “ * * * Therefore, we might be justified in treating as irrelevant the contention that an attempt to entrap him caused him actionable damage under the Civil Rights Act. However, we prefer to meet this contention. How was he damaged? It has not been questioned that the general purpose of Superintendent Wilson and the other defendants was to determine which police officers were dishonest. That determination would afford a basis for discharging such men. This plan obviously, if successful, would operate for the good of the public as well as every honest police officer. Plaintiff claims that he has always had a reputation as such an officer, an assertion which is not disputed. If his reputation was grounded upon fact, he had nothing to fear if, in the operation of the cleansing plan, there was applied to him, as an honest officer, the same test as was applicable to every other officer. If a driver whom he detained for a violation of law offered him a bribe which he refused, he was not damaged. Only by a later tortuously legalistic resort to the doctrine of entrapment was an effort made to demonstrate that he was damaged, because the conversation between plaintiff and the driver had been electronically recorded. The fallacy lies in the fact that in that conversation, according to plaintiff himself, he said nothing inconsistent with his faithful performance of his duty as an honest police officer. “Stated briefly, plaintiff’s complaint shows that, when submitted to a fair test designed for all police officers, he proved himself honest. Undoubtedly he was at the time justifiably gratified. Thereafter a prospect for monetary gain appeared and hence this litigation ensued. However, virtue is its own reward. Certainly there is no federal law that a policeman be awarded damages simply because he did his work honestly.” Obviously Magee’s rights under federal law were not violated. In contrast, the complaint’s allegations, which are not now denied in the case at bar, show that plaintiff’s rights under federal law were violated. 2. But defendants’ counsel contend in this court that, as a matter of fact, what plaintiff is really complaining about is not an arrest but simply his co-operative submission to an effective and fair investigation, as required by rule 298 of the police department and its General Order 16(3). Rule 298 on March 13, 1962 provided: “Although certain hours are allotted for the performance of regular duty assignments, a police officer is required to respond immediately to any police emergency regardless of when or where it may oceur within the corporate boundaries of the City of Chicago and is subject to applicable provisions of the Rules and Regulations of the Department at all times.” General Order 16(3), in effect on March 13, 1962, provided, in part: “All personnel of the Department will cooperate fully with the Internal Investigation Division staff, responding to requests for information, records, and reports.” The short answer to defendants’ contention is that a question of fact may be present as to whether their counsel’s present characterization of the conduct of defendants, as appearing in the complaint, is to be believed, or whether plaintiff’s characterization thereof is to be believed. This issue requires that defendants answer the complaint, join issues and permit the trier of facts to decide the factual issues. We cannot decide by merely considering defendants’ factual contention as stated in their brief. They should be required to file an answer. Coleman v. Johnston, 7 Cir., 247 F.2d 273, 275 (1957). 3. Contrary to defendants’ argument, we hold that the fact that plaintiff was indicted does not preclude this suit. They cite no federal court decision which supports their argument. Cf. Kozlowski v. Ferrara, 117 F.Supp. 650, S.D.N.Y. (1954). Persuasive, although probably not binding on the federal courts, is the rule announced in Freides v. SaniMode Mfg. Co., 33 Ill.2d 291, 211 N.E.2d 286 (1965), where the Illinois Supreme Court held that the return of an indictment does not grant defendants an absolute defense in a malicious prosecution action. At 296, 211 N.E.2d at 289, that court stated: “An indictment is but a formal accusation of a crime. * * * ” Seeking support from Ravenscroft v. Casey, 2 Cir., 139 F.2d 776 (1944), defendants maintain that the grand jury’s action under the circumstances of the case at bar “ * * * would preclude an action against the persons who caused * * * [plaintiff’s] arrest and prosecution for commission of a felony.” Raven-scroft was a diversity action for malicious prosecution under New York law. Plaintiff was a citizen of Ohio. The undisputed facts in her amended complaint revealed that plaintiff had been held for the grand jury by a police justice. The United States Court of Appeals, at 778, held this showed the presence of probable cause, under state law, which precluded the action. The case at bar is not a diversity action governed by state law. It is a federal action, and we hold as federal law that the indictment of plaintiff did not preclude this action. For all of these reasons, the order from which this appeal was taken is reversed, and this cause is remanded to the district court for further proceedings in due course. Reversed and remanded with directions. . Francis J. Bailey, Arthur P. Lindsey, Lester M. Anglin, Jesse J. Word, Edwin E. Williams, Alvin J. Palmer, William D. Crowell, David Mozee, Samuel Mosely, Columbus C. Brooks, Jr. . According to the complaint, since plain- (, tiff did not have possession of the grand jury minutes when the instant action was initiated, he was not able to allege the names of the specific persons who actually falsely accused him before the grand jury. Question: What is the general issue in the case? A. criminal B. civil rights C. First Amendment D. due process E. privacy F. labor relations G. economic activity and regulation H. miscellaneous Answer:
sc_caseorigin	087	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the court in which the case originated. Focus on the court in which the case originated, not the administrative agency. For this reason, if appropiate note the origin court to be a state or federal appellate court rather than a court of first instance (trial court). If the case originated in the United States Supreme Court (arose under its original jurisdiction or no other court was involved), note the origin as "United States Supreme Court". If the case originated in a state court, note the origin as "State Court". Do not code the name of the state. The courts in the District of Columbia present a special case in part because of their complex history. Treat local trial (including today's superior court) and appellate courts (including today's DC Court of Appeals) as state courts. Consider cases that arise on a petition of habeas corpus and those removed to the federal courts from a state court as originating in the federal, rather than a state, court system. A petition for a writ of habeas corpus begins in the federal district court, not the state trial court. Identify courts based on the naming conventions of the day. Do not differentiate among districts in a state. For example, use "New York U.S. Circuit for (all) District(s) of New York" for all the districts in New York. COLUMBIA ARTISTS MANAGEMENT INC. et al. v. UNITED STATES et al. No. 775. Decided May 24, 1965. Seymour D. Lewis and Ralph F. Colin for appellants. Solicitor General Cox, Assistant Attorney General Orrick, Lionel Kestenbaum and Elliott H. Moyer for the United States, and Theodore R. Kupferman for appellee Summy-Birchard, Inc. Per Curiam. The motion to affirm is granted and the judgment is affirmed. Question: What is the court in which the case originated? 001. U.S. Court of Customs and Patent Appeals 002. U.S. Court of International Trade 003. U.S. Court of Claims, Court of Federal Claims 004. U.S. Court of Military Appeals, renamed as Court of Appeals for the Armed Forces 005. U.S. Court of Military Review 006. U.S. Court of Veterans Appeals 007. U.S. Customs Court 008. U.S. Court of Appeals, Federal Circuit 009. U.S. Tax Court 010. Temporary Emergency U.S. Court of Appeals 011. U.S. Court for China 012. U.S. Consular Courts 013. U.S. Commerce Court 014. Territorial Supreme Court 015. Territorial Appellate Court 016. Territorial Trial Court 017. Emergency Court of Appeals 018. Supreme Court of the District of Columbia 019. Bankruptcy Court 020. U.S. Court of Appeals, First Circuit 021. U.S. Court of Appeals, Second Circuit 022. U.S. Court of Appeals, Third Circuit 023. U.S. Court of Appeals, Fourth Circuit 024. U.S. Court of Appeals, Fifth Circuit 025. U.S. Court of Appeals, Sixth Circuit 026. U.S. Court of Appeals, Seventh Circuit 027. U.S. Court of Appeals, Eighth Circuit 028. U.S. Court of Appeals, Ninth Circuit 029. U.S. Court of Appeals, Tenth Circuit 030. U.S. Court of Appeals, Eleventh Circuit 031. U.S. Court of Appeals, District of Columbia Circuit (includes the Court of Appeals for the District of Columbia but not the District of Columbia Court of Appeals, which has local jurisdiction) 032. Alabama Middle U.S. District Court 033. Alabama Northern U.S. District Court 034. Alabama Southern U.S. District Court 035. Alaska U.S. District Court 036. Arizona U.S. District Court 037. Arkansas Eastern U.S. District Court 038. Arkansas Western U.S. District Court 039. California Central U.S. District Court 040. California Eastern U.S. District Court 041. California Northern U.S. District Court 042. California Southern U.S. District Court 043. Colorado U.S. District Court 044. Connecticut U.S. District Court 045. Delaware U.S. District Court 046. District Of Columbia U.S. District Court 047. Florida Middle U.S. District Court 048. Florida Northern U.S. District Court 049. Florida Southern U.S. District Court 050. Georgia Middle U.S. District Court 051. Georgia Northern U.S. District Court 052. Georgia Southern U.S. District Court 053. Guam U.S. District Court 054. Hawaii U.S. District Court 055. Idaho U.S. District Court 056. Illinois Central U.S. District Court 057. Illinois Northern U.S. District Court 058. Illinois Southern U.S. District Court 059. Indiana Northern U.S. District Court 060. Indiana Southern U.S. District Court 061. Iowa Northern U.S. District Court 062. Iowa Southern U.S. District Court 063. Kansas U.S. District Court 064. Kentucky Eastern U.S. District Court 065. Kentucky Western U.S. District Court 066. Louisiana Eastern U.S. District Court 067. Louisiana Middle U.S. District Court 068. Louisiana Western U.S. District Court 069. Maine U.S. District Court 070. Maryland U.S. District Court 071. Massachusetts U.S. District Court 072. Michigan Eastern U.S. District Court 073. Michigan Western U.S. District Court 074. Minnesota U.S. District Court 075. Mississippi Northern U.S. District Court 076. Mississippi Southern U.S. District Court 077. Missouri Eastern U.S. District Court 078. Missouri Western U.S. District Court 079. Montana U.S. District Court 080. Nebraska U.S. District Court 081. Nevada U.S. District Court 082. New Hampshire U.S. District Court 083. New Jersey U.S. District Court 084. New Mexico U.S. District Court 085. New York Eastern U.S. District Court 086. New York Northern U.S. District Court 087. New York Southern U.S. District Court 088. New York Western U.S. District Court 089. North Carolina Eastern U.S. District Court 090. North Carolina Middle U.S. District Court 091. North Carolina Western U.S. District Court 092. North Dakota U.S. District Court 093. Northern Mariana Islands U.S. District Court 094. Ohio Northern U.S. District Court 095. Ohio Southern U.S. District Court 096. Oklahoma Eastern U.S. District Court 097. Oklahoma Northern U.S. District Court 098. Oklahoma Western U.S. District Court 099. Oregon U.S. District Court 100. Pennsylvania Eastern U.S. District Court 101. Pennsylvania Middle U.S. District Court 102. Pennsylvania Western U.S. District Court 103. Puerto Rico U.S. District Court 104. Rhode Island U.S. District Court 105. South Carolina U.S. District Court 106. South Dakota U.S. District Court 107. Tennessee Eastern U.S. District Court 108. Tennessee Middle U.S. District Court 109. Tennessee Western U.S. District Court 110. Texas Eastern U.S. District Court 111. Texas Northern U.S. District Court 112. Texas Southern U.S. District Court 113. Texas Western U.S. District Court 114. Utah U.S. District Court 115. Vermont U.S. District Court 116. Virgin Islands U.S. District Court 117. Virginia Eastern U.S. District Court 118. Virginia Western U.S. District Court 119. Washington Eastern U.S. District Court 120. Washington Western U.S. District Court 121. West Virginia Northern U.S. District Court 122. West Virginia Southern U.S. District Court 123. Wisconsin Eastern U.S. District Court 124. Wisconsin Western U.S. District Court 125. Wyoming U.S. District Court 126. Louisiana U.S. District Court 127. Washington U.S. District Court 128. West Virginia U.S. District Court 129. Illinois Eastern U.S. District Court 130. South Carolina Eastern U.S. District Court 131. South Carolina Western U.S. District Court 132. Alabama U.S. District Court 133. U.S. District Court for the Canal Zone 134. Georgia U.S. District Court 135. Illinois U.S. District Court 136. Indiana U.S. District Court 137. Iowa U.S. District Court 138. Michigan U.S. District Court 139. Mississippi U.S. District Court 140. Missouri U.S. District Court 141. New Jersey Eastern U.S. District Court (East Jersey U.S. District Court) 142. New Jersey Western U.S. District Court (West Jersey U.S. District Court) 143. New York U.S. District Court 144. North Carolina U.S. District Court 145. Ohio U.S. District Court 146. Pennsylvania U.S. District Court 147. Tennessee U.S. District Court 148. Texas U.S. District Court 149. Virginia U.S. District Court 150. Norfolk U.S. District Court 151. Wisconsin U.S. District Court 152. Kentucky U.S. Distrcrict Court 153. New Jersey U.S. District Court 154. California U.S. District Court 155. Florida U.S. District Court 156. Arkansas U.S. District Court 157. District of Orleans U.S. District Court 158. State Supreme Court 159. State Appellate Court 160. State Trial Court 161. Eastern Circuit (of the United States) 162. Middle Circuit (of the United States) 163. Southern Circuit (of the United States) 164. Alabama U.S. Circuit Court for (all) District(s) of Alabama 165. Arkansas U.S. Circuit Court for (all) District(s) of Arkansas 166. California U.S. Circuit for (all) District(s) of California 167. Connecticut U.S. Circuit for the District of Connecticut 168. Delaware U.S. Circuit for the District of Delaware 169. Florida U.S. Circuit for (all) District(s) of Florida 170. Georgia U.S. Circuit for (all) District(s) of Georgia 171. Illinois U.S. Circuit for (all) District(s) of Illinois 172. Indiana U.S. Circuit for (all) District(s) of Indiana 173. Iowa U.S. Circuit for (all) District(s) of Iowa 174. Kansas U.S. Circuit for the District of Kansas 175. Kentucky U.S. Circuit for (all) District(s) of Kentucky 176. Louisiana U.S. Circuit for (all) District(s) of Louisiana 177. Maine U.S. Circuit for the District of Maine 178. Maryland U.S. Circuit for the District of Maryland 179. Massachusetts U.S. Circuit for the District of Massachusetts 180. Michigan U.S. Circuit for (all) District(s) of Michigan 181. Minnesota U.S. Circuit for the District of Minnesota 182. Mississippi U.S. Circuit for (all) District(s) of Mississippi 183. Missouri U.S. Circuit for (all) District(s) of Missouri 184. Nevada U.S. Circuit for the District of Nevada 185. New Hampshire U.S. Circuit for the District of New Hampshire 186. New Jersey U.S. Circuit for (all) District(s) of New Jersey 187. New York U.S. Circuit for (all) District(s) of New York 188. North Carolina U.S. Circuit for (all) District(s) of North Carolina 189. Ohio U.S. Circuit for (all) District(s) of Ohio 190. Oregon U.S. Circuit for the District of Oregon 191. Pennsylvania U.S. Circuit for (all) District(s) of Pennsylvania 192. Rhode Island U.S. Circuit for the District of Rhode Island 193. South Carolina U.S. Circuit for the District of South Carolina 194. Tennessee U.S. Circuit for (all) District(s) of Tennessee 195. Texas U.S. Circuit for (all) District(s) of Texas 196. Vermont U.S. Circuit for the District of Vermont 197. Virginia U.S. Circuit for (all) District(s) of Virginia 198. West Virginia U.S. Circuit for (all) District(s) of West Virginia 199. Wisconsin U.S. Circuit for (all) District(s) of Wisconsin 200. Wyoming U.S. Circuit for the District of Wyoming 201. Circuit Court of the District of Columbia 202. Nebraska U.S. Circuit for the District of Nebraska 203. Colorado U.S. Circuit for the District of Colorado 204. Washington U.S. Circuit for (all) District(s) of Washington 205. Idaho U.S. Circuit Court for (all) District(s) of Idaho 206. Montana U.S. Circuit Court for (all) District(s) of Montana 207. Utah U.S. Circuit Court for (all) District(s) of Utah 208. South Dakota U.S. Circuit Court for (all) District(s) of South Dakota 209. North Dakota U.S. Circuit Court for (all) District(s) of North Dakota 210. Oklahoma U.S. Circuit Court for (all) District(s) of Oklahoma 211. Court of Private Land Claims 212. United States Supreme Court Answer:
songer_usc1sect	89	What follows is an opinion from a United States Court of Appeals. Your task is to identify the number of the section from the title of the most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 49. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA". CHICAGO, M., ST. P. & P. R. CO. v. FLANDERS. No. 9285. Circuit Court of Appeals, Eighth Circuit. Feb. 1, 1932. John N. Hughes, Willis J. O’Brien, and Stanton S. Faville, all of Des Moines, Iowa, for appellant. Jepson, Struble & Sifford, of Sioux City, Iowa, for appellee. Before KENYON, VAN VALKENBURGH, and GARDNER, Circuit Judges. Rehearing denied March 8, 1932. GARDNER, Circuit Judge. In this case the appellee as plaintiff below brought action against the appellant railway company to recover the value of a carload of cattle. The parties will be referred to as they appeared in the lower court. The petition contained two counts. In the first, plaintiff pleaded a written contract dated February 17, 1930, by which the defendant as a common carrier agreed to transport from Sioux City, Iowa, to Henkin, S. D., and there deliver to Will Buntrock, thirty-five head of cattle; that the cattle were delivered by plaintiff to defendant at Sioux City, Iowa; but that defendant failed to carry out the contract and failed to make delivery to the consignee named therein, and likewise failed to return them to plaintiff, to his damage in the sum of $3,479.85. In the second count it was alleged that defendant as a common carrier, on the 17th of February, 1930, received from plaintiff thirty-five head of cattle consigned to Will Bunt-rock, Henkin, S. D., and that under the law defendant was required to safely deliver the cattle to the consignee, but that it negligently and carelessly failed so to do, to plaintiff’s damage in the sum of $3,479.85. The defendant’s answer, in addition to a general denial, pleaded that at the time mentioned in plaintiff’s petition plaintiff and defendant signed a uniform live stock contract as set out in plaintiff’s petition; that the property described therein was in fact the property of a person who represented himself to be, and was known to plaintiff as, Will Buntrock, and who purchased the property from plaintiff and directed plaintiff to cause the same to be billed and shipped to him under the name of Will Buntrock; that the bill of lading, as well as title, to the property, was transferred to and received by said person representing himself to be and known by the plaintiff as Will Buntrock, to whom the cattle were billed, and to whom plaintiff had sold them. The undisputed evidence, substantial in character, proved the following state of facts: At the times in the petition mentioned plaintiff was engaged in the buying and selling of cattle at Sioux City, Iowa; on February 17, 1930, one of his salesmen entered into negotiations for the sale of thirty-five head of cattle to a party representing himself to be Will Buntrock, of Henkin, S. D. As this -individual wished to buy the cattle on credit, the salesman took him to the plaintiff, whose cattle they were, so that terms of credit might be agreed upon. At the request of plaintiff, this stranger signed a property statement, describing certain farm lands near Henkin, S. D., as well as certain personal property consisting of cattle, horses, hogs, mules, sheep, and bills receivable, besides a considerable quantity of corn, oats, and spelt, and showing a total net worth of .about $28,000. Plaintiff then telephoned the register of deeds at Madison, S. D., the county seat of the county in which the land described was located, and was advised that Will Buntrock was a substantial farmer, and that title to the lands described in the property statement appeared of record in his name. Plaintiff then sold the cattle to this stranger, taking from him a promissory note for the purchase price, plus freight charges, secured by a chattel mortgage describing the thirty-five head of cattle sold, fifteen head of other cattle, and one thousand bushels of corn, the cattle and chattels being described as being in possession of the mortgagor on his premises described as the northwest quarter of section 16, township 105, range 52, Lake county, S. D. This note and mortgage the stranger signed under the name of Will Buntrock. Plaintiff agreed to pay freight charges as a part of the consideration for the note. The cattle were released by plaintiff from the stockyards at Sioux City, Iowa, and there delivered to the defendant for transportation under a straight bill of lading, which named Will Buntrock, of Henkin, S. D., as consignee. The 'shipment went forward on one of defendant’s trains, leaving Sioux City about 8:30 p. m. February 17, 1930. As required by the laws of South Dakota (Rev. Code 1919, § 1578), the mortgagor was furnished with a correct copy of the mortgage, and the mortgage contains a recital that: “Receipt of a full, perfect and complete copy of the above mortgage is hereby acknowledged.” He was also given a copy of an account sales, which was made out on the stationery of J. A. Flanders, Sioux City, Iowa, and recited the sale of these cattle to Will Buntrock. Before the train in which this car of cat-, tie was being transported arrived at Sioux Falls, S. D., the purchaser of these cattle presented himself at the office of the defendant railway company at Sioux Falls, S. D., reported that he was the owner of the car of cattle about to arrive on an incoming train, and wished to have the destination of the car changed to Colton, S. D., a few miles from Henkin. There was no station agent on duty at the time, but he made his request to a telegraph operator, who was the only representative of the railroad company on duty at the time, and exhibited to him a copy of the chattel mortgage which had been furnished him, also the account sales which had been furnished him, and a shipping order. Convinced that this party was the owner of the cattle, and as such entitled to. direct the change requested, the telegraph operator sent a message to the conductor in charge of the train, directing him to cut the car out and spot it at the Colton stockyards. On arriving at Colton, the conductor cut the car out and spotted it at the stockyards, ready for unloading. Later the same night, this party employed a truckman at Sioux Falls to go to Colton for the purpose of transporting these cattle to the stockyards at Sioux Falls. The truckman, with two other truck drivers and the purchaser of these cattle, drove to Colton, found the ear of stock spotted at the stockyards ready for unloading. The purchaser opened the car, the cattle were unloaded into the stockyards, and thence onto the trucks, and hauled to the Sioux Falls stockyards, where they were sold. No railroad employees were present at the time of the unloading of the ear or the taking of the cattle from the stockyards at Colton, S. D. Will Buntrock of Henkin, S. D., testified on behalf of the plaintiff that he was a farmer, and that he owned the land described in the statement furnished by the purchaser of the cattle, that he was the only party of his name in that vicinity, but that he had not purchased these cattle or authorized any one to purchase them for him, and knew nothing about the transaction. At the close of all the testimony, both parties moved for a directed verdict. Thereupon the court discharged the jury, and in due time entered judgment for the plaintiff, and defendant has appealed. Both parties, having moved for a directed verdict, thereby submitted to the court all disputed questions of fact, if any, and its findings have the same force and effect as the verdict of a jury. American Surety Co. v. Republic Casualty Co. (C. C. A.) 42 F.(2d) 807; Springfield Fire & Marine Ins. Co. v. National Fire Ins. Co. (C. C. A.) 51 F.(2d) 714; Southern Surety Co. v. Fidelity & Casualty Co. (C. C. A.) 50 F.(2d) 16; Hookway v. Bank (C. C. A.) 36 F.(2d) 166. There was, however, no dispute in the evidence as to any substantial question of fact, and the question presented is whether, under the facts, the plaintiff was entitled to recover. The party who purchased these cattle from plaintiff was an impostor and a swindler. Plaintiff personally negotiated the sale of these cattle to a stranger, whom he met face to face and identified as Will Buntrock. He took a property statement from him, which he verified by telephoning to the register of deeds at Madison, S. D., and thereby satisfied himself as to the identity of the party and his financial responsibility. He then sold the cattle to this impostor, taking from him his note for the purchase price and the freight charges, and taking as security the chattel mortgage which has been described. This mortgage contained various recitals, among others, that the property described was in possession of the mortgagor; that all the stock, cattle, and chattels were owned by the mortgagor, free and clear of all liens and incumbrances, and in his undisputed possession on the premises described, in Lake county, S. D.; that the mortgagor would forever warrant and defend title and possession of the cattle, stock, and chattels described, against every person whomsoever; that “said stock and cattle have been in the undisputed possession of the party of the first part (mortgagor) for the period of one day last past, having been purchased by the party of the first part from J. A. Flanders of Sioux City, Iowa.” The account sales delivered to the impostor by the plaintiff, was in the following words and figures: “J. A. Flanders “Live Stock Broker. “Stock Yards, Sioux City, la. Feb. 17, 1930. “Sold to Will Buntrock. Cattle Weight Price Amount 35 30900 11/25 3,476.25 Brandg. & Reeodg 3.60 3,479.85” The shipping order, with a copy of which impostor was also apparently furnished by the plaintiff, was dated February 17, 1930, and directed delivery to the Milwaukee Road for shipment, thirty-five steers, to be loaded from block 19, pen 42, consignor, J. A. Flanders, consignee, Will Buntrock, destination, Henkin, S. D., and signed J. A. Flanders. It is important to determine the ownership of these cattle. It is contended by the defendant that the title vested in the impostor, and that, as the railway company made delivery to him, it could not be held liable to the plaintiff for their value. There is no doubt that this contract of sale was induced by fraud of the purchaser. The fraud consisted in representing himself to be Will Buntrock, of Henkin, S. D., and the owner of the property described by him in the property statement furnished the plaintiff. The plaintiff dealt with this impostor and sold these cattle to him. He did not discover the fraud until after the note matured, some time in May, 1930. The fraud was such as entitled plaintiff to rescind the contract of sale and recover from the impostor the possession of the cattle, or their value. The contract, however, was not void, but simply voidable. Though deceived as to the buyer’s identity and responsibility, yet the plaintiff sold to this impostor, and title passed to him. Edmunds v. Merchants’ Despatch Transportation Co., 135 Mass. 283; Samuel v. Cheney, 135 Mass. 278, 46 Am. Rep. 467; Phelps v. MeQuade, 220 N. Y. 232, 115 N. E. 441, 442, L. R. A. 1918B, 973; Martin v. Green, 117 Me. 138, 102 A. 977, 978; Jones v. Rhoades, 167 Iowa, 562, 149 N. W. 637; Perkins v. Anderson, 65 Iowa, 398, 21 N. W. 696; The Drew (D. C.) 15 F. 826; Fulton Bag & Cotton Mills v. Hudson Navigation Co. (D. C.) 157 F. 987. It is to be observed that plaintiff recognized the purchaser’s title by taking back from him the chattel mortgage which contained the above-noted recitals, and he placed -a copy of this instrument in the hands of the purchaser. He also placed in the hands- of the purchaser copy of the account sales, so that the impostor not only had the legal title, but the plaintiff clothed him with the documentary insignia of ownership. Title to the eattle being in the impostor, the railroad company, having no actual knowledge of any fraud, was not only entitled but required to make delivery to him upon his demand, as the real owner of the property. He also had -a right to change or divert the shipment while in transit. 10 C. J. 84; The Martha (D. C.) 35 F. 313; Ryan v. Gt. Northern Ry. Co., 90 Minn. 12, 95 N. W. 758; Houston & T. C. R. Co. v. Smith (Tex. Civ. App.) 258 S. W. 542; Wente v. Chicago, B. & Q. R. Co., 79 Neb. 179, 115 N. W. 859, 15 L. R. A. (N. S.) 756; Ocean S. S. Co. v. People’s Shoe Co., 202 Ala. 594, 81 So. 241. The railway company might, under the law, have delivered either to the lawful holder of the bill of lading, or to the real owner. Section 89, title 49, USCA. The bill of lading was a straight bill of lading, and hence it was not necessary that the railway company require the production of the bill of lading before making delivery, and it appears here that the delivery was actually made to the owner of the property. There was, therefore, no breach of duty, no breach of contract, and no actionable negligence on the part of the railway company. In Martin v. Green, supra, decided by the Supreme Court of Maine, an impostor purchased a horse, giving notes secured by a mortgage on the horse and other alleged property. The impostor represented himself to be Frank E. Towle, a reliable and reputable horse dealer. The impostor sold the horse, and the original owner later took possession from the impostor’s vendee. The vendee then brought suit against the original owner for the value of the horse. In the course of the opinion the court said: “The primary question to be decided is whether the title to the horse passed to Roche under the transaction between Green and him. The defendant claims that the sale was absolutely void, a mere nullity; that in consequence of the deception and fraud practiced upon Green no title passed from him; that it was the same as if Roche had stolen the horse and carried him away. The plaintiff contends, on the other hand, that under the facts of this case the sale was not absolutely void, but merely voidable; that as between Green and Roche, Green could have rescinded the contract and recovered his horse, but that until that was done, the title remained in Roche, and Green could not hold the horse as against a bona fide purchaser for value from Roche. We think the plaintiff’s contention is correct. * ' All the elements of a sale were present and the minds of the parties met, they agreed upon the article to be sold, and the price and terms of payment. Nor was there any doubt as to who was the vendor and who was the vendee. Green intended to sell to the identical man before him, with whom he was dealing, whatever his name might he, and to take back a mortgage from that man. That actual intent governs. ‘Prsesentia corporis tollit errorem nominis.’ Identification by the senses overrides description. The aet followed the intent, and the horse was delivered to the intended vendee. It was what is termed a de facto contract of sale and title thereby passed, to be defeated because of fraud only as between vendor and vendee, or as between vendor and a purchaser having knowledge of the infirmity.” The case of ’Edmunds v. Merchants’ Despatch Transportation Co., supra, decided by the Supreme Court of Massachusetts, bears close analogy in its facts to the instant ease. In that ease, as in the instant ease, action was brought against the carrier to recover the value of the goods intrusted to it for transportation. The facts there under consideration are stated by the court as follows: “In two of the eases, a swindler, representing himself to be Edward Pape of Dayton, Ohio, who is a reputable and responsible merchant, appeared personally in Boston, and bought of the plaintiffs the goods which are the subject of the suits respectively. In those cases, we think it clear, upon principle and authority, that there was a sale, and the property in the goods paásed to the purchaser. The minds of the parties met and agreed upon all the terms of the sale, the thing sold, the price and time of payment, the person selling and the person buying. The fact that the seller was induced to sell by fraud of the buyer made the sale' voidable, but not void. He could not have supposed that he was selling to any other person; his intention was to sell to the person present, and identified by sight and hearing; it does not defeat the sale because the buyer assumed a false name, or practiced any other deceit to induce the vendor to sell. “In the cases before us, there was a de facto contract, purporting, and by which the plaintiffs intended, to pass the property and possession of the goods to the person buying them; and we are of opinion that the property did pass to the swindler who bought the goods. The sale was voidable by the plaintiffs; but the defendant, the carrier by whom they were forwarded, had no duty to inquire into its validity. The person who bought them, and who called himself Edward Pape, owned the goods, and upon their arrival in Dayton had the right to demand them of the carrier. In delivering them to him, the carrier was guilty of no fault or negligence. It delivered them to the person who bought and owned them, who went by the name of Edward Pape, and thus answered the direction upon the packages, and who was the person to whom the plaintiffs sent them.” In Samuel v. Cheney, supra, action was brought against the carrier for the conversion of goods which had been purchased by an impostor and by the railway company delivered to him. In the course of the opinion in that case it is said: “The contract of the carrier is not that he will ascertain who is the owner of the goods and deliver them to him, but that he will deliver the goods according to the directions. * * * “Suppose, upon the arrival of the goods in Saratoga Springs, the impostor had appeared and claimed them; to the demand of the defendant upon him to show that he was the man to whom they were sent, he replies, ‘True, there is another A. Swannick here, but he has nothing to do with this matter; I am the one who ordered and purchased the goods; here is the bill of the goods, and here is the letter notifying me of their consignment to me, addressed to me at my P. O. box 1595.’ The defendant would be justified in delivering the goods to him, whether he was the owner or not, because he had ascertained that he was the person to whom the plaintiff had sent them. * * * “The plaintiff contends that he intended to send the goods to Arthur Swannick. It is equally true that the intended to send them to the person with whom he was in correspondence. We think the more correct statement is, that he intended to send them to the man who ordered and agreed to pay for them, supposing erroneously that he was Arthur Swannick. It seems to us that the defendant [the carrier], in answer to the plaintiff’s claim, may well say, we have delivered the goods entrusted to. us according to your directions, to the man to whom you sent them, and who, as we were induced to believe by your acts in dealing with him, was the man to whom you intended to send them; we are guilty of no fault or negligence.” So here it seems clear that, not only did the plaintiff vest the impostor with title, but he turned over to him the documents clothing him with apparent title to the property, by means of which he induced the railway company to make delivery. Under such circumstances, as to the railway company at least, the plaintiff should be estopped to deny that the impostor was the owner and entitled to the possession of the cattle. The New York Court of Appeals in Phelps v. McQuade, supra, following' the Massachusetts cases, said: “Where the transaction is a personal one, the seller intends to transfer title to a person of credit, and he supposes the one standing before him to be that person. He is deceived. But in spite of that fact his primary intention is to sell his goods to' the person with whom he negotiates.” Answering the contention that the contract under consideration was void because induced by fraud, the Supreme Court of Iowa in Jones v. Rhoades, supra, said: “If the property was obtained by fraud (that is, if the sale was made because of false representations by the plaintiff), it would be voidable, but is binding until plaintiff takes some steps to disaffirm or rescind the contract.” We have already observed that the railway company was entitled to deliver either to the actual owner of the property or to the lawful holder of the bill of lading. It has been suggested that the plaintiff was the lawful holder of the bill of lading, but it appears from the evidence that he did not have possession of the bill of lading or shipping contract until June or July, 1930, so that at no time during which the railway company had possession of this property did the plaintiff even have possession of the bill of lading. In any event, the mere possession of the bill of lading, which on its face showed that plaintiff was not the consignee, would not have entitled him to delivery of the property. Had he wished to hold the railway company for delivery, he might have named himself as consignee, but this he failed to do. It is also noted that it appears from the bill of lading that it was issued in triplicate, one copy placed on file as part of the station records. Apparently, it was the copy placed on file as a part of the station records which, in June or July, 1930, was delivered to the plaintiff. In the absence of evidence, the burden of proof being on plaintiff, we should presume that one of the copies of the contract was delivered to the impostor. Plaintiff, therefore, was not entitled to a delivery of the property to himself. Will Buntroek, of Henkin, S. D., was not the owner of the cattle; neither was he the holder of the bill of lading. He, in fact, was an entire stranger to the whole transaction, so that the railway company could not lawfully have made delivery to him. In the final analysis, it was plaintiff’s mistake as to the identity of the party with whom he was dealing which led to his loss of the cattle. It cannot be said that the railway company made any mistake or that it was negligent in handling the shipment. The maxim that, “Where one of two innocent persons must suffer by the act of the third, he by whose negligence it happens must be the sufferer,” is well grounded on the principles of natural justice. The swindler perpetrated a fraud upon the plaintiff, and not upon the railway company. This misfortune was one of the hazards of plaintiff’s business, and not one of the hazards of the railway company’s business. ' ’ The judgment is therefore reversed, and the cause remanded for further proceedings consistent herewith. Question: What is the number of the section from the title of the most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 49? Answer with a number. Answer:
songer_fedlaw	A	What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal statute, and if so, whether the resolution of the issue by the court favored the appellant. Shirley KREMEN, Carl Ross, Samuel Irving Coleman, and Sidney Steinberg, Appellants, v. UNITED STATES of America, Appellee. No. 14359. United States Court of Appeals Ninth Circuit. Jan. 20, 1956. Rehearing Denied April 20,1956. Denman, Chief Judge, dissented. Gladstein, Andersen & Leonard, & Sibbett, Richard Gladstein, Norman Leonard, San Francisco, Cal., for appellants. Lloyd H. Burke, U. S. Atty., Robert H. Schnacke, Richard H. Foster, Asst. U. S. Attys., San Francisco, Cal., for appellee. Before DENMAN, Chief Judge, and HEALY and LEMMON, Circuit Judges. LEMMON, Circuit Judge. A depressing tale of lies, disguises, and aliases resorted to by a group of seasoned subversives, referred to by their own attorneys as “these Communists”, is unfolded by the record in this case. It is a tale of how a handful of Reds sought to shield a convicted member of their group from condign punishment. It is a tale of the devious practices to which they resorted in their almost successful efforts to cheat the law. It is, finally, a tale of how their deceptions and their subterfuges were frustrated at last by the patient labors of Federal “Cossacks”, as officers of the law are sometimes contemptuously called by the Reds. With regard to the means used by “the Communists” to help a pair of their leaders to thwart justice, it is naive indeed to expect to find them hiding in alleys, skulking in twilight corners, turning up their coat collars, or pulling their hats down over their eyes. No; the hard-core members are far too adroit and well-instructed for such amateurish cloak-and-dagger technique. They select a quiet village, rent a cabin, and then, wearing shorts, play ping-pong in their front yard. Or they add touching domestic notes, hanging up the family wash or buying groceries at the village store. 1. The Indictment. The indictment was in four counts. The first count alleged that on October 14, 1949, Robert G. Thompson was convicted in New York for conspiring to (1) organize a society for the overthrow and destruction of the Government of the United States by force and violence; and (2) advocate and teach the overthrow and destruction of the Government by force and violence in violation of Sections 2, 3 and 5 of the Act of June 28, 1940, commonly known as the Smith Act. (18 U.S.C.A. 1940 ed. §§ 10, 11, 13; 18 U.S;C.A. § 2385, 1948 revision). It was further averred that on August 27, 1953, near Twain Harte, Tuolumne County, California, the appellants, knowing that Thompson had been convicted of the above offense, “did receive, relieve, comfort and assist” him “in order to hinder and prevent his apprehension and punishment”. This count was brought under 18 U.S.C.A. § 3, infra. The second count charged that the appellants conspired to commit the offense charged in Count 1, and seven overt acts were set forth. 18 U.S.C.A. § 371. The third count alleged that on. August 27, 1953, the appellants Kremen, Coleman, and Rasi, also known as Ross, knowing that a warrant had been issued for the apprehension of the appellant Sid Stein, also known' as Sidney Steinberg, harbored and concealed him so as to prevent his discovery and arrest, a warrant for his arrest having been issued by the United States District Court for the Southern District of New York. 18 U.S. C.A. § 1071. The fourth count stated that the three appellants named in the third count conspired with each other, with Thompson, and with divers other persons to harbor and conceal Steinberg “so as to prevent his discovery and arrest”, while those three appellants knew that a warrant for the arrest of Steinberg, under the name of Sid Stein, had been issued by the above-mentioned Court in New York on June 20, 1951. Thompson was named in this fourth count as a “co-conspirator but not as a defendant”. Six overt acts were alleged. 18 U.S.C.A. § 371. 2. Statement of the Case. Motions to dismiss, for discovery and inspection, for a bill of particulars, for the issuance of pre-trial subpoenas, and for a return of property seized in the raid and its suppression as evidence were made by the appellants and were denied. The District Court did, however, rule that the appellants might, on demand, have a copy of the summarized list of items seized. Such a copy was furnished them, infra. After a trial starting on April 12, 1954, and lasting two weeks, during which the appellants offered no evidence, each appellant was found guilty on all counts in which he or she was charged. Judgments of imprisonment were pronounced upon all of the appellants, from which judgments the present appeals were taken. 3. The Appellants’ Attacks Upon the Judgments of Conviction. The following errors are asserted to have been committed by the court below, in the order in which they are discussed in the six subdivisions of the appellants’ opening brief, and in the order in which they will be considered herein: . 1. Sections 3 and 371 of 18 U.S.C.A. were construed and applied under the first and second counts of the indictment in a manner violative of the due process guarantees of the Fifth Amendment. 2. The search and seizure were unlawful and it was error to deny the motions to suppress. 3. The evidence is insufficient to sustain the conviction against any of the appellants. 4. The first and second counts of the indictment do not state any offense against the United States since they do not charge Thompson with a violation of the Smith Act. 5. The trial court erred in instructing the jury. 6. The trial court erred in failing to instruct the jury as requested by the appellants. 4. The Applicable Statutes. As we have noted in our summary of the indictment, the charges are based upon three sections of 18 U.S.C.A. as follows: “§ 3. Accessory after the fact “Whoever, knowing that an offense against the United States has been committed, receives, relieves, comforts or assists the offender in order to hinder or prevent his apprehension, trial or punishment, is an accessory after the fact. “Except as otherwise expressly provided by any Act of Congress, an accessory after the fact shall be imprisoned not more than one-half the maximum term of imprisonment or fined not more than one-half the maximum fine prescribed for the punishment of the principal, or both; or if the principal is punishable by death, the accessory shall be imprisoned not more than ten years.” “§ 371. Conspiracy to commit offense or to defraud United States “If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined not more than $10,000 or imprisoned not more than five years, or both. “If, however, the offense, the commission of which is the object of the conspiracy, is a misdemeanor only, the punishment for such conspiracy shall not exceed the maximum punishment provided for such misdemeanor.” “§ 1071. Concealing person from arrest “Whoever harbors or conceals any person for whose arrest a warrant or process has been issued under the provisions of any law of the United States, so as to prevent his discovery and arrest, after notice or knowledge of the fact that a warrant or process-has been issued for the apprehension of such person, shall be fined not more than $.1,000 or imprisoned not more than six months, or both.” 5. Testimony in Connection With the Motion to Suppress Evidence. Because of the appellants’ contention that there was insufficient evidence to-justify the arrests, the seizures, or the subsequent verdicts of guilty, we are attempting to give in the following two sections somewhat full summaries of the relevant testimony. William H. Whelan, an agent of the 'Federal Bureau of Investigation, was in charge of the fifteen agents and the matron who participated in the arrests that took place at a certain house and its environs near the vilage of Twain Harte, on August 27, 1953, at 1:05 p. m. The house, referred to in the record as a “cabin”, was a two-story structure with a small porch on one side of it. It was on a “secondary” road, with a driveway leading from the road to the cabin itself. The arresting party arrived in six automobiles, which drove up the roadway to the front of the house. Thompson and Steinberg were standing out in the yard. Whelan announced that he and his party were agents of the F.B.I., and that they were there to arrest them. He called upon the pair to surrender. Thompson and Steinberg put their hands up. Agent Whelan directed them to go over to two trees in the yard, and ordered some other agents to take charge of them and search them. The two prisoners were handcuffed and were permitted to sit on the ground beside one of the trees. Whelan testified that at that time he “advised them (Thompson and Stein-berg) that they were being arrested because of the warrants that were outstanding for the arrest of both of them in the Southern District of New York”. He then directed the other agents to go into the house and he followed them inside. There the three persons were ordered to come outside. The men were searched, handcuffed, and seated. The young woman was searched with the help of the matron, and then was seated on a chair by the porch. Elsewhere the record indicates that Mrs. Kremen was not handcuffed. The three prisoners who had been brought out of the house were “advised that they were being arrested by virtue of the fact that they were harboring” the two persons for whom the officers “had warrants outstanding”. They were all handcuffed and searched. The three prisoners taken from inside the house were the appellants Ross,. Kremen, and Coleman. Steinberg, who was arrested outside the house, is the fourth appellant. Thompson, it will be remembered, was not made a defendant in the instant case. The five prisoners were fingerprinted and photographed on the spot. Then they were told that they would be taken in without any more delay than was necessary, to be arraigned. In view of the fact that they would be transported to San Francisco, they were given the opportunity to pick up clothing or other articles that they might wish to take along on the trip. Each was taken to San Francisco in a separate automobile and all were arraigned in that city later the same evening. Back in Twain Harte, the search “was completed that afternoon”. Whelan had given orders that, with the exception of items of furniture, all personal property was to be taken. It was conceded that no search warrant was ever obtained. The officers were not looking for anything in particular — they were searching for “weapons, * * * contraband or anything that would be a fruit of the crime or a part of the crime”. A document of 25 pages, entitled “Personal Property and Papers”, which was a list of articles seized at the cabin, was introduced in evidence by the appellants. The list was prepared under Whelan’s supervision. Whelan testified that he made the decision to arrest the five persons at the cabin. This decision, made “in consultation”, was that, “if a known fugitive is there, if there are others there that it can be said could be a part of the harboring process, then the others should be taken too.” The agent’s weapons were drawn and directed at the appellants at the time of the arrest. The appellants “were asked for permission to allow the search to be made”, but “they said nothing”. The appellants were wearing “play clothes” or “sun clothes”, and there was some laundry on the line. “The whole house looked like it was lived in. There were two cars there, * * * There was food in the house.” Thompson and the appellant Steinberg were “recognized”, and Agent Whelan had them “under surveillance” while they were in the yard talking together. Whelan’s first information that Kremen and her companions were at those premises was received on the afternoon preceding the raid, but he “knew it for sure that morning”, within an hour or so before the arrest — at least so far as Kremen, Thompson, and Steinberg were concerned. On cross-examination, the attorney for the appellee brought out the fact that F.B.I. agents had gone to the vicinity of the cabin “some time prior to the arrest”, and that on the day of the raid “the first group were in the vicinity of the cabin around 6:00 a. m.” Whelan himself appeared at the scene “just at the time of the arrest”, but “was in contact with them by radio” from 6 a. m. until the time at which he himself appeared. The other agents reported to him “to identify persons as they came out or went in and to name them if they could.” Mrs. Thelma L. Germany testified that she and her husband owned the cabin in question and rented it that summer through “Jimmy” Morrow, a real estate broker. Morrow, next called as a witness, stated that a “Mrs. Lee Kaplan” had approached him, expressing a desire to rent a cabin “that was secluded and quiet because her brother was ill with nerves and she wanted to be where they would be by themselves.” “Mrs. Kaplan” rented the cabin in question and paid the rental monthly in advance. Morrow identified the appellant Kremen as the person who had rented the cabin. The rent was to start on June 26, 1953. In connection with the motion to return seized property, supra, Agent Whelan testified that “the automobiles” were returned. “They had a registered name on it and they were returned. We never found out to this day who wants any of the rest of this property.” The appellee’s attorney stated in open court that “The automobiles were registered to people other than these defendants and we returned them.” 6. The Testimony at the Trial. (a) The Reconnaissance Special Agent Erickson testified that on the day of the arrests he arrived in the area of the cabin at 5 a. m. He and four other agents hid behind boulders or trees on a hill above the cabin. He was in the area above the road and sometimes on the road itself. Erickson was able to observe an outhouse, infra, at all times. He was about 100 feet from the cabin, and remained at his station until about 1:04 p. m. At 9:30 a. m. a man emerged from the entrance of the cabin. The witness saw this man later in the day. The following morning, the man identified himself to Erickson in Alcatraz Penitentiary as Robert Thompson. Erickson also identified Thompson from colored and black- and-white photographs, hereinafter sometimes referred to as “Exhibit 2” and “Exhibit 3”, respectively. Thompson came out of the cabin with a fly fishing rod and practiced casting for about ten minutes. He then laid the rod on a small table in the yard and returned to the cabin. At about 9:45 a. m. a woman came out of the cabin and sat in an armchair near the entrance. She appeared to be writing or drawing. Erickson identified the woman as the appellant Kremen. She sat in the chair for about 15 minutes and then returned to the cabin. While Mrs. Kremen was sitting in the chair, a man dressed only in a pair of brown trousers came out of the cabin. He sat on the ground off of the lowest terrace right by the entrance from which he and the other two had emerged. He remained there for a few minutes and went back in at about the same time that Mrs. Kremen re-entered the cabin. The witness identified that man as the appellant Carl Ross. Mrs. Kremen re-emerged at about a quarter past ten, carrying what was apparently washed clothing, which she hung on a line stretched to the outhouse from the corner of the cabin nearest to the entrance. She immediately returned to the cabin. The clothing was a man’s, and there was “some type of a towel”. At about 10:30 another man came out of the cabin, walked around the yard briefly, and returned. He was dressed in only a pair of yellow swimming trunks or shorts. He was identified by Erickson as the appellant Coleman. All the four above-mentioned individuals kept walking in and out of the cabin several times. “I did not keep an accurate record of their exits and entrances.” At about noon, a fifth person came out of the cabin. He too was dressed only in a pair of trousers. Erickson identified that man as the appellant Steinberg. The latter pulled a chair up to the table and sat there, apparently writing or drawing, Erickson testified. After 15 or 20 minutes, Steinberg got up and went back into the house. At about five minutes after 1 p. m., Thompson and Steinberg were together in the yard. Immediately before that time, all five occupants of the cabin had been sitting in the yard around the table. They appeared to be talking. Just before 1:05, the other three returned to the house. At about 12:45, Erickson had received certain instructions from his superior. Pursuant to those instructions he had been relaying the information that he and the other agents were “observing” to an agent in charge of the operation. Those instructions were passed along by means of a two-way radio, or “handitalkie”. “We had been observing the people through binoculars and relaying the details as we observed them,” Erickson testified. “About 12:30 we relayed the information that, to our satisfaction, two of the * * * people * * * were * * * fugitives * * " “About 12:45 we received instructions to stand by, not to move, but to be prepared to assist approaching party, which was approaching by automobile. We were told that there would be an arrest effected, that we would have to take the two who were there that we were satisfied were fugitives in our minds. We were told that we should also be prepared and that we would effect an arrest of all the parties there, * ” When the automobiles were seen coming into the entrance driveway, the officers were instructed to leave their cover positions on the upper road and on the wooded hillside and move down to the cleared area “and assist in effecting the arrest of the people of the cabin.” The F.B.I. converged upon the cabin at 1:04 p. m. (b) The Attack When he observed the F.B.I. automobiles coming up the driveway, Agent Erickson dropped his handi-talkie and came down the wooded hillside to the parking area. When the first car arrived, the agent in charge jumped out and “issued the command to everyone present that we were agents of the F.B.I. and that those on the premises were under arrest.” The three appellants who were inside — Kremen, Ross, and Coleman — “were removed to the outside” to join Thompson and the appellant Steinberg. Individual agents “assumed charge of the prisoners independently,” according to Erickson. He personally took charge of Ross, searching and handcuffing him. When all of the five persons had thus submitted to arrest, the agent in charge announced that there were warrants for Thompson and Steinberg, and that the officers would have to hold the others on charges of harboring. One of the documents taken from the appellant Ross has the cryptic flavor of which American Communists are so fond: “8/24 “Dear Jim: “Enclosed is note to my Betty. In open envelope is some material which (I?) have written. If you care to read and comment, you are welcome. Please seal before you send off. “The person on this end of arrangement is being instructed to break off with your lady until he makes certain other arrangements. As previously agreed, contact from your end to be with S, with whom we are in contact. S will explain further and make necessary further arrangements. “Regards, “Jess” Erickson made a thorough search of the house, which gave plain evidence of having been lived in. There was food on the two stoves, on the cabinet above the sink, in the refrigerator. There were two typewriters, a radio and a television set. Clothes were on the floor. There were brief cases and boxes filled with documents of all kinds. There also were papers in the two automobiles. After reporting the results of his search to his superior officer, Agent Erickson was told to take the material back to San Francisco. The first search through the material was made at the house. He placed the boxes, suitcases, and the material from the two automobiles in a car that was provided for him, and went back to San Francisco with them, for a more detailed study. The appellants emphasize this taking for further study. There was nothing unlawful in this. Before Erickson departed, the special agent in charge asked the appellants whether any of them would identify any of the material that was theirs. They all stood mute. The agent pointed out to them that up until that moment it was their privilege to say nothing. He asked them again whether they would identify anything there, or specify “anything they wanted us to take care of”. The appellants remained mute. At no time did any of them tell him what was theirs. They now can hardly clamor for the return of property to which they laid no claim when they had ample opportunity to do so. Agent Erickson identified a great mass of material taken in the raid. On cross-examination, he testified that while the officers were satisfied, from their observations through binoculars and their examinations of photographs, that two of the occupants of the cabin were fugitives, one of the agents, Joseph McCann, had previously seen the pair in person. He was sure that this was true as to Steinberg, and believed that it applied also to the other. McCann himself later testified that he had known Steinberg since November, 1950, and that he had “observed” Thompson on “numerous occasions” in New York. Agent McCann, stationed in New York, testified that when he first saw Steinberg in November, 1950, Steinberg weighed about 165 pounds, with “a full face and a heavy build.” His hair was long and black. He was about five feet six inches in height, and had a light and sallow complexion. When he saw him on the day of the raid, Steinberg weighed about 125 or 130 pounds, his hair was cut short, he was much thinner in face and body, and he had grown a mustache. When Agent McCann “observed” Thompson in New York in 1949 and 1950, the latter was about five feet ten inches in height, weighed about 180 or 190 pounds, had long brown hair, and had a fairly stocky build. On the day of the raid, Thompson weighed 210 or 220 pounds, his hair was red — apparently dyed — and was cut short. He wore a light strawberry blond mustache. His eye-brows were strawberry blond also. He was very stocky in appearance, and “had a very large stomach”. A wallet was pointed out by Steinberg as belonging to him, McCann said. It contained a California Citizens Angling license, three business cards, a Social Security card, and six rent receipts. All these documents contained the name “Josh Newberg” or “Joshua Newberg”. McCann testified that in his search of Steinberg’s person and wallet he found no material bearing the name “Sidney Steinberg”. Special Agent Erickson had previously identified a Resident Citizen Fishing License, a Social Security card, and five business cards as having been found in the cabin. They likewise bore the name “Josh Newberg” or “Joshua Newberg”. Agent McCann testified that on June 20, 1951, he had a wax-rant of arrest to serve on Steinberg; that he first attempted to serve it on that day, at Stein-berg’s residence; that he was not able to serve the warrant; and that Steinberg “had not been seen” by McCann since that time, until the encounter at Twain Harte. Glenn A. Harter, a special agent of the F.B.I., stationed at San Francisco, said that he examined the contents of Mrs. Kremen’s purse at the time of the raid. Among those contents were a library card in the name of Lee Kaplan, another library card in the name of Richard Kaplan, a California resident citizen’s angling license in the name of Lee Kaplan, a free campfire permit in the name of Mrs. Lee Kaplan, a Social Security card in the name of Lee Kaplan, a California Motor Vehicle Operator’s License in the name of Lee Lefko Kaplan, a Pacific Gas & Electric Company bill issued to R. Kaplan; a San Jose Water Works bill bearing the name Richard R. Kaplan; and “a document saying that ‘this is your invoice’ to * * Mr. Richard Kaplan * * * ” Agent Harter testified the Kremen material that he examined did not reflect the name of Shirley Kremen or Mrs. Irving Kremen. Special Agent Joseph T. Daly testified that he was at the cabin on the day of the raid and again on September 2, 1953. On the latter date, he examined ten garbage cans in a garbage container inside of the outhouse, dusting them for fingerprints. He placed scotch tape over the “latent” fingerprints that he found and sent the cans that contained fingex-prints to Agent Clark in San Francisco. He identified ten Budweiser beer cans as being in the garbage cans to which he referred. Senior Plant Quarantine Inspector Henry James Warren, of the California Department of Agriculture, stationed at Dorris, California, produced a page from his records showing that an automobile bearing the Missouri license number C-54-274, had entered the State of California at Dorris on August 20, 1953. Frank J. Smith, special agent for the F.B.I. at New York, said that he had known Thompson from 1949 to the time of the trial, and that the latter’s appearance on August 27, 1953, when Smith arrested him, was “not at all” the way he looked four years before. In 1949 Thompson had dark brown hair, which he wore much longer than at the time of his arrest. When picked up at Twain Harte, at which time Thompson’s picture was taken, he had a “crew cut”, his hair was dyed red, he wore a reddish mustache, and his eyebrows were red. His complexion was “a bi-own”. “When I knew him in the past,” Agent Smith continued, “he had an apparently sallow complexion. He wasn’t the color he was at the time we saw him. “He weighed about 41 pounds heavier on August 27, 1953, than he had when I saw him prior to that, which was about May 1st, 1951. He had a definite stomach, quite a large stomach, which he didn’t have before. He was a husky built fellow, but he was quite fat in this picture here.” Between the time that he first saw Thompson and May, 1951, Smith testified that he “must have seen Thompson several hundred times”. He saw Thompson at the Communist Party headquarters, and at about the time of the trial in New York. At first Thompson wouldn’t say anything to him, Smith testified. When fingerpi-inted, Thompson denied his identity, but would not “talk about who he was”. In a coat that belonged to a suit that Thompson admitted was his, there was found a certificate of birth stating that John Francis Brennan” was born in New York on Api-il 9, 1909. Another exhibit was a book contaiixing a $100 initiation stamp and certifying that “Brennan” had been granted membership in the Intel-national Association of Bridge, Structural and Ornamental Iron Workers, affiliated with the American Federation of Labor. Smith also identified a wallet found in the khaki trousers that Thompson was wearing. A sheaf of papers found inside the wallet was also introduced in evidence. These papers bore the name of “John Brennan” or that of “Linda Corsia Brennan.” Smith testified that “there was nothing in his wallet or on his person with the name of Robert G. Thompson at all.” Later, in San Francisco, Thompson admitted to Smith that the wallet and the papers in it were his. He finally said to Smith, “Well, I guess you know who I am,” and signed a “listing” of the money, the wallet, and a penknife that had been taken from him. He signed as “Robert Thompson”. Albert B. Ground, a fingerprint examiner for the F.B.I., with headquarters in Washington, was the next witness. He testified that he had examined “approximately 5,000,000” of the 130,000,-000 fingerprints in the F.B.I. files. He said that he had examined the ten Budweiser beer cans already referred to, and had found thereon the fingerprints of each of the four appellants, as well as that of the alleged co-conspirator Thompson. John Lautner, a consultant with the Department of Justice, testified that for twenty years prior to January, 1950, except for the time when he was in the Army, he had been employed as a functionary of the Communist Party. When the appellee’s attorney sought to inquire as to Lautner’s specific function in the Party, counsel for the appellants objected that there was “no foundation”. The answer of the District Judge was so apposite to many other similar objections by defense counsel that it bears quoting here: “ * * * counsel can’t put in all the evidence in one instant of time.” Lautner had been head of the New York State Review Commission, security officer of the New York State Organization, and a member of the National Review Commission, all of the Communist Party. He testified that he was acquainted with the appellants Ross, Coleman, and “Stein” (Steinberg). Lautner knew Steinberg from 1948 up to the time that the former left the Party, on January 17, 1950. Steinberg’s New York office was at the Communist Party headquarters, in the same building where Lautner himself had had his offices. Thompson had his headquarters in the “national office” of the Communist Party from about 1944 to the time that Lautner left the Party. Coleman had his offices there from May, 1947, up to the summer of 1949, when Lautner himself acquired an office in the building. He saw Coleman in the presence of Thompson many times, from the summer of 1947 up to the end of 1949, at the state headquarters of the Party. He also saw them at the Party’s state convention, at Webster Hall, New York. The witness said that he had seen Steinberg and Ross in the presence of Thompson, and that he had seen Stein-berg in the presence of Ross at the 1948 national convention of the Party. Coleman was present at the state convention. Thompson was present at both conventions. In connection with his duties in the Communist Party, Lautner had occasion to work with Coleman, Steinberg, and Thompson. Thompson, as state chairman of the Communist Party, was Lautner’s superior in the New York State organization, and also as member of the National Committee Thompson was his superior officer. This was their status from 1945 to December, 1950. Lautner and the appellant Coleman were both members of the New York State Organization Commission, Coleman being a member of the educational department and head of the review commission. This party relationship of the two men continued from May, 1947, to about the middle of 1949. Burnett Britton, another F.B.I. special agent, testified that he visited the area of the Twain Harte cabin at 2:35 p. m. on August 26, 1953 — the day before-the raid. His car came to about five yards of the cabin and stopped. He saw Mrs. Kremen standing at the door, while two men, whom he identified as Coleman and Thompson, were playing Ping-pong at a table in the parking area south of the cabin. Thompson was again described as having “strawberry blond” hair. Britton said that he noticed a light-green Chevrolet coupe in the parking area. Later that day, at 4:15 p. m., he saw Mrs. Kremen driving the same automobile “extremely slowly” .in the main thoroughfare of Sonora, California, which is about fourteen miles from the village of Twain Harte. At midnight of the same day, Britton again visited the cabin premises, and again at 3 a. m., the following day, August 27, and, finally, with the raiding party at 1:05 p. m. At that final visit, he observed two automobiles at the cabin, one of them being the 1950 green Chevrolet coupe. On cross-examination, Britton stated that on his visit to the cabin premises in the afternoon of August 26, the car in which he was riding was being driven by Robert Summers, an employee of the Pacific Gas & Electric Company, whom Agent Britton had picked up at Sonora three-quarters of an hour before. The automobile stopped at the entrance of the house for about three'minutes. Britton remained in the car, but Summers approached Mrs. Kremen. After three minutes Summers returned to the car, and the two men drove off. Woodrow Walton, a salesman for a Hudson automobile agency at St. Louis, Missouri, testified that he sold a Hudson to a man whom he identified as Samuel Coleman, one of the appellants, on June 5, 1953. Coleman traded in an Olds automobile, signing the necessary papers with the name “William B. Gordon”. Coleman kept the license number of his old car and used it on his new Hudson, which' is in accordance with Missouri ■practice. The license number was :C54274. Walter C. Donner, of Camdenton, Missouri, owner and operator of a motel and cottages, identified Coleman as a man who stayed, at one of his cottages for two days during the Memorial Day weekend in 1953. Coleman was accompanied by one man and two women. At this juncture counsel for the appellants, again objected and the Court, as we have noticed before, remarked, “He has to start somewhere.” Counsel for the appellee withdrew his question about the gender of the party, but a moment later developed the information that one of the persons with Coleman was a man, and that there were three persons with him altogether. Donner testified that he arranged for a boat for Coleman, who returned on July 4 and 5 with his same party and took a cabin there again for two days. Odie E. Meyers, operator of “a fishing dock or boat resort” at Camdenton, testified that a man whom he identified as Coleman accompanied by a “lady” came to the Meyers dock during the Memorial Day weekend and made reservations for two boats for the July 4 holiday. During the July 4 holiday four persons were in the Coleman party. Coleman used the name “Gordon”. The man with him had hair with a “grayish reddish cast”: Meyers identified the two photographs of Thompson as being pictures of the man he saw with Coleman at the boat dock. Coleman and Thompson were together at the boat dock during the three days that the party was there. Some time after the visits of the Coleman party, some F.B.I. agents asked for the boat resort’s registrations “for that particular day”, or the July 4 holidays. The Government men came back and forth to .the dock on as many as ten occasions, each time bringing photographs that Meyers and his wife were asked to identify as being of persons who had been there. The first time that Thompson’s picture was in a group photograph that was shown to Meyers and his wife, they “selected it”, Meyers testified. The couple picked out “only two photographs altogether” — Coleman’s and Thompson’s. The first time the officers visited the fishing dock, Mr. and Mrs. Meyers were shown a photograph of “Gordon” (Coleman), and “the next time they brought back those photographs, why, he had apparently been apprehended and the photo was in cuffs.” During the various visits, the officers showed the couple about four or five different photographs of Thompson and they “picked (him) out each time”. Defense counsel himself brought out, on cross-examination, that Meyers “did not know before (he) got on the witness stand” that he was going to be asked to identify Exhibits 2 and 3. Harold G. Anderson, a merchant of Bigfork, Montana, with authority to issue Montana fishing licenses, identified Exhibits 2 and 3 as being photographs of a man that represented himself as being “J. F. Brennan” and to whom a fishing license was issued, on August 10, 1 Question: Did the interpretation of federal statute by the court favor the appellant? A. No B. Yes C. Mixed answer D. Issue not discussed Answer:
sc_caseorigin	158	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the court in which the case originated. Focus on the court in which the case originated, not the administrative agency. For this reason, if appropiate note the origin court to be a state or federal appellate court rather than a court of first instance (trial court). If the case originated in the United States Supreme Court (arose under its original jurisdiction or no other court was involved), note the origin as "United States Supreme Court". If the case originated in a state court, note the origin as "State Court". Do not code the name of the state. The courts in the District of Columbia present a special case in part because of their complex history. Treat local trial (including today's superior court) and appellate courts (including today's DC Court of Appeals) as state courts. Consider cases that arise on a petition of habeas corpus and those removed to the federal courts from a state court as originating in the federal, rather than a state, court system. A petition for a writ of habeas corpus begins in the federal district court, not the state trial court. Identify courts based on the naming conventions of the day. Do not differentiate among districts in a state. For example, use "New York U.S. Circuit for (all) District(s) of New York" for all the districts in New York. STANDARD OIL CO. v. PECK, TAX COMMISSIONER, et al. No. 184. Argued January 3-4, 1952. Decided February 4, 1952. Isador Grossman and Rufus S. Day, Jr. arguéd the cause and filed a brief for appellant. Isadore Topper argued the cause for appellees. With him on the brief were C. William O’Neill, Attorney General of Ohio, Robért E, Leach, Assistant Attorney General-; Frank T. Cullitan and Saul Danaceau. Mr. Justice Douglas delivered the opinion of the Court. . Appellant, an Ohio corporation, owns boats and barges which it employs for the transportation of oil along the Mississippi and Ohio Rivers. The vessels neither pick up oil nor discharge it in Ohio., The main terminals are in Tennessee, Indiana, Kentucky, and Louisiana. The maximum river mileage traversed by the boats and barges on any trip through waters bordering Ohio was l7% miles. These 17y2 miles were in the section of the Ohio River which had to be traversed to reach Bromley, Kentucky. While this stretch of water bordered Ohio, it was not necessarily within Ohio. The vessels were registered in Cincinnati, Ohio, but only stopped in Ohio for occasional fuel or repairs. These stops were made at Cincinnati; but none of them involved loading or unloading cargo. The Tax Commissioner of Ohio, acting under §§ 5325 and 5328 of the Ohio General Code, levied an ad valorem personal propérty tax on all of these vessels. The Board of Tax Appeals affirmed (with an exception not material here), and the Supreme Court of Ohio sustained the Board, 155 Ohio St. 61, 98 N. E. 2d 8, over the objection that the tax violated the Due Process Clause of the Fourteenth Amendment. The case is here bn appeal. 28 U. S. C. § 1257 (2). Under the earlier view governing the taxability of vessels moving in the inland waters (St. Louis v. Ferry Co., 11 Wall. 423; Ayer & Lord Tie Co. v. Kentucky, 202 U. S. 409; cf. Old Dominion S. S. Co. v. Virginia, 198 U. S. 299), Ohio, the state of the domicile, would have a strong claim to the whole of the tax that has been levied. But the rationale of those cases was rejected in Ott v. Mississippi Barge Line Co., 336 U. S. 169, where we held that vessels moving in interstate operations along the inland waters were taxable by the same standards as those which Pullman’s Car Co. v. Pennsylvania, 141 U. S. 18, first applied to railroad cars in interstate commerce. The formula approved was one which fairly apportioned the tax to the commerce carried on within the state. In that way we placed inland water transportation on the same constitutional footing as other interstate enterprises. The Ott caáfe involved a tax by Louisiana on vessels of a foreign corporation operating in Louisiana waters. Louisiana sought to tax only that portion of the value of the vessels represented by the ratio between the total number of miles in Louisiana and the total number of miles in the entire operation. The present case is sought to be distinguished on the.ground that Ohio is the domiciliary state and therefore may tax the whole value even though the boats and barges operate outside Ohio. New York Central R. Co. v. Miller, 202 U. S. 584, sustained a tax by the domiciliary state on all the rolling stock.of a railroad. But in that case it did not appear that “any specific cars or any average of cars” was so continuously in another state as to be taxable there. P. 597. Northwest Airlines, Inc. v. Minnesota, 322 U. S. 292, allowed the domiciliary state to tax the entire fleet: of airplanes operating interstate; but in that case, as in the Miller case, it was not shown that “a. defined part of the domiciliary corpus” had acquired a. taxable situs elsewhere. P. 295. Those cases, though exceptional on their facts, illustrate the reach of the taxing power of the state of the domicile as contrasted to that of the other states. But they have no application here since most; if not all, of the barges and boats which Ohio has taxed were almost continuously outside Ohio during the taxable year. No one vessel may have been continuously in another state during the taxable year. But we do know that most, if not all, of them were operating in other waters and therefore under Ott v. Mississippi Barge Line Co., supra, could be taxed by the.several states on an apportionment basis. The rule which permits taxatioft by two or more states on. an apportionment basis precludes taxation of all of the property by the state of the domicile. See Union Transit Co. v. Kentucky, 199 U. S. 194. Otherwise there would be multiple taxation of interstate operations and the tax would have no relation to the opportunities, benefits, or protection which the taxing state gives those operations. Reversed. Mr. Justice Black dissents. Question: What is the court in which the case originated? 001. U.S. Court of Customs and Patent Appeals 002. U.S. Court of International Trade 003. U.S. Court of Claims, Court of Federal Claims 004. U.S. Court of Military Appeals, renamed as Court of Appeals for the Armed Forces 005. U.S. Court of Military Review 006. U.S. Court of Veterans Appeals 007. U.S. Customs Court 008. U.S. Court of Appeals, Federal Circuit 009. U.S. Tax Court 010. Temporary Emergency U.S. Court of Appeals 011. U.S. Court for China 012. U.S. Consular Courts 013. U.S. Commerce Court 014. Territorial Supreme Court 015. Territorial Appellate Court 016. Territorial Trial Court 017. Emergency Court of Appeals 018. Supreme Court of the District of Columbia 019. Bankruptcy Court 020. U.S. Court of Appeals, First Circuit 021. U.S. Court of Appeals, Second Circuit 022. U.S. Court of Appeals, Third Circuit 023. U.S. Court of Appeals, Fourth Circuit 024. U.S. Court of Appeals, Fifth Circuit 025. U.S. Court of Appeals, Sixth Circuit 026. U.S. Court of Appeals, Seventh Circuit 027. U.S. Court of Appeals, Eighth Circuit 028. U.S. Court of Appeals, Ninth Circuit 029. U.S. Court of Appeals, Tenth Circuit 030. U.S. Court of Appeals, Eleventh Circuit 031. U.S. Court of Appeals, District of Columbia Circuit (includes the Court of Appeals for the District of Columbia but not the District of Columbia Court of Appeals, which has local jurisdiction) 032. Alabama Middle U.S. District Court 033. Alabama Northern U.S. District Court 034. Alabama Southern U.S. District Court 035. Alaska U.S. District Court 036. Arizona U.S. District Court 037. Arkansas Eastern U.S. District Court 038. Arkansas Western U.S. District Court 039. California Central U.S. District Court 040. California Eastern U.S. District Court 041. California Northern U.S. District Court 042. California Southern U.S. District Court 043. Colorado U.S. District Court 044. Connecticut U.S. District Court 045. Delaware U.S. District Court 046. District Of Columbia U.S. District Court 047. Florida Middle U.S. District Court 048. Florida Northern U.S. District Court 049. Florida Southern U.S. District Court 050. Georgia Middle U.S. District Court 051. Georgia Northern U.S. District Court 052. Georgia Southern U.S. District Court 053. Guam U.S. District Court 054. Hawaii U.S. District Court 055. Idaho U.S. District Court 056. Illinois Central U.S. District Court 057. Illinois Northern U.S. District Court 058. Illinois Southern U.S. District Court 059. Indiana Northern U.S. District Court 060. Indiana Southern U.S. District Court 061. Iowa Northern U.S. District Court 062. Iowa Southern U.S. District Court 063. Kansas U.S. District Court 064. Kentucky Eastern U.S. District Court 065. Kentucky Western U.S. District Court 066. Louisiana Eastern U.S. District Court 067. Louisiana Middle U.S. District Court 068. Louisiana Western U.S. District Court 069. Maine U.S. District Court 070. Maryland U.S. District Court 071. Massachusetts U.S. District Court 072. Michigan Eastern U.S. District Court 073. Michigan Western U.S. District Court 074. Minnesota U.S. District Court 075. Mississippi Northern U.S. District Court 076. Mississippi Southern U.S. District Court 077. Missouri Eastern U.S. District Court 078. Missouri Western U.S. District Court 079. Montana U.S. District Court 080. Nebraska U.S. District Court 081. Nevada U.S. District Court 082. New Hampshire U.S. District Court 083. New Jersey U.S. District Court 084. New Mexico U.S. District Court 085. New York Eastern U.S. District Court 086. New York Northern U.S. District Court 087. New York Southern U.S. District Court 088. New York Western U.S. District Court 089. North Carolina Eastern U.S. District Court 090. North Carolina Middle U.S. District Court 091. North Carolina Western U.S. District Court 092. North Dakota U.S. District Court 093. Northern Mariana Islands U.S. District Court 094. Ohio Northern U.S. District Court 095. Ohio Southern U.S. District Court 096. Oklahoma Eastern U.S. District Court 097. Oklahoma Northern U.S. District Court 098. Oklahoma Western U.S. District Court 099. Oregon U.S. District Court 100. Pennsylvania Eastern U.S. District Court 101. Pennsylvania Middle U.S. District Court 102. Pennsylvania Western U.S. District Court 103. Puerto Rico U.S. District Court 104. Rhode Island U.S. District Court 105. South Carolina U.S. District Court 106. South Dakota U.S. District Court 107. Tennessee Eastern U.S. District Court 108. Tennessee Middle U.S. District Court 109. Tennessee Western U.S. District Court 110. Texas Eastern U.S. District Court 111. Texas Northern U.S. District Court 112. Texas Southern U.S. District Court 113. Texas Western U.S. District Court 114. Utah U.S. District Court 115. Vermont U.S. District Court 116. Virgin Islands U.S. District Court 117. Virginia Eastern U.S. District Court 118. Virginia Western U.S. District Court 119. Washington Eastern U.S. District Court 120. Washington Western U.S. District Court 121. West Virginia Northern U.S. District Court 122. West Virginia Southern U.S. District Court 123. Wisconsin Eastern U.S. District Court 124. Wisconsin Western U.S. District Court 125. Wyoming U.S. District Court 126. Louisiana U.S. District Court 127. Washington U.S. District Court 128. West Virginia U.S. District Court 129. Illinois Eastern U.S. District Court 130. South Carolina Eastern U.S. District Court 131. South Carolina Western U.S. District Court 132. Alabama U.S. District Court 133. U.S. District Court for the Canal Zone 134. Georgia U.S. District Court 135. Illinois U.S. District Court 136. Indiana U.S. District Court 137. Iowa U.S. District Court 138. Michigan U.S. District Court 139. Mississippi U.S. District Court 140. Missouri U.S. District Court 141. New Jersey Eastern U.S. District Court (East Jersey U.S. District Court) 142. New Jersey Western U.S. District Court (West Jersey U.S. District Court) 143. New York U.S. District Court 144. North Carolina U.S. District Court 145. Ohio U.S. District Court 146. Pennsylvania U.S. District Court 147. Tennessee U.S. District Court 148. Texas U.S. District Court 149. Virginia U.S. District Court 150. Norfolk U.S. District Court 151. Wisconsin U.S. District Court 152. Kentucky U.S. Distrcrict Court 153. New Jersey U.S. District Court 154. California U.S. District Court 155. Florida U.S. District Court 156. Arkansas U.S. District Court 157. District of Orleans U.S. District Court 158. State Supreme Court 159. State Appellate Court 160. State Trial Court 161. Eastern Circuit (of the United States) 162. Middle Circuit (of the United States) 163. Southern Circuit (of the United States) 164. Alabama U.S. Circuit Court for (all) District(s) of Alabama 165. Arkansas U.S. Circuit Court for (all) District(s) of Arkansas 166. California U.S. Circuit for (all) District(s) of California 167. Connecticut U.S. Circuit for the District of Connecticut 168. Delaware U.S. Circuit for the District of Delaware 169. Florida U.S. Circuit for (all) District(s) of Florida 170. Georgia U.S. Circuit for (all) District(s) of Georgia 171. Illinois U.S. Circuit for (all) District(s) of Illinois 172. Indiana U.S. Circuit for (all) District(s) of Indiana 173. Iowa U.S. Circuit for (all) District(s) of Iowa 174. Kansas U.S. Circuit for the District of Kansas 175. Kentucky U.S. Circuit for (all) District(s) of Kentucky 176. Louisiana U.S. Circuit for (all) District(s) of Louisiana 177. Maine U.S. Circuit for the District of Maine 178. Maryland U.S. Circuit for the District of Maryland 179. Massachusetts U.S. Circuit for the District of Massachusetts 180. Michigan U.S. Circuit for (all) District(s) of Michigan 181. Minnesota U.S. Circuit for the District of Minnesota 182. Mississippi U.S. Circuit for (all) District(s) of Mississippi 183. Missouri U.S. Circuit for (all) District(s) of Missouri 184. Nevada U.S. Circuit for the District of Nevada 185. New Hampshire U.S. Circuit for the District of New Hampshire 186. New Jersey U.S. Circuit for (all) District(s) of New Jersey 187. New York U.S. Circuit for (all) District(s) of New York 188. North Carolina U.S. Circuit for (all) District(s) of North Carolina 189. Ohio U.S. Circuit for (all) District(s) of Ohio 190. Oregon U.S. Circuit for the District of Oregon 191. Pennsylvania U.S. Circuit for (all) District(s) of Pennsylvania 192. Rhode Island U.S. Circuit for the District of Rhode Island 193. South Carolina U.S. Circuit for the District of South Carolina 194. Tennessee U.S. Circuit for (all) District(s) of Tennessee 195. Texas U.S. Circuit for (all) District(s) of Texas 196. Vermont U.S. Circuit for the District of Vermont 197. Virginia U.S. Circuit for (all) District(s) of Virginia 198. West Virginia U.S. Circuit for (all) District(s) of West Virginia 199. Wisconsin U.S. Circuit for (all) District(s) of Wisconsin 200. Wyoming U.S. Circuit for the District of Wyoming 201. Circuit Court of the District of Columbia 202. Nebraska U.S. Circuit for the District of Nebraska 203. Colorado U.S. Circuit for the District of Colorado 204. Washington U.S. Circuit for (all) District(s) of Washington 205. Idaho U.S. Circuit Court for (all) District(s) of Idaho 206. Montana U.S. Circuit Court for (all) District(s) of Montana 207. Utah U.S. Circuit Court for (all) District(s) of Utah 208. South Dakota U.S. Circuit Court for (all) District(s) of South Dakota 209. North Dakota U.S. Circuit Court for (all) District(s) of North Dakota 210. Oklahoma U.S. Circuit Court for (all) District(s) of Oklahoma 211. Court of Private Land Claims 212. United States Supreme Court Answer:
sc_lcdispositiondirection	A	What follows is an opinion from the Supreme Court of the United States. Your task is to determine whether the decision of the court whose decision the Supreme Court reviewed was itself liberal or conservative. In the context of issues pertaining to criminal procedure, civil rights, First Amendment, due process, privacy, and attorneys, consider liberal to be pro-person accused or convicted of crime, or denied a jury trial, pro-civil liberties or civil rights claimant, especially those exercising less protected civil rights (e.g., homosexuality), pro-child or juvenile, pro-indigent pro-Indian, pro-affirmative action, pro-neutrality in establishment clause cases, pro-female in abortion, pro-underdog, anti-slavery, incorporation of foreign territories anti-government in the context of due process, except for takings clause cases where a pro-government, anti-owner vote is considered liberal except in criminal forfeiture cases or those where the taking is pro-business violation of due process by exercising jurisdiction over nonresident, pro-attorney or governmental official in non-liability cases, pro-accountability and/or anti-corruption in campaign spending pro-privacy vis-a-vis the 1st Amendment where the privacy invaded is that of mental incompetents, pro-disclosure in Freedom of Information Act issues except for employment and student records. In the context of issues pertaining to unions and economic activity, consider liberal to be pro-union except in union antitrust where liberal = pro-competition, pro-government, anti-business anti-employer, pro-competition, pro-injured person, pro-indigent, pro-small business vis-a-vis large business pro-state/anti-business in state tax cases, pro-debtor, pro-bankrupt, pro-Indian, pro-environmental protection, pro-economic underdog pro-consumer, pro-accountability in governmental corruption, pro-original grantee, purchaser, or occupant in state and territorial land claims anti-union member or employee vis-a-vis union, anti-union in union antitrust, anti-union in union or closed shop, pro-trial in arbitration. In the context of issues pertaining to judicial power, consider liberal to be pro-exercise of judicial power, pro-judicial "activism", pro-judicial review of administrative action. In the context of issues pertaining to federalism, consider liberal to be pro-federal power, pro-executive power in executive/congressional disputes, anti-state. In the context of issues pertaining to federal taxation, consider liberal to be pro-United States and conservative pro-taxpayer. In miscellaneous, consider conservative the incorporation of foreign territories and executive authority vis-a-vis congress or the states or judcial authority vis-a-vis state or federal legislative authority, and consider liberal legislative veto. The lower court's decision direction is unspecifiable if the manner in which the Supreme Court took jurisdiction is original or certification; or if the direction of the Supreme Court's decision is unspecifiable and the main issue pertains to private law or interstate relations CLAY v. SUN INSURANCE OFFICE, LTD. No. 470. Argued April 28, 1964. Decided May 18, 1964. Paschal C. Reese argued the cause and filed briefs for petitioner. Bert Cotton argued the cause for respondent. With him on the brief were Maurice Mound and Hortense Mound. James' T. Carlisle, Assistant Attorney General of Florida, pro hac vice, by special leave of Court, argued the cause for the State of Florida, as amicus curiae, urging reversal. With him on the brief were James W. Kynes, Attorney General of Florida, and Robert J. Kelly, First Assistant Attorney General. Mr. Justice Douglas delivered the opinion of the Court. This case, which invoked the diversity jurisdiction of the Federal District Court in a suit to recover damages under an insurance policy, was here before. 363 U. S. 207. The-initial question then as now is whether the 12-month-suit clause in the policy governs, in which event the claim is barred, or whether Florida’s statutes nullifying such clauses if they require suit to be filed in less than five years are applicable and valid, in which event the suit is timely. The policy was purchased by petitioner in Illinois while he was a citizen and resident-of that State. Respondent, a British company, is licensed to do business in Illinois, Florida, and several other States. A few months after purchasing the policy, petitioner moved to Florida and became a citizen and resident of that State; and it was in Florida that the loss occurred two years later. When the case reached here, the majority view was that the underlying constitutional question— whether consistently with due process, Florida could apply its five-year statute to this Illinois contract — should not be reached until the Florida Supreme Court, through its certificate procedure, had construed that statute and resolved another local law question. On remand the Court of Appeals certified the two questions to the Florida Supreme Court, which answered both questions in petitioner’s favor. 133 So. 2d 735. Thereafter the Court of Appeals held that it was not compatible with due process for Florida to apply its five-year statute to this contract and that judgment should be entered for respondent. 319 F. 2d 505. We again granted-certiorari. 375 U. S. 929. While there are Illinois cases indicating that parties may contract — as here — for a shorter period of limitations than is provided by the Illinois statute, we are referred to no Illinois decision extending that rule into other States whenever claims on Illinois contracts are sought to be enforced there. We see no difficulty whatever under either the Full Faith and Credit Clause or the Due Process Clause. We deal with an ambulatory contract on which suit might be brought in any one of several States. Normally, as the Court held in Pacific Employers Ins. Co. v. Industrial Accident Comm’n, 306 U. S. 493, 502, a State having jurisdiction over a claim deriving from an out-of-state employment contract need not substitute the conflicting statute of the other State (workmen’s compensation) for its own statute (workmen’s compensation) — where the employee was injured in the course of his employment while temporarily in the latter State. We followed the same route in Watson v. Employers Liability Assurance Corp., 348 U. S. 66, where we upheld a state statute allowing direct actions against liability insurance companies in the State of the forum, even though a clause in the contract, binding in the State where it was made, prohibited direct action against the insurer until final determination of the obligation of the insured. The Court of Appeals relied in the main on Hartford Accident & Indemnity Co. v. Delta & Pine Land Co., 292 U. S. 143, and Home Ins. Co. v. Dick, 281 U. S. 397. Those were cases where the activities in the State of the forum were thought to be too slight and too casual, as in the Delta & Pine Land Co. case (292 U. S., at 150), to make the application of local law consistent with due process, or wholly lacking, as in the Dick case. No deficiency of that order is present here. As Mr. Justice Black, dissenting, said when this case was here before: “Insurance companies, like other contractors, do not confine their contractual activities and obligations within state boundaries. They sell to customers who are promised protection in States far away from the place where the contract is made. In this very case the policy was sold to Clay with knowledge that he could take his property anywhere in the world he saw fit without losing the protection of his insurance. In fact, his contract was described on its face as a ‘Personal Property Floater Policy (World Wide).’ The contract did not even attempt to provide that the law of Illinois would govern when suits were filed anywhere else in the country. Shortly after the contract was made, Clay moved to Florida and there he lived for several years. His insured property was there all that time. The company knew this fact. Particularly since the company was licensed to do business in Florida, it must have known it might be sued there . . . .” 363 U. S., at 221. Order of United Commercial Travelers v. Wolfe, 331 U. S. 586, involved a six-month-suit clause; but it is a highly specialized decision dealing with unique facts — a suit on an insurance policy issued by an Ohio fraternal society, incorporating its constitution and by-laws, and involving what the Court called the “indivisible unity” of the fraternal society. Id., at 606. In that case the additional time afforded by the statute of limitations of South Dakota, where the case was tried, was not allowed to be applied to the contract. We do not extend that rule nor apply it here, for Florida has ample contacts with the present transaction and the parties to satisfy any conceivable requirement of full faith and credit or of due process. Reversed. Fla. Stat. Ann. (1960) §§ 95.03, 95.11 (3). Fla. Stat. Ann. (1957) §25.031; Fla. App. Rule 4.61. See Sun Ins. Office, Ltd., v. Clay, 133 So. 2d 735. For other instances of our use of that certificate procedure see Dresner v. Tallahassee, 375 U. S. 136, and Aldrich v. Aldrich, 375 U. S. 75, 249. The meaning of an “all risks” clause. See cases cited in 363 U. S., at 217, note 12. “. . . [N]othing in any way relating to the policy sued on, or to the contracts of reinsurance, was ever done or required to be done in Texas. All acts relating to the making of the policy were done in Mexico. All in relation to the making of the contracts of re-insurance were done there or in New York. And, likewise, all things in regard to'performance were to be done outside of Texas. Neither the Texas laws nor the Texas courts were invoked for any purpose, except by Dick in the bringing of this suit. The fact that Dick's permanent residence was in Texas is without significance. At all times here material, he was physically present and acting in Mexico.” 281 U. S., at 408. A motion to strike a brief amicus filed by Florida is denied. Question: What is the ideological direction of the decision reviewed by the Supreme Court? A. Conservative B. Liberal C. Unspeciﬁable Answer:
songer_applfrom	L	What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court). FIDELITY STORAGE CO. et al. v. JAQUES. No. 6263. United States Court of Appeals for the District of Columbia. Argued Jan. 8, 1935. Decided Feb. 11, 1935. C. H. Merillat, of Washington, D. C., for appellants. W. W. Millan, of Washington, D. C, for appellee. Before MARTIN, Chief Justice, and ROBB, VAN ORSDEL, and HITZ, Associate Justices. VAN ORSDEL, Associate Justice. This case was here on a former appeal, Fidelity Storage Company et al. v. Jaques, 61 App. D. C. 337, 62 F.(2d) 876, where a decree based on a finding of fact was entered. Briefly, the Fidelity Storage Company, through David B. Karrick and Harry S. Plager, persons connected and, associated with the storage company, loaned to appel-lee, plaintiff below, $600, for which plaintiff gave two notes, one for $100 and one for $500. These notes were collaterally secured by certain household goods stored by plaintiff with the storage company. The court in that case found that ten days after the maturity of the notes, without notice to the plaintiff, or public notice of any kind, the goods were sold and purchased by Plager for an amount barely sufficient to satisfy the notes. The court found that the sale was null and void; and that, in the event the property was no longer in the possession of the defendants and capable of being returned to plaintiff, plaintiff recover from defendants the fair market value of the goods; and that defendants be credited with the amount of the loan of $600, together with interest thereon, and storage charges from October 28 to November 5,1925. The court then referred the case to the auditor to fix the value of the goods and the amount of the liabilities, if any, of the defendants and each of them in accordance with the decree. From that order an appeal was taken, which was here dismissed on the ground that it was not a final order from which appeal could be taken. The case went back tb the court below, and the auditor made his finding, under the order of reference, fixing the value of the goods at $2j000, and finding a balance due the plaintiff of $1,395.33. For this amount judgment was entered, and from the judgment this appeal was taken. We find it unnecessary to review the voluminous record, since, from a careful examination thereof, we are satisfied that the court below reached a proper conclusion in finding, from the evidence, that the sale was void. On the facts established, the law of the case is ruled by Ohio National Bank v. Central Const. Co., 17 App. D. C. 524. In Richardson v. Van Auken, 5 App. D. C. 209, 213, the court, considering the binding effect upon the appellate court of the findings of a master or auditor, when concurred in by the court below, said: “This rule requiring exceptions to be specific and definite in pointing out the supposed errors in the report, has a close logical relation to another rule of practice equally well established, and that is, that the findings of a master or an auditor, concurred in by the court below, .are to be taken as presumptively correct, and will be permitted to stand, unless some obvious error has intervened in the application of the law, or the principles of the decree under which he acts, or some important mistake has been made in the evidence, and which has been clearly pointed out and made manifest. This rule has been repeatedly affirmed by the Supreme Court of the United States, and is one of general application in the equity practice, both in the Federal and State courts of the country. Tilghman v. Proctor, 125 U. S. 136 [8 S. Ct. 894, 31 L. Ed. 664]; Evans v. State Nat. Bank, 141 U. S. 107 [11 S. Ct. 885, 35 L. Ed. 654]; Crawford v. Neal, 144 U. S. 585 [12 S. Ct. 759, 36 L. Ed. 552]; Furrer v. Ferris, 145 U. S. 132 [2 S. Ct. 821, 36 L. Ed. 649].” Applying this rule to the instant case, we find no mistake in the evidence or error of law which would justify a reversal of the decree. The decree is affirmed, with costs. Question: What is the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court)? A. Trial (either jury or bench trial) B. Injunction or denial of injunction or stay of injunction C. Summary judgment or denial of summary judgment D. Guilty plea or denial of motion to withdraw plea E. Dismissal (include dismissal of petition for habeas corpus) F. Appeals of post judgment orders (e.g., attorneys' fees, costs, damages, JNOV - judgment nothwithstanding the verdict) G. Appeal of post settlement orders H. Not a final judgment: interlocutory appeal I. Not a final judgment: mandamus J. Other (e.g., pre-trial orders, rulings on motions, directed verdicts) or could not determine nature of final judgment K. Does not fit any of the above categories, but opinion mentions a "trial judge" L. Not applicable (e.g., decision below was by a federal administrative agency, tax court) Answer:
songer_respond1_3_2	I	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)". Your task is to determine which category of federal government agencies and activities best describes this litigant. UNITED STATES of America, Appellee, v. Norman C. ALLEN, Defendant, Appellant. No. 85-1275. United States Court of Appeals, First Circuit. Argued March 3, 1986. Decided May 2, 1986. James B. Dolan, by Appointment of the Court, with whom Badger, Sullivan, Kelley & Cole was on brief for defendant, appellant. Tobin N. Harvey, Asst. U.S. Atty., with whom William F. Weld, U.S. Atty., was on brief for appellee. Before COFFIN and BREYER, Circuit Judges, and MALETZ, Senior Judge. Of the United States Court of International Trade, sitting by designation. COFFIN, Circuit Judge. Norman Allen appeals from a conviction entered in federal court in the District of Massachusetts on charges involving the possession of marijuana in violation of 21 U.S.C. §§ 846, 955c, 960, and 963. Appellant claims that his Sixth Amendment right to effective assistance of counsel was violated by the district court’s failure to inquire adequately into his request for substitute counsel or self-representation. On September 20, 1984, appellant was indicted and appeared for arraignment before a United States Magistrate. Having determined that appellant was indigent, the magistrate appointed Federal Defender Owen Walker to represent appellant. Over the next four months, Walker filed various motions on appellant’s behalf. On February 7, 1985, the clerk’s office of the district court received a letter from the appellant, apparently intended for the magistrate. Basically, the letter describes appellant’s dissatisfaction with his appointed lawyer. Appellant believed that his lawyer’s suggestion to change the plea to guilty indicated that the lawyer had deemed appellant guilty. Appellant concluded the letter as follows: “At this time I am in no position to hire an attorney, because I don’t have any money. With the proper defense, I’m sure I can prove my innocence and be exonerated of this crime. Right now I’m sitting here alone, confused, and not knowing in what direction to turn; asking myself, How much justice can I afford? I think you have the only answer to that question.” Appellant did not file a motion for leave to withdraw or substitute counsel or a motion for continuance. On February 21, 1985, the district court conducted a pre-trial colloquy with appellant and Walker. After summarizing his reaction to appellant’s letter, the district judge solicited Walker’s views. The court next asked appellant if he had anything to add to his letter or to the court or Walker’s observations. After brief comments by appellant, Walker discussed his readiness for trial. Interpreting appellant’s comments as a request for continuance, the district court denied the motion, satisfied as to Walker’s preparedness for trial. The court noted that a continuance could be had at any point during the trial if appellant did not believe Walker was adequately prepared on a particular issue. Appellant first argues that his Sixth Amendment right to effective assistance of counsel was violated by the district court’s failure to inquire adequately into his request for substitute counsel. As an indigent defendant, appellant did have the right to be represented by counsel, Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), but he did not have a right to have a particular lawyer represent him, United States v. Poulack, 556 F.2d 83 (1st Cir.1977), nor to demand a different appointed lawyer except for good cause, United States v. Young, 482 F.2d 993, 995 (5th Cir.1973). Where the accused voices objections to appointed counsel, the trial court should inquire into the reasons for the dissatisfaction. Thomas v. Wainwright, 767 F.2d 738, 741 (11th Cir.1985); Young, 482 F.2d at 995. See also McKee v. Harris, 649 F.2d 927, 933 (2d Cir.1981). In this case, the district court performed such an inquiry and determined that good cause did not exist for the substitution of counsel. In evaluating whether a trial court’s denial of motion for continuance or substitution of counsel constituted an abuse of discretion, United States v. Mastroianni, 749 F.2d 900, 913-14 (1st Cir.1984), the appellate court should consider several factors, including the timeliness of the motion, the adequacy of the court’s inquiry into the defendant’s complaint, and whether the conflict between the defendant and his counsel was so great that it resulted in a total lack of communication preventing an adequate defense. Hudson v. Rushen, 686 F.2d 826, 829 (9th Cir.1982). First, as to timeliness, although appellant’s letter was received by the clerk’s office two weeks prior to trial, appellant did not file any motion with the court. It was only at the prosecutor’s suggestion, on the first day of trial, that the court initiated a discussion with appellant and interpreted his comments as a request for a continuance. See United States v. Llanes, 374 F.2d 712, 717 (2d Cir.1967) (“Judges must be vigilant that requests for appointment of a new attorney on the eve of trial should not become a vehicle for achieving delay.”). Second, the court’s inquiry, rather than being insufficient as the appellant claims, was comprehensive. We are convinced after reading the transcript of the proceedings that the district court was assured that Federal Defender Walker had consulted sufficiently with appellant, that Walker was prepared, and that his advice to the defendant to plea bargain was not aberrational. The court convened a session at which appellant’s complaint was aired. The court invited appellant to make a statement, listened to his reasons for being dissatisfied with his counsel, and found them to be without merit. Moreover, the court assured appellant that a continuance would be granted during the trial when appellant believed his counsel was unprepared for a particular issue. Third, good cause did not exist for assignment of new counsel. All that exists on the record is appellant’s own loss of confidence in his attorney. Good cause for substitution of counsel cannot be determined “solely according to the subjective standard of what the defendant perceives.” McKee, 649 F.2d at 932. Although loss of trust is certainly a factor in assessing good cause, it is, standing alone, insufficient. Thomas, 767 F.2d at 742. The defendant must provide the court with a legitimate reason for his loss of confidence. McKee, 649 F.2d at 932. Appellant’s asserted reasons for his loss of trust — that counsel had prejudged him and that counsel was not prepared for trial — were not borne out by the record. Walker had not prejudged his client, but merely had suggested that it was in appellant’s best interest to plead guilty rather than go forward to trial. And the district court did not doubt Walker’s trial preparation. After trial, the district court stated: “[T]he court cannot conceive of a more cogent presentation of the defendant’s defense. He testified, in comprehensive fashion. The various objections to government evidence were all well stated and preserved. The question was one of credibility____ I cannot think of a better defense than was presented here, or a trial that was more carefully conducted on behalf of a defendant.” Our review of the record convinces us that Walker’s representation of appellant at the trial was, to say the least, more than adequate. Thus, the district court did not abuse its discretion in refusing to appoint a new attorney for appellant or granting a continuance. United States v. Mastroian-ni, 749 F.2d 900, 913-14 (1st Cir.1984). Appellant’s second argument is that the district court’s failure to respond to his implicit request to proceed pro se violated his Sixth Amendment rights. It is now well-established that persons accused of a crime not only have the right to counsel, Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), but also enjoy the inverse right to waive the assistance of counsel if they intelligently and voluntarily decide to conduct their own defense, Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). And when the accused informs the court that he wishes to defend himself, the court should advise him of his right to an attorney, his right to self-representation, and the decided advantage of competent legal representation. See, e.g., United States v. Tompkins, 623 F.2d 824, 828 (2d Cir.1980). In this case, appellant made no indication of a desire to proceed without counsel. To the contrary, in expressing dissatisfaction with appointed counsel, appellant appealed to the discretion of the court to grant a continuance or substitute new counsel. In his letter to the magistrate, appellant wrote: “At this time I am in no position to hire an attorney, because I don’t have any money. With the proper defense, I’m sure I can prove my innocence and be exonerated of this crime____ How much justice can I afford?” During the pre-trial colloquy with the district judge, appellant had further opportunity to indicate his desire to represent himself, but he failed to do so. When asked if he had anything to add to the discussion, appellant discussed only his attorney’s lack of preparation. The district court correctly treated these comments as a request for continuance. We cannot accept appellant’s claim that such comments constituted an implicit request to proceed pro se. See Moreno v. Estelle, 717 F.2d 171, 175 (5th Cir.1983) (“We cannot infer from the defendant’s general request to the court to dismiss his attorney that he desired to waive counsel and continue the trial pro se.”). While “the right to counsel is in force until waived, the right of self-representation does not attach until asserted ”. Brown v. Wainwright, 665 F.2d 607, 610 (5th Cir.1982) (en banc) (emphasis in original); id. at 612-13 (Hill, J., dissenting). In this case, the right of self-representation did not attach. The judgment of the district court is therefore affirmed. . Although appellant begins the letter “Your Honor", he refers to his arraignment before the addressee, and makes repeated third-person references to the district judge. . The text of the exchange is as follows: "The Court: Now I do want to hear Mr. Walker on this question of representation. I read Mr. Allen’s letter. The fact that he has disagreed with Mr. Walker on the matter of whether it is in his best interests to enter a change of plea has nothing to do with Mr. Walker’s capability of trying the case. It is not unusual for clients to reject their attorney’s advice on the matter of whether it is in their best interest to plead or to go forward. That is the system. That is not unusual. This has nothing to do with Mr. Walker’s capability of presenting the case and presenting a defense. It may be he will be proved to be wrong. The jury may acquit Mr. Allen. That is what we are here for. What more is there to it than that, Mr. Walker? Mr. Walker: I don’t think there is much, your Honor. I don’t want to get into a dispute with Mr. Allen, but do want to say, your Honor, some of the statements of the letter I just don’t have — [interrupted by the Court].” . The text of the exchange is as follows: "The Court: Let me ask you to stand please, Mr. Allen. What else is there to your position? Mr. Walker is trying cases in this court in' all its sessions more or less constantly, and your defense will be well presented. You think he gave you bad advice, and maybe he did. Maybe the jury will vindicate your position and not his. But there is nothing personal, if you will. In other words, that is just a professional opinion and no more. So have you anything to add to what I have said by way of your desire to discharge, if you have a desire to discharge, Mr. Walker? The Defendant: Well, your Honor, I have already spent a short period of time conferring with Mr. Walker about this case, and he doesn’t really even know the whole story on the trial or the case.” . Appellant’s right was to effective counsel, not to counsel of his own choice at any cost in terms of delay. Poulak, 556 F.2d at 86. This restraint is to ensure that the right is not manipulated so as to obstruct the orderly procedure in the courts or to interfere with the fair administration of justice. . One basis for Walker’s recommendation was that appellant’s codefendants had changed their pleas to guilty on January 29, 1985. At appellant’s trial, these individuals testified extensively about appellant’s role in a marijuana importation scheme. Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)". Which category of federal government agencies and activities best describes this litigant? A. cabinet level department B. courts or legislative C. agency whose first word is "federal" D. other agency, beginning with "A" thru "E" E. other agency, beginning with "F" thru "N" F. other agency, beginning with "O" thru "R" G. other agency, beginning with "S" thru "Z" H. Distric of Columbia I. other, not listed, not able to classify Answer:
songer_geniss	D	What follows is an opinion from a United States Court of Appeals. Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Consider the following categories: "criminal" (including appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence), "civil rights" (excluding First Amendment or due process; also excluding claims of denial of rights in criminal proceeding or claims by prisoners that challenge their conviction or their sentence (e.g., habeas corpus petitions are coded under the criminal category); does include civil suits instituted by both prisoners and callable non-prisoners alleging denial of rights by criminal justice officials), "First Amendment", "due process" (claims in civil cases by persons other than prisoners, does not include due process challenges to government economic regulation), "privacy", "labor relations", "economic activity and regulation", and "miscellaneous". W. James BROWN, an attorney on behalf of himself and all others similarly situated, Plaintiff-Appellant, v. Frank J. McGARR, Chief Judge of the United States District Court for the Northern District of Illinois, et al., Defendants-Appellees. No. 84-1591. United States Court of Appeals, Seventh Circuit. Argued Feb. 12, 1985. Decided Oct. 3, 1985. Rehearing and Rehearing In Banc Denied Oct. 31, 1985. Edward T. Garney, Chicago, Ill., for plaintiff-appellant. Nancy K. Needles, Asst. U.S. Atty., Dan K. Webb, U.S. Atty., Chicago, Ill., for defendants-appellees. Before CUDAHY and COFFEY, Circuit Judges, and FAIRCHILD, Senior Circuit Judge. COFFEY, Circuit Judge. The plaintiff, James Brown, appeals the district court’s holding that the Northern District of Illinois’ adoption of rules creating a trial bar to improve advocacy in the federal courts and to supervise the practice of law did not deprive him of property without due process of law. We Affirm. I The district court made the following findings of fact when granting the defendants’ summary judgment motion and they are not in dispute. As part of a study of the competency of trial lawyers practicing in the federal counts, the Devitt Committee, appointed by Chief Justice Burger, surveyed the legal community and held public hearings around the country. The Devitt Committee published two reports of its findings and, in both reports, recommended, inter alia, that federal district courts impose a rule requiring attorneys to have trial experience before being allowed to appear alone in trials. The District Court for the Northern District of Illinois appointed an advisory committee, the Austin Committee, to implement the Devitt Committee’s recommendations as part of a pilot program to improve the quality of advocacy in the federal courts. The Austin Committee published the proposed rules in the Chicago Law Bulletin and the Chicago Bar Record and held a public meeting on the proposed rules. On July 12,1982, after this extensive period of public examination and comment, the District Court for the Northern District of Illinois adopted rules requiring attorneys to belong to a “trial bar” before being allowed to appear alone either on behalf of a defendant in a criminal proceeding or during testimonial proceedings in a civil case. The requirement of membership in the trial bar applies both to new admittees and to attorneys previously admitted to the bar of the Northern District of Illinois. In order to practice before the court as a member of the trial bar, an attorney must have four “qualifying units” of trial-type experience. N.D.Ill. General R. 3.00C(7). An attorney may receive a qualifying unit for participating as lead or as co-counsel at a trial, observing a trial in which a member of the trial bar supervises the observation, or participating in an approved trial advocacy course. Id. at C. At least two of the four qualifying units must be obtained by participating in actual trials as lead or as co-counsel. Id. at C(7). The court may, in exceptional circumstances, waive the trial bar membership requirement if the client consents to representation by a non-member. Id. at 3.10D. Prior to the adoption of the rules creating the trial bar, any member in good standing of the Northern District of Illinois Bar could appear alone in any proceeding. The plaintiff, James Brown, was admitted to the bar of the Northern District of Illinois in 1977 but does not possess a sufficient amount of trial experience to be eligible for trial bar membership. After the rules were adopted, the plaintiff filed suit as a representative of a class of attorneys deprived of the right to appear in all proceedings without assistance, alleging that the rules of the Northern District of Illinois violated the Fifth Amendment prohibition against deprivation of property without due process of law. Because the subject matter of the complaint involved rules adopted by the Judges of the Northern District of Illinois, the case was reassigned to Senior Judge Myron L. Gordon of the Eastern District of Wisconsin. Judge Gordon held, 583 F.Supp. 734, in ruling on the defendants’ motion for summary judgment, that the rules violated neither the plaintiffs’ rights to substantive nor to procedural due process. II Brown asserts that the creation of the Federal Trial Bar of the Northern District of Illinois, in effect, disbarred him and that he had a due process right to “notice calculated to convey information regarding his disbarment pursuant to the adoption of the rules and an opportunity to defend against such action.” Brown also argues that neither the district court’s power to specify bar admission standards, nor its power to disbar attorneys for “deceit, malpractice, or other gross misconduct,” nor its power to make or amend rules authorize the court to deny an attorney his “vested right to practice law” (“a property right in his law license”) without affording the attorney “his due process rights to a hearing, to present evidence, to cross examine adverse witnesses, and to know upon what basis the defendants determined that they and other individuals of the class were not qualified to be trial attorneys.” Moreover, the plaintiff contends that not only the district court but also Congress lacked the authority to promulgate the rules creating the trial bar because the class’ “previously granted licenses to practice and to try cases in the federal district court for the Northern District of Illinois may not be retroactively limited.” Finally, the plaintiff asserts that, even if the district court’s adoption of the rules involves a “basically legislative-type judgment,” our court should not apply the rule that “the fifth amendment’s requirements of individualized due process do not apply in the area of rulemaking.” A. Adoption of the Rules was not a Disbarment Proceeding By arguing that adoption of the trial bar membership rule in effect disbarred him for incompetence, Brown raises the issue of whether the imposition of the trial bar membership requirement was a proper exercise of the district court’s rule-making power or was an improper adjudication of his competence as an attorney. To determine whether an action was rule-making or adjudication, courts consider: (1) whether the action is generalized in nature, i.e., whether the action applies to specific individuals or to unnamed and unspecified persons; (2) whether the promulgating agency considers general facts or adjudicates a particular set of disputed facts; and (3) whether the action determines policy issues or resolves a specific dispute between particular parties. See United States v. Florida E. Coast R.R. Co., 410 U.S. 224, 244-46, 93 S.Ct. 810, 820-21, 35 L.Ed.2d 223 (1973). “Disbarment ... is a punishment or penalty imposed on the lawyer.” Matter of Ruffalo, 390 U.S. 544, 550, 88 S.Ct. 1222, 1226, 20 L.Ed.2d 117 (1968). A court conducting a disbarment proceeding must determine for itself the facts of the attorney’s conduct and whether that conduct had been so grievous as to require disbarment. Theard v. United States, 354 U.S. 278, 282, 77 S.Ct. 1274, 1276, 1 L.Ed.2d 1342 (1957). Thus, the ultimate result of a disbarment proceeding is a finding, based upon the conduct and actions of an individual attorney, that the individual attorney is unfit. Unlike a disbarment proceeding focused upon specific incidents of misconduct by an individual attorney, the district court’s trial bar rules were adopted in response to fact finding that was not focused on individual attorneys. The trial bar rules of the Northern District of Illinois are part of a pilot program implementing suggestions to improve advocacy in the federal courts advanced by the Committee to Consider Standards for Admission to Practice in the Federal Courts (“Devitt Committee”). The Devitt Committee, a national committee appointed by Chief Justice Burger in 1976 to study advocacy of representation problems in the federal courts, surveyed 1,500 law related organizations, solicited the comments of the legal community, and held public hearings on, inter alia, causes of any perceived inadequacies of representation. Report and Tentative Recommendations of the Committee to Consider Standards of Admission to Practice in the Federal Courts to the Judicial Conference of the United States, 79 F.R.D. 187, 193 (1978). Additionally, the Federal Judicial Center simultaneously conducted a series of research projects designed to gather information about the level of performance of advocates in the federal courts. Id. Based upon the comments received by the Devitt Committee and the results of the Federal Judicial Center studies, the Devitt Committee concluded that, “lawyers without previous trial experience are much more likely to turn in inadequate performances and are less likely to turn in very good or first rate performances, and it permits the inference that experience improves the quality of performance.” Id. at 196-97. The experience requirement was recommended “to insure a substantial probability of adequate trial performances.” Id. at 196-98. Thus, the trial bar membership requirement was not designed to infallibly identify competent attorneys; rather, the provision was adopted as a method of improving the standard of advocacy in the district courts by requiring the attorneys to present evidence to the court of training in trial advocacy— i.e., the qualifying units. We hold that the finding of a correlation between trial experience and competence as a trial attorney, upon which the trial bar membership rule is based, is generalized fact finding, was not focused upon the competence of an individual attorney, and was legislative in nature. We also hold that the experience requirement is a determination of a policy issue rather than a resolution of a specific dispute between particular parties. Specifically, the trial bar membership requirement was adopted to prevent problems caused by inexperienced trial counsel such as, “ ‘Piper Cub’ advocates trying to handle the controls of ‘Boeing 747’ litigation,” and “on-the-job-training” at the expense of the client. Burger, The Specialized Skills of Advocacy: Are Specialized Training and Certification of Advocates Essential to Our System of Justice? 42 Fordham L.Rev. 227, 231, 233 (1973). “Whatever the legal issues or claims, the indispensable element in the trial of a case is a minimally adequate advocate for each litigant.” Id. at 234 (emphasis added). The client’s interests are ill-served when an untrained attorney faces a seasoned and experienced opponent. “The young doctor just graduated from the finest medical school is not permitted to take scalpel in hand to perform delicate surgery without a skilled and seasoned surgeon at his side.” Kaufman, The Court Needs a Friend in Court, 60 A.B.A.J. 175, 177 (1974). Adoption of an experience requirement is a sound, and overdue, recognition that young attorneys, like young physicians, must be trained by experienced practitioners. Brown’s argument that the district court’s imposition of the trial bar membership requirement, in effect, disbarred him for incompetence mischaracterizes the nature of the district court’s action. We hold that, contrary to the plaintiff’s assertions of disbarment, the district court’s trial bar membership rule, imposes what we believe is a necessary and long needed qualification requirement upon present and future members of the district court bar who wish to have the opportunity to appear alone before the court in any proceeding and is not a finding that nonmembers of the trial bar are incompetent. Consequently, Brown’s argument that he was entitled to notice and the right to be heard because he was disbarred is groundless. B. The Power to Impose the Qualification Requirement The authority to adopt rules relating to admission to practice before the federal courts was delegated by Congress to the federal courts in Section 35 of the Judiciary Act of 1789, Act of September 25, 1789, Ch. 20, 1 Stat. 73, 92 now codified as 28 U.S.C. § 1654. In addition to § 1654, 28 U.S.C. § 2071 provides in part that “[t]he Supreme Court and all courts established by Act of Congress may from time to time prescribe rules for the conduct of their business.” Fed.R.Civ.P. 83, promulgated by the Supreme Court pursuant to its rule-making authority, specifies that, “[e]ach district court by action of a majority of the judges thereof may from time to time make and amend rules governing its practice not inconsistent with these rules.” The district court found, and we agree, that “[e]very federal court which has construed [28 U.S.C. §§ 1654, 2071 and Fed.R.Civ.P. 83] has held that they permit a federal district court to regulate the admission of attorneys who practice before it.” See, e.g., Matter of Roberts, 682 F.2d 105, 108 (3d Cir.1982); Matter of Abrams, 521 F.2d 1094, 1099 (3d Cir.), cert. denied, 423 U.S. 1038, 96 S.Ct. 574, 46 L.Ed.2d 413 (1975); Sanders v. Russell, 401 F.2d 241 (5th Cir.1968). In addition to the authority delegated by Congress, federal courts have the inherent power to regulate the conduct of attorneys and to disbar attorneys. Theard, 354 U.S. at 281, 77 S.Ct. at 1276; Ex Parte Secombe, 60 U.S. (19 How.) 9, 13, 15 L.Ed. 565 (1856); see generally State v. Cannon, 206 Wis. 374, 240 N.W. 441 (1932) (reviewing cases from the Middle Ages to the nineteenth century). The courts’ authority and responsibility for insuring the quality of attorney advocacy has long been recognized by the Supreme Court: “The authority of the court over its attorneys and counselors is of the highest importance. They constitute a profession essential to society. Their aid is required not merely to represent suitors before the courts, but in the more difficult transactions in private life. The highest interests are placed in their hands and confided to their management. The confidence which they receive and the responsibilities which they are obliged to assume demand not only ability of a high order, but the strictest integrity. The authority which the courts hold over them, and the qualifications required for their admission are intended to secure those qualities.” Randall v. Brigham, 74 U.S. (7 Wall.) 523, 540, 19 L.Ed. 285 (1869). “[T]he power of disbarment is necessary for the protection of the public in order to strip a man of the implied representation by courts that a man who is allowed to hold himself out to practice before them is in ‘good standing’ so to do.” Theard, 354 U.S. at 281, 77 S.Ct. at 1276. Accordingly, we hold that the adoption of the requirement of trial bar membership was within the district court’s authority to regulate the admission of qualified attorneys who practice before the court. We now turn to the question of whether Brown’s “previously granted license[ ] to practice and to try cases in the federal district court for the Northern District of Illinois may not be retroactively limited by Congress or the district court.” “The legislature may undoubtedly prescribe qualifications for the office [of attorney and counselor] to which [an attorney] must conform, as it may, where it has exclusive jurisdiction, prescribe qualifications for the pursuit of the ordinary advocations of life.” Ex parte Garland, 71 U.S. (4 Wall.) 333, 379, 18 L.Ed. 366 (1866); see also Dent v. West Virginia, 129 U.S. 114, 122-28, 9 S.Ct. 231, 233-35, 32 L.Ed. 623 (1888) (physician’s license). “The power of the state to provide for the general welfare of its people authorizes it to prescribe all such regulations as, in its judgment, will ... tend to secure them against the consequences of ignorance and incapacity as well as deception and fraud.” Dent, 129 U.S. at 122, 9 S.Ct. at 233. The qualifications placed on the license of a professional must be reasonably related to the profession and attainable by reasonable study or application. Id. at 122, 9 S.Ct. at 233; Garland, 71 U.S. at 379-80; Schware v. Bd. of Bar Exam. of State of N.M., 353 U.S. 232, 239, 77 S.Ct. 752, 756, 1 L.Ed.2d 796 (1957). The state may exclude from practice those who are not qualified to hold a professional license. Dent, 129 U.S. at 122-23, 9 S.Ct. at 233. Cf. Theard, 354 U.S. at 278, 77 S.Ct. at 1274. To protect society against unqualified licensed professionals, the State may require a licensed professional to satisfy additional conditions after the license is granted. Dent, 129 U.S. at 123, 9 S.Ct. at 233. See, e.g., Wis.S.C.R. 30.01 et seq. (continuing legal education requirement); Wis.Admin.Code § Med. 13 (1977) (continuing medical education for physicians). The decision to apply conditions retroactively, like a decision to adopt retroactive economic legislation, satisfies due process if it is justified by a rational legislative purpose. Pension Benefit-Guarantee Corp. v. R.A. Gray & Co., — U.S. —, 104 S.Ct. 2709, 2718, 81 L.Ed.2d 601 (1984). Public attention was drawn to the problem of inadequate trial advocacy by Chief Justice Burger’s 1973 lecture expressing grave concern about the problem. Burger, The Special Skills of Advocacy, 42 Fordham L.Rev. 227 (1973). Indeed, several federal court of appeals judges expressed agreement with the Chief Justice. See, e.g., Kaufman, The Court Needs a Friend in Court, 60 A.B.A.J. 175 (1974) (“Too many lawyers come into court today with only a diploma to justify their claims to be advocates. They are untrained and unadvised in the immensely practical work of litigation.” Id. at 176); Bazelon, The Defective Assistance of Counsel, 42 U.Cin.L.Rev. 1 (1973) (“I come upon these ‘walking violations of the sixth amendment’ week after week in the cases I review.” Id. at 2). The Devitt Committee, appointed by Chief Justice Burger in 1976, surveyed federal district judges and found that forty-one percent of them believe that the problem of inadequate advocacy is severe. 83 F.R.D. at 219. Twenty-five percent of the attorneys’ performances in trials evaluated by the judges for the Federal Judicial Center Study were rated as “less than good.” Id. The judges also expressed their belief that, “as a direct result of lawyer inadequacy, the interests of the clients were not fully protected.” The Federal Judicial Center study also revealed a correlation between the quality of trial performances and the prior experience of the attorneys evaluated. Id. at 222. Moreover, a 1978 American Bar Association telephone survey of 599 lawyers chosen at random revealed that forty-one percent believed that lack of trial competency was a serious problem. Burger, Some Further Reflections on the Problem of Adequacy of Trial Counsel, 49 Fordham L.Rev. 1, 9 (1980). The impact on our justice system caused by inadequate trial lawyers was succinctly stated by Chief Justice Burger: “As the complexity and volume of both civil and criminal litigation escalates, the quality of advocacy directly affects the rights of litigants, the costs of litigation, the proper functioning of the system of justice, and, ultimately, the quality of justice. Far too many civil cases are currently being tried which experienced, well-trained lawyers would negotiate to settlement. There are too many cases taking four, five, or six days to try, which truly competent attorneys would try in a third that time — or less. Because of this, persons who are waiting to have their cases tried must wait longer. In civil cases the inadequacy translates into delays that increase the costs of obtaining judgment and rob even a just judgment of much of its value, the same kind of “economic larcency” which inflation works on all of us. Delays in criminal cases, when combined with our very liberal bail release concepts of today, may leave some persons on the streets who are ultimately going to be found guilty and confined. Conversely, there is the risk that some defendants who cannot gain release may be confined for long periods. Long trial delay with defendants at large means the public is placed in continuing jeopardy.” Id. at 19-20. As we have discussed, the Devitt Committee, after reviewing its surveys and the Federal Judicial Center Studies, concluded that, “lawyers without previous trial experience are much more likely to turn in inadequate performances and are less likely to turn in very good or first rate performances, and it permits the inference that experience improves the quality of performance.” 79 F.R.D. at 196-97. The experience requirement of the trial bar membership rule was recommended by the Devitt Committee “to insure a substantial probability of adequate trial performance” in response to evidence of the serious problem of inadequate trial advocacy and is analogous to the continuing legal education requirement imposed by some states. See, e.g., Wis.S.C.R. 30.01 et seq. The Devitt Committee recommended that present members of the district court bars be required to satisfy the experience requirement because, “the data on inadequacy is drawn from present bar members spanning all age groups and that exempting all present members as well as all who become members prior to the effective date of the new rules will exempt the very individuals whose inadequate performances justify new standards.” 79 F.R.D. at 200. Courts have looked with increasing favor on measures designed to insure an acceptable level of competency in licensed professionals. See, e.g., Marrese v. Interqual, 748 F.2d 373 (1984), cert. denied, — U.S. —, 105 S.Ct. 3501, 87 L.Ed.2d 632 (1985) (physicians’ peer review). We hold that the experience requirement is reasonably related to the practice of law and attainable by reasonable study or application. Furthermore, we hold that retroactive application of the experience requirement does not violate due process because it is justified by a rational legislative purpose — maintaining a high standard of advocacy in the federal courts. C. Procedural Due Process The district court held that because adoption of the trial bar membership requirement was an exercise of rulemaking rather than adjudicatory power, the Fifth Amendment’s requirement of individualized due process did not apply. Brown argues that we should not apply this rule, drawn from Bi-Metallic Investment Co. v. Colorado, 239 U.S. 441, 36 S.Ct. 141, 60 L.Ed. 372 (1915), because the agency involved in the Bi-Metallic case was created by and answerable to a state legislature. Brown notes that the Supreme Court found in Bi-Metallic that when Congress passes legislation, individual “rights are protected in the only way that they can be in a complex society, by their power, immediate or remote, over those who make the rule.” Id. at 445, 36 S.Ct. at 142. The plaintiff urges that his individual rights were not protected because “he had no voice” in either the selection of the advisory committee that solicited comments from attorneys in the Northern District of Illinois and reported their findings to the Northern District or in the selection of the district court’s appointed judges. However, we need not resolve this issue of whether federal judges are answerable to Congress in the same manner in which federal agencies are answerable to Congress because an examination of the record reveals that Brown received notice and an opportunity to be heard. Cf. Pension Benefit, 104 S.Ct. at 2719. Whether an affected party must receive individual notice depends upon the character of the action. When individual interests are adversely affected by a legislation action, publication of the statute puts all individuals on notice of a change in the law of the jurisdiction; individual notice is not required. Texaco v. Short, 454 U.S. 516, 531-38, 102 S.Ct. 781, 793-97, 70 L.Ed.2d 738 (1982). “[I]t has never been suggested that each citizen must in some way be given specific notice of the impact of a new statute on his property before that law may affect his property rights.” Id. at 536, 102 S.Ct. at 796. See also Atkins v. Parker, — U.S. —, 105 S.Ct. 2520, 2529, 86 L.Ed.2d 81 (1985). On the other hand, in an adjudicatory hearing, procedural due process requires that an individual whose interest is at stake must be given, “notice reasonably calculated, under all circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 657, 94 L.Ed. 865 (1950). As to the requirement of an opportunity to be heard, the significance of the plaintiff’s loss must be balanced with the governmental interest at stake. Goldberg v. Kelly, 397 U.S. 254, 262-63, 90 S.Ct. 1011, 1017-18, 25 L.Ed.2d 287 (1970). The court must consider three factors: “First, the private interests that will be affected by the official action; second, the risk of an erroneous deprivation of such interests through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved in the physical and administrative burdens that the additional or substitute procedural requirement would entail.” Mathews v. Eldridge, 424 U.S. 319, 334, 96 S.Ct. 893, 902, 47 L.Ed.2d 18 (1976). By arguing that he should have received individual notice, Brown urges us to create an exception to the rule that the legislative publication of a statute satisfies the notice requirement of procedural due process. See Texaco, 454 U.S. at 538, 102 S.Ct. at 797. We need not address Brown’s questionable contention that individual notice of a legislative type action with retrospective aspects is constitutionally compelled because, as the record demonstrates, ample notice was given. Cf. Pension Benefit, 104 S.Ct. at 2719. The Devitt Committee’s soliciting information about the adequacy problem and proposed solutions was patterned after the “notice and comment” procedure of the federal Administrative Procedures Act. Devitt, Improving Trial Advocacy, 72 F.R.D. 471, 475 (1976). The district court found that the Devitt Committee conducted a lengthy inquiry, which included a survey of the legal community’s views and four public hearings, and published its first report in 1978. 79 F.R.D. 187 (1978). The Devitt Committee held additional hearings after the publication of its first report and issued a final report in 1979. 83 F.R.D. 215 (1979). Both reports recommended that the experience requirement for admission to the trial bar be applied to present members of district court bars. 79 F.R.D. at 199-200; 83 F.R.D. at 223. The District Court for the Northern District of Illinois appointed an advisory committee, the Austin Committee, to implement the Devitt Committee’s recommendations. In ruling on the defendants’ motion for summary judgment, the district court found that, “[t]he Austin Committee published the proposed rules in the March 26, 1981, issue of the Chicago Law Bulletin and in the Mar.-Apr. 1981 issue of the Chicago Bar Record and invited interested parties to submit their views. All interested attorneys were invited to attend and participate in an open meeting on the proposed rules held on Apr. 26, 1981.” Addressing the issue of Brown’s loss, examination of the district court’s rules reveals that the loss he has suffered is that he cannot appear alone at the trial of a civil case, and he cannot appear alone in criminal proceedings. N.D.Ill. General R. 3.10. The plaintiff retains his right to appear alone in every aspect of civil litigation except the actual trial, i.e., filing the complaint, discovery, motions and status hearings. Id. Balanced against this restriction on his right to practice, is the significant government interest in maintaining minimum standards of advocacy and improving the quality of the attorneys practicing before the district courts. The material reviewed by the Devitt Committee confirmed the existence of the inadequacy problem and supported Chief Justice Burger’s observation that inadequate trial advocacy, “directly affects the rights of litigants, the costs of litigation, the proper functioning of the system of justice, and, ultimately, the quality of justice.” 49 Fordham L.Rev. at 19-20. Addressing the issue of how to improve the quality of advocacy, the Devitt Committee discovered, “no one has yet devised an examination which will test one’s ability to be a courtroom advocate.” 79 F.R.D. at 196. The Devitt Committee adopted the experience requirement to insure a substantial probability of adequate trial performances. Id. Thus, the record reveals that the procedure followed in adopting the rules adequately identified the problem, researched various solutions, solicited public comment on both the problem and possible solutions, and properly determined that the problem of inadequate trial advocacy could be solved in part by requiring attorneys to demonstrate their competence by satisfying the.experience requirements. The district court found, and we agree, that the Committees’ “notice and comment” procedures were elaborate and fair. Balancing the plaintiffs’ loss against the significant governmental (and consumer) interest in maintaining minimum standards of advocacy and improving the quality of the attorneys practicing before the district court, we hold that the plaintiffs received notice reasonably calculated to appraise them of the pendency of the action and an adequate opportunity to be heard. The decision of the district court is Affirmed. . Rule 3.00C provides: "C. Definitions (1) Testimonial proceedings: Testimonial proceedings are proceedings conducted in open court before a District judge, U.S. magistrate, bankruptcy judge or trial judge of the state court in which the oral testimony of a witness is presented and the rules of evidence are applicable. Procedures limited to taking the deposition of a witness do not constitute testimonial proceedings for purposes of this Rule. (2) Qualifying trial: A qualifying trial is either (a) a trial lasting at least one day in a trial court of record, involving substantial testimonial proceedings and going to the merits, or (b) an evidentiary hearing before a trial court of record equivalent to a trial in which testimonial evidence going to the merits is taken. (3) Participation unit: A person is credited with one participation unit for each qualifying trial in which he/she participates as the lead counsel or the assistant to the lead counsel. Where a qualifying trial lasts more than three days, the person is credited with one additional participation unit for each three full days of trial in excess of the first three days. A maximum of four participation units can be credited for one trial. (4) Observation unit: A person is credited with one observation unit for each qualifying trial he/she observes in which a member of the trial bar of this Court supervises the observation and consults with the person about the trial. (5) Simulation unit: A person is credited with a simulation unit where, as part of a law school or continuing education course, he/she satisfactorily participates in a simulated trial that is recognized by the District Admissions Committee as being adequately supervised. The supervisor of the simulated trial may certify that the person’s performance was satisfactory. (6) Qualifying units of trial experience: Participation units, observation units and simulation units as defined in this Rule are qualifying units of trial experience. (7) Required trial experience: Required trial experience consists of four qualifying units of trial experience, at least two of which are participation units." . Rule 3.10D provides: “D. Waiver and Exceptional Cases A judge may grant permission in a civil or criminal proceeding pending before him/her to an attorney admitted to the bar, but not to the trial bar, to appear alone in any aspect of the matter only upon written request by the client and a showing that the interests of justice are best served by waiving the experience requirements otherwise required by these Rules. Such permission shall apply only to the proceeding in which it was granted. Granting of such permission shall be limited to exceptional circumstances.” Question: What is the general issue in the case? A. criminal B. civil rights C. First Amendment D. due process E. privacy F. labor relations G. economic activity and regulation H. miscellaneous Answer:
songer_r_fed	1	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of respondents in the case that fall into the category "the federal government, its agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. UNITED STATES of America, Plaintiff-Appellee, v. Ben G. MILTON, d/b/a Service Check Company, Defendant-Appellant. No. 17197. United States Court of Appeals Sixth Circuit. Decided Sept. 15, 1967. Adrian B. Fink, Jr., Cleveland, Ohio, for appellant. Joseph Kovner, Tax Division, Dept, of Justice, Washington, D. C., for appellee. Mitchell Rogovin, Asst. Atty. Gen., Lee A. Jackson, Joseph Kovner, Lawrence B. Silver, Attys., Dept, of Justice, Washington, D. C., on the brief. Merle M. McCurdy, U. S. Atty., Bernard J. Stuplinski, Asst. U. S. Atty., Cleveland, Ohio, of counsel. Before McCREE and COMBS, Circuit Judges, and CECIL, Senior Circuit Judge. PER CURIAM. This is an appeal from a decision of the District Court determining that the United States, as holder of money orders issued by appellant in the amount of $7300.00, was entitled to recover this amount from appellant. The opinion of the District Court, reported at 253 F. Supp. 89, recites the facts as stipulated by the parties and therefore we do not repeat them here. Appellant claims that the United States failed to follow Ohio procedures in perfecting its lien on the money orders and unauthorizedly named itself payee, and therefore cannot be regarded as a holder of the instruments. Further, appellant contends that he properly stopped payment of the money orders. Finally, he contends that the return of $7300.00 to Birns constituted payment of the money orders, and therefore serves as a defense to the claim of the United States. For the reasons stated in the District Court’s conclusions of law, we find that the United States was properly in possession of the money orders and that it had authority to name the payee. Burke v. Jenkins, 128 Ohio St. 86, 190 N.E. 238 (1934) and Hartington National Bank v. Breslin, 88 Neb. 47, 128 N.W. 659, 31 L.R.A.,N.S., 130 (1910), the two cases cited by appellant in support of the proposition that a negotiable instrument can be enforced against the maker or drawer thereof only if blanks are filled in strict accordance with the authority given, are distinguishable from the instant ease. In both those cases, the maker of the instrument had intended that a specific payee be named. In this case, appellant did not require that the name of any particular person be filled in as payee. Since the United States was in possession of the money orders and was named therein as payee, it was a holder under the Ohio law then applicable. O.R.C. § 1301.01 (T). The District Court held that appellant had no right to stop payment on the money orders, and that his attempt to stop payment could therefore not defeat the claim of the United States. As appellant points out, it is the general rule that a cashier’s check or money order drawn by a bank upon its own funds cannot be stopped, but there is a split of authority as to whether payment on a draft drawn by one bank upon another can be stopped. 107 Á.L.R. 1463. The money orders in the instant case were drawn by appellant upon the First National Bank of Akron, and appellant argues that payment could therefore be stopped. It must be recognized, however, that the question of whether a drawer can stop a drawee from paying an instrument is distinct from the question of whether the drawer can avoid his own obligation under the instrument. See International Firearms Co., Ltd. v. Kingston Trust Co., 6 N.Y.2d 406, 189 N.Y.S.2d 911, 160 N.E.2d 656 (1959); 107 A.L.R. 1463, 1467. Regardless of appellant’s power to stop the First National Bank of Akron from paying the United States, he was obligated to make such payment unless he had available a defense good against a holder. See Cross v. Exchange Bank Co., 110 Ohio App. 219, 168 N.E.2d 910 (1958); O.R.C. § 1301.64. Appellant suggests that he does have a defense against the claim of the United States, namely that in returning $7300 to Birns he paid the money orders and thereby discharged his obligation. Birns, however, was not the holder of the money orders at the time this payment was made, and the payment of this money could therefore not discharge appellant’s obligation. O.R.C. §§ 1301.34, 1301.86. The judgment of the District Court is affirmed. Question: What is the total number of respondents in the case that fall into the category "the federal government, its agencies, and officialss"? Answer with a number. Answer:
songer_appfiduc	0	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of appellants in the case that fall into the category "fiduciaries". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. BANK OF MADISON v. GRABER et al. (two cases). Nos. 9096, 9149. Circuit Court of Appeals, Seventh Circuit. Nov. 27, 1946. Elwood Hansmann, of Chicago, Ill., and Byron H. Stebbins, Ray M. Stroud, and E. L. Wingert, all of Madison, Wis., for appellant. Nat P. Biart, of Madison, Wis., for ap-pellee. Before SPARKS, MAJOR, and KERN-ER, Circuit Judges. MAJOR, Circuit Judge. These appeals are from two separate orders entered in an interpleader suit instituted by the Bank of Madison, plaintiff-appellee, against John N. Graber, defendant-appellee (hereinafter referred to as Graber), and Oliver Bodor, defendant-appellant (hereinafter referred to as Bo-dor). Inasmuch as the orders appealed from were entered in the same suit and involve controversies resulting from a single contract entered into between Graber and Bodor, they may, so we think, be appropriately disposed of in a single opinion. The appeal in No. 9096 is from an order entered April 12, 1946, denying Bodor’s motion for a stay of all proceedings pending the submission to arbitration of the controversies between the parties. The court in its order denying said motion determined that Bodor was not entitled to such arbitration. The contract giving rise to the instant controversies was made by Graber and Bo-dor on the 13th day of March, 1945, and provided for the manufacture by Bodor for and on behalf of Graber 7,800 gross of Badger cranes (a device for the hanging of curtains and draperies at doors and windows) for the sum of $57.60 per gross set of two cranes. The contract provided that Graber should pay the agreed price for each order shipped within thirty days from the date of invoice and that he would deposit in escrow with a bank in New York the sum of $20,000 for the faithful performance of the agreement by him. On May 22, 1945, this contract was altered to the extent of providing that Graber should make the escrow deposit required of him, with the Bank of Madison located at Madison, Wisconsin, as escrow agent. It also provided that if Graber failed to pay Bodor within thirty days from the date of shipment of any of said cranes manufactured and delivered by Bodor in accordance with said agreement, the escrow agent upon demand should pay him. The sum of $20,000 was deposited by Graber with the Bank of Madison, which the latter agreed to hold and disburse pursuant to the agreement between the parties. The appeal in No. 9096, which we shall first consider, involves the following provision of the contract: “Any controversy arising in connection with either the interpretation of this agreement or the performance or non-performance thereof, shall be settled by arbitration in accordance with the laws of the State of New York by three arbitrators, one of whom shall be selected by each of the parties hereto and the third by the two so selected.” Bodor promptly entered upon the manufacture of the cranes pursuant to the contract aforesaid, which he delivered at the direction of Graber to a warehouse in New York City, from which they were shipped to Graber at Middleton, Wisconsin, and to his various customers in that and other states. Graber made payment of all invoices for cranes manufactured and delivered up to August 23, 1945 in the amount of $12,902.40, but refused to make payment of invoices for cranes thereafter shipped in the amount of $22,325.26. On October 1, 1945, Graber gave notice that he elected to cancel the contract forthwith. On November 23, 1945, Bodor commenced an action against the Bank of Madison in the Supreme Court of the County and State of New York, and caused a writ of attachment to be issued, and funds of the Bank of Madison on deposit in the Chemical Bank and Trust Company of New York City in the amount of $20,-000 to be attached under the writ. No steps were taken in that action other than service of process upon the Chemical Bank. At the time of the entry of the order appealed from (April 12, 1946), the New York action was still pending, although the record in No. 9149 indicates that it was subsequently dismissed by Bodor. On December 11, 1945, the Bank of Madison commenced the instant interpleader action in the District Court for the Western District of Wisconsin, praying that Graber and Bodor be required to inter-plead and settle between themselves their right to the escrow money. A temporary restraining order was entered restraining Bodor from proceeding with the New York action. Summons was served on Bodor in the interpleader action December 13, 1945, and on December 19, 1945, he made a written demand upon Graber for arbitration in accordance with the provision contained in the contract of March 13, 1945, to which demand Graber made no response. On January 30, 1946, Bodor filed his motion for a stay of proceedings in the interpleader action pending final completion of arbitration, and on April 12, 1946, the District Court entered an order denying such motion, from which order the instant appeal comes. The question for decision is whether Bodor was entitled to arbitration. If so, he was entitled to a stay of proceedings in the instant action pending such arbitration; otherwise, the motion to stay was properly denied. There is an express provision in the contract that it shall be construed and any controversies arising thereunder governed by the laws of the State of New York. Both parties cite New York cases in support of their respective contentions, none of which are conclusive but rather indicate that a decision must turn largely upon the facts of each case. It must be conceded, so we think, that the arbitration provision of the contract was controlling unless waived by Bodor by reason of his commencement of an action in the State Court of New York. No good purpose could be served in any extended discussion of the New York cases. The main case relied upon by Bodor is that of Newburger v. Lubell, 257 N.Y. 383, 385-387, 178 N.E. 669, which held that the mere commencement of an action at law did not constitute a waiver of an arbitration provision in the absence of notice that a controversy existed between the parties. Graber, in order to escape the effect of this holding contends that a controversy existed and relies upon certain facts disclosed by the pleadings. In the complaint which Bodor filed in New York, it is alleged that Bodor “demanded that the Defendant pay to him the sum of $20,000.00, which the Defendant refused and still refuses.” It is also disclosed that before the commencement of that action Graber notified Bodor “that he, the said Graber, elected to cancel said contract forthwith,” and that the Bank of Madison had refused upon Bodor’s demand to make payment to him of the escrow funds. It also appears that the New York suit called for a construction and interpretation of the contract. We agree with Graber that there existed a controversy referable to arbitration under the contract, prior to and at the commencement of the New York action. Another New York case relied upon by Bodor is that of La Hay, Inc., v. Pathe Exchange, Inc., 237 App.Div. 468, 470, 261 N.Y.S. 495, 497, wherein the court said: “We agree with the learned trial court that plaintiff did not waive any rights under the arbitration clause by bringing the equity action, particularly since that action was discontinued with the consent of both parties prior to the institution of this proceeding.” That statement is of little benefit to Bo-dor since his New York action was not dismissed until long after the institution of the instant interpleader action, in fact was still pending at the time the order appealed from was entered. In response to Bodor’s contention that the mere filing of the New York suit was not sufficient to evidence an intention to abandon arbitration, Graber relies upon Young v. Crescent Development Co., 240 N.Y. 244, 248, 148 N.E. 510, 511, wherein the court stated: “Intent is not predicated on the number of acts which are performed but on their character. The question whether respondents entered 'upon a course which led them away from the right to arbitration and to its abandonment is not necessarily determined by the number of steps which they have taken upon that course but may be determined by the first step which they took, if it clearly indicates an intent to go that way.” In that case the court held there had been a waiver by a contractor of the right of arbitration by the filing of a mechanic’s lien, althortgh there had been no service of summons in such action. Both sides rely upon the recent New York case Short v. National Sport Fashions, Inc., 264 App.Div. 284, 285, 35 N.Y.S.2d 169. True, the court held there had been no waiver under the peculiar facts of the case.. It recognized, however, that the abandonment of the right does not necessarily depend upon the number of steps taken but that such abandonment may be evidenced by the first step, citing Young v. Crescent Development Co., supra. While the question is not free from doubt, we are of the view that Bodor’s action in commencing his suit in New York State rather plainly evidenced an intent to waive his right to arbitration. Certainly that suit was not commenced merely to preserve the status quo of the situation or to prevent the bank from returning the escrow money to Graber. It must have been commenced for the purpose of procuring a decision by the court on the controversy which had developed between the parties, which included the amount due and owing to Bodor. This necessarily involved the question of performance by the parties under the contract, whether Bodor had been manufacturing Badger cranes in conformity with the contract and whether Graber had any legal justification for the cancellation of the contract. Obviously, Bodor did not have a right to arbitrate and to litigate at the same time, and when he chose the latter course we think he abandoned the former. Thus the order appealed from is affirmed. The appeal in No. 9149 is from a temporary restraining order entered May 23, 1946, enjoining Bodor, pending the disposition of the suit, from manufacturing, selling, offering and advertising for sale certain drapery cranes embodying the invention of Graber and from using the name “Badger Cranes.” As already noted, Gra-ber on October 1, 1945 gave notice of his election to cancel the contract forthwith. The contract contained a provision fixing the rights of the parties under such circumstances and particularly those of Bodor as follows: “In case the Second Party [Graber] should cancel this contract prior to the completion of the manufacture of the total amount provided for herein, or on completion of the contract by the First Party [Bodor], the First Party shall be authorized and entitled to sell, through any channels chosen by said party, at such prices as the First Party shall deem fair, under the circumstances, all material on hand or on order, either as finished merchandise or as parts, without making any payment on account thereof by way of royalties, or otherwise, to the Second Party _ * * * ” At the time Graber notified Bodor of the cancellation of the contract the latter had on hand considerable material to be used in manufacture under the provisions of the contract. He also, up to May 8, 1946, manufactured and sold fifty-six gross of cranes. Bodor contends that such cranes were manufactured and sold in accordance with the contract and that he also had a right to manufacture other cranes from the material on hand and sell the same. The two main contentions made by Bo-dor concerning the impropriety of the order under attack are (1) that the court made no findings of fact and conclusions of law constituting the grounds for the granting of the temporary injunction, and (2) that Bodor was denied an opportunity to meet the oral testimony introduced by Graber on the hearing which culminated in the order complained of. Admittedly, there was no attempt to comply with Rule 52(a) of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, which requires: “ * * * the court shall find the facts specially and state separately its conclusions of law thereon * * * ; and in granting or refusing interlocutory injunctions the court shall similarly set forth the findings of fact and conclusions of law which constitute the grounds of its action.” The question is whether the injunction in the instant case should be sustained in the absence of such findings and conclusions. This court in Shannon et al. v. Retail Clerks, International Protective Ass’n et al., 7 Cir., 128 F.2d 553, reversed such an order in part at least for failure to comply with this rule. The court referring to the rule, stated (128 F.2d page 555) : "These are strongly worded, mandatory provisions which should be respected. They are not meaningless words.” Graber seeks to escape non-compliance with this rule by contending that the restraining order itself contained recitals which are tantamount to findings of fact and conclusions of law and that they are sufficient to serve as a basis for the order. We think this contention is not sound. Assuming that the order contains such recitals, we are of the view that the necessity for findings in compliance with the rule still would be necessary. In the recent case of United States v. Causby et al., 66 S.Ct. 1062, 1069, the Supreme Court stated: “But the deficiency in findings cannot be rectified by statements in the opinion. [Citing cases.] Findings of fact on every 'material issue’ are a statutory requirement.” We see no reason why the rule which requires findings of fact should be treated any different than a statutory provision containing the same requirement. We think that if recitals in an opinion fail to meet the statutory requirement, as the Supreme Court has held, that recitals in an order fail to meet the requirement of the rule. Furthermore, we are of the view that the recitations in the order, though accepted as findings, are not sufficient. The order recites that “Oliver Bodor, defendant above named has unlawfully manufactured, offered and advertised for sale, and delivered drapery cranes known as Badger Cranes and embodying the invention of said defendant, John N. Graber, as covered by his patent U. S. Patent No. 2321196 * In this connection it must be remembered that Bodor was authorized by, the express terms of the contract of March 13, 1945, in the event of cancellation by Graber, to manufacture and sell all material on hand either as finished merchandise or as parts, without the payment of royalties to Graber. Thus it would appear that Bodor was authorized to manufacture and sell Badger cranes under Graber’s invention as covered by his patent. A reading of Graber’s oral testimony makes it plain that he recognized Bodor’s right in this respect and his sole complaint was that Bodor was not manufacturing cranes in conformity with a sample which the parties had agreed upon. In fact, the entire controversy before the court revolved around this question. This is borne out by the fact that the court entered an order sending the physical devices to this court for our inspection. In this connection it should also be kept in mind that there is nothing in the original contract which describes the cranes to be manufactured by Bodor. In other words, there is nothing in the contract from which it can be determined whether Bodor was or was not manufacturing in compliance therewith. The answer to this question must be found in an oral agreement between the parties wherein Graber contends that Bodor was to manufacture in accordance with an agreed sample. It thus appears that the propriety of the restraining order depended upon whether the cranes manufactured by Bodor were in conformity with such sample. Bodor contends in the affirmative and Graber to the contrary. Thus there is nothing in the in-junctive order which can be construed as a finding one way or the other on this disputed factual issue. What we have said makes it unnecessary to consider in detail Bodor’s contention that he was denied an opportunity to meet the oral testimony introduced by Graber on the hearing which culminated in the order complained of. At the time of the hearing, Bodor was in New York. His counsel contends that he understood the matter was to be heard upon affidavits which the parties had submitted. The record furnishes a basis for this contention. However, on the day of the hearing the court permitted Graber and another witness produced by him to testify orally, over the objection of Bodor’s counsel that he in the absence of his client was not prepared to meet such testimony. The record strongly indicates that the action of the court in allowing the restraining order was predicated largely upon this oral testimony, without giving Bodor’s counsel an opportunity to meet it. While we recognize the wide latitude possessed by a court in a hearing on a matter of this character, we are of the view that under the particular circumstances Bodor should have been permitted to give his version of the oral agreement as to the sample which he was to use as a pattern. Whether the refusal to give Bodor such an opportunity amounted to an abuse of discretion, we need not decide in view of the fact that the order must be reversed for failure to comply with Rule 52(a). The order is therefore Reversed. Question: What is the total number of appellants in the case that fall into the category "fiduciaries"? Answer with a number. Answer:
songer_numappel	1	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Your specific task is to determine the total number of appellants in the case. If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. Benedict KUDISH, M.D., Plaintiff, Appellant, v. Robert E. BRADLEY, Executive Director of the Board of Registration and Discipline in Medicine, et al., Defendants, Appellees. No. 82-1521. United States Court of Appeals, First Circuit. Argued Dec. 6, 1982. Decided Jan. 25, 1983. Paul D. Yahoodik, Everett, Mass., for plaintiff, appellant. Carl Valvo, Asst. Atty. Gen., Boston, Mass., with whom Francis X. Bellotti, Atty. Gen., Boston, Mass., was on brief, for defendants, appellees. Before CAMPBELL and BREYER, Circuit Judges, and SMITH, Senior District Judge. Of the District of Montana, sitting by designation. RUSSELL E. SMITH, District Judge. Plaintiff-appellant was at one time licensed to practice medicine in the State of Massachusetts. On January 6,1978, he was charged in seven criminal complaints with violations of the Massachusetts controlled substance law. As a result of plea bargaining, it was agreed that, if plaintiff would resign from the practice of medicine, the criminal charges would be placed on file without any findings. In execution of that agreement, plaintiff resigned by a document in affidavit form dated May 16, 1978, sworn to before his lawyer acting as a notary public. The affidavit stated in part: “I desire to voluntarily resign from the practice of medicine; ... I realize that this resignation is a final act which deprives me of all privileges of registration and is not subject to reconsideration or judicial review ... . ” (Emphasis added.) The Board of Registration and Discipline in Medicine (Board) voted to accept the resignation on May 26, 1978. Subsequently the cases were placed on file without any findings. The Board held no hearings. Thereafter the plaintiff made several applications for reinstatement. The Board refused these applications on the ground that the resignation had been final. Ultimately the Board ordered that plaintiff “cease and desist filing for reinstatement of his license.” While it is stated by way of conclusion that the plaintiff acted under duress in signing the resignation, there is no suggestion of any kind that the criminal charges were improperly filed or that plaintiff was under pressure of any kind, except that pressure which naturally flows from the pendency of criminal charges. No claim is made that plaintiff was under any handicap or was deceived in any way. In 1976, Massachusetts law gave to the Board power to investigate and, after hearing, to “revoke, suspend, or cancel the certificate of registration ... or otherwise discipline a physician ... upon proof ... that said physician” had engaged in specified acts of misconduct. The Board was given broad power to adopt rules and regulations governing the practice of medicine. The language of the statute is: “[Njothing in this section shall be construed to limit this general power of the board.” The Board adopted a regulation providing the following: (10) Resignation. A registrant who is named in a complaint or who is subject to an investigation by the Board or who is the defendant in a disciplinary action may submit his/her resignation by delivering to the Board a writing stating that: he/she desires to resign; his/her resignation is tendered voluntarily; he/she realizes that resignation is a final act which deprives a person of all privileges of registration and is not subject to reconsideration or judicial review; and that the registrant is not currently licensed to practice in any other state or jurisdiction, will make no attempt to gain licensure elsewhere, or will resign any other licenses contemporaneous with his/her resignation in the Commonwealth. It is obvious that plaintiff’s resignation was written to conform to the quoted language in the regulation, and that language could not state more clearly that one who resigns under the conditions set forth in the regulation has lost forever the right to practice medicine. Plaintiff now argues that he was coerced. At the time plaintiff was charged, he was entitled to a trial with all of the protections that the Constitutions of Massachusetts and the United States afforded to people so charged. Before his license could have been revoked, he was entitled to be tried by the Board. We reiterate that there is no suggestion that any outside pressure was applied to require plaintiff to plea bargain. At any time before his plea bargain was accepted by the State plaintiff was just as free to walk away from the bargaining table as he was to walk to it. It is true that the plea bargain was not the same kind of a voluntary act as the choice of cheese rather than ice cream on apple pie is, but it was voluntary in the sense that the plaintiff made a deliberate choice between two evils and chose what he thought at the time to be the lesser of them. In this regard plaintiff relies on language in Union Pacific Railroad v. Public Service Commission, 248 U.S. 67, 70, 39 S.Ct. 24, 25, 63 L.Ed. 131 (1918), as follows: “Of course, it was for the interest of the Company to get the certificate. It always is for the interest of a party under duress to choose the lesser of two evils. But the fact that a choice was made according to interest does not exclude duress.” This language, however, as the facts in the Union Pacific case indicate, means nothing more than that a choice of one of two evils is not voluntary if one of the choices is illegally compelled. The cited case is not persuasive because there the Public Service Commission demanded that the railroad pay an extortionate fee of $10,962.25 for the issuance of a certificate which was vital to the railroad s operation. The legal fee was $250.00. The railroad had the choice of paying the excessive fee or suffering grave penalties. The railroad’s choice was not voluntary, and the payment did not estop the railroad from recovering the illegal fee. Plaintiff’s next claim is that the Board denied him due process when it refused to hear his petition for reinstatement. That argument starts with the premise that a license to practice medicine, once acquired, is a valuable property right protected by the fourteenth amendment. That is true, but this plaintiff has resigned and does not now have a right to practice medicine. The fact that his resignation was final means that no due process rights can ever arise in support of an application for reinstatement. It is not a denial of due process when the finality of an order or judgment cuts off the right to have issues redetermined. Were the regulation requiring finality unconstitutional, some due process argument would be tenable, but we see no constitutional infirmity in the regulation. We think that any board having powers of discipline has the power to require a hearing when charges are made. The party charged has no right without the consent of the Board to dispense with the hearing, nor has he a right to postpone it indefinitely. It follows that, if the person charged in effect requests that there be no hearing, the Board has the power to grant the request on the condition that the resignation be final, as required by the regulations governing the Board here. Finality may be harsh, but the public has a right to have the facts of illegal conduct developed by a criminal trial and by a board hearing at a time when such conduct is recent history — when the witnesses are alive, the records extant, and the memories undiminished by time. If the resignation is not final, then, when a claimant gets around to filing an application for reinstatement, the state may find itself trying to prove charges that are true, but which, because of the passage of time, cannot be proved to be true. The requirement of finality, as it appears here, is entirely reasonable, is well within the authority of the Board, is not unfair, and in all respects is constitutional. The judgment is affirmed. . Mass.Gen.Laws Ann. ch. 112, § 5. . 243 Code of Mass. Regulations § 1.05(10); 12 Mass. Register 18 (July 6, 1976). Question: What is the total number of appellants in the case? Answer with a number. Answer:
songer_weightev	A	What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the factual interpretation by the court or its conclusions (e.g., regarding the weight of evidence or the sufficiency of evidence) favor the appellant?" This includes discussions of whether the litigant met the burden of proof. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". Oscar H. MATUTE, Appellant, v. PROCOAST NAVIGATION LTD., Maritime Services G.m.b.h., Appellees. No. 90-5362. United States Court of Appeals, Third Circuit. Resubmitted Under Rule 12(6) March 11, 1991. Decided March 22, 1991. Francis J. Dooley, Orange, N.J., for appellant. George J. Koelzer, Clarkson S. Fisher, Jr., Ober, Kaler, Grimes & Shriver, Edison, N.J., for appellees. Before COWEN, ALITO, and ROSENN, Circuit Judges. OPINION OF THE COURT ROSENN, Circuit Judge. This appeal presents two serious questions. The first is whether the district court had subject matter jurisdiction under the Jones Act, 46 U.S.C.App. § 688, of a suit brought for damages by Oscar H. Ma-tute, a Honduran citizen, who was a crew-member of a vessel registered in the Republic of Cyprus. The ship was owned at the time of the alleged injury by a corporation whose officers, director, and stockholders were citizens and residents of West Germany. The alleged injury occurred outside the United States. The second question is whether the appellant’s failure to follow the rules of this court constituted a jurisdictional bar to hear his appeal or, alternatively, whether this court in the exercise of its discretion should summarily dispose of the appeal by dismissal. The district court granted the motion of the defendant, Procoast Navigation Ltd. (Procoast), to dismiss the suit for lack of subject matter jurisdiction because the points of contact of this dispute with the United States were minimal. We conclude that the district court did not err in dismissing the plaintiff’s complaint for lack of subject matter jurisdiction and in denying the plaintiff’s motion for reconsideration. I. At the time of plaintiff’s injury the vessel LLOYD BERMUDA was on regular liner service between Bermuda and Newark, New Jersey. According to an affidavit of the vessel’s chief mate, Walter Gonzalez, Matute developed an eye irritation while employed on the LLOYD BERMUDA in 1986 which, because he failed to receive prompt medical attention, developed into a serious condition. In July 1987, Matute brought this action under the Jones Act against Procoast and another West German corporation, Maritime Services G.m.b.h., for damages arising out of his eye injury. At Procoast’s request, and with the consent of Matute, the suit was transferred from the United States District Court for the Southern District of New York to the United States District Court for the District of New Jersey, where, on November 30, 1989, the court dismissed the action against Procoast for lack of subject matter jurisdiction. In its memorandum order, the district court analyzed the contacts of this dispute with the United States and held that they were insufficient to establish jurisdiction under the Jones Act. The court declared: [T]he points of contact of this dispute with the United States are minimal, in that the law of the ship’s flag is Cyprus; the allegiance of the injured seaman is Honduras; the allegiance of the ship owner is West German; other forums are available to the injured seaman; and the shipowner’s base of operations is outside the United States____ The district court might also have mentioned another factor which argued against jurisdiction: the injury occurred outside the United States on the high seas. Following the dismissal, Matute filed a timely motion for reconsideration based largely on the submission of a new affida- vit by Gonzalez claiming that Procoast had an agent acting on its behalf in the United States. The district court considered this new information, but nevertheless reaffirmed its earlier holding that contacts with the United States were too minimal to establish subject matter jurisdiction. Following denial of his motion to reconsider, Matute timely filed a notice of appeal which stated in part: Please take notice that the plaintiff appeals from the Order of the Hon. Maryanne Trump Barry, U.S.D.J. denying plaintiffs Motion For Reconsideration filed on March 30, 1990 and docketed on April 4, 1990, which Order affirmed the Order Dismissal of November 30, 1989. Procoast contends in its brief that this notice provided appellate jurisdiction only over the denial of the motion for reconsideration, but was insufficient to provide appellate jurisdiction over the original dismissal. Furthermore, Procoast maintains that Matute’s brief and appendix were filed out of time and that the Clerk of this court denied Matute’s motion to file them late. II. A. Failure to Designate Underlying Order Obviously, counsel for appellant did not pay careful attention to the Federal Rules of Appellate Procedure and the rules of this court in several important respects. Rule 3(c) of the Federal Rules of Appellate Procedure designates the content of the Notice of Appeal, which “shall specify the party or parties taking the appeal; shall designate the judgment, order or part thereof appealed from; and shall name the court to which the appeal is taken____ An appeal shall not be dismissed for informality of form or title of the notice of appeal.” Compliance with Federal Rules of Appellate Procedure 3 and 4, providing for the timely and proper filing of a notice of appeal, has been interpreted to be “mandatory and jurisdictional.” United States v. Robinson, 361 U.S. 220, 224, 80 S.Ct. 282, 285, 4 L.Ed.2d 259 (1960). Here, Matute failed in his notice of appeal to designate that the order appealed from included the original order of dismissal. He merely appealed from the order denying the motion for reconsideration. Therefore, Procoast argues that this failure does not raise on appeal the underlying order of dismissal. This court has in the past liberally construed the content of notices of appeal and generally it has not interpreted them to bar an appeal unless the notice of appeal is so inadequate as to prejudice the opposing party. Thus, the court has held it proper to exercise appellate jurisdiction “over orders not specified in the notice of appeal if there is a connection between the specified and unspecified order, the intention to appeal the unspecified order is apparent and the opposing party is not prejudiced and has a full opportunity to brief the issue.” Williams v. Guzzardi, 875 F.2d 46, 49 (3rd Cir.1989). See also Drinkwater v. Union Carbide Corp., 904 F.2d 853, 858 (3rd Cir.1990). Thus, in Williams, this court held that the appellants’ notice of appeal which specified only the trial court’s post-judgment order dismissing their motion for judgment notwithstanding the verdict did not preclude an appellate court from considering the original order entering judgment against appellants. This holding is in accord with the United States Supreme Court which, in one case, reversed an appellate court for dismissing an appeal because the notice of appeal specified the denial of a motion for a new trial but did not specify the underlying judgment. See State Farm Mutual Auto. Ins. Co. v. Palmer, 225 F.2d 876 (9th Cir.1955), rev’d 350 U.S. 944, 76 S.Ct. 321, 100 L.Ed. 823 (1956). See also Wheatley v. Beetar, 637 F.2d 863 (2nd Cir. 1980) (filing of notice of appeal from an order denying a new trial rather than from the underlying judgment was harmless error). Moore’s Federal Practice states: The rule is now well settled that a mistake in designating the judgment, or in designating the part appealed from if only a part is designated, should not result in loss of the appeal as long as the intent to appeal from a specific judgment can be fairly inferred from the notice and the appellee is not misled by the mistake. 9 Moore’s Federal Practice 11203.18 at 3-76-77 (citations omitted). Therefore, in the absence of a showing of prejudice by Procoast, it appears that Ma-tute’s mistake in failing to state specifically that he was appealing from the underlying dismissal should be viewed as harmless error and not a jurisdictional bar to his appeal. Indeed, Matute did mention the Order of Dismissal in his notice of appeal; the intent to appeal from that Order, thus, can be inferred fairly from the notice. B. Failure to Timely File Brief and Appendix Rule 31 of the Federal Rules of Appellate Procedure provides that the appellant shall file a brief within 40 days after the date on which the record is filed. Failure to file a brief on time is not a jurisdictional bar to hearing the appeal. Marcaida v. Rascoe, 569 F.2d 828 (5th Cir.1978). However, failure to file a brief on time may provide the cause for summary disposition of the appeal in the court’s discretion. This court’s Rules provide sanctions for a party’s failure to adhere to the Federal Rules of Appellate Procedure, including Rule 31 providing for the timely filing of briefs. Appropriate sanctions may include “dismissal of the appeal, imposition of costs or disciplinary sanctions upon counsel.” Third Circuit Rule 21(4). See Spartacus, Inc. v. Borough of McKees Rocks, 694 F.2d 947, 951 (3rd Cir.1982) (Garth, J., dissenting) (Rule 21(4) permits dismissal of an appeal when adherence has not been had to this court’s established procedures). In the instant case, Matute’s brief was due initially on June 26, 1990. The Clerk of the Court informs us that she received a request for an extension of time and in response extended the filing time to July 17, 1990. However, counsel for the appellant failed to file his brief during this extended period and instead, on July 18,1990, submitted another motion for an extension of time. The docket sheet shows that the Clerk granted this second motion for extension of time until July 30, 1990; however, the Clerk warned appellant that no further extensions would be granted beyond that date. Counsel submitted a third request on August 2, 1990, for an extension of time until August 6, 1990 to file his brief. According to the docket sheet, the Acting Clerk extended the filing date until August 6, 1990, but notified appellant that if his brief was not filed by that date, the case would be dismissed; counsel again failed to submit his brief in time. On August 21, 1990, almost two months after the initial filing date, counsel for Matute filed his brief and simultaneously moved for permission to file his brief out of time, which motion was denied. In Kushner v. Winterthur Swiss Insurance Co., 620 F.2d 404 (3rd Cir.1980), we took great pains to inform the bar of the importance and necessity of complying with court rules respecting the content and filing of briefs. In that case, we expressed our reluctance to dismiss an appeal for failure to comply with rules of court but we made the importance of compliance very clear. We noted that we would not expend valuable judicial time in performing the work of errant counsel with respect to the failure to properly prepare the contents of briefs and appendices. We therefore dismissed the appeal for failure to file an appendix that conformed to the rules of court and specifically gave notice that the failure “to observe the Federal Rules of Appellate Procedure and the rules of this court may also result in dismissal of appeals.” Id. at 407. Although that case dealt with disregard of the court rule relating to the content of the brief and appendix, the rule and its reasons apply with equal, if not greater, force to the failure to file timely a brief and appendix. In Winterthur we explained the practical reasons for the court’s action and the jurisprudential justification for the decision. Our Rules, which have been in effect since September 1, 1978, were designed to enable this court to process effectively and judiciously an ever-increasing workload. Since the passage of our Rules, the number of appeals filed per judge has swelled dramatically. In 1979, this court, consisting of nine active judges, decided 1,702 appeals. In the year ending June 30, 1990, this court, with twelve active judges considered 2,943 appeals, a significant increase in filings per judge. Thus, the pragmatic considerations which motivated this court’s dismissal of the appeal in Winterthur are even more compelling in 1991. Our ongoing efforts to provide speedy and just dispositions of all appeals for every litigant are hindered by a party which fails to abide by our rules for the timely filing of briefs and appendices. As noted in Winterthur, jurisprudential considerations also justify dismissing an appeal where the appellate rules have not been observed. There, we stated, Each appellant in this court must of necessity allege that the district court violated some rule of substantive or procedural law____ The litigant, then, who charges that the rules were not followed in the district court should himself follow the rules when he applies for relief in this court. Sauce for the goose is sauce for the gander. Winterthur, 620 F.2d at 407. Thus, the principle of consistent and mutual respect for the supremacy of rules in our system of law counsels for sanctions against a participant who fails to abide by those rules without good cause. Dismissal of an appeal will not be appropriate in every case of an untimely filing, but a showing of “extraordinary and compelling circumstances” may give the court cause to excuse the violation. Barber v. American Security Bank, 841 F.2d 1159, 1160 (D.C.Cir.1988). Here, counsel for Matute has brought to our attention in a petition for rehearing extraordinary and compelling personal circumstances excusing his neglect in failing to file on time; namely, serious injuries to his son while on sea duty with the United States Merchant Marines and the hospitalization of both his wife and son during the 40-day period for preparing his brief and appendix. Thus, we will not dismiss Matute’s appeal for counsel’s failure to file his brief on time. III. Although we do not dismiss this appeal on procedural grounds, we nevertheless affirm the district court’s dismissal of the complaint for lack of subject matter jurisdiction. In rejecting Matute’s motion for reconsideration and in dismissing his claim under the Jones Act the district court considered each of the factors announced in the Lauritzen-Romero-Rhoditis triad. Subject matter jurisdiction in the district court existed only if Matute’s claim fell within the Jones Act because he had not made a claim under the General Maritime Law of the United States. The district court considered the seven factors originally announced in the Lauritzen case and weighed each factor “in light of the national interests served by the assertion of Jones Act jurisdiction.” Hellenic Lines Ltd. v. Rhoditis, 398 U.S. 306, 90 S.Ct. 1731, 26 L.Ed.2d 252 (1970). The factors announced in Lauritzen were: (1) the place of injury, (2) the country of the ship’s flag, (3) the allegiance or the domicile of the injured seaman, (4) the allegiance of the shipowner, (5) where the shipping articles were signed, (6) the inaccessibility of a foreign forum, and (7) the law of the forum. Lauritzen, 345 U.S. at 583-591, 73 S.Ct. at 928-933. Rhoditis added an eighth factor: the location of the defendant’s “base of operations.” The factors are not to be weighed equally. This court exercises plenary review of a district court’s decision to dismiss a complaint for lack of subject matter jurisdiction. York Bank and Trust v. Federal Savings and Loan Ins. Corp., 851 F.2d 637, 638 (3rd Cir.1988). We have reviewed the district court’s analysis of each element and the weight to be given each of the factors in the Lauritzen-Romero-Rhoditis equation. We have also considered as well Matute’s effort to extend the Rhoditis factor to take into account the LLOYD BERMUDA’S weekly visits to the United States. We conclude that the district court correctly held that the plaintiff has not met his burden of proving jurisdiction under the Jones Act, Dracos v. Hellenic Lines, Ltd., 762 F.2d 348, 350 (4th Cir.), cert. denied, 474 U.S. 945, 106 S.Ct. 311, 88 L.Ed.2d 288 (1985), and that the district court properly dismissed the action for lack of subject matter jurisdiction. IV. Thus, the judgment of the district court dismissing Matute’s action will be affirmed. . See also, In re Universal Minerals, Inc., 755 F.2d 309, 313 (3rd Cir.1985) (unprofessional conduct of appellant’s counsel in failing to respond to this court’s repeated inquiries required dismissal); Brooks v. Fitch, 642 F.2d 46, 48 (3rd Cir.1981) (failure to state in appeal brief the basis for appellate jurisdiction and the standard of review in violation of Rule 21 alone justified dismissal of the appeal). Furthermore, other courts of appeal have dismissed appeals for the precise conduct at issue here, failure to file a brief on time. See, e.g., Julien v. Zeringue, 864 F.2d 1572, 1574 (Fed.Cir.) cert. denied — U.S. —, 110 S.Ct. 276, 107 L.Ed.2d 256 (1989); Barber v. American Security Bank, 841 F.2d 1159 (D.C.Cir.1988); Stotler and Company v. Able, 837 F.2d 1425 (7th Cir.1988). . Table X-6, "Appeals Commenced in the U.S. Courts of Appeals," Annual Report of the Director, Administrative Office of the United States Courts, at A-174 (1979). . "1990 Federal Court Management Statistics,” Annual Report of the Director, Administrative Office of the United States Courts, at 8 (1990). . Lauritzen v. Larsen, 345 U.S. 571, 73 S.Ct. 921, 97 L.Ed. 1254 (1953); Romero v. International Terminal Operating Co., 358 U.S. 354, 79 S.Ct. 468, 3 L.Ed.2d 368 (1959); Hellenic Lines Ltd. v. Rhoditis, 398 U.S. 306, 90 S.Ct. 1731, 26 L.Ed.2d 252 (1970). Question: Did the factual interpretation by the court or its conclusions (e.g., regarding the weight of evidence or the sufficiency of evidence) favor the appellant? A. No B. Yes C. Mixed answer D. Issue not discussed Answer:
sc_caseorigin	057	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the court in which the case originated. Focus on the court in which the case originated, not the administrative agency. For this reason, if appropiate note the origin court to be a state or federal appellate court rather than a court of first instance (trial court). If the case originated in the United States Supreme Court (arose under its original jurisdiction or no other court was involved), note the origin as "United States Supreme Court". If the case originated in a state court, note the origin as "State Court". Do not code the name of the state. The courts in the District of Columbia present a special case in part because of their complex history. Treat local trial (including today's superior court) and appellate courts (including today's DC Court of Appeals) as state courts. Consider cases that arise on a petition of habeas corpus and those removed to the federal courts from a state court as originating in the federal, rather than a state, court system. A petition for a writ of habeas corpus begins in the federal district court, not the state trial court. Identify courts based on the naming conventions of the day. Do not differentiate among districts in a state. For example, use "New York U.S. Circuit for (all) District(s) of New York" for all the districts in New York. INDEPENDENT PETROLEUM WORKERS OF AMERICA, INC. v. AMERICAN OIL CO. No. 55. Argued November 9, 1964. Decided November 23, 1964. David E. Feller argued the cause for petitioner. With him on the briefs were William Belshaw, Benedict R. Danko, Elliot Bredhoff, Jerry D. Anker and Michael H. Gottesman. Frederic D. Anderson argued the cause for respondent. With him -on the brief were Richard P. Tinkham and Daniel F. Kelly. Per Curiam. The judgment is affirmed by an equally divided Court. Mr. Justice Goldberg took no part in the consideration or decision of this case. Question: What is the court in which the case originated? 001. U.S. Court of Customs and Patent Appeals 002. U.S. Court of International Trade 003. U.S. Court of Claims, Court of Federal Claims 004. U.S. Court of Military Appeals, renamed as Court of Appeals for the Armed Forces 005. U.S. Court of Military Review 006. U.S. Court of Veterans Appeals 007. U.S. Customs Court 008. U.S. Court of Appeals, Federal Circuit 009. U.S. Tax Court 010. Temporary Emergency U.S. Court of Appeals 011. U.S. Court for China 012. U.S. Consular Courts 013. U.S. Commerce Court 014. Territorial Supreme Court 015. Territorial Appellate Court 016. Territorial Trial Court 017. Emergency Court of Appeals 018. Supreme Court of the District of Columbia 019. Bankruptcy Court 020. U.S. Court of Appeals, First Circuit 021. U.S. Court of Appeals, Second Circuit 022. U.S. Court of Appeals, Third Circuit 023. U.S. Court of Appeals, Fourth Circuit 024. U.S. Court of Appeals, Fifth Circuit 025. U.S. Court of Appeals, Sixth Circuit 026. U.S. Court of Appeals, Seventh Circuit 027. U.S. Court of Appeals, Eighth Circuit 028. U.S. Court of Appeals, Ninth Circuit 029. U.S. Court of Appeals, Tenth Circuit 030. U.S. Court of Appeals, Eleventh Circuit 031. U.S. Court of Appeals, District of Columbia Circuit (includes the Court of Appeals for the District of Columbia but not the District of Columbia Court of Appeals, which has local jurisdiction) 032. Alabama Middle U.S. District Court 033. Alabama Northern U.S. District Court 034. Alabama Southern U.S. District Court 035. Alaska U.S. District Court 036. Arizona U.S. District Court 037. Arkansas Eastern U.S. District Court 038. Arkansas Western U.S. District Court 039. California Central U.S. District Court 040. California Eastern U.S. District Court 041. California Northern U.S. District Court 042. California Southern U.S. District Court 043. Colorado U.S. District Court 044. Connecticut U.S. District Court 045. Delaware U.S. District Court 046. District Of Columbia U.S. District Court 047. Florida Middle U.S. District Court 048. Florida Northern U.S. District Court 049. Florida Southern U.S. District Court 050. Georgia Middle U.S. District Court 051. Georgia Northern U.S. District Court 052. Georgia Southern U.S. District Court 053. Guam U.S. District Court 054. Hawaii U.S. District Court 055. Idaho U.S. District Court 056. Illinois Central U.S. District Court 057. Illinois Northern U.S. District Court 058. Illinois Southern U.S. District Court 059. Indiana Northern U.S. District Court 060. Indiana Southern U.S. District Court 061. Iowa Northern U.S. District Court 062. Iowa Southern U.S. District Court 063. Kansas U.S. District Court 064. Kentucky Eastern U.S. District Court 065. Kentucky Western U.S. District Court 066. Louisiana Eastern U.S. District Court 067. Louisiana Middle U.S. District Court 068. Louisiana Western U.S. District Court 069. Maine U.S. District Court 070. Maryland U.S. District Court 071. Massachusetts U.S. District Court 072. Michigan Eastern U.S. District Court 073. Michigan Western U.S. District Court 074. Minnesota U.S. District Court 075. Mississippi Northern U.S. District Court 076. Mississippi Southern U.S. District Court 077. Missouri Eastern U.S. District Court 078. Missouri Western U.S. District Court 079. Montana U.S. District Court 080. Nebraska U.S. District Court 081. Nevada U.S. District Court 082. New Hampshire U.S. District Court 083. New Jersey U.S. District Court 084. New Mexico U.S. District Court 085. New York Eastern U.S. District Court 086. New York Northern U.S. District Court 087. New York Southern U.S. District Court 088. New York Western U.S. District Court 089. North Carolina Eastern U.S. District Court 090. North Carolina Middle U.S. District Court 091. North Carolina Western U.S. District Court 092. North Dakota U.S. District Court 093. Northern Mariana Islands U.S. District Court 094. Ohio Northern U.S. District Court 095. Ohio Southern U.S. District Court 096. Oklahoma Eastern U.S. District Court 097. Oklahoma Northern U.S. District Court 098. Oklahoma Western U.S. District Court 099. Oregon U.S. District Court 100. Pennsylvania Eastern U.S. District Court 101. Pennsylvania Middle U.S. District Court 102. Pennsylvania Western U.S. District Court 103. Puerto Rico U.S. District Court 104. Rhode Island U.S. District Court 105. South Carolina U.S. District Court 106. South Dakota U.S. District Court 107. Tennessee Eastern U.S. District Court 108. Tennessee Middle U.S. District Court 109. Tennessee Western U.S. District Court 110. Texas Eastern U.S. District Court 111. Texas Northern U.S. District Court 112. Texas Southern U.S. District Court 113. Texas Western U.S. District Court 114. Utah U.S. District Court 115. Vermont U.S. District Court 116. Virgin Islands U.S. District Court 117. Virginia Eastern U.S. District Court 118. Virginia Western U.S. District Court 119. Washington Eastern U.S. District Court 120. Washington Western U.S. District Court 121. West Virginia Northern U.S. District Court 122. West Virginia Southern U.S. District Court 123. Wisconsin Eastern U.S. District Court 124. Wisconsin Western U.S. District Court 125. Wyoming U.S. District Court 126. Louisiana U.S. District Court 127. Washington U.S. District Court 128. West Virginia U.S. District Court 129. Illinois Eastern U.S. District Court 130. South Carolina Eastern U.S. District Court 131. South Carolina Western U.S. District Court 132. Alabama U.S. District Court 133. U.S. District Court for the Canal Zone 134. Georgia U.S. District Court 135. Illinois U.S. District Court 136. Indiana U.S. District Court 137. Iowa U.S. District Court 138. Michigan U.S. District Court 139. Mississippi U.S. District Court 140. Missouri U.S. District Court 141. New Jersey Eastern U.S. District Court (East Jersey U.S. District Court) 142. New Jersey Western U.S. District Court (West Jersey U.S. District Court) 143. New York U.S. District Court 144. North Carolina U.S. District Court 145. Ohio U.S. District Court 146. Pennsylvania U.S. District Court 147. Tennessee U.S. District Court 148. Texas U.S. District Court 149. Virginia U.S. District Court 150. Norfolk U.S. District Court 151. Wisconsin U.S. District Court 152. Kentucky U.S. Distrcrict Court 153. New Jersey U.S. District Court 154. California U.S. District Court 155. Florida U.S. District Court 156. Arkansas U.S. District Court 157. District of Orleans U.S. District Court 158. State Supreme Court 159. State Appellate Court 160. State Trial Court 161. Eastern Circuit (of the United States) 162. Middle Circuit (of the United States) 163. Southern Circuit (of the United States) 164. Alabama U.S. Circuit Court for (all) District(s) of Alabama 165. Arkansas U.S. Circuit Court for (all) District(s) of Arkansas 166. California U.S. Circuit for (all) District(s) of California 167. Connecticut U.S. Circuit for the District of Connecticut 168. Delaware U.S. Circuit for the District of Delaware 169. Florida U.S. Circuit for (all) District(s) of Florida 170. Georgia U.S. Circuit for (all) District(s) of Georgia 171. Illinois U.S. Circuit for (all) District(s) of Illinois 172. Indiana U.S. Circuit for (all) District(s) of Indiana 173. Iowa U.S. Circuit for (all) District(s) of Iowa 174. Kansas U.S. Circuit for the District of Kansas 175. Kentucky U.S. Circuit for (all) District(s) of Kentucky 176. Louisiana U.S. Circuit for (all) District(s) of Louisiana 177. Maine U.S. Circuit for the District of Maine 178. Maryland U.S. Circuit for the District of Maryland 179. Massachusetts U.S. Circuit for the District of Massachusetts 180. Michigan U.S. Circuit for (all) District(s) of Michigan 181. Minnesota U.S. Circuit for the District of Minnesota 182. Mississippi U.S. Circuit for (all) District(s) of Mississippi 183. Missouri U.S. Circuit for (all) District(s) of Missouri 184. Nevada U.S. Circuit for the District of Nevada 185. New Hampshire U.S. Circuit for the District of New Hampshire 186. New Jersey U.S. Circuit for (all) District(s) of New Jersey 187. New York U.S. Circuit for (all) District(s) of New York 188. North Carolina U.S. Circuit for (all) District(s) of North Carolina 189. Ohio U.S. Circuit for (all) District(s) of Ohio 190. Oregon U.S. Circuit for the District of Oregon 191. Pennsylvania U.S. Circuit for (all) District(s) of Pennsylvania 192. Rhode Island U.S. Circuit for the District of Rhode Island 193. South Carolina U.S. Circuit for the District of South Carolina 194. Tennessee U.S. Circuit for (all) District(s) of Tennessee 195. Texas U.S. Circuit for (all) District(s) of Texas 196. Vermont U.S. Circuit for the District of Vermont 197. Virginia U.S. Circuit for (all) District(s) of Virginia 198. West Virginia U.S. Circuit for (all) District(s) of West Virginia 199. Wisconsin U.S. Circuit for (all) District(s) of Wisconsin 200. Wyoming U.S. Circuit for the District of Wyoming 201. Circuit Court of the District of Columbia 202. Nebraska U.S. Circuit for the District of Nebraska 203. Colorado U.S. Circuit for the District of Colorado 204. Washington U.S. Circuit for (all) District(s) of Washington 205. Idaho U.S. Circuit Court for (all) District(s) of Idaho 206. Montana U.S. Circuit Court for (all) District(s) of Montana 207. Utah U.S. Circuit Court for (all) District(s) of Utah 208. South Dakota U.S. Circuit Court for (all) District(s) of South Dakota 209. North Dakota U.S. Circuit Court for (all) District(s) of North Dakota 210. Oklahoma U.S. Circuit Court for (all) District(s) of Oklahoma 211. Court of Private Land Claims 212. United States Supreme Court Answer:
songer_numappel	2	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Your specific task is to determine the total number of appellants in the case. If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. Dennis L. KUCERA and Eileen R. Kucera, Appellants, v. CITIZENS BANK & TRUST CO. and Dan B. McNair, Appellees. No. 84-2178. United States Court of Appeals, Eighth Circuit. Submitted Nov. 19, 1984. Decided Feb. 8, 1985. Rehearing and Rehearing En Banc Denied April 10,1985. Leininger, Grant, Rogers & Maul, Columbus, Neb., for appellees. Dennis L. Kucera and Eileen R. Kucera, pro se. Before HEANEY, BRIGHT and ROSS, Circuit Judges. PER CURIAM. Dennis and Eileen Kucera appeal from the district court’s dismissal of their complaint for failure to state a claim. For reversal, the Kuceras allege that their complaint stated violations of the Truth in Lending Act (Act), 15 U.S.C. § 1601 et seq. (1982), by the Citizens Bank & Trust Company (Bank), and Dan B. McNair, an employee of the Bank. After carefully reviewing the record, we agree that the district court properly dismissed the complaint. The Kuceras’ argument that the Bank violated the general disclosure requirements of the Act is barred by the Act’s one-year period of limitation. 15 U.S.C. § 1640(e). Moreover, all of the loans are exempt from coverage under the Act’s right-of-rescission provision. The right of rescission only applies to loans secured by the debtor’s principal place of residence. 15 U.S.C. § 1635(a). Although the Kuceras alleged that the loans were secured by their principal place of residence, all of the loans show they were secured by a 1978 security agreement, and that they were renewal or refinancing transactions. “[A] transaction which constitutes a refinancing * * * of an existing extension of credit by the same creditor secured by an interest in the same property” is exempt from the right-of-rescission provision. 15 U.S.C. § 1635(e)(1)(B). Therefore, even if the loans were secured by the Kuceras’ principal residence, the seven refinancing transactions are exempt from coverage under the right-of-rescission. The Kuceras’ complaint also sets forth a variety of additional claims listing numerous federal statutes, state and federal constitutional provisions, and assorted equitable principles as bases of jurisdiction. We have carefully reviewed the complaint and agree with the district court that the additional claims are without merit. Accordingly, the judgment of the district court is affirmed. . The Honorable Warren K. Urbom, Chief Judge, United States District Court for the District of Nebraska. . Many similar actions brought under the Truth in Lending Act have recently been appealed to this Court. See, e.g., K/O Ranch, Inc. v. Norwest Bank of Black Hills, 748 F.2d 1246 (8th Cir.1984). We find the reasoning of this case applicable and controlling here. Question: What is the total number of appellants in the case? Answer with a number. Answer:
sc_issuearea	H	What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Francis V. LORENZO, Petitioner v. SECURITIES AND EXCHANGE COMMISSION No. 17-1077 Supreme Court of the United States. Argued December 3, 2018 Decided March 27, 2019 Robert Heim, New York, NY, for the petitioner. Christopher G. Michel, pro hac vice, for the respondent. Robert G. Heim, Howard S. Meyers, Meyers & Heim LLP, New York, NY, for petitioner. Robert B. Stebbins, General Counsel, Michael A. Conley, Solicitor, Dominick V. Freda, Assistant General Counsel, Martin V. Totaro, Senior Counsel, Securities and Exchange Commission, Washington, DC, Noel J. Francisco, Solicitor General, Malcolm L. Stewart, Deputy Solicitor General, Christopher G. Michel, Assistant to the Solicitor General, Department of Justice, Washington, DC, for respondent. Justice BREYER delivered the opinion of the Court. Securities and Exchange Commission Rule 10b-5 makes it unlawful: "(a) To employ any device, scheme, or artifice to defraud, "(b) To make any untrue statement of a material fact ..., or "(c) To engage in any act, practice, or course of business which operates or would operate as a fraud or deceit ... in connection with the purchase or sale of any security." 17 C.F.R. § 240.10b-5 (2018). In Janus Capital Group, Inc. v. First Derivative Traders , 564 U.S. 135, 131 S.Ct. 2296, 180 L.Ed.2d 166 (2011), we examined the second of these provisions, Rule 10b-5(b), which forbids the "mak[ing]" of "any untrue statement of a material fact." We held that the "maker of a statement is the person or entity with ultimate authority over the statement, including its content and whether and how to communicate it." Id. , at 142, 131 S.Ct. 2296 (emphasis added). We said that "[w]ithout control, a person or entity can merely suggest what to say, not 'make' a statement in its own right." Ibid. And we illustrated our holding with an analogy: "[W]hen a speechwriter drafts a speech, the content is entirely within the control of the person who delivers it. And it is the speaker who takes credit-or blame-for what is ultimately said." Id., at 143, 131 S.Ct. 2296. On the facts of Janus , this meant that an investment adviser who had merely "participat[ed] in the drafting of a false statement" "made" by another could not be held liable in a private action under subsection (b) of Rule 10b-5. Id., at 145, 131 S.Ct. 2296. In this case, we consider whether those who do not "make" statements (as Janus defined "make"), but who disseminate false or misleading statements to potential investors with the intent to defraud, can be found to have violated the other parts of Rule 10b-5, subsections (a) and (c), as well as related provisions of the securities laws, § 10(b) of the Securities Exchange Act of 1934, 48 Stat. 891, as amended, 15 U.S.C. § 78j(b), and § 17(a)(1) of the Securities Act of 1933, 48 Stat. 84-85, as amended, 15 U.S.C. § 77q(a)(1). We believe that they can. I A For our purposes, the relevant facts are not in dispute. Francis Lorenzo, the petitioner, was the director of investment banking at Charles Vista, LLC, a registered broker-dealer in Staten Island, New York. Lorenzo's only investment banking client at the time was Waste2Energy Holdings, Inc., a company developing technology to convert "solid waste" into "clean renewable energy." In a June 2009 public filing, Waste2Energy stated that its total assets were worth about $14 million. This figure included intangible assets, namely, intellectual property, valued at more than $10 million. Lorenzo was skeptical of this valuation, later testifying that the intangibles were a "dead asset" because the technology "didn't really work." During the summer and early fall of 2009, Waste2Energy hired Lorenzo's firm, Charles Vista, to sell to investors $15 million worth of debentures, a form of "debt secured only by the debtor's earning power, not by a lien on any specific asset," Black's Law Dictionary 486 (10th ed. 2014). In early October 2009, Waste2Energy publicly disclosed, and Lorenzo was told, that its intellectual property was worthless, that it had " ' "[w]rit[ten] off ... all [of its] intangible assets," ' " and that its total assets (as of March 31, 2009) amounted to $370,552. Shortly thereafter, on October 14, 2009, Lorenzo sent two e-mails to prospective investors describing the debenture offering. According to later testimony by Lorenzo, he sent the e-mails at the direction of his boss, who supplied the content and "approved" the messages. The e-mails described the investment in Waste2Energy as having "3 layers of protection," including $10 million in "confirmed assets." The e-mails nowhere revealed the fact that Waste2Energy had publicly stated that its assets were in fact worth less than $400,000. Lorenzo signed the e-mails with his own name, he identified himself as "Vice President-Investment Banking," and he invited the recipients to "call with any questions." B In 2013, the Securities and Exchange Commission instituted proceedings against Lorenzo (along with his boss and Charles Vista). The Commission charged that Lorenzo had violated Rule 10b-5, § 10(b) of the Exchange Act, and § 17(a)(1) of the Securities Act. Ultimately, the Commission found that Lorenzo had run afoul of these provisions by sending false and misleading statements to investors with intent to defraud. As a sanction, it fined Lorenzo $15,000, ordered him to cease and desist from violating the securities laws, and barred him from working in the securities industry for life. Lorenzo appealed, arguing primarily that in sending the e-mails he lacked the intent required to establish a violation of Rule 10b-5, § 10(b), and § 17(a)(1), which we have characterized as " 'a mental state embracing intent to deceive, manipulate, or defraud.' " Aaron v. SEC , 446 U.S. 680, 686, and n. 5, 100 S.Ct. 1945, 64 L.Ed.2d 611 (1980). With one judge dissenting, the Court of Appeals panel rejected Lorenzo's lack-of-intent argument. 872 F.3d 578, 583 (C.A.D.C. 2017). Lorenzo does not challenge the panel's scienter finding. Reply Brief 17. Lorenzo also argued that, in light of Janus , he could not be held liable under subsection (b) of Rule 10b-5. 872 F.3d at 586-587. The panel agreed. Because his boss "asked Lorenzo to send the emails, supplied the central content, and approved the messages for distribution," id. , at 588, it was the boss that had "ultimate authority" over the content of the statement "and whether and how to communicate it," Janus , 564 U.S. at 142, 131 S.Ct. 2296. (We took this case on the assumption that Lorenzo was not a "maker" under subsection (b) of Rule 10b-5, and do not revisit the court's decision on this point.) The Court of Appeals nonetheless sustained (with one judge dissenting) the Commission's finding that, by knowingly disseminating false information to prospective investors, Lorenzo had violated other parts of Rule 10b-5, subsections (a) and (c), as well as § 10(b) and § 17(a)(1). Lorenzo then filed a petition for certiorari in this Court. We granted review to resolve disagreement about whether someone who is not a "maker" of a misstatement under Janus can nevertheless be found to have violated the other subsections of Rule 10b-5 and related provisions of the securities laws, when the only conduct involved concerns a misstatement. Compare e.g., 872 F.3d 578, with WPP Luxembourg Gamma Three Sarl v. Spot Runner, Inc. , 655 F.3d 1039, 1057-1058 (C.A.9 2011). II A At the outset, we review the relevant provisions of Rule 10b-5 and of the statutes. See Appendix, infra . As we have said, subsection (a) of the Rule makes it unlawful to "employ any device, scheme, or artifice to defraud." Subsection (b) makes it unlawful to "make any untrue statement of a material fact." And subsection (c) makes it unlawful to "engage in any act, practice, or course of business" that "operates ... as a fraud or deceit." See 17 C.F.R. § 240.10b-5. There are also two statutes at issue. Section 10(b) makes it unlawful to "use or employ ... any manipulative or deceptive device or contrivance" in contravention of Commission rules and regulations. 15 U.S.C. § 78j(b). By its authority under that section, the Commission promulgated Rule 10b-5. The second statutory provision is § 17(a), which, like Rule 10b-5, is organized into three subsections. 15 U.S.C. § 77q(a). Here, however, we consider only the first subsection, § 17(a)(1), for this is the only subsection that the Commission charged Lorenzo with violating. Like Rule 10b-5(a), (a)(1) makes it unlawful to "employ any device, scheme, or artifice to defraud." B After examining the relevant language, precedent, and purpose, we conclude that (assuming other here-irrelevant legal requirements are met) dissemination of false or misleading statements with intent to defraud can fall within the scope of subsections (a) and (c) of Rule 10b-5, as well as the relevant statutory provisions. In our view, that is so even if the disseminator did not "make" the statements and consequently falls outside subsection (b) of the Rule. It would seem obvious that the words in these provisions are, as ordinarily used, sufficiently broad to include within their scope the dissemination of false or misleading information with the intent to defraud. By sending emails he understood to contain material untruths, Lorenzo "employ[ed]" a "device," "scheme," and "artifice to defraud" within the meaning of subsection (a) of the Rule, § 10(b), and § 17(a)(1). By the same conduct, he "engage[d] in a[n] act, practice, or course of business" that "operate[d] ... as a fraud or deceit" under subsection (c) of the Rule. Recall that Lorenzo does not challenge the appeals court's scienter finding, so we take for granted that he sent the emails with "intent to deceive, manipulate, or defraud" the recipients. Aaron , 446 U.S. at 686, n. 5, 100 S.Ct. 1945. Under the circumstances, it is difficult to see how his actions could escape the reach of those provisions. Resort to dictionary definitions only strengthens this conclusion. A " 'device,' " we have observed, is simply " '[t]hat which is devised, or formed by design' "; a " 'scheme' " is a " 'project,' " " 'plan[,] or program of something to be done' "; and an " 'artifice' " is " 'an artful stratagem or trick.' " Id. , at 696, n. 13, 100 S.Ct. 1945 (quoting Webster's International Dictionary 713, 2234, 157 (2d ed. 1934) (Webster's Second)). By these lights, dissemination of false or misleading material is easily an "artful stratagem" or a "plan," "devised" to defraud an investor under subsection (a). See Rule 10b-5(a) (making it unlawful to "employ any device, scheme, or artifice to defraud"); § 17(a)(1) (same). The words "act" and "practice" in subsection (c) are similarly expansive. Webster's Second 25 (defining "act" as "a doing" or a "thing done"); id., at 1937 (defining "practice" as an "action" or "deed"); see Rule 10b-5(c) (making it unlawful to "engage in a[n] act, practice, or course of business" that "operates ... as a fraud or deceit"). These provisions capture a wide range of conduct. Applying them may present difficult problems of scope in borderline cases. Purpose, precedent, and circumstance could lead to narrowing their reach in other contexts. But we see nothing borderline about this case, where the relevant conduct (as found by the Commission) consists of disseminating false or misleading information to prospective investors with the intent to defraud. And while one can readily imagine other actors tangentially involved in dissemination-say, a mailroom clerk-for whom liability would typically be inappropriate, the petitioner in this case sent false statements directly to investors, invited them to follow up with questions, and did so in his capacity as vice president of an investment banking company. C Lorenzo argues that, despite the natural meaning of these provisions, they should not reach his conduct. This is so, he says, because the only way to be liable for false statements is through those provisions that refer specifically to false statements. Other provisions, he says, concern "scheme liability claims" and are violated only when conduct other than misstatements is involved. Brief for Petitioner 4-6, 28-30. Thus, only those who "make" untrue statements under subsection (b) can violate Rule 10b-5 in connection with statements. (Similarly, § 17(a)(2) would be the sole route for finding liability for statements under § 17(a).) Holding to the contrary, he and the dissent insist, would render subsection (b) of Rule 10b-5 "superfluous." See post , at 1108 - 1109 (opinion of THOMAS, J.). The premise of this argument is that each of these provisions should be read as governing different, mutually exclusive, spheres of conduct. But this Court and the Commission have long recognized considerable overlap among the subsections of the Rule and related provisions of the securities laws. See Herman & MacLean v. Huddleston , 459 U.S. 375, 383, 103 S.Ct. 683, 74 L.Ed.2d 548 (1983) ("[I]t is hardly a novel proposition that" different portions of the securities laws "prohibit some of the same conduct" (internal quotation marks omitted)). As we have explained, these laws marked the "first experiment in federal regulation of the securities industry." SEC v. Capital Gains Research Bureau, Inc. , 375 U.S. 180, 198, 84 S.Ct. 275, 11 L.Ed.2d 237 (1963). It is "understandable, therefore," that "in declaring certain practices unlawful," it was thought prudent "to include both a general proscription against fraudulent and deceptive practices and, out of an abundance of caution, a specific proscription against nondisclosure" even though "a specific proscription against nondisclosure" might in other circumstances be deemed "surplusage." Id., at 198-199, 84 S.Ct. 275. "Each succeeding prohibition" was thus "meant to cover additional kinds of illegalities-not to narrow the reach of the prior sections." United States v. Naftalin , 441 U.S. 768, 774, 99 S.Ct. 2077, 60 L.Ed.2d 624 (1979). We have found " 'no warrant for narrowing alternative provisions ... adopted with the purpose of affording added safeguards.' " Ibid. (quoting United States v. Gilliland , 312 U.S. 86, 93, 61 S.Ct. 518, 85 L.Ed. 598 (1941) ); see Affiliated Ute Citizens of Utah v. United States , 406 U.S. 128, 152-153, 92 S.Ct. 1456, 31 L.Ed.2d 741 (1972) (While "the second subparagraph of [Rule 10b-5] specifies the making of an untrue statement ... [t]he first and third subparagraphs are not so restricted"). And since its earliest days, the Commission has not viewed these provisions as mutually exclusive. See, e.g., In re R. D. Bayly & Co. , 19 S. E. C. 773 (1945) (finding violations of what would become Rules 10b-5(b) and (c) based on the same misrepresentations and omissions); In re Arthur Hays & Co. , 5 S. E. C. 271 (1939) (finding violations of both §§ 17(a)(2) and (a)(3) based on false representations in stock sales). The idea that each subsection of Rule 10b-5 governs a separate type of conduct is also difficult to reconcile with the language of subsections (a) and (c). It should go without saying that at least some conduct amounts to "employ[ing]" a "device, scheme, or artifice to defraud" under subsection (a) as well as "engag[ing] in a[n] act ... which operates ... as a fraud" under subsection (c). In Affiliated Ute , for instance, we described the "defendants' activities" as falling "within the very language of one or the other of those subparagraphs, a 'course of business' or a 'device, scheme, or artifice' that operated as a fraud." 406 U.S. at 153, 92 S.Ct. 1456. (The dissent, for its part, offers no account of how the superfluity problems that motivate its interpretation can be avoided where subsections (a) and (c) are concerned.) Coupled with the Rule's expansive language, which readily embraces the conduct before us, this considerable overlap suggests we should not hesitate to hold that Lorenzo's conduct ran afoul of subsections (a) and (c), as well as the related statutory provisions. Our conviction is strengthened by the fact that we here confront behavior that, though plainly fraudulent, might otherwise fall outside the scope of the Rule. Lorenzo's view that subsection (b), the making-false-statements provision, exclusively regulates conduct involving false or misleading statements would mean those who disseminate false statements with the intent to cheat investors might escape liability under the Rule altogether. But using false representations to induce the purchase of securities would seem a paradigmatic example of securities fraud. We do not know why Congress or the Commission would have wanted to disarm enforcement in this way. And we cannot easily reconcile Lorenzo's approach with the basic purpose behind these laws: "to substitute a philosophy of full disclosure for the philosophy of caveat emptor and thus to achieve a high standard of business ethics in the securities industry." Capital Gains , 375 U.S. at 186, 84 S.Ct. 275. See also, e.g., SEC v. W. J. Howey Co. , 328 U.S. 293, 299, 66 S.Ct. 1100, 90 L.Ed. 1244 (1946) (the securities laws were designed "to meet the countless and variable schemes devised by those who seek the use of the money of others on the promise of profits"). III Lorenzo and the dissent make a few other important arguments. They contend that applying subsections (a) or (c) of Rule 10b-5 to conduct like his would render our decision in Janus (which we described at the outset, supra, at 1098 - 1099) "a dead letter," post , at 1102. But we do not see how that is so. In Janus , we considered the language in subsection (b), which prohibits the "mak[ing]" of "any untrue statement of a material fact." See 564 U.S. at 141-143, 131 S.Ct. 2296. We held that the "maker" of a "statement" is the "person or entity with ultimate authority over the statement." Id. , at 142, 131 S.Ct. 2296. And we found that subsection (b) did not (under the circumstances) cover an investment adviser who helped draft misstatements issued by a different entity that controlled the statements' content. Id., at 146-148, 131 S.Ct. 2296. We said nothing about the Rule's application to the dissemination of false or misleading information. And we can assume that Janus would remain relevant (and preclude liability) where an individual neither makes nor disseminates false information-provided, of course, that the individual is not involved in some other form of fraud. Next, Lorenzo points to the statute's "aiding and abetting" provision. 15 U.S.C. § 78t(e). This provision, enforceable only by the Commission (and not by private parties), makes it unlawful to "knowingly or recklessly ... provid[e] substantial assistance to another person" who violates the Rule. Ibid. ; see Janus , 564 U.S. at 143, 131 S.Ct. 2296 (citing Central Bank of Denver, N. A. v. First Interstate Bank of Denver, N. A. , 511 U.S. 164, 114 S.Ct. 1439, 128 L.Ed.2d 119 (1994) ). Lorenzo claims that imposing primary liability upon his conduct would erase or at least weaken what is otherwise a clear distinction between primary and secondary (i.e. , aiding and abetting) liability. He emphasizes that, under today's holding, a disseminator might be a primary offender with respect to subsection (a) of Rule 10b-5 (by employing a "scheme" to "defraud") and also secondarily liable as an aider and abettor with respect to subsection (b) (by providing substantial assistance to one who "makes" a false statement). And he refers to two cases that, in his view, argue in favor of circumscribing primary liability. See Central Bank , 511 U.S. at 164, 114 S.Ct. 1439 ; Stoneridge Investment Partners, LLC v. Scientific-Atlanta , Inc., 552 U.S. 148, 128 S.Ct. 761, 169 L.Ed.2d 627 (2008). We do not believe, however, that our decision creates a serious anomaly or otherwise weakens the distinction between primary and secondary liability. For one thing, it is hardly unusual for the same conduct to be a primary violation with respect to one offense and aiding and abetting with respect to another. John, for example, might sell Bill an unregistered firearm in order to help Bill rob a bank, under circumstances that make him primarily liable for the gun sale and secondarily liable for the bank robbery. For another, the cases to which Lorenzo refers do not help his cause. Take Central Bank , where we held that Rule 10b-5's private right of action does not permit suits against secondary violators. 511 U.S. at 177, 114 S.Ct. 1439. The holding of Central Bank , we have said, suggests the need for a "clean line" between conduct that constitutes a primary violation of Rule 10b-5 and conduct that amounts to a secondary violation. Janus , 564 U.S. at 143, and n. 6, 131 S.Ct. 2296. Thus, in Janus , we sought an interpretation of "make" that could neatly divide primary violators and actors too far removed from the ultimate decision to communicate a statement. Ibid. (citing Central Bank , 511 U.S. 164, 114 S.Ct. 1439 ). The line we adopt today is just as administrable: Those who disseminate false statements with intent to defraud are primarily liable under Rules 10b-5(a) and (c), § 10(b), and § 17(a)(1), even if they are secondarily liable under Rule 10b-5(b). Lorenzo suggests that classifying dissemination as a primary violation would inappropriately subject peripheral players in fraud (including him, naturally) to substantial liability. We suspect the investors who received Lorenzo's e-mails would not view the deception so favorably. And as Central Bank itself made clear, even a bit participant in the securities markets "may be liable as a primary violator under [Rule] 10b-5" so long as "all of the requirements for primary liability ... are met." Id., at 191, 114 S.Ct. 1439. Lorenzo's reliance on Stoneridge is even further afield. There, we held that private plaintiffs could not bring suit against certain securities defendants based on undisclosed deceptions upon which the plaintiffs could not have relied. 552 U.S. at 159, 128 S.Ct. 761. But the Commission, unlike private parties, need not show reliance in its enforcement actions. And even supposing reliance were relevant here, Lorenzo's conduct involved the direct transmission of false statements to prospective investors intended to induce reliance-far from the kind of concealed fraud at issue in Stoneridge . As for Lorenzo's suggestion that those like him ought to be held secondarily liable, this offer will, far too often, prove illusory. In instances where a "maker" of a false statement does not violate subsection (b) of the Rule (perhaps because he lacked the necessary intent), a disseminator of those statements, even one knowingly engaged in an egregious fraud, could not be held to have violated the "aiding and abetting" statute. That is because the statute insists that there be a primary violator to whom the secondary violator provided "substantial assistance." 15 U.S.C. § 78t(e). And the latter can be "deemed to be in violation" of the provision only "to the same extent as the person to whom such assistance is provided." Ibid. In other words, if Acme Corp. could not be held liable under subsection (b) for a statement it made, then a knowing disseminator of those statements could not be held liable for aiding and abetting Acme under subsection (b). And if, as Lorenzo claims, the disseminator has not primarily violated other parts of Rule 10b-5, then such a fraud, whatever its intent or consequences, might escape liability altogether. That is not what Congress intended. Rather, Congress intended to root out all manner of fraud in the securities industry. And it gave to the Commission the tools to accomplish that job. * * * For these reasons, the judgment of the Court of Appeals is affirmed. So ordered . Justice KAVANAUGH took no part in the consideration or decision of this case. APPENDIX 17 C.F.R. § 240.10b-5 "It shall be unlawful for any person, directly or indirectly, by the use of any means or instrumentality of interstate commerce, or of the mails or of any facility of any national securities exchange, "(a) To employ any device, scheme, or artifice to defraud, "(b) To make any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, or "(c) To engage in any act, practice, or course of business which operates or would operate as a fraud or deceit upon any person in connection with the purchase or sale of any security." 15 U.S.C. § 78j "It shall be unlawful for any person, directly or indirectly, by the use of any means or instrumentality of interstate commerce or of the mails, or of any facility of any national securities exchange- * * * "(b) To use or employ, in connection with the purchase or sale of any security registered on a national securities exchange or any security not so registered, or any securities-based swap agreement[,] any manipulative or deceptive device or contrivance in contravention of such rules and regulations as the Commission may prescribe as necessary or appropriate in the public interest or for the protection of investors." 15 U.S.C. § 77q "(a) Use of interstate commerce for purpose of fraud or deceit "It shall be unlawful for any person in the offer or sale of any securities (including security-based swaps) or any security-based swap agreement ... by the use of any means or instruments of transportation or communication in interstate commerce or by use of the mails, directly or indirectly- "(1) to employ any device, scheme, or artifice to defraud, or "(2) to obtain money or property by means of any untrue statement of a material fact or any omission to state a material fact necessary in order to make the statements made, in light of the circumstances under which they were made, not misleading; or "(3) to engage in any transaction, practice, or course of business which operates or would operate as a fraud or deceit upon the purchaser." 15 U.S.C. § 78t "(e) Prosecution of persons who aid and abet violations "For purposes of any action brought by the Commission ..., any person that knowingly or recklessly provides substantial assistance to another person in violation of a provision of this chapter, or of any rule or regulation issued under this chapter, shall be deemed in violation of such provision to the same extent as the person to whom such assistance is provided. Justice THOMAS, with whom Justice GORSUCH joins, dissenting. In Janus Capital Group, Inc. v. First Derivative Traders , 564 U.S. 135, 131 S.Ct. 2296, 180 L.Ed.2d 166 (2011), we drew a clear line between primary and secondary liability in fraudulent-misstatement cases: A person does not "make" a fraudulent misstatement within the meaning of Securities and Exchange Commission (SEC) Rule 10b-5(b)-and thus is not primarily liable for the statement-if the person lacks "ultimate authority over the statement." Id., at 142, 131 S.Ct. 2296. Such a person could, however, be liable as an aider and abettor under principles of secondary liability. Today, the Court eviscerates this distinction by holding that a person who has not "made" a fraudulent misstatement can nevertheless be primarily liable for it. Because the majority misconstrues the securities laws and flouts our precedent in a way that is likely to have far-reaching consequences, I respectfully dissent. I To appreciate the sweeping nature of the Court's holding, it is helpful to begin with the facts of this case. On October 14, 2009, the owner of the firm at which petitioner Frank Lorenzo worked instructed him to send e-mails to two clients regarding a debenture offering. The owner explained that he wanted the e-mails to come from the firm's investment-banking division, which Lorenzo directed. Lorenzo promptly addressed an e-mail to each client, "cut and pasted" the contents of each e-mail-which he received from the owner-into the body, and "sent [them] out." App. 321. It is undisputed that Lorenzo did not draft the e-mails' contents, though he knew that they contained false or misleading statements regarding the debenture offering. Both e-mails stated that they were sent "[a]t the request of" the owner of the firm. Id., at 403, 405. No other allegedly fraudulent conduct is at issue. In 2013, the SEC brought enforcement proceedings against the owner of the firm, the firm itself, and Lorenzo. Even though Lorenzo sent the e-mails at the owner's request, the SEC did not charge Lorenzo with aiding and abetting fraud committed by the owner. See 15 U.S.C. §§ 77o(b), 78o(b)(4)(E), 78t(e). Instead, the SEC charged Lorenzo as a primary violator of multiple securities laws, including Rule 10b-5(b), which prohibits "mak[ing] any untrue statement of a material fact ... in connection with the purchase or sale of any security." 17 C.F.R. § 240.10b-5(b) (201 Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:
songer_counsel2	D	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. Your task is to determine the nature of the counsel for the respondent. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party DIAZ CINTRON v. PEOPLE OF PORTO RICO. Circuit Court of Appeals, First Circuit. March 5, 1928. No. 2142. 1. Courts (§=»43 — Legislature of Porto Rico held to have authority to abolish a district court and establish another in its place; “organize, modify, or rearrange” (Organic Act Porto Rico, § 40 [48 USCA § 861]). - The power vested in the Legislature of Porto Rico by Organic Act March 2, 1917, § 40 (48 USCA § 861), to “organize, modify, or rearrange the courts and their jurisdiction and procedure,” 7ield, to include authority to abolish a district court as then existing and to create another in its place, with an additional judge. 2. Statutes <S=>251 — Act of Porto Rico held to sufficiently express an emergency to authorize its being made effective on its approval (Organic Act Porto Rico, § 34 [48 USCA § 822 et seq.]). . An act of the Legislature at Porto Rico, abolishing an existing district court and creating another in its place, provided: “It is hereby declared that this act is of an urgent nature and is imperatively necessary for the rapid and efficient administration of justice in the judicial district of Ponce. This act therefore shall take effect immediately after its approval.” Held, that such provision sufficiently expressed an emergency, under Organic Act Porto Rico, March 2, 1917, § 34 (48 USCA § 822 et seq.). Appeal from the Supreme Court of Porto Rico. Criminal prosecution by the People of Porto Rico against Rafael Diaz Cintron. Defendant appeals from a judgment of the Supreme Court of Porto Rico, affirming a judgment of conviction of the district court. Affirmed. Leopoldo Feliu and Francis H. Dexter, both of San Juan, Porto Rico, for appellant. William Cattron Rigby, of Washington, D. C. (George C. Butte, Atty. Gen. of Porto Rico, of counsel), for appellee. Before BINGHAM, JOHNSON, and ANDERSON, Circuit Judges. JOHNSON, Circuit Judge. This is an appeal from the judgment of the Supreme Court of Porto Rico, affirming the judgment of the insular court for the judicial district of Ponce, Porto Rico, finding the plaintiff in error, hereinafter called the defendant, guilty of the offense of “carrying prohibited weapons.” The defendant was formerly district judge of the insular district court of Ponce, which eourt was abolished by Act.of the Legislature of Porto Rieo approved September 16, 1925; entitled “an act to abolish the district court for the judicial district of Ponce as at present organized, to create a new district court for the judicial district of Ponce, and for other purposes.” Laws Porto Rico 1925, e. 106. This act contained the following declaration: “This act is of an urgent nature and is imperatively necessary for the rapid and efficient administration- of justice in the judicial district of Ponce. This act, therefore, shall take effect immediately after its approval.” Section 8. ■ The court established by the act in place of the former court provided that two judges of the court should be appointed. They were appointed upon September 18, 1925, two days after the approval of the act, and took the oath of office. The next day after the qualification of the new judges the defendant shot with a revolver a lawyer of Ponce upon one of its streets and he died a few days later. The defendant was arrested on a charge of “voluntary manslaughter,” and was tried and acquitted by a jury on' December 18, 1925. Upon the next day, December 19, 1925, he was rearrested upon the charge of “carrying prohibited weapons” in violation of an Act of the Legislature of Porto Rico approved January 25,1924. The material portions of the act are: “Section 1. That any person unlawfully carrying any arm or instrument with which bodily injury may be caused, shall be punished by imprisonment for a term of from one to six* months. * * * “Section 6. That arms may be lawfully carried by * * * 9. Judges and Fiscals.” Acts Sp. Sess. 1924, No. 14. The defendant was eonvieted in the insular district court and a sentence of three months in jail was imposed upon him, with the payment of costs. Upon appeal to the Supreme Court of Porto Rico the judgment of the district court was affirmed. There are several assignments of error, but in his brief the defendant waives all except those set forth in the following statement: “We limit ourselves to resting the right of plaintiff in error to the reversal of the judgment of the Supreme Court upon the uneonstitutionality of Law 106 of September 16, 1925, (a) in attempting to abolish the then existing district court of Ponce and creating a new district court; and (b) in giving effect to the act immediately upon its adoption by reason of the emergency clause therein contained, thereby depriving plaintiff in error of the exemption accorded him as a judge of a court by section 6, subd. 9, of the act of 1924,. prohibiting the carrying of arms. The Organic Act for Porto Rico of March 2, 1917, 39 Stat. 951, known as the, Jones Law, provides in section 40 (48 USCA § 861): “Section 40. That the judicial power shall be vested in the courts and tribunals of Porto Rico now established and in operation under and by virtue of existing laws, * . * * and the Legislature of Porto Rico shall have authority, from time to time as it may see fit, not inconsistent with this act, to organize, modify, or rearrange the courts and their jurisdiction and procedure, except the District Court of the United States for Porto Rico.” The defendant contends that by this provision no power was delegated to the Legislature of Porto Rico to establish other courts than those then in existence, and that therefore the power granted “to oi'ganize, modify, or rearrange the courts and their jurisdiction and procedure” was limited to the courts in existence at the time of the passage of the Organic Act. The following, so far as material, is the Act of September 16, 1925, passed by the Legislature: “Be it enacted by the Legislature of Porto Rico: “Section 1, That from and after the approval of this act, the district court for the judicial district of Ponce as at present organized is hereby abolished. * * * “Section 8. It is hereby declared that this act is of an urgent nature and is imperatively necessary for the rapid and efficient administration of justice in the judicial district of Ponce. This act, therefore, shall take effect immediately after its approval.” After the American occupation of Porto Rico, General Orders No. 118 were issued, October 16, 1899; which provided that the organization and functions of the courts of justice in Porto Rico should undergo reforms and certain changes. It established five judicial districts and provided for a district court in each district, composed of three judges. On April 12, 1900, the first Organic Act of Porto Rico, known as the"Foraker Act, was passed by Congress. Section 33 of this act (48 USCA § 861, note) provided in part as follows: “That the judicial power shall be vested in the courts and tribunals of Porto Rico as already established and now in operation.” It gave to the Legislative Assembly “authority to legislate, from time to time as it may see fit, with respect to said courts and any others they may deem it advisable to establish, their organization, the number of judges and officials and attaches for each, their jurisdiction and procedure, and all other matters affecting them.” In 1904 the Legislature of Porto Rico reduced the number of judges of each district court from three to one, and also changed the territory included within the districts. It was held by the Supreme Court that the claim that the Legislature was without authority to do this was frivolous and void of any colorable merit. Kent v. Porto Rico, 207 U. S. 113, 28 S. Ct. 55, 52 L. Ed. 127. The Supreme Court held in substance that under the Foraker Act the Legislature of Porto Rico had broad and general powers to legislate concerning the courts within its jurisdiction, and that in the exercise of this power it was not limited to the courts as organized when the Foraker Act was enacted, as to number of judges or as to the territory over which it should exercise jurisdiction. While the Jones Act does not contain, as does the Foraker Act, any reference to courts to be established, yet in both the judicial power is vested in the courts and tribunals “already established and in operation.” But the Supreme Court held that the Legislature could change the number of judges and the territory in which each should exercise jurisdiction. By the Act of September 16, 1925, the Legislature did not deprive the people of Porto Rico of a district court at Ponce, but only abolished the court as it then existed, and in its place substituted another, which should have the same jurisdiction and be presided over by two judges. It was the district court of Ponce “as at present organized” which was changed and modified. This the Legislature had the power to do under the general authority conferred by section 40 of the Jones Act, which gave it power to “organize, modify, or rearrange the courts and their jurisdiction and procedure.” The court organized as it was when presided over by the defendant was abolished, and he therefore ceased to be a judge of it. The other contention upon which the defendant relies is that the act did not comply with the Organic Act of Porto Rico of March 2,1917, which provides (paragraph 6, § 34): “No act of the Legislature, except the general appropriation bills for the expenses of the government, shall take effect until ninety days after its passage, unless in case of emergency (which shall be expressed in the preamble or body of the act) the Legislature shall by a vote of two-thirds of all the members elected to each house otherwise direct.” Section 8 of the act of 1925 is as follows : “It is hereby declared that this act is of an urgent nature and is imperatively necessary for the rapid and efficient administration of justice in the judicial district of Ponce. This act, therefore, shall take effect immediately after its approval.” It is claimed that the facts constituting the emergency should have been stated, and in support of this contention Payne v. Graham, 118 Me. 251, 107 A. 709, 7 A. L. R. 516, is cited. The Maine case, however, is not in point, because by statute the Legislature of Maine has provided that the “facts ' constituting an emergency shall be expressed in the preamble of the act.” There is no such provision in the Organic Act of Porto Rico. In Biggs v. McBride, 17 Or. 640, 21 P. 878, 5 L. R. A. 115, also cited upon the brief of the defendant, the emergency was declared in these words: “Inasmuch as the amendments herein proposed would greatly tend to benefit the people of this state, and there is urgent necessity therefor,” etc. The Supreme Court of Oregon held, however, that it was for the Legislature to ascertain and declare the facts of the emergency, and that their determination was not reviewable by the courts. The act of the Legislature of Porto Rico dealing with the district court of Ponce states that the act is of urgent nature and is imperatively necessary for the rapid and efficient administration of justice. The fact of the emergency which existed was for the sole determination of the Legislature in the manner provided by the Organic Act, and is not reviewable by the courts. It is apparent from the situation presented that an emergency had arisen, and that in the rearrangement of the organization of the district court of Ponce, provided for by the act of 1925, it was necessary that it take effect at once for the “rapid 'and efficient administration of justice.” The judgment of the Supreme Court of Porto Rico is affirmed. Question: What is the nature of the counsel for the respondent? A. none (pro se) B. court appointed C. legal aid or public defender D. private E. government - US F. government - state or local G. interest group, union, professional group H. other or not ascertained Answer:
songer_appnatpr	0	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of appellants in the case that fall into the category "natural persons". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. EADES v. CAPITAL MATERIALS CO., Inc. No. 7587. United States Court of Appeals for the District of Columbia. April 7, 1941. Leonard J. Ganse, of Washington, D. C. (Carl F. Bauersfeld, of Washington, D. C., on the brief), for appellants. Edwin A. Swingle, of Washington, D. C. (Ernest A. Swingle, of Washington, D. C., on the brief), for appellees. Before GRONER, Chief Justice, and MILLER and VINSON, Associate Justices. VINSON,- Associate «Justice. Maria Eades, widow of George Eades and the administratrix of his estate, brings this statutory action for negligence causing death. The District Court directed a-verdict for the defendants. George Eades was employed by McCloskey and Company. The Company contracted with the Federal Government to enlarge the Archives Building. There were several subcontractors. Among these was the defendant Capital Materials Company which furnished ready mixed concrete ; the concrete was delivered in its mixers, attached to trucks. The trucks were owned by defendant Edward A. Hoffmeister. The driver, of the truck operated the mixer. The truck-mixer which ran over and instantly killed George Eades was operated by Henry Lyle Johnson. The trucks were backed from the street running along the east side of the Archives lot, down a ramp, and through the basement to hoppers at the west side of the building. The trucks entered the basement through one of two holes in the east wall. Each hole was only a few inches wider than the truck and mixer. In the basement, the trucks travelled over one of two planked runways which ran from each hole in the east wall tó a hopper at the west side of the building. Both runways were bordered by columns which gave more clearance than the holes in the wall but not much. Hence, the drivers of the trucks leaned out of the left side of the cabs, and looking back, operated the trucks so that the left side cleared slightly knowing that by so doing the right side would also clear. The drivers could see only to the left and to the left rear of the trucks. George Eades was one of nine men handling wheelbarrows that McCloskey and Company had moving brick and tile from the basement to the upper floors. When one of these men, on his return trip, got off of the elevator with his empty wheelbarrow, he would proceed northward through a narrow passageway along the east wall of the basement. When he reached the southern runway, one of the two runways mentioned above, he turned left and continued westward for some distance on or by the runway before turning left again to. the piles of brick and tile. Just prior to the accident, Johnson was backing his truck down the ramp about three to five miles per hour, and had neared the hole in the basement wall that led to the southern runway. Meanwhile, Eades had come along the narrow passageway by the wall and had turned on to this runway, proceeding in the same direction as the truck. Eades took five or six steps on the runway, and then, the truck overtook him, crushing him beneath the right rear dual wheels. The basement was fairly well lighted. The operation of an air compressor, a drill, and hoisting engines, however, made it very noisy. We do not know if the ramp was perpendicular to the basement wall, nor what angle, if any, the southern runway described with an east-west line. It is not shown what chance a man pushing a wheelbarrow along the passageway had of seeing a truck on the ramp about to enter the basement; nor do we know whether a man proceeding by or on the runway could have kept clear of backing trucks. In short, we do not have a precise map of the area, nor definite information as to Eades’ physical opportunity to be aware of and avoid the danger of the backing truck. We do know that Eades and Johnson were following the general routes that they had been instructed to take, and that the truck was on the ramp, a short distance behind Eades, when he turned left along or on the runway. We do not know whether Eades looked. Johnson testified that he did not see or know that Eades was there, and that the first he knew of the accident was when he was waved to a stop after Eades had been killed. No rules had been laid down, nor any customs developed in respect of an orderly handling of the basement traffic. Neither defendant had a man instructed to act as a lookout for the drivers or to warn any laborer in danger. An employee of McCloskey and Company did assist the drivers when requested, usually on their first trips; inferentially, this assistance was to prevent colliding with any obstacle on either side of the narrow runway. 'One of the subcontractors had a man stationed in the basement whenever their trucks used the runways; just what his duties were was not shown. After the presentation of plaintiff’s evidence on negligence, the Court directed a verdict for defendants. It is not certain whether the Court thought that plaintiff had not raised a jury question on defendants’ negligence, or that plaintiff’s contributory negligence was so clear that a directed verdict was called for. We believe that both the issue of negligence and of contributory negligence should have gone to the jury. The testimony raises, in our opinion, the factual question of whether the defendants were negligent. Likewise, it is possible to infer from the testimony that Eades was negligent, but it is not a necessitated conclusion. Moreover, since the testimony is not completely satisfying, more consideration should be given to the general circumstances surrounding the accident. The men with the wheelbarrows and some of the trucks used the same or very close paths. Heavy trucks with large mixers attached holding about 3Yz cubic yards of wet concrete were backing down a ramp, going through a narrow hole in the wall, crossing the entire length of the basement with the driver capable of seeing only to the left and left rear of the truck. The men, pushing wheelbarrows in front of them, were walking through a narrow passageway, turning on to a runway over which trucks came at a point where the trucks could not be seen until they were almost on top of them, and walking a considerable distance with their backs to the deadly moving machines. The basement was noisy. There was no one to direct traffic; no one, except by chance, to warn a man in danger. Under such circumstances the mythical prudent man, be he transmigrated into Eades, Johnson, Hoffmeister, or the Capital Materials Company, should be very careful indeed. The cases cited by the plaintiff, for the most part, may be differentiated from the instant litigation either by way of the fact that the complainant was not laboring on the same general job as the defendant, or upon the ground that the defendant’s acts were not expected under the customary routine of the work. Nonetheless, they teach a lesson applicable here. Driving, particularly backing, an automobile is fraught with danger. And here, where the driver’s visibility was much less than normal, the task difficult, auditory warnings almost useless, and there was a likelihood of working men being in the path facing the other way, a greater danger existed. Whether Eades or the defendants exercised the proper care under these circumstances is a question for the jury. Plaintiff’s counsel complains that he was not allowed to build a record on issues other than defendants’ negligence. That was unnecessary so long as the trial court ruled that there could be no liability because of lack of negligence on the defendants’ part or that the plaintiff was chargeable with contributory negligence. Now, that these issues are to go to a jury, the plaintiff will be called upon to build a complete case including all questions of law that may arise as a result of the Compensation Act. Reversed. D.C.Code, Tit. 21, § 1 et seq. A compensation award has been made against McCloskey and Company for the benefit of George Eades’ dependents, bis widow and four children. Johnson is the defendant in one of the companion cases. Minsk v. Pitaro, 284 Mass. 109, 187 N.E. 224 [plaintiff was a child]; Eaton v. S. S. Pierce Co., 288 Mass. 323, 325, 192 N.E. 831 [plaintiff was a child]; Giannone v. Reale, 333 Pa. 21, 3 A.2d 331. Distefano v. Universal Trucking Company, 116 Conn. 249, 164 A. 492; Berry v. Irwin, 220 Ky. 708, 295 S.W. 1020. The Longshoremen’s and Harbor Workers’ Act, 33 U.S.C.A. § 901 et seq., has been made applicable to the District of Columbia as the general Workmen’s Compensation Act, 45 Stat. 600, see second paragraph of first footnote in 33 U.S. C.A. § 901. McCloskey and Company comes under this Act and as was pointed out in footnote 2, they have been made liable on an award for the benefit of the dependents. This action is brought by the administratrix on behalf of all the next of kin, which includes besides the dependents four children over 18 years of age, against alleged negligent third parties. McCloskey and Company by the Act is subrogated to the rights of the dependents, 33 U.S.C.A. § 933(b), and hence has been joined as a use-plaintiff. The ¿Etna Casualty and Surety Company as the insurer of McCloskey and Company has made and will make the compensation payments. It too is joined as a use-plaintiff. On the state of this record, we do not discuss the many legal problems that may arise because of the relationship between, and the behavior of, the use-plaintiffs and the defendants. Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number. Answer:
songer_appel1_1_4	J	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "unclear". Your task is to determine what subcategory of business best describes this litigant. MILLER & MILLER AUCTIONEERS, INC., Plaintiff-Appellee, v. G. W. MURPHY INDUSTRIES, INC., Defendant-Appellant, Willey Drilling, Inc., et al., Defendants-Appellees, United States of America and Roy C. Baker, Intervening Defendants-Appellees, James C. Willey, B & W Drilling, a partnership, and Converse County Bank, Additional Defendants on Cross-Claims-Appellees. No. 72-1220. United States Court of Appeals, Tenth Circuit. Argued and Submitted Sept. 13, 1972. Decided Jan. 17, 1973. Rehearing Denied March 13, 1973. Donald R. Winship, Casper, Wyo., for defendant-appellant. Rufus S. Garrett, Jr., Fort Worth, Tex., for plaintiff-appellee. Ernest J. Brown (Scott P. Crampton, Asst. Atty. Gen., Meyer Rothwacks, Crombie J. D. Garrett, David English Carmack, Tex Div., Dept. of Justice, Washington, D. C., Richard V. Thomas, U. S. Atty., Tosh Suyematsu, Asst. U. S. Atty., Cheyenne, Wyo., on the brief), for the intervening defendant-appellee United States. Before PHILLIPS, HILL and HOLLOWAY, Circuit Judges. HILL, Circuit Judge. This is an appeal from an interpleader action denying appellant Murphy Industries, Inc. (Murphy) relief against ap-pellee, Miller & Miller Auctioneers, Inc. (Miller) for allegedly distributing auction sale proceeds in a manner prejudicial to Murphy. Appellant contends Miller wrongfully distributed the auction proceeds after being notified the seller’s property had been garnished in a Wyoming state court garnishment proceeding. On November 25, 1970, Miller was employed to sell property belonging to Wil-ley Drilling, Inc. Among other things, the agreement provided Miller with a lien for money loaned and services rendered Willey at the auction. Miller in turn agreed to distribute proceeds from the sale to five perfected security interest holders. On January 12, 1971, the auction was conducted and $148,254.25 was realized from the sale. On the same day as the auction and before the proceeds were distributed, appellant delivered a garnishee notice to Miller informing it of the issuance of an order of attachment on all the property, moneys, credits and effects in its possession belonging to Willey Drilling, Inc. and James C. Wil-ley, dba B & W Drilling Company. Miller disregarded this notice and paid all five secured creditors and itself the full amount due. Since the secured property did not bring the amount secured, Miller applied proceeds from unsecured property to satisfy the claims. A total of $145,312.22 was disbursed by Miller, leaving only a balance of $2,942.03. Realizing .several creditors might sue for this balance, Miller filed an interpleader action under 28 U.S.C. § 1335 in the Wyoming federal district court. In the interpleader action, appellant Murphy counterclaimed against Miller asserting that, among other things, Murphy’s garnishment judgment for $21,123.91 against Willey Drilling, Inc. and James C. Willey, dba B & W Drilling Company, should have been paid from the auction proceeds. Murphy contends that Miller wrongfully disregarded the garnishment notice when it paid off secured creditors and itself with unsecured funds. The United States of America filed a petition in intervention seeking permission to intervene as a defendant. The United States charged that Miller wrongfully distributed proceeds from the auction since the government had properly filed two tax liens against Willey Drilling, Inc. and James C. Willey and his wife, Geraldine, in the amount of $5,412.12. The United States district court for the district of Wyoming determined that it had jurisdiction over the parties and the subject matter of this action. As the five secured creditors were first to perfect their interest, they were entitled to the auction proceeds over any rights acquired by appellant through its attachments occurring on the date of the auction sale. Since Miller’s security interest was perfected by possession prior to appellant’s levy of execution, Miller was entitled to recoup its advancements, selling expenses and commissions prior to any payments to appellant. The United States had two perfected tax liens totaling $5,810.84 which were perfected prior to the auction. The United States therefore was allowed the balance of $2,942.03, and because Miller disbursed the rest of the proceeds, it was compelled to transfer into the registry an additional sum of $2,868.81. Murphy on appeal raises two pertinent points. Our decision on these points disposes of the appeal. First, the district court erred in discharging Miller since Miller failed to pay all the disputed proceeds into the court registry before bringing the interpleader action. Second, it was error to allow the United States recovery on its tax liens in this interpleader action. Section 1335 of 28 U.S.C. provides the district court with original jurisdiction of an action in interpleader for every corporation having in its custody or possession money of the value of $500 or more if two or more claimants of diverse citizenship are claiming or may claim to be entitled to such money, and if plaintiff has deposited such money in the registry of the court. It is therefore clear that when rival claims for a sum of money are involved, payment of the entire sum into the registry of the court or the giving of a bond meeting the requirements of the statute is a condition precedent to the jurisdiction of the court. Gannon v. American Airlines, 251 F.2d 476 (10th Cir. 1958); Metal Transport Corp. v. Pacific Venture Steam. Corp., 288 F.2d 363 (2d Cir. 1961); 3A Moore, Federal Practice § 22.10, n. 3 (2d ed. 1970); 7 Wright & Miller, Federal Practice & Procedure, Civil § 1716 (1972). An interpleader action is one in equity and is governed by equitable principles. Burchfield v. Bevans, 242 F.2d 239 (10th Cir.1957); Holcomb v. Aetna Life Ins. Co., 228 F.2d 75 (10th Cir. 1955), cert. denied 350 U.S. 986, 76 S.Ct. 473, 100 L.Ed. 853; Equitable Life Assurance Society of U. S. v. Cooper, 328 F.Supp. 1126 (W.D.Okl.1971). Hence a federal district court seldom has jurisdiction if the stakeholder deposits in the court registry less than the entire sum of money in controversy. Metal Transport Corp. v. Pacific Venture Steam. Corp., supra; New York Life Ins. Co. v. Lee, 232 F.2d 811 (9th Cir. 1956); Austin v. Texas-Ohio Gas Co., 218 F.2d 739 (5th Cir. 1955); American Smelting & Ref. Co. v. Naviera Andes Peruana, S.A., 182 F.Supp. 897 (S.D.N. Y.1959). In the instant case, Miller was notified of appellant’s writ of attachment before it disbursed the funds. Miller knew appellant was claiming $21,123.91, but nevertheless paid other creditors the auction proceeds. Because Miller failed to deposit in the court registry the entire sum in controversy, the federal district court lacked jurisdiction to hear this interpleader action. Although the district court incorrectly exercised jurisdiction in this interpleader action, the court still was vested with authority to award the government a judgment satisfying two of its tax liens. There is no doubt the district court has jurisdiction in a civil action to render any judgment necessary to enforce the internal revenue laws. 26 U.S.C. § 7402(a) and 28 U.S.C. § 1340. The power to enforce this tax lien is given the United States Attorney through 26 U.S.C. § 7403(a) and 31 U. S.C. § 191. Nor does the fact this inter-pleader action was improperly brought destroy the government’s judgment on its counterclaim as an intervenor. A court has discretion to treat pleadings of an intervenor as a separate action to adjudicate claims raised by the intervenor. See Hackner v. Guaranty Trust Co., 117 F.2d 95 (2d Cir. 1941), cert. denied 313 U.S. 559, 61 S.Ct. 835, 85 L.Ed. 1520; Pikor v. Cinerama Prods. Corp., 25 F.R. D. 92 (S.D.N.Y.1960); Truncale v. Universal Pictures Co., 76 F.Supp. 465 (S. D.N.Y.1948); 3B Moore, Federal Practice § 24.16[2] at 24-613, 614 (2d ed. 1969); 7A Wright & Miller, Federal Practice & Procedure, Civil § 1917 (1972). The court may properly exercise this discretionary procedure where it appears the intervenor has a separate and independent basis for jurisdiction and in which failure to adjudicate the claim will result only in unnecessary delay. Fuller v. Volk, 351 F.2d 323 (3d Cir. 1965). The tax liens of the United States are unrelated to the interpleader action and thus not subject to its requirements. We therefore hold the district court correctly exercised jurisdiction with respect to the government’s separate claim. The portion of the judgment adjudicating the tax liens of the United States is accordingly affirmed. The remainder of the judgment is set aside and the case is remanded with directions to dismiss the interpleader cause of action for want of jurisdiction. Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "unclear". What subcategory of business best describes this litigant? A. auto industry B. chemical industry C. drug industry D. food industry E. oil & gas industry F. clothing & textile industry G. electronic industry H. alcohol and tobacco industry I. other J. unclear Answer:
songer_circuit	D	What follows is an opinion from a United States Court of Appeals. Your task is to identify the circuit of the court that decided the case. COMITE DE APOYO A LOS TRABAJADORES AGRICOLAS (CATA), Julio Aponte-Galarza, Nelson Ayala, Geraldo Camacho, William Carabillo, Santiago Castillo, Carlos Collazo-Baez, Pablo Colon-Perez, Luis A. Delgado, Luis M. Fuentes, Wilson Maldonado, Carmelo Medina, Carlos Montero, Jose L. Palau-Torres, Jorge Ramirez, Reyes Ramirez, Ramon Ramirez-Muniz, Candido Ramos, Jose Luis Rodriguez, Jose Serano, Hermitano Soto, Antonio Toro-Flores, Randy Buckley, Dean Clarke, Plaintiffs-Appellants, v. UNITED STATES DEPARTMENT OF LABOR; William E. Brock, Secretary of the United States Department of Labor; William Haltigan, Regional Administrator of Region III, Employment and Training Administration, Defendants-Appellees, and Hepburn Orchards, Incorporated; Fairview Orchards Associates, Defendants. Frederick County Fruit Growers’ Association, Incorporated, Amicus Curiae. No. 92-2323. United States Court of Appeals, Fourth Circuit. Argued March 29, 1993. Decided June 9, 1993. Garry G. Geffert, Migrant Legal Action Program, Inc., Washington, DC, argued (Gregory S. Schell, Florida Rural Legal Services, Inc., Belle Glade; FL, Shelley David, Farmworker Justice Fund, Inc., Washington, DC, on brief), for appellants. John Samuel Koppel, Civil Div., U.S. Dept, of Justice, Washington, DC, argued (Stuart M. Gerson, Asst. Atty. Gen., Richard D. Bennett, U.S. Atty., Michael Jay Singer, Civil Div., U.S. Dept, of Justice, Washington, DC, on brief), for appellees. Thomas E. Wilson, Christopher A. Weals, Seyfarth, Shaw, Fairweather & Geraldson, Washington, DC, for amicus curiae. Before WIDENER and WILKINSON, Circuit Judges, and HILTON, United States District Judge for the Eastern District of Virginia, sitting by designation.. OPINION WILKINSON, Circuit Judge: The question here is whether. plaintiffs have standing to seek a declaratory judgment when the party that would be adversely affected by that judgment is not present in the case. Plaintiffs seek a declaratory judgment that the Department of Labor erred in approving wages they received for agricultural labor in 1986. The grower that employed plaintiffs in 1986 is not a party to this case; plaintiffs hope to use a declaration that their wages were impermissibly low to obtain backpay from the grower in a separate arbitration proceeding. We hold that plaintiffs do not have standing,, because the grower would not be bound by a judgment rendered in its absence. Any opinion we might issue would thus be purely advisory in the arbitration proceeding. Article III forbids us to enter such a judgment. Plaintiffs additionally seek a prospective declaration that the wage-correlation methodology which the Department of Labor devised for this case is invalid. We hold that plaintiffs lack standing to seek this relief too, because the threat that DOL will again apply the new methodology to wages earned by plaintiffs is not sufficiently “real and immediate.” Accordingly, we affirm the district court’s judgment of dismissal. I. The United States Employment Service is a cooperative federal-state employment system established under the Wagner-Peyser Act of 1933, codified at 29 U.S.C. §§ 49 et seq. The USES helps agricultural employers in one state find agricultural workers in another state when the local labor supply is lacking. To use this service, the employer must make an offer that matches the “prevailing wages ... among similarly employed agricultural workers in the area of intended employment.” 20 C.F.R. § 653.501(d)(4). This rule prevents the USES from serving as a source of cheap labor, which would depress local wages. To determine the “prevailing wage” in an “area of intended employment,” the Depart ment of Labor applies a formula laid out in its Employment Training Administration Handbook No. 385. First, DOL marks out areas of agricultural employment and surveys laborers in that area to see what they were paid in the previous year for harvesting a given crop. DOL then identifies the most common method of payment for the crop in question: i.e., piece rate or hourly rate. The median wage in that most common method of payment becomes the prevailing wage rate (“PWR”) for the region. Occasionally, however, a grower makes an USES offer in a different method of payment than the PWR. In the summer of 1986, two western Maryland orchards — Hepburn Orchards, Inc. and Fairview Orchards Associates — made USES offers of $3.50 per hour for “orchard work.” “Orchard work” included picking apples; the PWR for apple-picking in 1985 had been a piece rate. DOL thus confronted the problem of correlating a piece rate PWR to an hourly rate USES offer. Faced with a tight deadline, DOL approved the $3.50 per hour offers. On July 24,1986, the Comité de Apoyo a los Trabaja-dores Agrícolas, along with twenty-three individual plaintiffs, filed this complaint against DOL and the two orchards, claiming that the approved wage was too low. The Comite (or “CATA”) is a New Jersey-based organization consisting of approximately 2000 migrant farmworkers. The complaint stated that members of CATA were “presently employed, ha[d] been employed, and expect[ed] to be employed at Defendant Orchards,” and that the individual plaintiffs were “current, past or potential employees of the Defendant Orchards.” The complaint sought a declaratory judgment that the USES offers violated 20 C.F.R. § 653.501(d)(4), plus an injunction forbidding DOL to approve the offers. A flurry of motions ensued. First, the district court granted Hepburn’s motion to be dismissed, because none of the plaintiffs had worked for Hepburn during the 1986 season. The court also dismissed Fairview, because plaintiffs’ labor contracts with Fair-view required wage disputes to be resolved through arbitration. Finally, the court denied plaintiffs’ motion for a preliminary injunction against DOL approval, reasoning that the wage rate calculations were “complex, and best left to the expertise of the Department of Labor.” In May 1987, DOL confessed that it had erred in approving the $3.50 per hour wage, and was granted a remand so that it could develop a wage-correlation methodology suitable for the unique facts of this case. On April 4, 1988, DOL submitted its new formula to the court. Under the new formula, DOL would initially compute the PWR for the given crop in the given region, just as it had before. When the PWR was a piece rate and the USES offer was an hourly wage, however, DOL would convert the PWR to an hourly earnings rate and calculate the average of these hourly rates over the last three years. This average would then be discounted by twenty percent, to account for the incentive effect of piece-rate compensation. Finally, when a job description such as “orchard work” consisted of different tasks, DOL would combine the discounted hourly rates for each task proportionally. This composite discounted average hourly rate would serve as the comparison figure for the USES offer in question. Applying this new methodology, the DOL approved an “orchard work” wage for 1986 of $3.84 per hour. Plaintiffs amended their complaint to challenge the DOL’s new wage-correlation methodology. Both sides moved for summary judgment. In May 1990, the magistrate judge issued a Report and Recommendation advising the district court to award summary judgment to the plaintiffs. The judge first advised that plaintiffs had standing to challenge the application of the new methodology to Fairview’s and Hepburn’s 1986 offers, as well as the application of the new methodology to any future USES offers. On the merits of plaintiffs’ challenge, the judge advised that the twenty percent discount was unreasonable. In August 1992, the district court rejected this recommendation. The court agreed that plaintiffs had standing to challenge the application of the new methodology to their 1986 wages, but disagreed that they had standing to challenge its application to future USES offers. The court found it too unlikely that DOL would again use the same methodology to approve wages paid to plaintiffs. On the merits, the court ruled that the twenty percent discount was a reasonable interpretation of the Wagner-Peyser Act, and was consistent with the other regulations promulgated thereunder. The district court accordingly awarded summary judgment to DOL. Plaintiffs appeal. II. Plaintiffs challenge DOL’s new wage-correlation methodology, both as applied to their 1986 wagés and as applied to future USES offers. We hold that plaintiffs lack standing to challenge either application of the methodology. In Part A, we explain why plaintiffs lack standing to challenge the 1986 application of the new methodology. In Part B, we explain why they lack standing to challenge future applications of the same. A. The law of standing derives from Article III of the Constitution, which limits federal jurisdiction to actual “Cases” or “Controversies.” To establish such a Case or Controversy, “[a] plaintiff must allege personal injury fairly traceable to the defendant’s allegedly unlawful conduct and likely to be redressed by the requested relief.” Allen v. Wright, 468 U.S. 737, 761, 104 S.Ct. 3315, 3324, 82 L.Ed.2d 556 (1984). These three requirements — personal injury, causation, and redressability — promote important adjudicative functions. First, they require each litigant to have a real stake in the outcome of the case. Thus they “assure that concrete adverseness which sharpens the presentation of issues,” Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962); this sharpened presentation in turn helps reduce the risk of an erroneous or poorly thought-out decision. Second, they forbid the litigants to pose hypothetical questions for the court to resolve. Thus they permit the concentration of scarce judicial resources on disputes of genuine remedial consequence; this concentration again helps reduce the risk of error. Third, they require the plaintiff to plead more than a generalized dissatisfaction with a law or regulation in order to invoke the jurisdiction of the federal courts. Thus they prevent the judiciary from encroaching upon the constitutional domains of the elected branches of government. See United States v. Richardson, 418 U.S. 166, 188, 94 S.Ct. 2940, 2952, 41 L.Ed.2d 678 (1974) (Powell, J., concurring) (“We should be ever mindful of the contradictions that would arise if a democracy were to permit general oversight of the elected branches of government by a nonrepresentative, and in large measure insulated, judicial branch.”). In this case, plaintiffs allege that DOL allowed the orchards to pay them reduced 1986 wages by applying the new wage-correlation methodology;. plaintiffs thus meet the injury and causation requirements for standing. The third requirement of redressability, however, is a different matter. Plaintiffs seek a declaration that DOL’s wage-correlation methodology was invalid. By itself, a declaratory judgment cannot be the redress that satisfies the third standing prong. Rather, plaintiffs must identify some farther concrete relief that will likely result from the declaratory judgment. Otherwise plaintiffs with mooted claims of injury could gain federal jurisdiction simply by demanding declaratory relief. The Supreme Court has made clear that the Declaratory Judgment Act, codified at 28 U.S.C. §§ 2201-02, did not augur such an upheaval in the traditional law of standing. See Public Service Comm’n v. Wycoff Co., 344 U.S. 237, 242, 73 S.Ct. 236, 239, 97 L.Ed. 291 (1952) (“Th[e] Act was adjudged constitutional only by interpreting it to confine the declaratory remedy within conventional ‘case or controversy’ limits.”). Plaintiffs profess to have identified such farther concrete relief in the prospect of a backpay award from Fairview Orchards. Fairview, the grower that employed plaintiffs in 1986, is no longer a party to this litigation; the district court dismissed it because its labor contract with plaintiffs required wage disputes to be resolved in arbitration. Still, according to plaintiffs, a judgment here that DOL improperly computed USES wages would preclude Fairview from challenging plaintiffs’ backpay claim in arbitration. Plaintiffs therefore maintain that their injury is likely to be redressed by the requested relief, because a declaratory judgment would in turn enable them to gain an arbitration backpay award. DOL disputes this supposition. In the typical case, the party from whom plaintiffs will seek further concrete relief is also a party to the declaratory action. Here, by contrast, Fairview is not a party to the declaratory action; under established principles of preclusion, Fairview would not be bound by the declaratory judgment. Thus, concludes DOL, any opinion we might express on the computation of USES wages would be purely advisory in the arbitration dispute— precisely the kind of judgment that Article III forbids. We think DOL correct. “[0]ne general limitation the [Supreme] Court has repeatedly recognized is that the concept of collateral estoppel cannot apply when the party against whom the earlier decision is asserted did not have a ‘full and fair opportunity’ to litigate that issue in the earlier case.” Allen v. McCurry, 449 U.S. 90, 95, 101 S.Ct. 411, 415, 66 L.Ed.2d 308 (1980) (citing Montana v. United States, 440 U.S. 147, 153, 99 S.Ct. 970, 973, 59 L.Ed.2d 210 (1979); Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U.S. 313, 328-29, 91 S.Ct. 1434, 1442-43, 28 L.Ed.2d 788 (1971)). Fairview has not participated in the litigation of this case; it thus will not be bound by our judgment as a party. Nor is Fairview in privity with DOL, such that it would be bound by our judgment as a non-party. Fairview and DOL have none of the special relationships — e.g., familial, commercial, fiduciary — to which courts have traditionally assigned the status of privity. See 18 Charles Alan Wright et al., Federal Practice and Procedure §§ 4448-62 (1981 & Supp.1993) (Res Judicata: Parties Bound). Even in its most abstract conception, privity attaches only to those parties whose interests in a given lawsuit are deemed to be “aligned.” See, e.g., Aerojet-General Carp. v. Askew, 511 F.2d 710, 719 (5th Cir.1975). Presumably Fairview wishes the 1986 USES wage to be as low as possible: perhaps the $3.50 per hour that DOL originally approved. DOL’s interest, by contrast, is in devising a methodology that accurately correlates the prevailing wage rate to the USES offer. We cannot assume that these interests align. Indeed, Fair-view’s lack of privity with DOL nicely demonstrates why plaintiffs do not have standing to press this action in Fair-view's absence. As we noted above, a chief purpose of standing doctrine is to “assure that concrete adverseness which sharpens the presentation of issues.” Baker v. Carr, 369 U.S. at 204, 82 S.Ct. at 703. Without Fairview present, the challenge to the accuracy of DOL’s new wage-correlation methodology comes only from those parties who wish the USES wage to be as high as possible; “concrete adverseness” is thus diminished. As complicated as are the formu-lae that DOL has applied in this case, we should like to hear all interested voices before we venture a permanent ruling on the merits. Fair-view’s absence only exacerbates the risk that we will render an erroneous judgment. Under mutually reinforcing principles of preclusion and standing, therefore, we shall not render a judgment on the merits of the 1986 wage without Fairview present. The fact that a declaratory judgment may have persuasive or even precedential weight in a subsequent proceeding will not alone suffice to confer standing upon a party seeking to invoke federal jurisdiction. Article III requires more. In closing, we note DOL’s suggestion that plaintiffs might have avoided the procedural trap in which they now find themselves. DOL first suggests that plaintiffs could have sought concrete relief in the form of an injunction compelling DOL to get backpay from Fairview Orchards. Or they could have appealed the district court’s dismissal of Fairview Orchards, on the ground that Fair-view was a necessary party to their case. Such hypothetical are not before us. We do not suggest, however, that a challenge to DOL’s new methodology will never prove justiciable. We hold only that a proper case or controversy has not been presented here. B. We next address plaintiffs’ standing to challenge DOL’s future applications of the new methodology. Such prospective challenges are not per se. invalid; the Supreme Court has long made clear that plaintiffs need not “await the consummation of threatened injury to obtain preventive relief.” Pennsylvania v. West Virginia, 262 U.S. 553, 593, 43 S.Ct. 658, 663, 67 L.Ed. 1117 (1923). Nevertheless, the threat of injury must be “sufficiently real and immediate to show an existing controversy.” O’Shea v. Littleton, 414 U.S. 488, 496, 94 S.Ct. 669, 676, 38 L.Ed.2d 674 (1974). In this case, the district court ruled that the threat of injury was not sufficiently real and immediate, because it was unlikely that the DOL would ever apply the methodology to plaintiffs’ wages again. We agree. The problem DOL faced in 1986 — correlating a piece rate PWR to an hourly rate offer — is unusual. When DOL developed the methodology to address the problem, it anticipated using it only that once. While plaintiffs contend that DOL has applied the new methodology “several times” since 1986, they cite only two instances, and do not claim to have worked in either case. Indeed, the district court observed that “despite the passage of six years since the filing of the original complaint in this case, the plaintiffs have failed to cite another instance in which DOL used the new methodology to approve wages paid to them.” It is thus conjectural when one of the twenty-three individual plaintiffs or a member of CATA will again be subject to DOL’s new wage-correlation methodology. The prospect is not nil, but neither is it “real and immediate.” Given the speculative nature of any prospective injury to plaintiffs, a court should refrain from reviewing the merits of the new methodology until a proper controversy arises. III. Our ruling means, of course, that a decision on the merits of DOL’s new methodology will not issue at this time. This does not, however, strike us as remiss. Not every agency action needs the imprimatur of a federal court for its validity to be presumed. Federal courts are authorized to resolve only concrete disputes, not to serve as roving boards of review. Here plaintiffs lack standing to challenge DOL’s new methodology— whether applied prospectively or in the past. The district court’s dismissal of the complaint is therefore AFFIRMED. To the extent that Frederick County Fruit Growers Ass'n v. Martin, 968 F.2d 1265 (D.C.Cir.1992), and Joseph v. Department of Labor, 787 F.Supp. 245 (D.D.C.1991), imply otherwise, we respectfully disagree. In Frederick County, the court ruled that the growers could not challenge an earlier court ruling which had required DOL to reinterpret its wage-correlation methodology under an analogous job clearance system for foreign workers, even though the effect of this reinterpretation had been to increase the growers' liability and the growers had not been parties to the earlier ruling. 968 F.2d at 1269-72. In Joseph, the district court ruled that plaintiffs’ challenge to DOL’s failure to set a prevailing wage rate for sugar cane cutters in the 1990-91 season was not moot, because plaintiffs could later sue the growers who had employed them during that season for backpay. 787 F.Supp. at 246. Question: What is the circuit of the court that decided the case? A. First Circuit B. Second Circuit C. Third Circuit D. Fourth Circuit E. Fifth Circuit F. Sixth Circuit G. Seventh Circuit H. Eighth Circuit I. Ninth Circuit J. Tenth Circuit K. Eleventh Circuit L. District of Columbia Circuit Answer:
songer_genresp1	A	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task is to determine the nature of the first listed respondent. ATLANTIC & GREAT LAKES STEAMSHIP CORP., Plaintiff-Appellee, v. STEELMET, INC., Defendant, and Tidewater Terminals, Inc., Defendant-Appellant. No. 45, Docket 77-7131. United States Court of Appeals, Second Circuit. Argued Sept. 28, 1977. Decided Nov. 21, 1977. Richard E. Repetto, New York City (Donovan, Maloof, Walsh & Kennedy, New York City, on the brief), for plaintiff-appel-lee. Donald F. Mooney, New York City (Eugene J. O’Connor, Jr., New York City, on the brief), for defendant-appellant. Before LUMBARD, MOORE and FEIN-BERG, Circuit Judges. LUMBARD, Circuit Judge: Tidewater Terminals, Inc. appeals from a judgment of the Southern District which found it liable to plaintiff Atlantic & Great Lakes Steamship Corp. (AGL) for breach of a charter agreement between the two, under which Tidewater contracted to charter the M.V. Mary from AGL, the time-charter owner of the vessel. On appeal, Tidewater makes three arguments: that there was no meeting of the minds giving rise to contractual liability; that certain conditions precedent were never fulfilled and consequently the contract never became binding; and that AGL suffered no damages from the aborted charter agreement. We reject each of these claims. Tidewater is a subsidiary of Steelmet, Inc. In the fall of 1974, another Steelmet subsidiary, Steelmet Export Corp., contracted to sell 9,375 long tons of shredded scrap metal to Empresa Siderugica Del Peru (Sid-er), a Peruvian corporation. Under the terms of this contract, Steelmet Export undertook to secure and load the scrap at Jacksonville, Florida, for shipment to Peru; Sider agreed to pay for the unloading of the cargo in Peru. In order to fulfill its affiliate’s obligations, Tidewater, acting through its broker (Antra), entered into negotiations with AGL’s broker (Burbank) concerning a charter for the Mary. These negotiations culminated in a cable, set forth in the margin, sent from Ivar Traa of Antra to Arild Pettersen of Burbank at 7:25 p. m. on November 20, 1974. In the telex, the Mary is identified as the subject of the charter, dates are specified for arrival at Jacksonville and travel to Peru, and the cargo is designated. Further, the cable plainly states that the charter agreement is subject to the receiver’s (Sider’s) approval of the vessel by 4:00 p. m., November 21,1974 and is governed by the terms set forth in a form contract used in the industry and known as “Genjapscrap,” subject to details. The day following receipt of the telex (November 21), Pettersen received from Traa a copy of a Genjapscrap contract used by Tidewater on a previous charter with details included. Pettersen subsequently notified Traa that AGL had no objection to the form, although certain details were lacking. When the receiver’s approval was not immediately forthcoming, AGL extended the deadline by twenty-four hours to November 22 at 4:00 p. m. On November 21 and 22, two Sider representatives (Cesar Molina and Javier Zegarra Zavaleta) met with Robert Waisfisz, a vice president of Steelmet, and Andreas Avraamides, charter manager for Tidewater and export manager for Steelmet Export. During these meetings, Avraamides described the Mary to the Sider representatives, and also offered for their use an alternative ship, the Promethee. Because it had the ship on its own time charter, Tidewater could save substantial costs by using the Promethee for the Sider delivery, provided it could avoid obligation under the contract with AGL. . Although it appears that the Promethee possessed certain other advantages over the older Mary, the Sider people were primarily concerned with the comparative arrival time of the two ships. Accordingly, they expressed a preference for the Promethee, upon Av-raamides’ representations that it was likely to arrive in Jacksonville before the Mary and that the Mary required a special insurance premium because of its age. On November 22, the preference of the Sider representative was communicated to Traa and, sometime thereafter, to Pettersen and his principal, AGL. In the meantime, however, on November 24, AGL had cabled its agents in Peru inquiring into the status of Sider’s approval. On the 26th, AGL’s agents replied that Sider had refused to intervene in any way in the fixture of the vessel — either to approve or disapprove its use for the contract. Also on November 26, Avraamides cabled Sider asking for a written confirmation of its acceptance of the Promethee. Sider responded by cable on the 28th that under its contract with Steel-met Export it had no authority whatsoever to “decide on the vessel which will carry the material.” The Promethee subsequently carried the scrap to Peru at the instruction of Tidewater, and AGL attempted to mitigate its injury by securing another charter for the Mary. These attempts were not wholly successful, however, and the court below found that AGL sustained $62,746.55 in damages from the breach of the contract. Judge Metzner held Tidewater liable for breach of the charter party. He found that all the essential terms of the charter were set forth or referred to in the November 20 telex, and that Sider would have given its approval as required by the telex, had Tidewater asked it to do so. As he further found that Tidewater for its own reasons had deliberately failed to get Sider’s approval, he concluded that Tidewater was liable for the breach. The trial court’s findings of fact support these conclusions and the record shows that they are not clearly erroneous. The record shows that Sider left to Tidewater the decision as to which vessel to charter. Sider did not know that Tidewater itself was the time charterer of the Promethee and had already chartered the Promethee, on November 22, to Steelmet Export to carry the cargo of scrap. As Judge Metzner found, the reasons advanced by Tidewater for choosing the Pro-methee over the Mary were contrary to fact. The insurance penalty because of the Mary’s age could not have mattered as that was for the account of the vessel owner, as shown by the charter form. As for the assertion that the Promethee could be loaded earlier in Jacksonville, Avraamides could not have known at the time which vessel would arrive first in Jacksonville. Moreover, Antra’s notification to Burbank that Sider refused to accept the Mary because of its age was untrue. In sum, there is ample support in the record for the conclusion that Tidewater wanted the business for itself, unbeknown to Sider, and deliberately chose not to ask Sider’s approval of the Mary, but instead arranged for Sider to use the Pro-methee. We agree, therefore, with Judge Metzner’s conclusion that the condition precedent of Sider’s approval was excused by Tidewater’s bad faith failure to make any effort whatever to secure Sider’s approval, an approval which would have been immediately forthcoming, in light of all the circumstances. See 2 A. Corbin, Contracts § 310, at 112 (1950); 5 W. Jaeger, Williston on Contracts § 677, at 225 (1961). Lastly, the appellant takes issue with the district court’s calculation of damages. According to Tidewater, AGL, far from losing $62,746.55 by its failure to carry the scrap to Peru, actually saved itself from a $70,907.20 loss. Judge Metzner’s opinion states that he reviewed the computations in AGL’s post trial brief and that the evidence supported the plaintiff’s claim for damages of $62,746.55. Moreover, Judge Metzner specifically found that the contract ended with the unloading in Peru and he therefore rejected the defendants’ claim that costs of the ship returning empty from Peru were properly deductible from any hypothetical profit the plaintiff would have received. The calculations referred to indicated that the net revenue AGL would have received under the contract was $263,935.55. Expenses shown in the plaintiff’s post trial brief include: $147,000 which AGL paid for its time charter of the Mary for the time in question; $35,600 for fuel that would have been consumed on the voyage; $13,000 estimated port charges; and $5,589 for the extra insurance AGL would have had to pay under the terms of the charter. Thus, AGL argued, and Judge Metzner found, that $62,746.55 represents a reasonable estimate of the profit AGL would have made but for Tidewater’s breach. The record supports these findings of damage; we cannot say they are clearly erroneous. Affirmed. . WE CONFIRM HAVING FIXED TODAY AS FOLLOWS ACC TIDEWATER TERMINALS INC MV MARY GREEK FLAG BLT 57 14783 DWAT GLESS ORECARRIER, BRIDGE BETWEEN HATCHES 2 AND 3, ENG AFT 5 HOLDS/HATCHES BUT CARGO ONLY TO BE LOADED IN HATCHES 2-5 9375 LT MINMAX SHREDDED SCRAP STOWING MAX 40/LT I SB JACKSONVILLE/1 SB CHIMBOTE NOV 27/DEC 9 (PRESENT ETA NOV 28) 2500 LT LOAD/800 LT DISCH ALL PER WWDSHEX EIU US 29, 25 PER LT FIOT, 95 PCT PPD 4500 DEM/ [¶] LTS NEGOTIATIONS AND EVENTUAL FIXTURE TO BE KEPT STRICTLY CONFIDENTIAL SUB RECEIVERS APPR OF VESSEL LATEST 1600 HOURS NOV 21 OWISE GENJAPSCRAP SUB DETS 3,75 TTL HERE (A. 148a, 150a). . “Genjapscrap,” is a standard form contract often used when chartering a vessel for shipping scrap metal. Its name apparently comes from its use in the shipment of scrap to and from Japan. . Tidewater also contends that as the telex read “sub dets” it did not set forth all the essential details because additional details remained to be agreed upon. The record does not indicate, however, that there were any details of substance not covered by the telex. Question: What is the nature of the first listed respondent? A. private business (including criminal enterprises) B. private organization or association C. federal government (including DC) D. sub-state government (e.g., county, local, special district) E. state government (includes territories & commonwealths) F. government - level not ascertained G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization) H. miscellaneous I. not ascertained Answer:
sc_caseorigin	050	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the court in which the case originated. Focus on the court in which the case originated, not the administrative agency. For this reason, if appropiate note the origin court to be a state or federal appellate court rather than a court of first instance (trial court). If the case originated in the United States Supreme Court (arose under its original jurisdiction or no other court was involved), note the origin as "United States Supreme Court". If the case originated in a state court, note the origin as "State Court". Do not code the name of the state. The courts in the District of Columbia present a special case in part because of their complex history. Treat local trial (including today's superior court) and appellate courts (including today's DC Court of Appeals) as state courts. Consider cases that arise on a petition of habeas corpus and those removed to the federal courts from a state court as originating in the federal, rather than a state, court system. A petition for a writ of habeas corpus begins in the federal district court, not the state trial court. Identify courts based on the naming conventions of the day. Do not differentiate among districts in a state. For example, use "New York U.S. Circuit for (all) District(s) of New York" for all the districts in New York. WILLIAMSON v. UNITED STATES No. 93-5256. Argued April 25, 1994 Decided June 27, 1994 O’Connor, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II-A, and II-B, in which Blackmun, Stevens, Scalia, Souter, and Ginsburg, JJ., joined, and an opinion with respect to Part II-C, in which Scalia, J., joined. Scalia, J., filed a concurring opinion, post, p. 605. Ginsburg, J., filed an opinion concurring in part and concurring in the judgment, in which Blackmun, Stevens, and Souter, JJ., joined, post, p. 607. Kennedy, J., filed an opinion concurring in the judgment, in which Rehnquist, C. J., and Thomas, J., joined, post, p. 611. Benjamin S. Waxman argued the cause and filed briefs for petitioner. John F. Manning argued the cause for the United States. With him on the brief were Solicitor General Days and Assistant Attorney General Harris. Briefs of amici curiae urging affirmance were filed for the State of California et al. by Daniel E. Lungren, Attorney General of California, and M. Howard Wayne, Deputy Attorney General, and by the Attorneys General for their respective jurisdictions as follows: Larry EchoHawk of Idaho, Pamela Carter of Indiana, Robert T. Stephan of Kansas, Chris Gorman of Kentucky, Richard P Ieyoub of Louisiana, J. Joseph Curran, Jr., of Maryland, Frank J. Kelley of Michigan, Joseph P. Mazurek of Montana, Don Stenberg of Nebraska, Frankie Sue Del Papa of Nevada, Michael F. Easley of North Carolina, Lee Fisher of Ohio, Jeffrey B. Pine of Rhode Island, T. Travis Medlock of South Carolina, Jan Graham of Utah, Jeffrey L. Amestoy of Vermont, and James S. Gilmore III of Virginia; and for Wayne County, Michigan, by John D. O’Hair and Timothy A Baughman. Justice O’Connor delivered the opinion of the Court, except as to Part II-C. In this case we clarify the scope of the hearsay exception for statements against penal interest. Fed. Rule Evid. 804(b)(3). I A deputy sheriff stopped the rental car driven by Reginald Harris for weaving on the highway. Harris consented to a search of the car, which revealed 19 kilograms of cocaine in two suitcases in the trunk. Harris was promptly arrested. Shortly after Harris’ arrest, Special Agent Donald Walton of the Drug Enforcement Administration (DEA) interviewed him by telephone. During that conversation, Harris said that he got the cocaine from an unidentified Cuban in Fort Lauderdale; that the cocaine belonged to petitioner Williamson; and that it "(vas to be delivered that night to a particular dumpster. Williamson was also connected to Harris by physical evidence: The luggage bore the initials of Williamson’s sister, Williamson was listed as an additional driver on the car rental agreement, and an envelope addressed to Williamson and a receipt with Williamson’s girlfriend’s address were found in the glove compartment. Several hours later, Agent Walton spoke to Harris in person. During that interview, Harris said he had rented the car a few days earlier and had driven it to Fort Lauderdale to meet Williamson. According to Harris, he had gotten the cocaine from a Cuban who was Williamson’s acquaintance, and the Cuban had put the cocaine in the car with a note telling Harris how to deliver the drugs. Harris repeated that he had been instructed to leave the drugs in a certain dumpster, to return to his car, and to leave without waiting for anyone to pick up the drugs. Agent Walton then took steps to arrange a controlled delivery of the cocaine. But as Walton was preparing to leave the interview room, Harris “got out of [his] chair ... and ... took a half step toward [Walton]... and ... said,... T can’t let you do that,’ threw his hands up and said ‘that’s not true, I can’t let you go up there for no reason.’ ” App. 40. Harris told Walton he had lied about the Cuban, the note, and the dumpster. The real story, Harris said, was that he was transporting the cocaine to Atlanta for Williamson, and that Williamson was traveling in front of him in another rental car. Harris added that after his car was stopped, Williamson turned around and drove past the location of the stop, where he could see Harris’ car with its trunk open. Ibid. Because Williamson had apparently seen the police searching the car, Harris explained that it would be impossible to make a controlled delivery. Id., at 41. Harris told Walton that he had lied about the source of the drugs because he was afraid of Williamson. Id., at 61, 68; see also id., at 30-31. Though Harris freely implicated himself, he did not want his story to be recorded, and he refused to sign a written version of the statement. Id., at 24-25. Walton testified that he had promised to report any cooperation by Harris to the Assistant United States Attorney. Walton said Harris was not promised any reward or other benefit for cooperating. Id., at 25-26. Williamson was eventually convicted of possessing cocaine with intent to distribute, conspiring to possess cocaine with intent to distribute, and traveling interstate to promote the distribution of cocaine, 21 U. S. C. §§ 841(a)(1), 846; 18 U. S. C. § 1952. When called to testify at Williamson’s trial, Harris refused, even though the prosecution gave him use immunity and the court ordered him to testify and eventually held him in contempt. The District Court then ruled that, under Rule 804(b)(3), Agent Walton could relate what Harris had said to him: “The ruling of the Court is that the statements . . . are admissible under [Rule 804(b)(3)], which deals with statements against interest. “First, defendant Harris’ statements clearly implicated himself, and therefore, are against his penal interest. “Second, defendant Harris, the declarant, is unavailable. “And third, as I found yesterday, there are sufficient corroborating circumstances in this case to ensure the trustworthiness of his testimony. Therefore, under [United States v. Harrell, 788 F. 2d 1524 (CA11 1986)], these statements by defendant Harris implicating [Williamson] are admissible.” App. 51-52. Williamson appealed his conviction, claiming that the admission of Harris’ statements violated Rule 804(b)(3) and the Confrontation Clause of the Sixth Amendment. The Court of Appeals for the Eleventh Circuit affirmed without opinion, judgt. order reported at 981 F. 2d 1262 (1992), and we granted certiorari. 510 U. S. 1039 (1994). II A The hearsay rule, Fed. Rule Evid. 802, is premised on the theory that out-of-court statements are subject to particular hazards. The declarant might be lying; he might have misperceived the events which he relates; he might have faulty memory; his words might be misunderstood or taken out of context by the listener. And the ways in which these dangers are minimized for in-court statements — the oath, the witness’ awareness of the gravity of the proceedings, the jury’s ability to observe the witness’ demeanor, and, most importantly, the right of the opponent to cross-examine — are generally absent for things said out of court. Nonetheless, the Federal Rules of Evidence also recognize that some kinds of out-of-court statements are less subject to these hearsay dangers, and therefore except them from the general rule that hearsay is inadmissible. One such category covers statements that are against the declarant’s interest: “statement^] which ... at the time of [their] making ... so far tended to subject the declarant to . . . criminal liability . . . that a reasonable person in the declarant’s position would not have made the statement^] unless believing [them] to be true.” Fed. Rule Evid. 804(b)(3). To decide whether Harris’ confession is made admissible by Rule 804(b)(3), we must first determine what the Rule means by “statement,” which Federal Rule of Evidence 801(a)(1) defines as “an oral or written assertion.” One possible meaning, “a report or narrative,” Webster’s Third New International Dictionary 2229, defh. 2(a) (1961), connotes an extended declaration. Under this reading, Harris’ entire confession — even if it contains both self-inculpatory and non-self-incúlpatory parts — would be admissible so long as in the aggregate the confession sufficiently inculpates him. Another meaning of “statement,” “a single declaration or remark,” ibid., defh. 2(b), would make Rule 804(b)(3) cover only those declarations or remarks within the confession that are individually self-inculpatory. See also id., at 131 (defining “assertion” as a “declaration”); id., at 586 (defining “declaration” as a “statement”). Although the text of the Rule does not directly resolve the matter, the principle behind the Rule, so far as it is discernible from the text, points clearly to the narrower reading. Rule 804(b)(3) is founded on the commonsense notion that reasonable people, even reasonable people who are not especially honest, tend not to make self-inculpatory statements unless they believe them to be true. This notion simply does not extend to the broader definition of “statement.” The fact that a person is making a broadly self-inculpatory confession does not make more credible the confession’s non-self-inculpatory parts. One of the most effective ways to lie is to mix falsehood with truth, especially truth that seems particularly persuasive because of its self-inculpatory nature. In this respect, it is telling that the non-self-inculpatory things Harris said in his first statement actually proved to be false, as Harris himself admitted during the second interrogation. And when part of the confession is actually self-exculpatory, the generalization on which Rule 804(b)(3) is founded becomes even less applicable. Self-exculpatory statements are exactly the ones which people are most likely to make even when they are false; and mere proximity to other, self-inculpatory, statements does not increase the plausibility of the self-exculpatory statements. We therefore cannot agree with Justice Kennedy’s suggestion that the Rule can be read as expressing a policy that collateral statements — even ones that are not in any way against the declarant’s interest — are admissible, post, at 614. Nothing in the text of Rule 804(b)(3) or the general theory of the hearsay Rules suggests that admissibility should turn on whether a statement is collateral to a self-inculpatory statement. The fact that a statement is self-inculpatory does make it more reliable; but the fact that a statement is collateral to a self-inculpatory statement says nothing at all about the collateral statement’s reliability. We see no reason why collateral statements, even ones that are neutral as to interest, post, at 617-619 (Kennedy, J., concurring in judgment), should be treated any differently from other hearsay statements that are generally excluded. Congress certainly could, subject to the constraints of the Confrontation Clause, make statements admissible based on their proximity to self-inculpatory statements. But we will not lightly assume that the ambiguous language means anything so inconsistent with the Rule’s underlying theory. See Cooter & Gell v. Hartmarx Corp., 496 U. S. 384, 394-395, 408-409 (1990). In our view, the most faithful reading of Rule 804(b)(3) is that it does not allow admission of non-selfinculpatory statements, even if they are made within a broader narrative that is generally self-inculpatory. The district court may not just assume for purposes of Rule 804(b)(3) that a statement is self-inculpatory because it is part of a fuller confession, and this is especially true when the statement implicates someone else. “[T]he arrest statements of a codefendant have traditionally been viewed with special suspicion. Due to his strong motivation to implicate the defendant and to exonerate himself, a codefendant’s statements about what the defendant said or did are less credible than ordinary hearsay evidence.” Lee v. Illinois, 476 U. S. 530, 541 (1986) (internal quotation marks omitted); see also Bruton v. United States, 391 U. S. 123, 136 (1968); Dutton v. Evans, 400 U. S. 74, 98 (1970) (Harlan, J., concurring in result). Justice Kennedy suggests that the Advisory Committee’s Notes to Rule 804(b)(3) should be read as endorsing the position we reject — that an entire narrative, including non-self-inculpatory parts (but excluding the clearly self-serving parts, post, at 620), may be admissible if it is in the aggregate self-inculpatory. See post, at 614-615. The Notes read, in relevant part: “[T]he third-party confession . . . may include statements implicating [the accused], and under the general theory of declarations against interest they would be admissible as related statements----[Douglas v. Alabama, 380 U. S. 415 (1965), and Bruton v. United States, 391 U. S. 123 (1968),]... by no means require that all statements implicating another person be excluded from the category of declarations against interest. Whether a statement is in fact against interest must be determined from the circumstances of each case. Thus a statement admitting guilt and implicating another person, made while in custody, may well be motivated by a desire to curry favor with the authorities and hence fail to qualify as against interest. ... On the other hand, the same words spoken under different circumstances, e. g., to an acquaintance, would have no difficulty in qualifying.... “The balancing of self-serving against dissenting [sic] aspects of a declaration is discussed in McCormick § 256.” 28 U. S. C. App., p. 790. This language, however, is not particularly clear, and some of it — especially the Advisory Committee’s endorsement of the position taken by Dean McCormick’s treatise — points the other way: “A certain latitude as to contextual statements, neutral as to interest, giving meaning to the declaration against interest seems defensible, but bringing in self-serving statements contextually seems questionable. “.. . [A]dmit[ting] the disserving parts of the declaration, and excluding] the self-serving parts . . . seems the most realistic method of adjusting admissibility to trustworthiness, where the serving and disserving parts can be severed.” See C. McCormick, Law of Evidence § 256, pp. 552-553 (1954) (footnotes omitted). Without deciding exactly how much weight to give the Notes in this particular situation, compare Schiavone v. Fortune, 477 U. S. 21, 31 (1986) (Notes are to be given some weight), with Green v. Bock Laundry Machine Co., 490 U. S. 504, 528 (1989) (Scalia, J., concurring in judgment) (Notes ought to be given no weight), we conclude that the policy expressed in the Rule’s text points clearly enough in one direction that it outweighs whatever force the Notes may have. And though Justice Kennedy believes that the text can fairly be read as expressing a policy of admitting collateral statements, post, at 614, for the reasons given above we disagree. B We also do not share Justice Kennedy’s fears that our reading of the Rule “eviscerate[s] the against penal interest exception,” post, at 616 (internal quotation marks omitted), or makes it lack “meaningful effect,” ibid. There are many circumstances in which Rule 804(b)(3) does allow the admission of statements that inculpate a criminal defendant. Even the confessions of arrested accomplices may be admissible if they are truly self-inculpatory, rather than merely attempts to shift blame or curry favor. For instance, a declarant’s squarely self-inculpatory confession — “yes, I killed X” — will likely be admissible under Rule 804(b)(3) against accomplices of his who are being tried under a co-conspirator liability theory. See Pinkerton v. United States, 328 U. S. 640, 647 (1946). Likewise, by showing that the declarant knew something, a self-inculpatory statement can in some situations help the jury infer that his confederates knew it as well. And when seen with other evidence, an accomplice’s self-inculpatory statement can inculpate the defendant directly: “I was robbing the bank on Friday morning,” coupled with someone’s testimony that the declarant and the defendant drove off together Friday morning, is evidence that the defendant also participated in the robbery. Moreover, whether a statement is self-inculpatory or not can only be determined by viewing it in context. Even statements that are on their face neutral may actually be against the declarant’s interest. “I hid the gun in Joe’s apartment” may not be a confession of a crime; but if it is likely to help the police find the murder weapon, then it is certainly self-inculpatory. “Sam and I went to Joe’s house” might be against the declarant’s interest if a reasonable person in the declarant’s shoes would realize that being linked to Joe and Sam would implicate the declarant in Joe and Sam’s conspiracy. And other statements that give the police significant details about the crime may also, depending on the situation, be against the declarant’s interest. The question under Rule 804(b)(3) is always whether the statement was sufficiently against the declarant’s penal interest “that a reasonable person in the declarant’s position would not have made the statement unless believing it to be true,” and this question can only be answered in light of all the surrounding circumstances. C In this case, however, we cannot conclude that all that Harris said was properly admitted. Some of Harris’ confession would clearly have been admissible under Rule 804(b)(3); for instance, when he said he knew there was cocaine in the suitcase, he essentially forfeited his only possible defense to a charge of cocaine possession, lack of knowledge. But other parts of his confession, especially the parts that implicated Williamson, did little to subject Harris himself to criminal liability. A reasonable person in Harris’ position might even think that implicating someone else would decrease his practical exposure to criminal liability, at least so far as sentencing goes. Small fish in a big conspiracy often get shorter sentences than people who are running the whole show, see, e. g., United States Sentencing Commission, Guidelines Manual §3B1.2 (Nov. 1993), especially if the small fish are willing to help the authorities catch the big ones, see, e. g., id., § 5K1.1. Nothing in the record shows that the District Court or the Court of Appeals inquired whether each of the statements in Harris’ confession was truly self-inculpatory. As we explained above, this can be a fact-intensive inquiry, which would require careful examination of all the circumstances surrounding the criminal activity involved; we therefore remand to the Court of Appeals to conduct this inquiry in the first instance. In light of this disposition, we need not address Williamson’s claim that the statements were also made inadmissible by the Confrontation Clause, see generally White v. Illinois, 502 U. S. 346 (1992), and in particular we need not decide whether the hearsay exception for declarations against interest is “firmly rooted” for Confrontation Clause purposes. Compare, e. g., United States v. Seeley, 892 F. 2d 1, 2 (CA1 1989) (holding that the exception is firmly rooted), with United States v. Flores, 985 F. 2d 770 (CA5 1993) (holding the contrary). We note, however, that the very fact that a statement is genuinely self-inculpatory — which our reading of Rule 804(b)(3) requires — is itself one of the “particularized guarantees of trustworthiness” that makes a statement admissible under the Confrontation Clause. See Lee v. Illinois, 476 U. S. 530, 543-545 (1986). We also need not decide whether, as some Courts of Appeals have held, the second sentence of Rule 804(b)(3) — “A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement” (emphasis added) — also requires that statements inculpating the accused be supported by corroborating circumstances. See, e. g., United States v. Alvarez, 584 F. 2d 694, 701 (CA5 19 Question: What is the court in which the case originated? 001. U.S. Court of Customs and Patent Appeals 002. U.S. Court of International Trade 003. 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songer_casetyp1_7-2	E	What follows is an opinion from a United States Court of Appeals. Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation". Anthony J. SESTRIC, Plaintiff-Appellant, v. William G. CLARK, et al., Defendants-Appellees. No. 84-2298. United States Court of Appeals, Seventh Circuit. Argued Feb. 28, 1985. Decided June 18, 1985. As Amended on Denial of Rehearing and Rehearing En Banc Aug. 1,1985. Anthony J. Sestric, St. Louis, Mo., for plaintiff-appellant. Patricia Rosen, 111. Atty. Gen. Office, Chicago, 111., for defendants-appellees. Before CUMMINGS, Chief Judge, and CUDAHY and POSNER, Circuit Judges. POSNER, Circuit Judge. The appellant, Anthony Sestric, is a member of the Missouri bar living and practicing law in St. Louis. He brought this suit against the responsible Illinois officials to invalidate, primarily on federal constitutional grounds, the requirement that a nonresident who wants to practice law in Illinois pass the Illinois bar exam. If Sestric became a resident of Illinois, he could be admitted to the Illinois bar on motion, without taking the bar exam. St. Louis is just across the Mississippi River from Illinois, and Sestric would like to practice law in Illinois without moving to Illinois and without taking the Illinois bar exam. Although his complaint was dismissed on the defendants’ motion for summary judgment, he does not argue that the factual record is insufficient to resolve the issues he has raised on appeal. Sestric bases his case on the privileges and immunities clause of Article IV of the Constitution (“The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States”), and also on the better-known commerce and equal protection clauses. (His additional claim, that the refusal to admit him violated Illinois law, clearly has no merit, for the reasons stated by the district judge.) If the privileges and immunities clause could be viewed as a general guaranty against discrimination by states against nonresidents, then it and the commerce clause — viewed not as a grant of power to Congress but as a prohibition against state action inconsistent with free trade among the states (the “negative” or “dormant” commerce clause) — would occupy the same ground, and we would not have to discuss both clauses. As a matter of fact the framers of the Constitution may have intended the privileges and immunities clause to play the role that has come to be associated more with the “negative” commerce clause. See Eule, Laying the Dormant Commerce Clause to Rest, 91 Yale L.J. 425, 447-48 (1982). But almost 200 years of judicial interpretation have opened up a wedge between the two clauses. For example, the privileges and immunities clause has been held not to protect corporations. See, e.g., W.C.M. Window Co. v. Bernardi, 730 F.2d 486, 492-93 (7th Cir.1984). A more pertinent example is that it has been held not to protect the full range of activities in which nonresidents might engage. See, e.g., Baldwin v. Montana Fish & Game Comm’n, 436 U.S. 371, 388, 98 S.Ct. 1852, 1862, 56 L.Ed.2d 354 (1978) (elk hunting by nonresidents of Montana). So we shall have to address the plaintiffs commerce clause contentions separately- (though briefly), and also his equal protection contentions; but we shall begin with privileges and immunities. Illinois does not require that members of its bar be residents of the state — a requirement that the U.S. Supreme Court held, after argument in this case, violates the privileges and immunities clause. See Supreme Court of New Hampshire v. Piper, — U.S. -, 105 S.Ct. 1272, 84 L.Ed.2d 205 (1985). A nonresident can get admitted to the Illinois bar by passing the Illinois bar exam and satisfying the usual ethical requirements. Nonresidents more than six years out of law school, like the plaintiff, used to be denied this right; but that exclusion, the focus of the plaintiff’s challenge in the district court, was rescinded while the appeal in this case was pending. See Rule 703 of the Illinois Supreme Court (Sept. 14, 1984). Though it was not till his reply brief in this court that Sestric redirected his attack to the requirement that he sit for the bar exam, the rule change that ended the exclusion of nonresident lawyers who were more than six years out of law school came after he filed his brief; so he is not subject to criticism for having changed his theory when he did. We could remand the case to the district court to consider the new theory before we do, but since it raises only pure issues of law and the district judge who decided the case has died, the delays involved in a remand would not be justified. If Sestric moved to Illinois he would be excused from having to take the Illinois bar exam, provided he had practiced continuously for five of the last seven years in a jurisdiction to whose bar he had been admitted, Ill.S.Ct.R. 705, as Sestric has (we shall call this the “continuous practice” requirement). Therefore he is treated less favorably than a class of (new) Illinois residents. This difference is the basis of Ses-tric’s present claim under the privileges and immunities clause. Whether such a difference violates the clause, or any other provision of the Constitution, is one of first impression at the federal appellate level, although the Massachusetts Supreme Court has held a similar regulation to be in violation of the clause. In re Jadd, 391 Mass. 227, 236-37, 461 N.E.2d 760, 765-66 (1984). Several decisions, one by this court, uphold the constitutionality of continuous-practice requirements. See Lowrie v. Goldenhersh, 716 F.2d 401 (7th Cir. 1983); Salibra v. Supreme Court of Ohio, 730 F.2d 1059, 1062-64 (6th Cir.1984); Shapiro v. Cooke, 552 F.Supp. 581 (N.D.N.Y. 1982), aff’d on the district court’s opinion, 702 F.2d 46 (2d Cir.1983) (per curiam). And Hawkins v. Moss, 503 F.2d 1171 (4th Cir.1974), upholds the denial of the continuous-practice exemption to a lawyer whose state of licensing does not reciprocate the exemption. Although none of these cases is directly in point, since the plaintiffs were residents complaining about a requirement that Sestric (a nonresident) satisfies, all contain dicta which east doubt on the validity of Sestric’s claim. For example, we said in Lowrie that “there is no residency requirement preventing Lowrie from taking the Illinois bar examination in the first instance. The years of practice and residency requirement at issue in this case prevent Lowrie from being admitted to the Illinois bar without examination. It is primarily for this reason, as well as on the ground that we are unable to, as amicus curíae does, ascribe to the Illinois Supreme Court a motive of discouraging out-of-state lawyers from migrating to Illinois, that we find the [amicus’s] Privileges and Immunities Clause contentions devoid of merit.” 716 F.2d at 414 (emphasis in original). See also 730 F.2d at 1063, 1065; 503 F.2d at 1176-80; 552 F.Supp. at 587-88. Lowrie also suggests, it is true, that the practice of law is not one of the privileges protected by the privileges and immunities clause, see 716 F.2d at 414 — a proposition that, after Piper, can no longer be maintained. See 105 S.Ct. at 1277. But as the passage quoted above makes clear, this was not our primary ground for rejecting Lowrie’s privileges and immunities claim. In any event, Piper, though it is, as we shall see, distinguishable from this case, requires us to take a fresh look at the issue, and not just rest on dicta in lower-court decisions, our own or others’. The Supreme Court stated in Piper that discrimination against a nonresident who wants to practice law violates the privileges and immunities clause unless “(i) there is a substantial reason for the difference in treatment; and (ii) the discrimination practiced against nonresidents bears a substantial relationship to the State’s objective. In deciding whether the discrimination bears a close or substantial relationship to the State’s objective, the Court has considered the availability of less restrictive means.” Id. at 1279 (citation and footnote omitted). This is a tough test to pass, but before applying it to the “discrimination” of which Sestric complains we must ask whether the Supreme Court intended the test to apply to such a claim. Sestric’s claim is different from Piper’s. It is not clear that Sestric has been deprived of a privilege or an immunity within the meaning of the clause or that he is the victim of a discrimination in favor of residents and against nonresidents — or indeed that there is any discrimination between any two groups. Thus he may not even have a prima facie claim under the privileges and immunities clause, or he may have a claim more easily rebutted than Piper’s. In the usual privileges and immunities case a state conditions a substantial opportunity or “privilege” — such as, in Piper itself, the practice of law — on the status of being a resident of the state. Thus in our Bernardi case, or in Hicklin v. Orbeck, 437 U.S. 518, 98 S.Ct. 2482, 57 L.Ed.2d 397 (1978) (the “Alaska Hire” case), only residents could be hired to work on certain projects in the state unless there were no residents qualified to do the work. Illinois does nothing like that regarding the practice of law. Although it requires nonresidents to take a bar exam, it requires the same of all residents except new residents who have practiced law continuously for five of the last seven years in a state in which they are licensed. The privilege that Sestric has been deprived of is not the privilege of practicing law in Illinois; nonresidents can practice law in Illinois provided that, like (most) residents, they pass the bar exam. He has been deprived of the “privilege” that some new residents have of being allowed to practice law without taking the bar exam. Maybe the case is really closer to Baldwin v. Montana Fish & Game Comm’n, supra, than to Piper —at least at a deeper level of analysis than one that notes that Baldwin is about hunting and Piper about lawyering. Put differently, if practical exclusion from a socially marginal activity such as hunting elk is not within the scope of the privileges and immunities clause (the nonresident license fee was as much as 25 times higher than the resident license fee, see 436 U.S. at 374, 98 S.Ct. at 1855), maybe neither is the inconveniencing, as distinct from exclusion, of a nonresident seeking to engage in a vital calling such as law. Granted, the exclusion need not be absolute to be actionable under the privileges and immunities clause, though it was in Piper. A prohibitive condition, such as the nonresident license fee in Toomer v. Witsell, 334 U.S. 385, 395, 68 S.Ct. 1156, 1161, 92 L.Ed.2d 1460 (1948), that was 100 times the resident license fee, will do. See also Ward v. Maryland, 79 U.S. (12 Wall.) 418, 20 L.Ed. 449 (1871), where, as in Baldwin, the maximum difference was 25 times. In Bernardi and Hicklin nonresidents were eligible for the jobs in question provided there were no qualified residents. But in all these cases the tendency was to exclude most nonresidents. It is a matter of conjecture whether the requirement of taking and passing a bar exam would actually exclude many lawyers having a serious desire to conduct a substantial practice in Illinois; and the exclusion of those having no such desire would not do much damage to the policy of the privileges and immunities clause. The other respect in which this case breaks the mold of previous privileges and immunities cases is that it does not involve a clear-cut preference for residents, most of whom of course have to take the bar exam too; it is a preference for new residents over both old residents and nonresidents. As a matter of fact, the elimination of the preference of which Sestric complains could harm new residents without helping nonresidents. This can be seen by imagining that Illinois bowed to Sestric’s view of his rights under the privileges and immunities clause by requiring everyone— old resident, new resident, nonresident— wanting to practice law in Illinois to take the bar exam. As of course it could do: “Our holding in this case does not interfere with the ability of the states to regulate their bars. The nonresident who seeks to join a bar, unlike- the pro hae vice applicant, must have the same professional and personal qualifications required of resident lawyers.” Supreme Court of New Hampshire v. Piper, supra, 105 S.Ct. at 1278 n. 16. See also In re Gordon, 48 N.Y.2d 266, 273, 42 N.Y.S.2d 641, 645, 397 N.E.2d 1309, 1313 (1979). Few states want to admit to their bars every lawyer admitted in one of the other 49 states. To avoid this a state need only, under Sestric’s view of privileges and immunities, require every lawyer who wants to practice in the state to take the state’s bar exam. Such a rule would bear harder on nonresidents as a class than the rule that Sestric challenges, by making it more costly for them to become residents. Though clearly constitutional, such a rule would not help Sestric or any other nonresident; it would just hurt recent nonresidents (= new residents). This suggests that there is something amiss with Sestric’s claim. And, indeed, even at the purely verbal level of constitutional interpretation a nonresident’s complaint about a burden (taking the bar exam) that also rests on many residents (all but new residents) does not fit the privileges and immunities clause comfortably. The clause speaks of the privileges and immunities “of Citizens in the several States,” and in this case it may be asked: which citizens of Illinois — old ones or new ones — provide the measure of Sestric’s rights? There is also a substantial argument of policy. If (unlike the present case) the State of Illinois, while allowing nonresidents to practice law if they passed the bar exam, allowed any resident to practice law without having to pass the bar exam, it would be discriminating in favor of residents and against nonresidents. There would be a suspicion that the discrimination was unjustified — a needless though far from insurmountable obstacle to interstate mobility of lawyers — because the burden would be borne by nonresidents, who have no voice in the public policy of the state. Cf. Toomer v. Witsell, supra, 334 U.S. at 396, 68 S.Ct. at 1162. (True, residents would be diffusely hurt as consumers of legal services; but no resident lawyer would be hurt.) But the State of Illinois does not excuse all or even most residents from having to pass the bar exam in order to practice law in Illinois. It requires all old residents, some new residents (those who do not satisfy the continuous-practice requirement), and nonresidents alike to pass the bar. The fact that the same burden is placed on both resident and nonresident groups provides some assurance that it is a moderate and reasonable, rather than arbitrary and prohibitive, burden. In the battle of the footnotes between the majority and dissenting opinions in United Building & Construction Trades Council v. Mayor & Council of City of Camden, 465 U.S. 208, 104 S.Ct. 1020, 79 L.Ed.2d 249 (1984), a case nominally involving a discriminatory city ordinance rather than a state law, it was common ground that the effect on state residents of an alleged discrimination against nonresidents was relevant to evaluating the privileges and immunities claim. Compare id. at 1027 n. 9 (majority opinion) with id. at 1034-35 and n. 12 (dissenting opinion). Discrimination against new residents has been a frequent target of constitutional attack; one has only to recall Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969), where the Supreme Court held that states could not deny welfare benefits to new residents. If as in this case a state favors new residents, there is a presumption that what it is doing is proper. “[A] State may make residence within its boundaries more attractive by offering direct benefits to its citizens in the form of public services, lower taxes than other States offer, or direct distributions of its munificence. Through these means, one State may attract citizens of other States to join the numbers of its citizenry. That is a healthy form of rivalry____” Zobel v. Williams, 457 U.S. 55, 67-68, 102 S.Ct. 2309, 2316-2317, 72 L.Ed.2d 672 (1982) (concurring opinion). Although this was said in an equal protection case, we cannot think why the same thing should not be true in a privileges and immunities case as well. (Zobel has additional significance for this case: it held that preferring old over new residents was not forbidden by the privileges and immunities clause. See id. at 59 n. 5, 102 S.Ct. at 2312 n. 5. Here Illinois has preferred a class of new residents over both old residents and nonresidents.) Moreover, by allowing lawyers who move to Illinois to be admitted to the Illinois bar without taking the bar exam only if other states accord the same privilege to Illinois lawyers who move to other states (the practice known as “reciprocity,” on which see, e.g., Ill.S.Ct.R. 705(b); Hawkins v. Moss, supra; Ricci v. State Bd. of Law Examiners, 427 F.Supp. 611, 618 (E.D.Pa.1977), vacated on other grounds, 569 F.2d 782 (3d Cir.1978) (per curiam)), Illinois eases the flow not only of new lawyers into Illinois but also of Illinois lawyers into other states. The rule that Sestric challenges promotes interstate mobility, at least when defined to include the relocation of citizens to new states as well as the provision of goods and services by nonresidents. Not only has Illinois not denied a privilege to nonresidents that is generally available to residents, but it may not have imposed a net burden on nonresidents even compared to the favored resident group— the new residents. The Florida lawyer (say) who by moving to Illinois can be admitted to the Illinois bar without having to take the Illinois bar exam would probably be giving up his Florida practice. He would not have to give it up, but even today most lawyers have a local rather than multistate practice, and therefore most lawyers who change states abandon their former practice. If he had remained in Florida and sought admission to the Illinois bar as a nonresident, he would have to take the bar exam, but on the other hand he would be retaining his Florida practice; he would not stay in Florida if he wanted to practice law full-time in Illinois. Thus, though he would have taken (so far in his professional lifetime) two bar exams, he would have done so in order to practice in two states, not in one state as in our first example. Sestric does not propose to give up his Missouri practice for an Illinois practice. He wants to practice in both states though he has passed only one bar. If allowed to do this he will be better off than a lawyer who pulls up stakes in Missouri and relocates to Illinois. Of course if that lawyer retains his Missouri practice, as he could do since he would still be a member of the Missouri bar, his position would be symmetrical with what Sestric is seeking for himself. But as is usually the case in law, we are dealing with probabilities rather than certainties. A person who moves to another state is unlikely to have a multi-state practice, while a person who applies for admission to a state’s bar as a nonresident must be seeking to have at least a two-state practice. It is not obviously unreasonable to make him take a second bar exam. Because Illinois has not barred nonresidents from practicing law, has not discriminated against residents in gross, and may not even have imposed a net burden on nonresidents compared to the small class of favored residents, Sestric has failed to make out a prima facie case under the privileges and immunities clause. But since we shall have to consider Illinois’ justification for the challenged rule under the equal protection clause, we shall (after doing so) return to the issue of privileges and immunities and show that, even if we are wrong and Sestric has made out a prima facie case under the privileges and immunities clause, Illinois has rebutted it. As we cannot say that Illinois’ rule is more likely to impede than to increase the interstate mobility of lawyers, it is apparent that Illinois has not violated the commerce clause. A state may not place unreasonable burdens on free trade among the states; and among the markets that the states must not attempt to balkanize through tariffs or regulation are labor markets, see, e.g., W.C.M. Window Co. v. Bernardi, supra, 730 F.2d at 493-96, including the market for legal services. But, as we have seen, far from having placed an unreasonable burden on the interstate mobility of lawyers, Illinois may well have increased that mobility. It is true that explicitly reciprocal trade barriers have been knocked down under the commerce clause, see, e.g., A & P Tea Co. v. Cottrell, 424 U.S. 366, 378-79, 96 S.Ct. 923, 931-32, 47 L.Ed.2d 55 (1976); they are in effect retaliatory tariffs. But despite the reciprocity provision in Illinois Supreme Court Rule 705(b), Illinois has not created a barrier to nonresident lawyers and then offered to remove it if other states do likewise. The bar exam is a condition for admission to the bar imposed on residents and nonresidents alike; the waiving of the condition for a class of new residents merely makes it easier for lawyers to change states. The plaintiff’s real objection, as it seems to us, is not that the Illinois rule keeps him, as a nonresident, from practicing law in Illinois but that it creates an arbitrary distinction between experienced new residents and equally experienced nonresidents by excusing the former from the bar exam required of the latter. This is a claim most naturally assessed under the equal protection clause of the Fourteenth Amendment. One response, already suggested, is that there is no discrimination— no (net) difference of treatment between persons similarly situated. But if there is, it is a rational discrimination, and that is all the justification that the equal protection clause requires for such a distinction. Schware v. Board of Bar Examiners, 353 U.S. 232, 239, 77 S.Ct. 752, 756, 1 L.Ed.2d 796 (1957); Lowrie v. Goldenhersh, supra, 716 F.2d at 408-09; Shapiro v. Cooke, supra, 552 F.Supp. at 586. The plaintiff is claiming a right to practice law in Illinois without being a resident and without taking a bar exam. There can be no assurance that he knows Illinois law well enough to represent clients in Illinois competently. Although there might seem to be no greater assurance regarding lawyers who move to Illinois and are admitted without having to take a bar exam, they at least are making a greater commitment to the state. By becoming residents of Illinois they place themselves in a situation where in all likelihood the bulk of their clients will be Illinois clients; the bulk of the law they practice will be Illinois law; and they will learn through doing. (Of course this is not so in every case; some Illinois lawyers, especially in the large firms in Chicago, have a federal or multi-state rather than Illinois practice.) A nonresident who practices law in Illinois might do so on a most intermittent basis. He has not made the commitment entailed in becoming a resident. The focus of his practice being elsewhere, his incentive to master Illinois law is less than that of a resident who expects to practice Illinois law full time. Taking and passing the bar exam is thus a substitute commitment for residence; it forces the nonresident to bone up on Illinois law. And it is a far less burdensome commitment than moving into the state. To make a person change his state of residence to demonstrate that he is serious about practicing the state’s law is, the Supreme Court held in Piper, too burdensome. But Sestrie is complaining not about the burdens of the bar exam but about what he contends is the unfair advantage that new residents have over him in being excused from having to take the bar; and they are excused only because they have borne the much greater burden of relocating their home and (in all likelihood) their practice to a new state. Of course one can find — and readily, too — holes in Illinois’ defense to the charge of undue favoritism to new residents: 1. It has long been argued that bar exams test skill in “cramming,” rather than knowledge of state law, and that by never reexamining those who are admitted to the bar a state gives no protection against the loss of legal skills through disuse or forgetting. But this argument is too powerful. It is an argument against ever making the bar exam a condition of admission to the bar. The universality of the requirement makes this a dubious argument. (In contrast, in Piper the Supreme Court pointed out that a number of states —including, of course, Illinois — had stopped requiring residence as a condition of admission to the bar. See 105 S.Ct. at 1275 n. 5.) So does the fact that the courts have upheld the requirement against repeated contentions that it unreasonably discriminates against the members of some minority groups or deprives persons of their liberty of occupation without due process of law. See, e.g., Poats v. Givan, 651 F.2d 495 (7th Cir.1981) (per curiam); Whitfield v. Illinois Bd. of Law Examiners, 504 F.2d 474, 477 (7th Cir.1974) (per curiam); Attwell v. Nichols, 608 F.2d 228, 230 (5th Cir.1979) (per curiam); Tyler v. Vickery, 517 F.2d 1089, 1101-03 (5th Cir.1975). 2. A lawyer might move to Illinois, become a member of the Illinois bar without taking the bar exam, and a few weeks later leave Illinois, so that although he would remain a member of the Illinois bar his situation would be realistically the same as that of a nonresident lawyer. But such cases are rare. Although the word “resident” is a chameleon, see, e.g., Lister v. Hoover, 655 F.2d 123, 128 (7th Cir.1981) (per curiam), the usual meaning in Illinois law as in other states’ law is “domiciliary.” See Fagiano v. Police Bd. of City of Chicago, 98 Ill.2d 277, 74 Ill.Dec. 525, 456 N.E.2d 27 (1983). And although the word is not defined in Rule 705, subsection (d) does require that the applicant be an “actual resident,” the same as the ordinance in Fagiano, and that he certify “that upon admission to the bar he will actively and continuously engage in the practice of law in” Illinois. So we may take it that for purposes of the rule “residence” implies an intent to remain indefinitely. See also Hicklin v. Orbeck, supra, 437 U.S. at 522 n. 5, 98 S.Ct. at 2485 n. 5. Indefinite is not permanent; but if the lawyer left the state after a few years rather than a few weeks, he would have as good a grounding in Illinois law as a nonresident who had taken the bar exam. In any event, we do not think Illinois’ justification must fail merely because we can imagine cases to which it would be inapplicable. Although Piper pointed out that New Hampshire’s residence requirement was “underinclusive ... because it permits lawyers who move away from the State to retain their membership in the bar,” 105 S.Ct. at 1279, and the Illinois rule is similarly underinclusive, we do not read Piper to hold that underinclusiveness is a fatal weakness of a rule (which was not before the Court) that does not forbid nonresidents to practice law but merely requires them, like old residents, to take the bar exam. And an underinclusive rule is not necessarily unreasonable, which is the test under the equal protection clause. 3. There are alternative methods to the bar exam for assuring that nonresidents know enough local law to practice competently, such as “a continuing practice requirement measured by a minimum volume of local work per year,” “mandatory continuing legal education for all licensed attorneys,” and “periodic reexamination of all admitted attorneys for general competency or for certification in areas of specialty.” Hafter, Toward the Multistate Practice of Law Through Admission by Reciprocity, 53 Miss.L.J. 1, 41 (1983) (footnotes omitted). No doubt a stiff fee would winnow out the fly-by-nighters. The problem is that any of these alternatives could easily be more burdensome, more exclusionary, than the bar exam; it all depends on the specifies. See, e.g., Brakel & Loh, Regulating the Multistate Practice of Law, 50 Wash.L.Rev. 699, 712 (1975). We thus are not sure that there is a less restrictive alternative to the bar exam, or at least that the courts can determine its existence reliably. 4. The economic analysis of professional licensure in general, see, e.g., Friedman, Capitalism and Freedom 137-60 (1962); Sti-gler, The Theory of Economic Regulation, 2 Bell J. Econ. & Management Sci. 3, 13-17 (1971); Occupational Licensure and Regulation (Rottenberg ed. 1980); Shepard, Licensing Restrictions and the Cost of Dental Care, 21 J.Law & Econ. 187 (1978), and of the licensing of lawyers in particular, see, e.g., Pashigian, Occupational Licensing and the Interstate Mobility of Professionals, 22 J.Law & Econ. 1 (1979), teaches that the licensing of lawyers is an anachronism, or worse; that a free market in legal services will yield the optimal quality at the optimal price; and that a bar exam, administered once in a lawyer’s lifetime, gives no assurance of minimum quality over the lawyer’s professional lifetime— and indeed has no other purpose than to limit the number of lawyers and hence keep the prices of their services up. One who is persuaded of these theses will doubt that Illinois should be allowed to make anyone take a bar exam — even a lawyer from Hawaii who has one piece of business in Illinois every decade but wants to tell his clients that he is qualified to practice law in every state. Although having to pass a bar exam would indeed discourage such birds of passage, skeptics of lawyer licensing will argue that all that is important (if that — maybe the discipline of the market is enough) is that the lawyer be subject to discipline by the state, as any member of the Illinois bar is no matter where he lives. But we do not think that the equal protection clause ordains in effect a national bar, whereby admission to one state’s bar is admission to every other’s unless the other state refuses to admit new residents on the basis of their license in the state where they have practiced continuously for a period of time in the recent past. A majority of states, and the District of Columbia, allow admission of new residents on the basis of practice in another state. See American Bar Ass’n, Comprehensive Guide to Bar Admission Requirements 30-31 (1984) (Chart VIII). If Sestric’s claim prevails, these states will have to decide whether to end this privilege or stand willing to admit on motion most lawyers in the country. The Supreme Court has said that the high costs of information that many clients face in choosing among lawyers and monitoring the performance of the lawyer they have chosen justify the states in regulating the advertising of legal services with an even freer hand than the First Amendment allows government in regulating the advertising of ordinary goods and services. See Bates v. State Bar of Arizona, 433 U.S. 350, 383, 97 S.Ct. 2691, 2708, 53 L.Ed.2d 810 (1977) (“because the public lacks sophistication concerning legal services, misstatements that might be overlooked or deemed unimportant in other advertising may be found quite inappropriate in legal advertising”); Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447, 460-61, 98 S.Ct. 1912, 1920-21, 56 L.Ed.2d 444 (1978). Thus the states have been held to have a legitimate interest in regulating the quality of legal practice, and it is not an irrational method of regulation to make nonresident lawyers take the state’s bar exam — even though they have already taken a bar exam and practiced law in another state — while excusing new residents from having to take it. This is enough to show that the challenged rule does not deny Sestrie the equal protection of the laws, even if (as we have questioned) there was any discrimination; and it is enough to rebut a prima facie case under the privileges and immunities clause, if contrary to our earlier conclusion Sestric has made out a prima facie case. If he has succeeded in showing a “discrimination” within the meaning of that clause, still it is not such a discrimination as would warrant the application of so stringent a test of legality as that applied in Piper to a much starker discrimination in favor of residents. The less serious a discrimination is, the less ought to be required to justify it. See Toomer v. Witsell, supra, 334 U.S. at 396, 68 S.Ct. at 1162 (“the inquiry in each case must be concerned with whether such reasons [for the difference in treatment] do exist and whether the degree of discrimination bears a close relation to them”) (emphasis added and footnote omitted). Although the cases discuss issues Question: What is the specific issue in the case within the general category of "economic activity and regulation"? A. taxes, patents, copyright B. torts C. commercial disputes D. bankruptcy, antitrust, securities E. misc economic regulation and benefits F. property disputes G. other Answer:
sc_decisiondirection	B	What follows is an opinion from the Supreme Court of the United States. Your task is to determine the ideological "direction" of the decision ("liberal", "conservative", or "unspecifiable"). Use "unspecifiable" if the issue does not lend itself to a liberal or conservative description (e.g., a boundary dispute between two states, real property, wills and estates), or because no convention exists as to which is the liberal side and which is the conservative side (e.g., the legislative veto). Specification of the ideological direction comports with conventional usage. In the context of issues pertaining to criminal procedure, civil rights, First Amendment, due process, privacy, and attorneys, consider liberal to be pro-person accused or convicted of crime, or denied a jury trial, pro-civil liberties or civil rights claimant, especially those exercising less protected civil rights (e.g., homosexuality), pro-child or juvenile, pro-indigent pro-Indian, pro-affirmative action, pro-neutrality in establishment clause cases, pro-female in abortion, pro-underdog, anti-slavery, incorporation of foreign territories anti-government in the context of due process, except for takings clause cases where a pro-government, anti-owner vote is considered liberal except in criminal forfeiture cases or those where the taking is pro-business violation of due process by exercising jurisdiction over nonresident, pro-attorney or governmental official in non-liability cases, pro-accountability and/or anti-corruption in campaign spending pro-privacy vis-a-vis the 1st Amendment where the privacy invaded is that of mental incompetents, pro-disclosure in Freedom of Information Act issues except for employment and student records. In the context of issues pertaining to unions and economic activity, consider liberal to be pro-union except in union antitrust where liberal = pro-competition, pro-government, anti-business anti-employer, pro-competition, pro-injured person, pro-indigent, pro-small business vis-a-vis large business pro-state/anti-business in state tax cases, pro-debtor, pro-bankrupt, pro-Indian, pro-environmental protection, pro-economic underdog pro-consumer, pro-accountability in governmental corruption, pro-original grantee, purchaser, or occupant in state and territorial land claims anti-union member or employee vis-a-vis union, anti-union in union antitrust, anti-union in union or closed shop, pro-trial in arbitration. In the context of issues pertaining to judicial power, consider liberal to be pro-exercise of judicial power, pro-judicial "activism", pro-judicial review of administrative action. In the context of issues pertaining to federalism, consider liberal to be pro-federal power, pro-executive power in executive/congressional disputes, anti-state. In the context of issues pertaining to federal taxation, consider liberal to be pro-United States and conservative pro-taxpayer. In miscellaneous, consider conservative the incorporation of foreign territories and executive authority vis-a-vis congress or the states or judcial authority vis-a-vis state or federal legislative authority, and consider liberal legislative veto. In interstate relations and private law issues, consider unspecifiable in all cases. Carlos Manuel AYESTAS, aka Dennis Zelaya Corea, Petitioner v. Lorie DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division. No. 16-6795. Supreme Court of the United States Argued Oct. 30, 2017. Decided March 21, 2018. Lee Kovarsky, appointed by this Court, Baltimore, MD, for Petitioner. Scott A. Keller, Austin, Texas, for Respondent. Meaghan VerGow, Deanna M. Rice, Paul T. Stepnowsky, Jason Zarrow, Samantha Goldstein, Kimya Saied, Kathryn A. Clifford, O'Melveny & Myers LLP, Washington, DC, Lee B. Kovarsky, The Powell Project, Baltimore, MD, Callie Heller, The Powell Project, Austin, TX, Jared Tyler, Texas Defender Service, Houston, TX, Sheri Lynn Johnson, Cornell Law School, Ithaca, NY, for Petitioner. Ken Paxton, Attorney General of Texas, Jeffrey C. Mateer, First Assistant Attorney General, Scott A. Keller, Solicitor General, J. Campbell Barker, Deputy Solicitor General, Beth Klusmann, Jason R. LaFond, Assistant Solicitors General, Office of the Attorney General, Austin, Texas, for Respondent. Justice ALITO delivered the opinion of the Court. Petitioner Carlos Ayestas, who was convicted of murder and sentenced to death in a Texas court, argues that he was wrongfully denied funding for investigative services needed to prove his entitlement to federal habeas relief. Petitioner moved for funding under 18 U.S.C. § 3599(f), which makes funds available if they are "reasonably necessary," but petitioner's motion was denied. We hold that the lower courts applied the wrong legal standard, and we therefore vacate the judgment below and remand for further proceedings. I A In 1997, petitioner was convicted of capital murder in a Texas court. Evidence at trial showed that he and two accomplices invaded the home of a 67-year-old Houston woman, Santiaga Paneque, bound her with duct tape and electrical cord, beat and strangled her, and then made off with a stash of her belongings. The jury also heard testimony from Henry Nuila regarding an incident that occurred about two weeks after the murder. Petitioner was drunk at the time, and he revealed to Nuila that he had recently murdered a woman in Houston. Petitioner then brandished an Uzi machinegun and threatened to murder Nuila if he did not help petitioner kill his two accomplices. Fortunately for Nuila, petitioner kept talking until he eventually passed out; Nuila then called the police, who arrested petitioner, still in possession of the gun. After the jury found petitioner guilty, it was asked to determine whether he should be sentenced to death or to life in prison. In order to impose a death sentence, Texas law required the jury to answer the following three questions. First, would petitioner pose a continuing threat to society? Second, had he personally caused the death of the victim, intended to kill her, or anticipated that she would be killed? Third, in light of all the evidence surrounding the crime and petitioner's background, were there sufficient mitigating circumstances to warrant a sentence of life without parole instead of death? Tex. Code Crim. Proc. Ann., Art. 37.071, §§ 2(b), (e) (Vernon Cum. Supp. 2017). Only if the jury gave a unanimous yes to the first two questions, and a unanimous no to the third question, could a death sentence be imposed; otherwise, petitioner would receive a sentence of life without parole. See §§ 2(d)(2), (f)(2), (g). In asking the jury to impose a death sentence, the prosecution supplemented the trial record with evidence of petitioner's criminal record and his encounter with a man named Candelario Martinez a few days after the murder. Martinez told the jury that he was standing in a hotel parking lot waiting for a friend when petitioner approached and began to make small talk. Before long, petitioner pulled out a machinegun and forced Martinez into a room where two of petitioner's compatriots were holding Martinez's friend at knifepoint. Ordered to lie down on the bathroom floor and await his execution, Martinez begged for his life while petitioner and his cohorts haggled about who would carry out the killing. Finally, petitioner relented, but he threatened to kill Martinez and his family if he contacted the police. Petitioner then stole Martinez's truck. Petitioner's trial counsel presented very little mitigation evidence. This was due, at least in part, to petitioner's steadfast refusal for many months to allow his lawyers to contact his family members, who were living in Honduras and might have testified about his character and upbringing. Petitioner gave in on the eve of trial, and at that point, according to the state habeas courts, his lawyers "made every effort to contact [his] family." App. 171. They repeatedly contacted petitioner's family members and urged them to attend the trial; they requested that the U.S. Embassy in Honduras facilitate family members' travel to the United States; and they met in person with the Honduran Consulate to seek assistance. But these efforts were to no avail. Petitioner's sister told his legal team that the family would not leave Honduras because the journey would create economic hardship and because their father was ill and had killed one of their neighbors. A defense attorney who spoke to petitioner's mother testified that she seemed unconcerned about her son's situation. In general, the state habeas courts found, petitioner "did nothing to assist counsel's efforts to contact his family and did not want them contacted by the consulate or counsel."Id., at 174. In the end, the only mitigation evidence introduced by petitioner's trial counsel consisted of three letters from petitioner's English instructor. The letters, each two sentences long, described petitioner as "a serious and attentive student who is progressing well in English." Ibid. The jury unanimously concluded that petitioner should be sentenced to death, and a capital sentence was imposed. Petitioner secured new counsel to handle his appeal, and his conviction and sentence were affirmed by the Texas Court of Criminal Appeals in 1998. Ayestas v. State., No. 72,928, App. 115. Petitioner did not seek review at that time from this Court. B While petitioner's direct appeal was still pending, a third legal team filed a habeas petition on his behalf in state court. This petition included several claims of trial-level ineffective assistance of counsel, but the petition did not assert that trial counsel were ineffective for failing to investigate petitioner's mental health and abuse of alcohol and drugs. Petitioner's quest for state habeas relief ended unsuccessfully in 2008. Ex parte Ayestas, No. WR-69,674-01 (Tex.Ct.Crim.App., Sept. 10, 2008), 2008 WL 4151814 (per curiam ) (unpublished). In 2009, represented by a fourth set of attorneys, petitioner filed a federal habeas petition under 28 U.S.C. § 2254, and this time he did allege that his right to the effective assistance of counsel at trial was violated because his attorneys failed to conduct an adequate search for mitigation evidence. As relevant here, petitioner argued that trial counsel overlooked evidence that he was mentally ill and had a history of drug and alcohol abuse. Ayestas v. Thaler, Civ. Action No. H-09-2999 (S.D.Tex., Jan. 26, 2011), 2011 WL 285138, 4. Petitioner alleged that he had a history of substance abuse, and he noted that he had been diagnosed with schizophrenia while the state habeas proceeding was still pending. See Pet. for Writ of Habeas Corpus in Ayestas v. Quarterman, No. 4:09-cv-2999 (SD Tex.), Doc. 1, pp. 21-23. Petitioner claimed that trial counsel's deficient performance caused prejudice because there was a reasonable chance that an adequate investigation would have produced mitigation evidence that would have persuaded the jury to spare his life. Among the obstacles standing between petitioner and federal habeas relief, however, was the fact that he never raised this trial-level ineffective-assistance-of-counsel claim in state court. The District Court therefore held that the claim was barred by procedural default, Ayestas v. Thaler, 2011 WL 285138, 4-7, and the Fifth Circuit affirmed, Ayestas v. Thaler, 462 Fed.Appx. 474, 482 (2012) (per curiam ). Petitioner sought review in this Court, and we vacated the decision below and remanded for reconsideration in light of two of our subsequent decisions, Martinez v. Ryan, 566 U.S. 1, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012), and Trevino v. Thaler, 569 U.S. 413, 133 S.Ct. 1911, 185 L.Ed.2d 1044 (2013). Ayestas v. Thaler, 569 U.S. 1015, 133 S.Ct. 2764, 186 L.Ed.2d 214 (2013). Martinez held that an Arizona prisoner seeking federal habeas relief could overcome the procedural default of a trial-level ineffective-assistance-of-counsel claim by showing that the claim is substantial and that state habeas counsel was also ineffective in failing to raise the claim in a state habeas proceeding. 566 U.S., at 14, 132 S.Ct. 1309. Trevino extended that holding to Texas prisoners, 569 U.S., at 416-417, 133 S.Ct. 1911 and on remand, petitioner argued that he fell within Trevino because effective state habeas counsel would have uncovered evidence showing that trial counsels' investigative efforts were deficient. To assist in developing these claims, petitioner filed an ex parte motion asking the District Court for $20,016 in funding to conduct a search for evidence supporting his petition. He relied on 18 U.S.C. § 3599(f), which provides in relevant part as follows: "Upon a finding that investigative, expert, or other services are reasonably necessary for the representation of the defendant, whether in connection with issues relating to guilt or the sentence, the court may authorize the defendant's attorneys to obtain such services on behalf of the defendant and, if so authorized, shall order the payment of fees and expenses therefor." Petitioner averred that the funds would be used to conduct an investigation that would show that his trial counsel and his state habeas counsel were ineffective. Accordingly, he claimed, the investigation would establish both that his trial-level ineffective-assistance-of-counsel claim was not barred by procedural default and that he was entitled to resentencing based on the denial of his Sixth Amendment right to the effective assistance of trial counsel. The District Court refused the funding request and ultimately denied petitioner's habeas petition. Ayestas v. Stephens, Civ. Action No. H-09-2999, (S.D.Tex., Nov. 18, 2014), 2014 WL 6606498, 6-7. On the merits of petitioner's new ineffective-assistance-of-trial-counsel claim, the District Court held that petitioner failed both prongs of the Strickland test. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Noting that most of the evidence bearing on petitioner's mental health had emerged only after he was sentenced, the court concluded that petitioner's trial lawyers were not deficient in failing to find such evidence in time for the sentencing proceeding. 2014 WL 6606498, 5. In addition, the court found that state habeas counsel did not render deficient performance by failing to investigate petitioner's history of substance abuse, and that, in any event, petitioner was not prejudiced at the sentencing phase of the trial or during the state habeas proceedings because the potential mitigation evidence at issue would not have made a difference to the jury in light of "the extremely brutal nature of [the] crime and [petitioner's] history of criminal violence." Ibid. With respect to funding, the District Court pointed to Fifth Circuit case law holding that a § 3599(f) funding applicant cannot show that investigative services are " 'reasonably necessary' " unless the applicant can show that he has a " 'substantial need' " for those services. Id., at 6. In addition, the court noted that "[t]he Fifth Circuit upholds the denial of funding" when, among other things, "a petitioner has ... failed to supplement his funding request with a viable constitutional claim that is not procedurally barred." Ibid . (internal quotation marks omitted). Given its holding that petitioner's new ineffective-assistance-of-counsel claim was precluded by procedural default, this rule also doomed his request for funding. The District Court denied petitioner's habeas petition and refused to grant him a certificate of appealability (COA). Id., at 7. On appeal, the Fifth Circuit held that a COA was not needed for review of the funding issue, but it rejected that claim for essentially the same reasons as the District Court, citing both the "substantial need" test and the rule that funding may be denied when a funding applicant fails to present "a viable constitutional claim that is not procedurally barred." Ayestas v. Stephens, 817 F.3d 888, 895-896 (2016) (internal quotation marks omitted). With respect to petitioner's other claims, including his claim of ineffective assistance of trial counsel, the Fifth Circuit refused to issue a COA. Id., at 898. C We granted certiorari to decide whether the lower courts applied the correct legal standard in denying the funding request. 581 U.S. ----, 137 S.Ct. 1433, 197 L.Ed.2d 647 (2017). II Before we reach that question, however, we must consider a jurisdictional argument advanced by respondent, the Director of the Texas Department of Criminal Justice. Respondent contends that the District Court's denial of petitioner's funding request was an administrative, not a judicial, decision and therefore falls outside the scope of the jurisdictional provisions on which petitioner relied in seeking review in the Court of Appeals and in this Court. A When the District Court denied petitioner's funding request and his habeas petition, he took an appeal to the Fifth Circuit under 28 U.S.C. §§ 1291 and 2253, which grant the courts of appeals jurisdiction to review final "decisions" and "orders" of a district court. And when the Fifth Circuit affirmed, petitioner sought review in this Court under § 1254, which gives us jurisdiction to review "[c]ases" in the courts of appeals. As respondent correctly notes, these provisions confer jurisdiction to review decisions made by a district court in a judicial capacity. But we have recognized that not all decisions made by a federal court are "judicial" in nature; some decisions are properly understood to be "administrative," and in that case they are "not subject to our review." Hohn v. United States, 524 U.S. 236, 245, 118 S.Ct. 1969, 141 L.Ed.2d 242 (1998). The need for federal judges to make many administrative decisions is obvious. The Federal Judiciary, while tiny in comparison to the Executive Branch, is nevertheless a large and complex institution, with an annual budget exceeding $7 billion and more than 32,000 employees. See Administrative Office of the U.S. Courts, The Judiciary FY 2018 Congressional Budget Summary Revised 9-10 (June 2017). Administering this operation requires many "decisions" in the ordinary sense of the term-decisions about such things as facilities, personnel, equipment, supplies, and rules of procedure. In re Application for Exemption from Electronic Pub. Access Fees by Jennifer Gollan and Shane Shifflett, 728 F.3d 1033, 1037 (C.A.9 2013). It would be absurd to suggest that every "final decision" on any such matter is appealable under § 1291 or reviewable in this Court under § 1254. See Hohn, supra ; 15A C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure § 3903, pp. 134-135 (2d ed. 1992). Such administrative decisions are not the kind of decisions or orders-i.e., decisions or orders made in a judicial capacity-to which the relevant jurisdictional provisions apply. Respondent argues that the denial of petitioner's funding request was just such an administrative decision, but the District Court's ruling does not remotely resemble the sort of administrative decisions noted above. Petitioner's request was made by motion in his federal habeas proceeding, which is indisputably a judicial proceeding. And as we will explain, resolution of the funding question requires the application of a legal standard-whether the funding is "reasonably necessary" for effective representation-that demands an evaluation of petitioner's prospects of obtaining habeas relief. We have never held that a ruling like that is administrative and thus not subject to appellate review under the standard jurisdictional provisions. Respondent claims that two factors support the conclusion that the funding decision was administrative, but her argument is unpersuasive. B Respondent first argues as follows: Judicial proceedings must be adversarial; 18 U.S.C. § 3599(f) funding adjudications are not adversarial because the statute allows requests to be decided ex parte ; therefore, § 3599(f) funding adjudications are not judicial in nature. This reasoning is flawed. It is certainly true that cases and controversies in our legal system are adversarial in nature, e.g., Bond v. United States, 564 U.S. 211, 217, 131 S.Ct. 2355, 180 L.Ed.2d 269 (2011) ; Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 240-241, 57 S.Ct. 461, 81 L.Ed. 617 (1937), but here, both the habeas proceeding as a whole and the adjudication of the specific issue of funding were adversarial. That the habeas proceeding was adversarial is beyond dispute. And on the funding question, petitioner and respondent plainly have adverse interests and have therefore squared off as adversaries. The motion for funding was formally noted as "opposed" on the District Court's docket. App. 341. That is not surprising: On one side, petitioner is seeking funding that he hopes will prevent his execution. On the other, respondent wants to enforce the judgment of the Texas courts and to do so without undue delay. Petitioner and respondent have vigorously litigated the funding question all the way to this Court. In arguing that the funding dispute is nonadversarial, respondent attaches too much importance to the fact that the request was made ex parte . As we have noted, the "ex parte nature of a proceeding has not been thought to imply that an act otherwise within a judge's lawful jurisdiction was deprived of its judicial character." Forrester v. White, 484 U.S. 219, 227, 108 S.Ct. 538, 98 L.Ed.2d 555 (1988). In our adversary system, ex parte motions are disfavored, but they have their place. See, e.g., Hohn, supra, at 248, 118 S.Ct. 1969 (application for COA) ; Dalia v. United States, 441 U.S. 238, 255, 99 S.Ct. 1682, 60 L.Ed.2d 177 (1979) (application for a search warrant); 50 U.S.C. § 1805(a) (application to conduct electronic surveillance for foreign intelligence); 18 U.S.C. § 2518(3) (applications to intercept "wire, oral, or electronic communications"); 15 U.S.C. § 1116(d)(1)(A) (application to seize certain goods and counterfeit marks involved in violations of the trademark laws); Fed. Rule Crim. Proc. 17(b) (application for witness subpoena); Fed. Rule Crim. Proc. 47(c) (generally recognizing ex parte motions and applications); Ullmann v. United States, 350 U.S. 422, 423-424, 434, 76 S.Ct. 497, 100 L.Ed. 511 (1956) (application for an order granting a witness immunity in exchange for self-incriminating testimony); United States v. Monsanto, 491 U.S. 600, 603-604, 109 S.Ct. 2657, 105 L.Ed.2d 512 (1989) (motion to freeze defendant's assets pending trial). Thus, the mere fact that a § 3599 funding request may sometimes be made ex parte is hardly dispositive. See Hohn, 524 U.S., at 249, 118 S.Ct. 1969 ; Tutun v. United States, 270 U.S. 568, 577, 46 S.Ct. 425, 70 L.Ed. 738 (1926). C Respondent's second argument is based on the venerable principle "that Congress cannot vest review of the decisions of Article III courts in" entities other than "superior courts in the Article III hierarchy." Plaut v. Spendthrift Farm, Inc ., 514 U.S. 211, 218-219, 115 S.Ct. 1447, 131 L.Ed.2d 328 (1995) (citing Hayburn's Case, 2 Dall. 409, 1 L.Ed. 436 (1792) ). Respondent claims that § 3599 funding decisions may be revised by the Director of the Administrative Office of the Courts and that this shows that such decisions must be administrative. This argument, however, rests on a faulty premise. Nothing in § 3599 even hints that review by the Director of the Administrative Office is allowed. Respondent's argument rests in part on a handful of old lower court cases that appear to have accepted Administrative Office review of Criminal Justice Act of 1964 (CJA) payments that had been authorized by a District Court and approved by the chief judge of the relevant Circuit. See United States v. Aadal, 282 F.Supp. 664, 665 (S.D.N.Y.1968) ; United States v. Gast, 297 F.Supp. 620, 621-622 (D.Del.1969) ; see also United States v. Hunter, 385 F.Supp. 358, 362 (D.D.C.1974). The basis for these decisions was a provision of the CJA, 18 U.S.C. § 3006A(h) (1964 ed.), stating that CJA payments "shall be made under the supervision of the Director of the Administrative Office of the United States Courts." It is not clear whether these decisions correctly interpreted the CJA, but in any event, no similar language appears in § 3599. And respondent has not identified a single instance in which the Director of the Administrative Office or any other nonjudicial officer has attempted to review or alter a § 3599 decision. Moreover, attorneys' requests for CJA funds are markedly different from the funding application at issue here. Attorneys appointed under the CJA typically submit those requests after the conclusion of the case, and the prosecution has no stake in the resolution of the matter. The judgment in the criminal case cannot be affected by a decision on compensation for services that have been completed, and any funds awarded come out of the budget of the Judiciary, not the Executive. See 18 U.S.C. § 3006A(i) (2012 ed.). Thus, the adversaries in the criminal case are not pitted against each other. In this case, on the other hand, as we have explained, petitioner and respondent have strong adverse interests. For these reasons, we reject respondent's argument that the adjudication of the funding issue is nonadversarial and administrative. Respondent, however, claims that the funding decision is administrative for an additional reason. "A § 3599(f) funding determination is properly deemed administrative," she contends, "because it ... may be revised outside the traditional Article III judicial hierarchy." Brief for Respondent 23. The basis for this argument is a provision of § 3599 stating that funding in excess of the generally applicable statutory cap of $7,500 must be approved by the chief judge of the circuit or another designated circuit judge. § 3599(g)(2). If a funding decision is judicial and not administrative, respondent suggests, it could not be reviewed by a single circuit judge as opposed to a panel of three. This argument confuses what is familiar with what is constitutionally required. Nothing in the Constitution ties Congress to the typical structure of appellate review established by statute. If Congress wishes to make certain rulings reviewable by a single circuit judge, rather than a panel of three, the Constitution does not stand in the way. III Satisfied that we have jurisdiction, we turn to the question whether the Court of Appeals applied the correct legal standard when it affirmed the denial of petitioner's funding request. Section 3599(a) authorizes federal courts to provide funding to a party who is facing the prospect of a death sentence and is "financially unable to obtain adequate representation or investigative, expert, or other reasonably necessary services." The statute applies to defendants in federal cases, § 3599(a)(1), as well as to state and federal prisoners seeking collateral relief in federal court, § 3599(a)(2). Here we are concerned not with legal representation but with services provided by experts, investigators, and the like. Such services must be "reasonably necessary for the representation of the [applicant]" in order to be eligible for funding. § 3599(f). If the statutory standard is met, a court "may authorize the [applicant's] attorneys to obtain such services on [his] behalf." Ibid. The Fifth Circuit has held that individuals seeking funding for such services must show that they have a "substantial need" for the services. 817 F.3d, at 896 ; Allen v. Stephens, 805 F.3d 617, 626 (2015) ; Ward v. Stephens, 777 F.3d 250, 266, cert. denied, 577 U.S. ----, 136 S.Ct. 86, 193 L.Ed.2d 76 (2015). Petitioner contends that this interpretation is more demanding than the standard-"reasonably necessary"-set out in the statute. And although the difference between the two formulations may not be great, petitioner has a point. In the strictest sense of the term, something is "necessary" only if it is essential. See Webster's Third New International Dictionary 1510 (1993) (something is necessary if it "must be by reason of the nature of things," if it "cannot be otherwise by reason of inherent qualities"); 10 Oxford English Dictionary 275-276 (2d ed. 1989) (OED) (defining the adjective "necessary" to mean "essential"). But in ordinary speech, the term is often used more loosely to refer to something that is merely important or strongly desired. ("I need a vacation." "I need to catch up with an old friend.") The term is sometimes used in a similar way in the law. The term "necessary" in the Necessary and Proper Clause does not mean "absolutely necessary," McCulloch v. Maryland, 4 Wheat. 316, 414-415, 4 L.Ed. 579 (1819), and a "necessary" business expense under the Internal Revenue Code, 26 U.S.C. § 162(a), may be an expense that is merely helpful and appropriate, Commissioner v. Tellier, 383 U.S. 687, 689, 86 S.Ct. 1118, 16 L.Ed.2d 185 (1966). As Black's Law Dictionary puts it, the term "may import absolute physical necessity or inevitability, or it may import that which is only convenient, useful, appropriate, suitable, proper, or conducive to the end sought." Black's Law Dictionary 928 (5th ed. 1979) (Black's). Section 3599 appears to use the term "necessary" to mean something less than essential. The provision applies to services that are "reasonably necessary," but it makes little sense to refer to something as being "reasonably essential." What the statutory phrase calls for, we conclude, is a determination by the district court, in the exercise of its discretion, as to whether a reasonable attorney would regard the services as sufficiently important, guided by the considerations we set out more fully below. The Fifth Circuit's test-"substantial need"-is arguably more demanding. We may assume that the term "need" is comparable to "necessary"-that is, that something is "needed" if it is "necessary." But the term "substantial" suggests a heavier burden than the statutory term "reasonably." Compare 13 OED 291 (defining "reasonably" to mean, among other things, "[s]ufficiently, suitably, fairly"; "[f]airly or pretty well") with 17 id ., at 66-67 (defining "substantial," with respect to "reasons, causes, evidence," to mean "firmly or solidly established"); see also Black's 1456 (10th ed. 2014) (defining "reasonable" to mean "[f]air, proper, or moderate under the circumstances ... See plausible"); id., at 1656 (defining "substantial" to mean, among other things, "[i]mportant, essential, and material"). The difference between "reasonably necessary" and "substantially need[ed]" may be small, but the Fifth Circuit exacerbated the problem by invoking precedent to the effect that a habeas petitioner seeking funding must present "a viable constitutional claim that is not procedurally barred." 817 F.3d, at 895 (internal quotation marks omitted). See also, e.g., Riley v. Dretke, 362 F.3d 302, 307 (C.A.5 2004) ("A petitioner cannot show a substantial need when his claim is procedurally barred from review"); Allen, supra, at 638-639 (describing " 'our rule that a prisoner cannot show a substantial need for funds when his claim is procedurally barred from review' " (quoting Crutsinger v. Stephens, 576 Fed.Appx. 422, 431 (C.A.5 2014) (per curiam ))); Ward, supra, at 266 ("The denial of funding will be upheld ... when the constitutional claim is procedurally barred"). The Fifth Circuit adopted this rule before our decision in Trevino, but after Trevino, the rule is too restrictive. Trevino permits a Texas prisoner to overcome the failure to raise a substantial ineffective-assistance claim in state court by showing that state habeas counsel was ineffective, 569 U.S., at 429, 133 S.Ct. 1911 and it is possible that investigation might enable a petitioner to carry that burden. In those cases in which funding stands a credible chance of enabling a habeas petitioner to overcome the obstacle of procedural default, it may be error for a district court to refuse funding. Congress has made it clear, however, that district courts have broad discretion in assessing requests for funding. Section 3599's predecessor declared that district courts "shall authorize" funding for services deemed "reasonably necessary." 21 U.S.C. § 848(q)(9) (1988 ed.). Applying this provision, courts of appeals reviewed district court funding decisions for abuse of discretion. E.g., Bonin v. Calderon, 59 F.3d 815, 837 (C.A.9 1995) ; In re Lindsey, 87 Question: What is the ideological direction of the decision? A. Conservative B. Liberal C. Unspeciﬁable Answer:
songer_fedlaw	D	What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal statute, and if so, whether the resolution of the issue by the court favored the appellant. WOOD et al. v. FRANKLIN LIFE INS. CO. (Circuit Court of Appeals, Fifth Circuit. February 3, 1927.) No. 4867. 1. Mortgages <§=>426 — Mortgagor, mortgagee, and persons acquiring interest subsequent to mortgage are only proper parties to foreclosure suit. Only proper ■ parties to suit to foreclose mortgage are mortgagor, mortgagee, and those whose interests have been acquired subsequently to date of mortgage. 2. Mortgages <§=>426 — Persons claiming title by adverse possession superior to mortgagor’s title are not proper parties to foreclosure suit. Parties claiming title superior to lien of mortgage, based on possession adverse to mortgagor for statutory period of limitations, are not proper parties to foreclosure suit. 3. ’ Estoppel <§=>68(2) — Defendants held estopped from asserting that they were necessary parties to prior foreclosure suit, contrary to position taken by them in such suit. Where suit to foreclose mortgage was dismissed as to persons who by answer asserted title by adverse possession superior to lien of mortgage, such persons could not, in subsequent action against them for possession of same land, take an inconsistent position and assert that they were necessary parties to foreclosure suit, and that, being so, they had not lost their equity of redemption. In Error to the District Court of the United States for the Western District of Texas; Du Yal West, Judge. Action by the Franklin Life Insurance Company against Ellington F. Wood and another. Judgment for plaintiff, and defendants bring error. Affirmed. W. M. Sleeper, of Waco, Tex. (S. D. Snodgrass, of Temple, Tex., and E. Y. Boynton and Sleeper, Boynton & Kendall, all of Waco, Tex., on the brief), for plaintiffs in error. Eugene P. Locke, of Dallas, Tex. (Locke, Locke, Stroud & Randolph, of Dallas, Tex., on the brief), for defendant in error. Before WALKER, BRYAN, and FOSTER, Circuit Judges. BRYAN, Circuit Judge. The Franklin Life Insurance Company brought suit and recovered judgment for the possession of a tract of land. It traced its title through a deed from defendants, Ellington F. Wood and Mary Ethel Wood, his wife, and the foreclosure of a mortgage executed by their grantee, Willie B. Wood. Defendants were made parties in the foreclosure suit, on the theory that they claimed an interest inferior to the lien of the mortgage, but were dismissed out of that suit upon the filing of their answer, which contained averments to the effect that they were neither necessary nor proper parties, and were improperly joined, because they claimed title superior to the lien of the mortgage, and had been in actual possession, claiming title adversely to the mortgagor for the statutory period of limitations. The defense set up in the present suit is that defendants were necessary parties to the foreclosure suit, and, being so, they have not yet lost their equity of redemption, and are entitled to remain in possession of the land until it is taken by suit against them. It is unnecessary to state the circumstances under which the mortgage was given, as defendants concede that it constitutes a valid lien, binding upon them. The only proper parties to a suit- to foreclose a mortgage are the mortgagor, mortgagee, and those whose interests have been acquired subsequently to the date of the mortgage. Faubion v. Rogers, 66 Tex. 472, 1 S. W. 166. If the answer of defendants in the foreclosure suit was true, their title was superior to the lien of the mortgage, and they were not proper parties. Plaintiff proceeded on the theory that the answer was true. Defendants were thereafter estopped to take an inconsistent position, that would work an in'jury to the plaintiff, as would be the ease if it were forced to bring a new suit to settle a right that was actually involved in its original, foreclosure suit. The judgment is affirmed. Question: Did the interpretation of federal statute by the court favor the appellant? A. No B. Yes C. Mixed answer D. Issue not discussed Answer:
songer_procedur	A	What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal rule of procedures, judicial doctrine, or case law, and if so, whether the resolution of the issue by the court favored the appellant. Paul KNOLL, Plaintiff-Appellant, v. Gary L. WEBSTER, in his private and personal capacity, (Chairman Utah Parole Board), Defendant-Appellee. No. 87-2124. United States Court of Appeals, Tenth Circuit. Feb. 2, 1988. Paul Knoll, pro se. David Wilkinson, Atty. Gen., Salt Lake City, Utah, for defendant-appellee. Before LOGAN, SEYMOUR and ANDERSON, Circuit Judges. PER CURIAM. After examining the briefs and the appellate record, this three-judge panel has determined unanimously that oral argument would not be of material assistance in the determination of this appeal. See Fed.R. App.P. 34(a); 10th Cir.R. 34.1.8(c) and 27.1.-2. The cause is therefore ordered submitted without oral argument. The plaintiff appeals from the district court’s order dismissing his 42 U.S.C. § 1983 civil rights suit against the defendant, who is a member of the Utah Board of Pardons. The plaintiff alleged that the defendant, who was responsible for determining the plaintiff’s release date, violated the provision of the Eighth Amendment that prohibits the imposition of excessive fines. The district court concluded that the defendant was immune from liability under § 1983 and dismissed the action. The district court also imposed a ten dollar sanction on the plaintiff “to deter further abuse of process.” On appeal, the plaintiff argues that the defendant is not immune and that the ten dollar fine is “wrong.” We conclude that as a member of the Board of Pardons, the defendant is absolutely immune from damages liability for actions taken in performance of the Board’s official duties regarding the granting or denying of parole. Accord Johnson v. Rhode Island Parole Bd. Members, 815 F.2d 5, 8 (1st Cir.1987); Evans v. Dillahunty, 711 F.2d 828, 830-31 (8th Cir.1983); United States ex rel. Powell v. Irving, 684 F.2d 494, 496-97 (7th Cir.1982); Sellars v. Procunier, 641 F.2d 1295, 1303 (9th Cir.), cert. denied, 454 U.S. 1102, 102 S.Ct. 678, 70 L.Ed.2d 644 (1981); Thompson v. Burke, 556 F.2d 231, 236 (3d Cir.1977); Pope v. Chew, 521 F.2d 400, 405 (4th Cir.1975). Therefore, the district court correctly dismissed the plaintiff’s action. Moreover, the district court’s imposition of a ten dollar sanction was proper. The plaintiff admits that the present case raises issues virtually identical to those he raised in three previously dismissed actions. Thus, the record supports the district court’s conclusion that the plaintiff needed to be deterred from further abuse of process. Cf. Fed.R.Civ.P. 11; Chevron, U.S.A., Inc. v. Hand, 763 F.2d 1184 (10th Cir.1985). The judgment of the United States District Court for the District of Utah is AFFIRMED. The mandate shall issue forthwith. Question: Did the interpretation of federal rule of procedures, judicial doctrine, or case law by the court favor the appellant? A. No B. Yes C. Mixed answer D. Issue not discussed Answer:
songer_state	39	What follows is an opinion from a United States Court of Appeals. Your task is to identify the state or territory in which the case was first heard. If the case began in the federal district court, consider the state of that district court. If it is a habeas corpus case, consider the state of the state court that first heard the case. If the case originated in a federal administrative agency, answer "not applicable". Answer with the name of the state, or one of the following territories: District of Columbia, Puerto Rico, Virgin Islands, Panama Canal Zone, or "not applicable" or "not determined". Tony RIPEPI, Individually and Tony Ripepi, Trading and Doing Business as Keystone Music Company, v. The AMERICAN INSURANCE COMPANIES, Appellant. No. 15158. United States Court of Appeals Third Circuit. Argued May 18, 1965. Decided July 20, 1965. Harold Gondelman, Jacobson & Gon-delman, Pittsburgh, Pa., for appellant. Samuel J. Margiotti, Margiotti & Casey, Pittsburgh, Pa., for appellee. Before STALEY, HASTIE and GANEY, Circuit Judges. STALEY, Circuit Judge. Tony Ripepi has brought this suit against his liability insurer to recover the damages allegedly caused by its failure to defend a suit brought against him by John Smiechowski. Smiechowski claimed that he had been injured by a fall caused by a deleterious substance which Ripepi had negligently permitted to remain on his property. The district court granted Ripepi full relief, consisting of the amount of the judgment against him in the former suit and counsel fees and expenses in that suit. We affirm. The relevant facts of the situation here before us are these. On March 3, 1958, John Smiechowski, a truck driver, was engaged in delivering cigarettes to Ripepi’s establishment. He had backed his truck up to the loading entrance and was standing on its back ledge and handing the packages of cigarettes to an employee of Ripepi who was placing them on a small two-wheeled truck. When the employee turned away, Smie-chowski slipped and fell off the truck onto Ripepi’s property, injuring his elbow. Ripepi, who came out of his office immediately after the fall, and one of his employees helped the injured man to a chair, and Ripepi later took him to a hospital. Ripepi did not inquire about the cause of the accident nor did he see anything that would indicate it was causally connected with his property. He, therefore, gave no notice to his liability insurer until seventeen months later when the papers in the action brought by Smiechowski against him were served. The complaint furnished to Ripepi and forwarded by him to his insurance company alleged that Smiechowski had been “caused to fall on the rear ledge of his truck, because of a deleterious substance which accumulated on his shoe when he was in the warehouse of the defendant * * It was, of course, further alleged that Ripepi had negligently failed to .maintain his warehouse in a reasonably safe condition and that he permitted dog matter to lie around on the floor of the warehouse and failed to remove it. The insurance company refused to defend the claim on the ground that Ripepi had failed to comply with a provision of the policy which required that notice of an accident be given promptly. Ripepi then hired Vincent M. Casey, Esquire, of the Allegheny County bar. The case went through all pretrial procedures; the pretrial judge indicated that the case presented a question for the jury. After a jury had been selected, counsel conferred with Judge Smith in the Court of Common Pleas of Allegheny County, Pennsylvania, on the trial date. It was again indicated that the case was a proper one for submission to the jury. After some negotiation between the respective trial counsel and parties, the case was settled for $4,850. A consent verdict in that amount was brought in by the jury against Ripepi. Casey set $5,500 for his fee; costs and other expenses amounted' to $110.50. This suit was then brought, and the district court granted all the relief sought. We are first asked to consider whether the notice given by Ripepi to his insurance company after he had received the suit papers conformed to the following applicable provisions of the insurance policy: “9. Notice of Accident. When an accident occurs written notice shall be given by or on behalf of the insured to the Company or any of its authorized agents as soon as practicable. Such notice shall contain particulars sufficient to identify the insured and also reasonably obtainable information respecting the time, place and circumstances of the accident, the names and addresses of the injured and of available witnesses.” The record clearly indicates that notice was given to the insurance company as soon as Ripepi acquired information indicating that the accident was caused by something on his premises and not on the truck. Thus, it was given “as soon as practicable.” It would be an unusual man who would regard himself as bound to report an accident he had observed or heard about unless there was about it something which might render him liable. Thus the cases which have been cited to us as holding that the notice provision of an insurance contract was not complied with in a particular fact situation uniformly involve situations where, in the face of facts which might indicate that he was liable, the insured made a judgment, factual or legal, that he was not. Jeannette Glass Co. v. Indemnity Ins. Co., 370 Pa. 409, 88 A.2d 407 (1952); The Housing Authority of the City of Allentown v. The Employers’ Liability Assur. Corp., 232 F.2d 932 (C.A.3, 1956); Farmers National Bank of Ephrata v. Employers Liability Assur. Corp., 414 Pa. 91, 199 A.2d 272 (1964); Hackmeister, Inc. v. Employers Mutual Liability Ins. Co., 403 Pa. 430, 169 A.2d 769 (1961). The situation here is quite unlike that in those cases. The only thing Ripepi knew at the time of the accident in this case is that a man had fallen off a truck outside his premises and had landed on the floor inside. He had no indication that the accident was caused by the presence of a deleterious substance; neither did he know that Smiechowski had been in the plant prior to the accident. Ripepi obviously made no judgment relating to his liability because there were no facts known to him which would bring such a question to his mind. He was only informed of the possibility of legal liability flowing from the accident when he was served with the papers in Smiechow-ski’s action. At that point he gave timely notice to the insurance company. Appellant insurance company next contends that the insured cannot recover because the insurer is only liable “to pay * * * all sums which the insured shall become legally obligated to pay as damages * * Appellant now seeks to show that Smiechowski’s suit in the Court of Common Pleas did not rise to the dignity of a prima facie case and that if Ripepi’s counsel had chosen to fight rather than settle he would have won a compulsory nonsuit. The judgment which resulted from that suit was, therefore, not one which Ripepi was legally obligated to pay within the terms of the contract. All this, it is clear to us, misses the point. Even if we assume arguendo that “legally obligated” refers to a requirement that the plaintiff have a cause of action rather than the legal obligation to pay connected with a judgment, we are no closer to agreeing with the appellant. The insurance company has a duty to defend the claim, and its failure to do so, even if in good faith, does not relieve it of the consequences of breaching that duty. Gedeon v. State Farm Mut. Auto. Ins. Co., 410 Pa. 55, 188 A.2d 320, 322 (1963). Ripepi, having been forced to assume the company’s duty, is obviously required only to carry it out in a reasonable and proper manner. See Murphy & Co. v. Manufacturers’ Casualty Co., 89 Pa.Super. 281, 286-287 (1926). It is clear that Ripepi’s defense, carried out by an experienced member of the Allegheny County bar, was conducted well within the limits of counsel’s discretion. Smiechowski’s complaint stated facts which, if proved, would have required a verdict in favor of the plaintiff. It is now said that a compulsory nonsuit would have had to be entered against Smiechowski because no evidence of notice to Ripepi of the cause of the accident was or could have been presented. This position is taken in spite of the fact that two judges of the Court of Common Pleas, one at pre-trial and the other at the trial itself, indicated that they thought the cause would go to the jury. Smiechowski’s deposition presented in evidence in the district court proceedings here was to the effect that he had seen the substance on the ground at the warehouse many times before. What other evidence might have been brought in it is difficult now to show. Appellee’s attorney, acting in the management of particular litigation and guided by the wisdom derived from years of experience at the bar, deemed it to be in the best interests of his client to agree to settle at the small figure agreed upon. The wisdom of his decision cannot validly be challenged. Appellant wishes us, by the use of hindsight, to speculate what evidence might have been presented in the Common Pleas action and determine whether, on the basis of such evidence, a compulsory nonsuit would have been required. This is well beyond our present competence and the requirements of the law. On the other hand, if we were to assume, as seems more natural, that the term “legally obligated” in the insurance contract comprehends the legal obligation which flows from a judgment, the matter is much more easily resolved, for it is obvious that Ripepi is “legally obligated” to pay the consent judgment entered in Common Pleas Court. Having determined that the insurance company was obligated to defend the suit and being so obligated is now obliged to pay the amount of the judgment obtained in it, it only remains to be determined whether the $5,500 counsel fee is reasonable. Appellee, on his part, takes the position that where, as here, the insurance company has failed to fulfill its duty to defend, it is required to pay what was charged to the appellant whether reasonable or not. It is obvious that the insurance company, whose refusal to defend here was in good faith, cannot be required to pay an outrageous counsel fee. McRoberts v. Burns, 348 Pa. 166, 34 A.2d 519, 522 (1943). On the other hand, it seems to us that the fee charged here, although high, is within the bounds of reason. Testimony was offered at the trial by William J. Lancaster, Esquire, for the insurance company to the effect that $1,200 to $1,500 was a reasonable fee for the services involved in handling the suit against Ripepi. His testimony was, however, apparently based on an hourly computation alone. Casey testified that the fee charged was commensurate with fees charged other clients for such matters and that many hours were spent on the case, but that he made no attempt to base his fee on an hourly or daily basis. He did consider the result obtained, the amount involved, and the amount of time it took him away from other work. All of these are factors permitted to be considered by the Canons of Professional Ethics of the American Bar Association. Canon 12. We think that Casey, given his concededly high standing at the bar, was within proper bounds in arriving at his fee, particularly in view of the small settlement secured. In his testimony on his work on the earlier case, Casey has admitted that he fully researched the possible responsibility for the defense and liability for the judgment of the insurance company. On the basis of this, appellant alleges that what Casey has in fact done is charge the insurance company for his work on both that case and this. We find nothing of the sort. It is obvious that in defending the earlier case, Casey would, as he testified, wish to know whether the insurance company could be brought in or sued later. Time expended in determining this was clearly properly spent, for it is attributable to and made necessary by the failure of the insurance company to defend. The judgment of the district court will be affirmed. . These Canons have been made effective by the Supreme Court of Pennsylvania as standards for attorneys of the courts of Pennsylvania. Pa.R.C.P. No. 205, 12 P.S. Appendix (1939). Question: In what state or territory was the case first heard? 01. not 02. Alabama 03. Alaska 04. Arizona 05. Arkansas 06. California 07. Colorado 08. Connecticut 09. Delaware 10. Florida 11. Georgia 12. Hawaii 13. Idaho 14. Illinois 15. Indiana 16. Iowa 17. Kansas 18. Kentucky 19. Louisiana 20. Maine 21. Maryland 22. Massachussets 23. Michigan 24. Minnesota 25. Mississippi 26. Missouri 27. Montana 28. Nebraska 29. Nevada 30. New 31. New 32. New 33. New 34. North 35. North 36. Ohio 37. Oklahoma 38. Oregon 39. Pennsylvania 40. Rhode 41. South 42. South 43. Tennessee 44. Texas 45. Utah 46. Vermont 47. Virginia 48. Washington 49. West 50. Wisconsin 51. Wyoming 52. Virgin 53. Puerto 54. District 55. Guam 56. not 57. Panama Answer:
songer_fedlaw	A	What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal statute, and if so, whether the resolution of the issue by the court favored the appellant. WILLIS v. HUNTER. No. 3562. Circuit Court of Appeals, Tenth Circuit Nov. 17, 1947. Arthur J. Mellott, Judge. Richard Clarence Willis, pro se. Eugene W. Davis, Asst. U. S. Atty., of Topeka, Kan. (Randolph Carpenter, U. S. Atty., of Topeka, Kan., on the brief), for appellee. Before PHILLIPS, BRATTON, and MURRAH, Circuit Judges. PHILLIPS, Circuit Judge. This is an appeal from an order denying an application for a writ of habeas corpus. On September 10, 1946, an indictment was returned in the District Court of the United States for the District of Colorado charging that Willis, on July 6, 1946, “while in lawful custody by virtue of an arrest on a charge of felony, did attempt to escape from said custody.” On October 16, 1946, petitioner appeared in person and by his counsel, Charles J. Moynihan, Esq., and entered a plea of guilty to the charge in the indictment. On May 19, 1946, petitioner was arrested by an agent of the Federal Bureau of Investigation on a charge of violating 18 U.S.C.A. § 408, and was taken before a United States Commissioner at Montrose, Colorado. The Commissioner issued a mittimus • committing him to the Montrose County Jail. Petitioner was transferred to the County Jail of El Paso County, Colorado, at Colorado Springs, Colorado. While so confined, he attempted to escape. On May 7, 1947, petitioner filed an application for a writ of habeas corpus. As ground for discharge, he alleged that at the time he attempted to escape he had neither been bound over by a United States Commissioner nor indicted by a grand jury on a charge of felony and, therefore, was not being held on a charge of felony at the time he attempted to escape. 18 U.S.C.A. § 753h, in part, provides: ■“Any person * * * who is in custody by virtue of any process issued under the laws of the United States by any court, judge, or commissioner, or who is in custody ■of an officer of the United States pursuant to lawful arrest, who escapes or attempts to escape from such custody * * * •shall be guilty of an offense. If the custody or confinement is by virtue of an arrest •on a charge of felony, * * * the offense of escaping or attempting to escape therefrom shall constitute a felony and any person convicted thereof shall be punished by imprisonment for not more than five years or by a fine of not more than $5,000, or both; * * The evidence established that petitioner had been arrested and had been committed by the United States Commissioner on a charge of violating 18 U.S.C.A. § 408. The offense defined in § 408, supra, is a felony. Moreover, the indictment charged that petitioner attempted to escape “while in lawful custody by virtue of an arrest on a charge of felony,” and his plea of guilty admitted the facts charged in the indictment. It follows that petitioner was not entitled to discharge on habeas corpus. Affirmed. Hereinafter referred to as petitioner. Lindsay v. United States, 10 Cir., 134 F.2d 960, 962; Norris v. Hudspeth, 10 Cir., 114 F.2d 1007, 1009; Spencer v. Hunter, 10 Cir., 139 F.2d 828, 829. Question: Did the interpretation of federal statute by the court favor the appellant? A. No B. Yes C. Mixed answer D. Issue not discussed Answer:
songer_casetyp1_7-3-4	B	What follows is an opinion from a United States Court of Appeals. Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation - bankruptcy, antitrust, securities". In the Matter of the WOODMAR REALTY COMPANY, a Corporation, Debtor, WOODMAR REALTY COMPANY, a Corporation, Appellant, v. Walter A. McLEAN, Trustee and Herschel B. Davis, Trustee’s Attorney, Appellees. No. 13215. United States Court of Appeals Seventh. Circuit. June 23, 1961. As Amended on Denial of Rehearing Oct. 2, 1961. Benjamin Wham, Chicago, 111., Owen W. Crumpacker, Hammond, Ind., for appellant. Gilbert Gruenberg, Gary, Ind., for appellees. Before ENOCH and CASTLE, Circuit Judges, and MERCER, District Judge. MERCER, District Judge. The only issue before us for decision upon this appeal by the bankrupt, Wood-mar Realty Company, is whether the court below properly dismissed Wood-mar’s amended petition for the removal of the appellees, Walter A. McLean and Herschel B. Davis, as trustee in bankruptcy and attorney for the trustee, respectively. For convenience, the parties are hereinafter sometimes referred to as appellant and appellees. Appellant’s amended petition, filed January 7, 1959, charged that appellees had perpetrated, and were perpetrating, a fraud upon the court and Woodmar and requested that appellees be removed by the court as trustee in bankruptcy and as counsel, respectively. Appellees moved to dismiss. After a hearing, the court granted that motion upon its conclusion that “the amended petition is so wanting in merit and so contemptuously violative of the rules of pleading, particularly Rules 8 and 9 of the Federal Rules of Civil Procedure” that it might be summarily dismissed and upon his finding that the amended petition was not filed in good faith. We have reviewed the record and the amended petition carefully and are convinced that the petition is so wanting in sufficient allegations of fact as to present not even token compliance with the provisions of Rule 9(b) which require a pleader averring fraud to state “with particularity” the circumstances alleged to constitute fraud. F.R.C.P. 9(b), 28 U.S.C.A. This opinion might rest there and the judgment be affirmed without further discussion, were it not for the pervading impression gathered from this record that the removal petition constitutes an attempt by appellant’s attorney, Mr. Crumpacker, to harass appellees in the continued performance of their official functions and a near-contemptuous abuse of the processes of a federal court. For the above reason we think it necessary to analyze the amended petition at some length in the light of the record as it has come to our knowledge. In that endeavor, we rely upon the procedural history of this case as summarized in the opinions upon prior appeals. In re Woodmar Realty Co., 7 Cir., 284 F.2d 815; In re Woodmar Realty Co., 7 Cir., 241 F.2d 768, 64 A.L.R.2d 883. Basically, we hereinafter supplement those summaries, but we have not hesitated to resort to repetition thereof to the extent deemed necessary to demonstrate the propriety of our conclusions which are hereinabove and hereinafter expressed. The inception of this cause lies in the depression which struck the nation with tomadic force in 1929. In the 1920’s, appellant, a corporation, was engaged in the business of subdividing and selling real estate in the City of Hammond, Indiana. Substantial improvements touching the various parcels of appellant’s lands were made by the City of Hammond and financed by special assessment bonds issued and sold pursuant to the so-called Barrett Law. By separate lot and parcel, appellant’s real estate was impressed with the liens of Barrett Bonds issued on some sixty separate bond rolls. In each instance, appellant in consideration of the privilege of paying the assessment obligation in installments spread over a period of years, executed a statutory waiver of the right to question the legality of assessment and agreement to pay installments as the same became due. It appears that appellant had been a completely inactive corporation for many years prior to January, 1941, when this cause was commenced. No payments had been made by it on account of the principal and interest of Barrett bond obligations after 1929. Suits had then been commenced in state courts for the foreclosure of Barrett bonds issued upon some fifty rolls affecting appellant’s real estate and, as the court below has found, sale of much of the land in foreclosure was imminent. Against that background, this proceeding was commenced on January 13, 1941, when an involuntary petition was filed on behalf of three bondholders for reorganization of appellant under Chapter X of the Bankruptcy Act. 11 U.S. C.A. § 501 et seq. Appellant’s only assets were substantial real estate located in Hammond, which was then encumbered by a lien for state taxes in the sum of $161,000.00, by the lien of mortgage bonds in an aggregate sum in excess of $290,000.00, and by the defaulted Barrett bonds which were, respectively, liens upon separate lots, tracts and parcels of the total real estate holdings. In addition, appellant was then indebted to general creditors in the aggregate sum of approximately $14,000.00. A proposed plan of reorganization was approved by Judge Slick. Barrett bond claims were classified as class 2 claims. With court approval, the tax claim and mortgage claims were compromised and .settled for a nominal percentage of the respective amounts thereof. Appellant’s real estate was sold free of all liens under court orders providing that all liens would attach to the proceeds of the sales in the hands of the trustee. Such sales continued until early 1951, and were approved by the court upon some fifty separate petitions reporting sales as they were made from time to time. Also, when the reorganization petition was approved on January 25, 1941, an injunction was issued by the court enjoining creditors and all other persons from enforcing liens against appellant’s property, and from prosecuting, or continuing the prosecution of, any suit against appellant in any court for the foreclosure of liens against its property. Pursuant to that injunction, the pending foreclosure suits were dismissed insofar as they related to appellant’s real estate. On December 22, 1952, appellee McLean was appointed successor trustee as a result of circumstances hereinafter related and appellee Davis was retained as attorney for the trustee. Thereafter, on February 16, 1953, after notice and a hearing, Judge Swygert entered an order converting the proceedings into a straight bankruptcy, and ordered that bankruptcy be proceeded with pursuant to Section 236(2) of the Bankruptcy Act. 11 U.S.C.A. § 636(2). On September 7,1955, appellee McLean filed his final report as trustee and petitions recommending the allowance of more than 300 class 2 lien claims. By that report, he proposed that substantially all of the funds in his hands be allocated to the payment of those claims. Thereafter, appellant and some of its stockholders filed objections to a substantial number of the class 2 claims. On March 5, 1956, after a hearing upon motions filed by the trustee and a number of the class 2 claimants, Judge Swygert entered an order striking appellant’s objections. An appeal was taken and we reversed that judgment, holding that appellant, though adjudicated a bankrupt, had standing to object to claims because of the circumstance that disallowance of class 2 claims might result in a surplus of assets for refund to appellant. In re Woodmar Realty Co., 7 Cir., 241 F.2d 768, 64 A.L.R.2d 883. Before our mandate was filed, Judge Swygert disqualified himself to preside further in the cause because of circumstances which are hereinafter related and the cause was assigned to Judge Parkinson. Upon the return of our mandate, Judge Parkinson scheduled a pre-trial conference upon all claims and objections thereto. On the day preceding that conference, June 27, 1957, appellant filed a petition for removal of appellees as trustee and as counsel for the trustee. At the pre-trial conference on June 28, Judge Parkinson determined that he would schedule a trial of a representative claim to establish the law of the case with respect to all of appellant’s objections. Claim No. 441 was selected for that purpose. At the same time, an order, which we believe to be patently erroneous, was entered directing the trustee and his attorney not to participate in the trial of objections to that claim. Other class 2 claimants were, however, invited to participate. On the same date, a hearing upon appellant’s petition for removal of appellees was set for July 17, 1957. A trial of objections upon claim 441 was held on July 15, 1957, and briefs were ordered. On July 17, the date set for a hearing upon the removal petition, that petition was withdrawn by appellant. Thereafter, while the issues presented upon the trial of objections were still under advisement, Judge Parkinson was elevated to this court and the case was assigned to his successor, Judge Grant. Judge Grant disqualified himself for personal reasons, and the case was reassigned by Judge Duffy, then Chief Judge of the Seventh Circuit, to Judge Tehan. By stipulation of interested parties, the issues upon the trial of objections were taken by Judge Tehan for decision upon the record made before Judge Parkinson. In the meantime, on May 19, 1958, counsel for appellant filed a petition for removal of appellees which was almost an exact duplicate of the petition which had been withdrawn by him on July 17, 1957. The petition was answered and set for a hearing. On the date set for that hearing, Judge Tehan, on his own motion, ordered appellant to replead to comply with the requirements of Rule 9(b). Appellant’s amended petition was then filed on January 7, 1959. The amended petition is characterized by a gross lack of any sufficient allegation of fraud as we have hereinabove concluded. In fact, counsel can give arguable credence to this appeal and arguable merit to the amended petition only by asserting supposed legal principles which are so grossly absurd that we cannot believe they are here honestly asserted. In the interest of smooth rhetorical transition all of such contentions are not here particularized, but they are subsequently discussed briefly in proper context. Counsel first contends that we must pretend that the record facts laboriously compiled in the records and files of the court below in more than twenty years of proceedings do not exist and that we may not on this appeal take judicial notice of such facts. It is elementary that the court below was duty bound to take judicial notice of its records and files in this cause and that it is our duty to take notice of facts which have come to our knowledge through the records presented to us on the several appeals in this same case. Paridy v. Caterpillar Tractor Co., 7 Cir., 48 F.2d 166, 168; Littleton v. DeLashmutt, 4 Cir., 188 F.2d 973; Fletcher v. Bryan, 4 Cir., 175 F.2d 716; In re Davis Mfg. Co., D.C. D.Kan., 95 F.Supp. 200, 203. However absurd the above contention, it is yet only the minor premise employed to support a hypothesis that appellee’s motion to dismiss appellant’s amended petition must be construed as admitting all facts alleged, even though such alleged facts are shown by the record of the case to be untrue. That hypothesis is too tenuous to require any comment. See E. g., Interstate Natural Gas Co. v. Southern California Gas Co., 9 Cir., 209 F.2d 380, 384; Fletcher v. Jones, 70 App.D.C. 179, 105 F.2d 58, 61. Since we must take judicial notice of the fact, whenever it be the fact, that the allegations of appellant’s amended petition are refuted by the record, we accordingly determine the sufficiency of the allegations of the amended petition in the light of the record of the case as it is known to us. Both the original petition and the amended petition are summarized in some detail in Judge Tehan’s opinion filed October 21, 1960. We adopt that summary as our own, and here employ only such narrative description of the charges of the amended petition as is consistent with an intelligible discussion of the allegations thereof in the light of the record. If the amended petition has any factual basis whatsoever, it tends to state a charge not against appellees, but only a renewal of charges made at least as early as November, 1952, against the prior trustee, Charles L. Suprise, and other persons. Thus it is alleged that Suprise, and others, conspired to perpetrate a fraud upon the court and appellant in order to obtain the initial finding of appellant’s insolvency, to have themselves appointed as fiduciaries having control of appellant’s property and thereafter to dispose of and distribute appellant’s property to class 2 claimants to their own benefit and profit. The amended petition contains not a single allegation connecting either of the appellees with the alleged conspiracy and fraudulent conduct of those persons, except for the record fact that appellee Davis was appointed by the court as co-counsel for Suprise in May, 1950, and served Suprise in that capacity until hearings were commenced in 1951, which ultimately led to the removal of Suprise as trustee. Upon that record fact hangs the tenuous allegation that Mr. Davis became tainted by the alleged fraud of Suprise through that representation and that appellee McLean became likewise tainted through his association with Mr. Davis after Mr. McLean was appointed successor trustee. In his opinion dismissing the amended petition, Judge Tehan correctly and accurately concluded that such allegations were an “obvious attempt to establish guilt by association”, and that the allegations were refuted by facts found and adjudicated in this case. We approve those conclusions without reservation, and resort to the résumé of the procedural history of the case which follows only because we think it necessary to document the evident fact of gross bad faith which characterizes these allegations. When Judge Slick granted the involuntary petition for reorganization of appellant, Suprise was appointed trustee in the reorganization and Carl A. Huebner was appointed as attorney for the trustee. Thereafter, a plan of reorganization was approved by the court and a bondholders committee consisting of owners of special improvement bonds and attorneys for such owners was appointed. The record made during the first ten years of this proceeding discloses no participation by appellant in the cause after January 25, 1941, when the involuntary petition for reorganization was approved. Appellant’s participation on the latter date consisted of the filing of an answer, in which all allegations of the reorganization petition were admitted, including the allegation of appellant’s insolvency. During that ten year period, as previously related, the foreclosure suits affecting appellant’s property were dismissed pursuant to the injunction issued by Judge Slick, the tax liens and mortgage liens were compromised and settled and appellant’s real estate was sold with court approval, free of the liens of the Barrett Law bonds. The record discloses no objection by appellants at any stage of those proceedings, including the real estate sales. In the meantime, in 1950, Carl Huebner was convicted in an Indiana court of criminal conduct in conjunction with the foreclosure of Barrett Law bonds. Judge Swygert, who was then presiding in the case, effected Huebner’s removal as attorney for Suprise and on May 23, 1950, appointed the appellee and Arnold Huebner, Carl’s brother, as co-counsel for the trustee. An amendment to the plan of reorganization was filed in the early part of 1951, and set for hearing at a meeting of interested persons to be held on April 16, 1951. Also pending at that time were petitions filed by Suprise, Carl Huebner, Arnold Huebner, Mr. Davis, members of the bondholders committee and attorneys for the bondholders committee for the allowance of fees. On the latter date, appellant filed a petition for the removal of Suprise as trustee, alleging that neither he nor the Huebners were disinterested persons for the reason that Suprise and Carl Huebner were principal owners of Lake Assessment Bonds Service, Inc., a holder and collection agent for a number of the special improvement bonds which were a lien upon appellant’s real estate. It was also alleged that S. C. Ennis & Company, selected by Suprise as agent for sale of the real estate, had sold a large part of appellant’s real estate to a corporation owned by itself. At the same time, appellant filed objections to the fee petitions of Suprise and both Huebners upon the ground that each owned, or represented, interests which were adverse to those of both the creditors and stockholders of appellant. Objection was made to the fee petitions of members of the bondholders committee and their attorneys upon the ground that they had employed their positions to effect the purchase of outstanding bonds which were a lien upon appellant’s real estate during their tenure as court-appointed fiduciaries. Appellant’s objection to Mr. Davis’ petition for fees was predicated upon the alleged fact that Mr. Davis had represented a disqualified trustee and had, in that representation, worked in collaboration with a disqualified co-counsel, Arnold Huebner, and a disqualified bondholders committee. It was also alleged that Mr. Davis had been remiss in his failure to discover and report to the court the activities and conflicting relationships of Suprise and other fiduciaries. One other petition by appellant, namely a petition requesting the court to find that appellant was not insolvent, was before the court with the petition for removal of Suprise and appellant’s objections to the fee petitions. After extensive hearings had been held in 1951 and 1952, Judge Swygert entered a memorandum order on October 29, 1952, disposing of the above pending petitions and objections. The court found that Suprise and Carl Huebner, as substantial owners of Lake Assessment, held an interest which was materially adverse to the creditors and stockholders of appellant, and concluded that those persons would not have been appointed as trustee and trustee’s attorney had that adverse interest been known to the court. The court found, further, that certain sales of real estate by Ennis had not been made at arm’s length and that several of the persons acting in a fiduciary capacity in the estate had used their appointment to profit from speculation in Barrett bonds which were liens upon appellant’s property. The court concluded, however, that no prejudice to creditors or the stockholders of appellant was revealed by the evidence. An order was then entered removing Suprise as trustee, disbanding the bondholders committee, denying the fee petitions of Suprise, the Huebners and certain other of the fiduciaries and directing that statutory notice' be given of a hearing to convert the cause to a straight bankruptcy pursuant to Section 236(2). The fee petition of Mr. Davis and those of certain of the members of the bondholders committee were allowed. In allowing the Davis fee petition, the court found that there was no evidence that Mr. Davis had knowledge of the improper interest and conduct of Suprise and the other fiduciaries or that appellant’s attorney had ever called those facts to his attention prior to the hearing upon the petition to remove Suprise. Finally, by the same opinion, Judge Swygert rejected appellant’s petition for a decree of its solvency, holding that appellant was bound by the admission of insolvency made in its answer filed in 1941. On November 7, 1952, appellant and some of its stockholders filed a motion for a new trial and for amendment of the findings of fact entered October 29, 1952, alleging, in part, as follows: a. That the court had erred in allowing compensation to certain members of the bondholders committee in view of the alleged proof that they had conspired with Suprise and his attorneys to perpetrate a fraud upon the court and upon appellant; and b. That the court had erred in failing to find that the original reorganization petition had been a part of a conspiracy to perpetrate a fraud upon the court and appellant to obtain a decree of insolvency and to gain control of appellant’s assets. No error was alleged with respect to the allowance of fees to Mr. Davis. That motion was denied on February 10, 1953, and no appeal was taken. In the meantime, on December 3, 1952, one Samuel H. Cohn was appointed successor trustee. Mr. Cohn died within two weeks thereafter and the appellee, McLean, was appointed successor trustee on December 22, 1952. Appellee, Davis, was retained by the court as attorney for the trustee. On February 16,1953, after notice and a hearing, appellant was adjudicated a bankrupt. From the findings of the court entered at that time, it appears that counsel for appellant consented to that adjudication. Pursuant to authority granted by the court, appellees employed auditors to audit the records of Barrett bonds affecting appellant’s property as shown by the books and records of the Treasurer of the City of Hammond. An audit was made, and on the basis thereof appellee McLean filed his final report and petition for allowance of certain class 2 claims on September 7, 1955. By that report he proposed that claims upon special assessment bonds be allowed, and that funds be allocated therefor as follows: a. The sum of $382,989.63 to 310 claims on which the bonds had been produced and cheeked; b. The sum of $17,705.48 to 43 claims on which the bonds had not been produced and checked; and, c. The sum of $43,436.47 to remaining outstanding bonds and coupons upon the fifty assessment rolls upon which no claims had been filed. It was proposed that the latter two aggregate sums be paid to the Clerk of the Court for the use of bondholders ultimately entitled thereto. At this point in the case, appellant and some of its stockholders filed their objections to class 2 claims, which led to the order of March 5, 1956, and the first appeal as hereinabove related. In re Woodmar Realty Co., 7 Cir., 241 F.2d 768. On March 20, 1956, appellant filed a motion to vacate the order of November 22, 1941, and the findings of fact and conclusions of law entered October 29, 1952, insofar as it was there adjudicated that appellant was insolvent. That motion alleged that such orders had been procured by fraud; that appellees had been and were suppressing defenses and objections to class 2 claims; and that the motion was timely “because this is the first time that Woodmar and its stockholders have been prejudiced by” the orders of November 22, 1941, and October 29, 1952. The latter motion was stricken ' on March 20, 1956, and though the appeal was taken from the order of March 5, 1956, it appears from our opinion in In re Woodmar Realty Company, 7 Cir., 241 F.2d 768, 64 A.L.R.2d 883, that the March 20th order striking appellant’s motion to vacate the 1941 order and the 1952 findings and conclusions was not then presented to this Court for review. The history of events following the issuance of our mandate in the first appeal as hereinabove related, i. e., the selection of claim 441 for trial and the filing and withdrawal of the 1957 removal petition follow in sequence at this point and are pertinent. Finally, the amended petition under review followed. From the foregoing summary of some pertinent parts of the record facts in this cause emerges a pattern of conduct which has characterized the actions of counsel for appellant in this case for some ten years. Whatever may be said of the conduct of Suprise, Huebner and others prior to the hearings in 1951 and 1952, an able trial judge rectified the situation by the 1952 opinion and order. Though appellant expressly requested the court to find that this case had its inception in fraud and that a fraud had been perpetrated upon the court by Suprise and others, no finding of fraud was entered. On the contrary, the court expressed the opinion that the evidence failed to show that any prejudice resulted from the misconduct then disclosed. The record indicates that appellant and its counsel were then in accord with that conclusion, inasmuch as no appeal was taken from the 1952 decision, and thereafter, appellant, through its counsel, consented to the adjudication of appellant’s bankruptcy and to continuation of the cause in bankruptcy pursuant to Section 236 (2). Notwithstanding that apparent accord, counsel has advanced the same charges of fraud in 1956 and 1957. Thereafter, on May 19, 1958, counsel for appellant stated in a pre-trial conference that there were no prior orders of court which he felt should be vacated because of elements of fraud alleged to affect the cause. Contemporaneously with that statement, the fraud charges were renewed by the 1958 petition which, as amended in 1959, is now before the court for review. If nothing were here involved except the time element, there is a limit to the period of years over which the same dead horse may be beaten. The Suprise era of this case became final when no appeal was taken from the orders entered in 1952 and 1953 rejecting the contention that the adjudication of insolvency was obtained through fraud. The same contention was advanced and rejected in 1956, and no appeal was taken. There is, however, more involved here than the time element, namely, a vituperous tendency of counsel to read some heinous motive into the acts of anyone who dares to oppose him and of every judge who rules adversely to him. The record certainly supports the inference drawn in appellee’s brief that the 1957' petition, which was withdrawn, was a warning to appellees to not interfere in the plans of appellant’s counsel, and that the 1958 petition followed when that warning was not heeded. In that respect, we note that the 1957 petition was filed, on the eve of the commencement of litigation upon appellant’s objections to class-2 claims, that it was withdrawn shortly after the order of court which neutralized the trustee and his counsel insofar as. the trial of the test case was concerned and within two days after the trial of the test case had been completed and that the 1958 petition was filed a mere matter of days prior to appellant’s filing of settlement agreements which were the subject of the second appeal. In re Woodmar Realty Co., 7 Cir., 284 F.2d 815. We think that fact of timing is significant, and it is certainly consistent with the pattern which the record reveals of charging both the dead and the living with fraud whenever an adverse ruling is contemplated or becomes a reality. Although formal charges are confined to the trustee and his counsel, appellant’s brief reveals that the trial judges are not immune from similar attack. We abhor the insinuations that every trial judge, except the late Judge Parkinson, who has been burdened by this case since 1951, is either a blundering idiot, or, impliedly, a tool of some heinous, scheme. Those insinuations cannot be justified by anything which appears of record. Moreover, they are apparently motivated by the same lack of honesty which is apparent in the circumstances, surrounding Judge Swygert’s order disqualifying himself. Before leaving this phase of the case, we remark the ridiculous assertion that the fact that appellees propose to distribute substantial sums to class 2 claimants reveals a purpose to carry out a scheme devised by Suprise who proposed a similar distribution of assets in 1951. More must be said of this later, but the fact remains that Mr. McLean, as trustee, represents the creditors of appellant and his recommendations, though yet neither rejected nor approved by the ■court below, appear on the surface to be •a conscientious effort to recommend the allowance of claims which he believes to •be valid. The guilt by association allegations are followed by general allegations that appellees did not file objections to all of the class 2 claims, that they sought to .suppress defenses to those claims by filing the trustee’s final report in 1955 proposing the distribution of a substantial part of the funds in the hands of the trustee in satisfaction thereof and that •appellees sought to prevent appellant from protecting the estate against those lien claims by moving to strike appellant’s objections thereto. It is contend■ed that each of those allegations supports appellant’s conclusions that appellees are continuing a fraudulent scheme which began with Suprise, et al. At the outset we reject the frivolous assertion of supposed legal principle -that it is the duty of a trustee in bankxuptcy to object to every claim filed ■against the estate which he represents, The Act enjoins a trustee in bankruptcy to examine all claims and “object to the allowance of such claims as may be improper.” 11 U.S.C.A. § 75, sub. a(8). Actually, counsel apparently concedes that the duty to object, generally, attaches only with respect to claims which the trustee deems invalid, but he argues that objections must be made here because the claims are based upon liens of special improvement bonds which are said to be the obligations of the City of Hammond, not of appellant, That asserted exception is a complete misconception in at least two respects. The obligation of these bonds became the personal obligations of appellant upon its execution of the installment-payment waiver and agreement, Feder v. Gary State Bank, 98 Ind.App. 513, 186 N.E. 379; Central Bldg. & Loan Ass’n v. Gary State Bank, Ind.App., 186 N.E. 382; Larimer v. Gary State Bank, Ind.App., 186 N.E. 384; La Plante v. Englehart’s Estate, Ind.App., 186 N.E. 385. Qf greater significance, a trustee in bankruptcy represents every class of creditors of the bankrupt. He takes the same property rights which the bankrupt owned and he is charged with a duty to discover and honor recorded liens upon the property in his hands, In re Wakey, 7 Cir., 50 F.2d 869, 75 A.L.R. 1521; New York-Brooklyn Fuel Corp. v. Fuller, 2 Cir., 11 F.2d 802, and he may be held personally liable for his negligence if he disposes of property in his hands without discovering the record,fact of the existence of a valid lien upon that property, In re Prather, D.C.S.D.Ill., 138 F.Supp. 433; Grodsky v. Sipe, D.C.E.D.Ill., 36 F.Supp. 244. Filing of objections without legal basis therefor is never required, The general allegation, actually an insinuation, that appellees did not file objections to class 2 claims is simply partly untrue in the light of record facts. Of the some 340 claims filed in the reorganization and the some 202 claims filed in bankruptcy after February, 1953, appellees obtained the disallowance of 142 class 2 claims as barred by the statute of limitations, or as duplicated claims, and the partial disallowance of 24 additional claims filed by former fiduciaries, Appellees recommended the allowance of the balance of the class 2 claims upon their reported determination that each was a valid and subsisting lien upon the funds in the hands of the trustee and not subject to any legal defense. We express no opinion as to the merit of the trustee's final report from which the latter recitals of fact are taken since that report has not been acted upon by the court below. Appellant, however, does not contradict the recited fact that a number of class 2 claims were resisted and disallowed, and the report stands of record as a refutation of the allegation that appellees objected to no class 2 claims. What is said above applies with equal force to the general allegations that appellees sought to suppress defenses to class 2 claims by recommending their allowance and by resisting appellant’s efforts to object to such claims. The trustee’s final report, which is yet pending, recites appellee’s determination that no valid defenses could be made to the lien claims which he recommended for payment. The lower court’s indicated decision of the test case upon claim 441, which is now of record, suggests that Judge Tehan agrees with appellees that the objections to those claims which appellant asserts are without merit. We express no opinion upon that point, since that decision is not before us on review. We note the indicated decision only for its tendency to illustrate the gross absurdity of the contention that the machinations of some nefarious plot led to the trustee’s recommendation that certain of the class 2 claims be allowed. The attempt to inject some sinister connotation into appellee’s attempts to foreclose appellant’s claim of right to object to the improvement bond claims, is ridiculously frivolous. Judge Swygert sustained the motions by appellee, McLean, and others to strike appellant’s objections, and Judge Finnegan, of this court, dissented from our decision reversing the judgment striking appellant’s objections. The point is, if some sinister connotation must be attached to appellee’s act in preparing and filing the trustee’s motion to strike, the “sinister” view which prompted that act was shared by two very able jurists who believed that the trustee’s motion to strike was well founded in law. Further specific analysis of statements contained in the removal petition could serve no purpose. We find nothing of substance in any factual averment, but a wealth of conclusionary statements which lead invariably to counsel’s vitriolic conclusions that appellees, who dare to oppose him, are guilty of heinous misdeeds. We do note that counsel’s statement that the 1958 petition and the amended petition were filed at the suggestion and direction of Judge Tehan is shown of record to be untrue. We approve the concluding paragraph of Judge Tehan’s opinion, as follows, as a summary of the record in that respect: “My own personal experience convinces me that there exists a complete lack of good faith. I was appointed in this case in late December, 1957, and held a few days of pre-trials in January, 1958. At that time and subsequently, petitioner’s counsel repeatedly and persistently made charges of fraud against practically all persons who were in any sense adverse to him. I cautioned him and then finally admonished him that I would no longer tolerate these unlawyerlike, abusive charges against fellow attorneys, who were the objects of his charges. In so doing I did advert to the elementary fact that there was a method and remedy, if he had a proper claim. It was only then, some ten months after he had withdrawn his charges that he refiled them. This period, from July of 1957 to May 19, 1958, is certainly a substantial period for a person professing to believe that a fraud is being perpetrated upon the court and his client, to withhold action. His assertion of these grave charges, withdrawal of it, reinstatement of it have more the aroma of a pressure tactic than a sincere and righteous concern.” Because we are convinced that the record in this case presents a contemptible, if not contemptuous, abuse of the legal processes of a federal court, we have dwelt at length upon a historical résumé of the record facts as they have come to our attention. We did that advisedly in order that there may be no mistake that we are cognizant of the nature and severity of the question with which we deal. We find a sordid picture of the repeated use of ill-founded charges of fraud as a trial tactic which is foreign to established concepts of honest and ethical advocacy. We want it clearly understood that repetition of that practice as disclosed by this record will not be tolerated in the future. Appellee’s motion to file a supplemental brief was taken under advisement upon oral argument of this appeal. That motion is granted and the Clerk is directed to file the supplemental brief which was tendered to the court with that motion. Question: What is the specific issue in the case within the general category of "economic activity and regulation - bankruptcy, antitrust, securities"? A. bankruptcy - private individual (e.g., chapter 7) B. bankruptcy - business reorganization (e.g., chapter 11) C. other bankruptcy D. antitrust - brought by individual or private business (includes Clayton Act; Sherman Act; and Wright-Patman) E. antitrust - brought by government F. regulation of, or opposition to mergers on other than anti-trust grounds G. securities - conflicts between private parties (including corporations) H. government regulation of securities Answer:
songer_respond2_1_2	A	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the second listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to classify the scope of this business into one of the following categories: "local" (individual or family owned business, scope limited to single community; generally proprietors, who are not incorporated); "neither local nor national" (e.g., an electrical power company whose operations cover one-third of the state); "national or multi-national" (assume that insurance companies and railroads are national in scope); and "not ascertained". Linda L. HEBERT, et al., Plaintiffs, Appellants, v. Cordelia WICKLUND, d/b/a Lake Farm, et al., Defendants, Appellees. No. 84-1050. United States Court of Appeals, First Circuit. Argued May 7, 1984. Decided July 12, 1984. Richard F. McCarthy, Boston, Mass., with whom Richard E. Bennett, and Will-cox, Pirozzolo & McCarthy P.C., Boston, Mass., were on brief, for plaintiffs, appellants. Nonnie S. Burnes, Boston, Mass., with whom Richard S. Boskey, and Hill & Barlow, Boston, Mass., were on brief, for defendant, appellee Cordelia Wicklund. Before COFFIN and BREYER, Circuit Judges, and PETTINE, Senior District Judge. Of the District of Rhode Island, sitting by designation. COFFIN, Circuit Judge. Appellants Linda and Roger Hebert appeal from an award of summary judgment and attorney’s fees to defendant Cordelia Wicklund in a copyright infringement action arising out of Wicklund’s alleged copying of the Heberts’ basketweaving kit. In granting Wicklund’s motion for summary judgment, the district court noted that the Heberts had produced no evidence to counter Wicklund’s evidence that she had written and marketed her kit long before receiving the Heberts’ copyrighted material. The Heberts contend that the district court abused its discretion in accelerating the pace of this litigation, thereby denying the Heberts an opportunity to conduct discovery prior to the district court’s disposition of Wicklund’s summary judgment motion. The Heberts further contend that the record, although hurriedly assembled, contained sufficient genuine issues of material fact concerning copyright infringement to preclude summary disposition. On July 6, 1983, the Heberts filed their verified complaint along with a motion for a temporary restraining order and preliminary injunction. On July 18, Wicklund filed an opposition to the Heberts’ motion. Wicklund also filed a motion for summary judgment and a supporting affidavit that explained her prior publication and sale of her basketweaving kit. Also on July 18, the court held a hearing on the Heberts’ motion for provisional relief. Cecil Ryan, a shop owner in Suncook, New Hampshire, testified for Wicklund. He stated that he had been selling Wicklund’s kit at his shop since January 1981 and that the instructions in Wicklund’s kit had remained substantially unchanged since that time. The record indicated that Wicklund did not receive a copy of the Heberts’ kit until August 1982. At the close of the hearing, the court denied the Heberts’ request for injunctive relief on the grounds that they had not demonstrated a likelihood of success on the merits. The court warned that if the Heberts could not contradict Ryan’s testimony concerning prior use, then that testimony would probably warrant summary judgment for Wicklund. On July 28, the Heberts filed an opposition to Wicklund’s motion for summary judgment. The Heberts cited Fed.R.Civ.P. 56(f) in asking the court to delay decision of the motion pending further discovery. Also on July 28, the court directed the parties to file supporting affidavits within five days, and informed the parties that Wicklund’s motion for summary judgment would be decided on affidavits, without further hearing, and that the court would consider any sworn and uncontradicted testimony given at the July 18 hearing. A clerk of the court apparently informed the Heberts’ counsel of this order by telephone on July 28. Five days later, on the August 2 deadline, the Heberts filed a motion to dismiss without prejudice, which they withdrew on August 10 following Wicklund’s opposition. On August 3, the Heberts’ counsel wrote an undocketed letter to the district court’s courtroom clerk. The letter asked the clerk to bring to the court’s attention the Heberts’ motion to dismiss. The letter further requested that the court delay a decision on Wicklund’s summary judgment motion pending further investigation and examination of the then-unavailable transcript of the July 18 hearing. On August 16, two weeks after the August 2 deadline, the Heberts filed the affidavit of attorney Fred Scribner III, an investigator retained by the Heberts’ counsel. The Scribner affidavit compared the instructions and diagrams in the Hebert and Wicklund basketweaving kits and recounted Scribner’s conversations with Cecil Ryan, the shop owner who had testified for Wicklund at the July 18 hearing, and with Mrs. Pat Smalley, who had purchased several of Wicklund’s kits from Ryan’s store. On Wicklund’s motion, the court struck the Scribner affidavit on the grounds that it was untimely and violative of Fed.R.Civ.P. 56(e) for containing “nothing except inadmissible opinions and hearsay”. Memorandum and Order, Dec. 5, 1983, App. 248. The Heberts then attempted to take several depositions, but Wicklund filed a motion for a protective order staying discovery pending a decision on her motion for summary judgment. The depositions remained untaken as of December 5, when the court granted Wicklund’s motion for summary judgment and awarded Wicklund her requested $1,400 in attorney’s fees. The judgment against the Heberts seems attributable to their inattention both to the central issue of prior use and to the Federal Rules of Civil Procedure in the crucial weeks following the July 18 hearing. The Ryan testimony at that hearing and the Wicklund affidavit filed the same day presented facts that formed the foundation of Wicklund’s defense of prior use. The Heberts could not then simply rest on their evidence that they possessed valid copyrights on their kit and catalogue, that the Hebert and Wicklund kits had many similarities, and that Wicklund had obtained a copy of the Heberts’ kit and catalogue in August 1982. As of the district court’s August 2 deadline, the Heberts had filed no affidavits or other documents on the issue of prior use. The Heberts’ verified complaint and the affidavit of Linda Hebert detailed the similarity of the Hebert and Wicklund kits, but neither document mentioned, much less refuted, Wicklund’s defense of prior use. In the Scribner affidavit, the Heberts attempted to attack Wicklund’s assertion of prior use, but the district court properly rejected that affidavit for the reasons stated. See supra page 220 (affidavit untimely and in violation of Rule 56(e) in several respects). We can understand how the Heberts might have been unable to marshal facts to “prove the negative” — that Wicklund had not published or marketed her kit prior to August 1982, when she acquired the Heberts’ kit — in the brief period permitted by the court. However, the Federal Rules provide an escape hatch. Rule 56(f) states: “Should it appear from the affidavits of a party opposing the [summary judgment] motion that he cannot for reasons stated present by affidavit facts essential to justify his opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.” The Heberts did not comply with the rule. They never filed an affidavit presenting reasons why they could not present facts essential to justify their opposition. The Heberts now contend! that three submitted items constituted the functional equivalent of a 56(f) affidavit: (1) their opposition to Wicklund’s motion for summary judgment; (2) an undocketed letter from their counsel to the district court’s courtroom clerk; and (3) the Scribner affidavit. We will examine these documents in order. (1) The opposition is not an affidavit. The opposition explicitly refers to Rule 56(f) in asking for more time to proceed with depositions and other discovery, but it gives no reasons for the requested delay. Reference is made to the verified complaint and to the affidavit of Linda Hebert, but these documents neither mention the issue of prior use nor explain the need for more time. Nonetheless, the district court in fact responded to the Heberts’ request by granting a five-day extension, but the Heberts filed nothing in that five-day period besides a motion, subsequently withdrawn, to dismiss without prejudice. (2) The letter sent by the Heberts’ counsel to the courtroom clerk on August 3 similarly does not satisfy the requirements of Rule 56(f). The letter was not docketed; it was not an affidavit; and it was not submitted by a party. The Heberts suggest that Littlejohn v. Shell Oil Co., 483 F.2d 1140, 1146 (5th Cir.) (en banc), cert. denied, 414 U.S. 1116, 94 S.Ct. 849, 38 L.Ed.2d 743 (1973), required the district court to treat the letter as a Rule 56(f) affidavit. In Littlejohn, the Fifth Circuit, “[o]ut of an abundance of caution and to prevent a possible injustice”, treated a non-affidavit pleading filed by plaintiffs counsel in an antitrust suit as sufficient under Rule 56(f). Littlejohn does not require acceptance of the Heberts’ counsel’s letter as a Rule 56(f) affidavit. The Littlejohn submission (a) was docketed (b) within applicable time limits and (c) referred to the specific facts that the plaintiff needed to discover from the defendants to oppose their summary judgment motion. In the case at bar, the district court would have been justified in rejecting the letter for being either undocketed or late. Moreover, the letter’s request for more time was not so compelling so as to convince the court that only a more-than-flexible application of Rule 56(f) would avoid an injustice. The August 3 letter stated that the Heberts needed an extension of the deadline because the transcript of the July 18 hearing would not be available until August 8. Admittedly, the transcript would have permitted the Heberts to fine tune any rebuttal to the prior use defense presented through the testimony of Ryan, the sole witness at the hearing. But the transcript was by no means indispensable, considering that the Heberts’ counsel had attended the hearing and had cross-examined Ryan, and that Ryan’s entire testimony, which was simple and straightforward, occupied but seven pages of a twenty-one-page transcript. App. 116-22. (3) The Scribner affidavit was untimely, Scribner is not a party, and his affidavit did not state reasons why the Heberts could not file opposing affidavits. His affidavit was not labelled as a Rule 56(f) affidavit, and no accompanying motion or pleading designated his affidavit as a 56(f) submission. In sum, the district court acted well within its discretion in not treating the opposition, the letter, or the Scribner affidavit as Rule 56(f) affidavits. See, e.g., Wallace v. Brownell Pontiac-GMC Co., 703 F.2d 525, 527 (11th Cir.1983) (to invoke Rule 56(f), party must file affidavit stating reasons why more time is needed); SEC v. Spence & Green Chemical Co., 612 F.2d 896, 901 (5th Cir.1980) (“The determination of the adequacy of nonmovant’s rule 56(f) affidavits and the decision whether to grant a continuance thereon rests in the sound discretion of the trial court.”), cert. denied, 449 U.S. 1082, 101 S.Ct. 866, 66 L.Ed.2d 806 (1981). Although a district court should generally apply Rule 56(f) liberally, the court need not employ the rule to spare litigants from their own lack of diligence. 10A C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure: Civil 2d § 2740, at 532-35 (1983). “The most obvious indication of lack of diligence is a failure on the part of the non-movant to present affidavits under either Subdivision (e) or (f).” Id. § 2740, at 535. The Heberts’ actions fall within this definition of “lack of diligence”. The Heberts had a brief but sufficient opportunity to file either Rule 56(e) affidavits creating a genuine issue of fact concerning prior use or Rule 56(f) affidavits giving reasons why Rule 56(e) affidavits could not be filed by the court-imposed deadline. Attorney’s Fees The Heberts also appeal from an award of $1,400 in attorney’s fees to Wicklund. The district court awarded the fees under the Copyright Act of 1976, 17 U.S.C. § 505, which states: “In any civil action under this title, the court in its discretion may allow the recovery of full costs by or against any party other than the United States or an officer thereof. Except as otherwise provided by this title, the court may also award a reasonable attorney’s fee to the prevailing party as part of the costs.” On July 18, the day on which Wicklund filed her (ultimately successful) motion for summary judgment, Wicklund also filed a separate motion for attorney’s fees. On August 3, Wicklund’s counsel filed a supporting affidavit that detailed her work on the case. The Heberts made no response, before or after judgment, to Wicklund’s motion or affidavit for attorney’s fees. Wicklund contends that the Heberts may not for the first time on appeal challenge the district court’s assessment of attorney’s fees. We agree. The Heberts offer two reasons why we should not apply this circuit’s usual rule barring appeal of issues not advanced in the district court. See, e.g., Cohen v. President & Fellows of Harvard College, 729 F.2d 59, 60-61 (1st Cir.1984) (per curiam); Johnston v. Holiday Inns, Inc., 595 F.2d 890, 894 (1st Cir.1979). The Heberts argue that they implicitly opposed the motion for attorney’s fees, which may be awarded only to a prevailing party, when they filed their opposition to Wicklund’s motion for summary judgment. Even if we accept this statement, on appeal the Heberts have presented an entirely distinct reason for disallowing fees. Below, they argued against an award of fees because Wicklund was not entitled to be the prevailing party. On appeal, they have argued, with substantial case support, that even if Wicklund prevails on the merits, she should not be awarded fees because she has not shown that the Heberts’ suit was frivolous, vexatious, or brought in bad faith. We can easily imagine circumstances under which plaintiffs in the Heberts’ position could lose on the merits but still make an independent, successful argument against a defendant’s motion for attorney’s fees. See, e.g., Jartech, Inc. v. Clancy, 666 F.2d 403, 407 (9th Cir.) (affirming Copyright Act judgment for defendants based on defense of “fair use”, but reversing award of attorney’s fees because plaintiffs’ suit was not frivolous), cert. denied, 459 U.S. 826, 879, 103 S.Ct. 59, 175, 74 L.Ed.2d 62, 143 (1982). In the context of this case, the merits and fees are separate issues, and opposition on the merits does not suffice to preserve this challenge to an award of attorney’s fees. The Heberts also contend that they had no obligation to respond to Wicklund’s motion for attorney’s fees, because Wicklund had prematurely applied for fees before the court had declared her the “prevailing party”. However, a district court may, and often does, simultaneously decide the merits and the attorney’s fees issues of a suit. Such a disposition, where possible, represents an economical use of judicial resources, not only for the district court, but also for the court of appeals, which is thereby spared the burden of piecemeal appeals on the merits and on fees. Cf. White v. New Hampshire Department of Employment Security, 455 U.S. 445, 454, 102 S.Ct. 1162, 1168, 71 L.Ed.2d 325 (1982). The fee award in this case should not have come as a total surprise to the Heberts. Wicklund had filed a separate motion for fees with a detailed supporting affidavit, and the district court had stated at the July 18 hearing that it would end the suit if the Heberts could not refute Wicklund’s evidence of prior use. Thereafter, the Heberts “proceeded at their own risk in not filing a proper opposition to the request for fees, not requesting a hearing, ... and in not indicating, even in a perfunctory manner, that they would oppose an award of fees if [their summary judgment opposition was unsuccessful]”. Kargman v. Sullivan, 589 F.2d 63, 67 (1st Cir.1978). We conclude that the Heberts have not properly preserved the issue of attorney’s fees. See Pye v. Mitchell, 574 F.2d 476, 484 (9th Cir.1978) (under fee provision of old Copyright Act, appellant could not for the first time on appeal challenge appellees’ summary of compensable hours); cf. Miles v. Sampson, 675 F.2d 5, 9-10 (1st Cir.1982) (party may not on appeal make his initial demand for hearing on issue of attorney’s fees under 42 U.S.C. § 1988). The Heberts’ appeal of the district court’s award of attorney’s fees to Wicklund is not so compelling that our failure to give it full consideration constitutes a gross miscarriage of justice. We review awards of attorney’s fees under the Copyright Act only for abuse of discretion, see, e.g., Hughes v. Novi American, Inc., 724 F.2d 122, 125-26 (Fed.Cir.1984); Twentieth Century Music Corp. v. Frith, 645 F.2d 6, 7 (5th Cir.1981) (per curiam), and the district court awarded a modest fee ($1,400) for extremely able work. Affirmed. Costs to appellees. No assessment of attorney’s fees for work performed on the appeal. . The Heberts sought damages and injunctive relief under the Copyright Act of 1976, 17 U.S.C. § 501 et seq. They also sought relief under section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a), and under Mass.Gen.Laws ch. 93A, §§ 2 & 11. . With respect to Wicklund's motion for summary judgment, filed July 18, the court had extended the 10-day period for filing oppositions and supporting affidavits and memoranda, Local Rule 12(a)(2), by five days, from July 28 to August 2. According to the district court’s docket sheet, the Scribner affidavit was two weeks late. The Heberts’ counsel had not even retained Scribner until August 5, three days after the deadline. Affidavit of Richard F. McCarthy, Sept. 1, 1983, App. 229. . The district court noted the letter's deficiencies: “This court cannot function efficiently or fairly if attorneys assume that this type of casual representation is sufficient to invoke the powers of this court. I did not recognize this letter as a motion, and would have denied it if I had.” Memorandum and Order, Dec. 5, 1983, App. 248. . Many cases state that continuances should be routinely granted under Rule 56(f) where the moving party has sole possession of the relevant facts that the non-moving party needs to oppose the summary judgment motion, e.g., Ward v. United States, 471 F.2d 667, 670 (3d Cir.1973); Concord Laboratories, Inc. v. Concord Medical Center, 552 F.Supp. 549, 554 (N.D.Ill.1982) (trademark infringement case in which defendant moved for summary judgment on basis of defense of continuous prior use, but plaintiff survived motion in part because material evidence was in defendant’s control); 10A C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure: Civil 2d § 2741, at 545-48 (1983), but this maxim represents a factor that the court should consider only after the non-moving party has complied with the requirements of the rule. See, e.g., Wallace v. Brownell Pontiac-GMC Co., 703 F.2d at 527; Contemporary Mission, Inc. v. United States Postal Service, 648 F.2d 97, 107 (2d Cir.1981). . Our present ruling should come as no surprise to the Heberts’ counsel, who was counsel for the plaintiffs in Kargman. Question: This question concerns the second listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". What is the scope of this business? A. local B. neither local nor national C. national or multi-national D. not ascertained Answer:
songer_respond1_1_2	D	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to classify the scope of this business into one of the following categories: "local" (individual or family owned business, scope limited to single community; generally proprietors, who are not incorporated); "neither local nor national" (e.g., an electrical power company whose operations cover one-third of the state); "national or multi-national" (assume that insurance companies and railroads are national in scope); and "not ascertained". ROTHENBERG v. H. ROTHSTEIN & SONS. No. 9965. United States Court of Appeals Third Circuit. Argued Dec. 8, 1949. Decided March 24, 1950. Hirsh W. Stalberg, Philadelphia., Pa. (Shapiro, Conner, Rosenfeld & Stalberg, Philadelphia, Pa., on the brief), for appellant. Milton H. Friedman, Buffalo, N. Y. (Harry W. Kurtzman, Philadelphia, Pa., on the brief), for appellee. Before BIGGS, Chief Judge and O’CON-NELL and KALODNER, Circuit Judges. KALODNER, Circuit Judge. On this appeal, the parties have presented two issues for determination; (1) whether the defendants properly raised their defense based on the Statute of Frauds contained in the Pennsylvania Sales Act, 69 P.S. § 42, and (2) whether the learned trial judge erred in holding that the contract involved was outside the statute. However, on examination, the record discloses another, and more important, issue which, because it was not here developed hy the parties, warrants the granting of an opportunity for them to do so. Rothenberg commenced this litigation by complaint to the Secretary of Agriculture pursuant to the Perishable Agricultural Commodities Act, 7 U.S.C.A. § 499f, seeking thereby to enforce against the Roth-steins liability for a specific violation of the Act. In accordance with the statutory procedure, a hearing was had in Philadelphia, Pennsylvania, and ultimately damages were awarded by the Secretary’s Judicial Officer to the plaintiff. The defendants perfected their appeal to the District Court, in which tribunabthey were entitled to, and obtained, a “trial de novo * * * [proceeding] in all respects like other civil suits for damages, except that the findings of fact and order * * * of the Secretary' shall be prima-facie evidence of the facts therein stated. * * ” 7 U.S.C.A. §■ 499g(c). The jury returned a verdict against them and this appeal is taken from the judgment entered thereon, their motion for judgment under Rule 50(b), Federal Rules of Civil Procedure, 28 U.S.C.A., having been denied, D.C., 9 F.R.D. 211.» It is undisputed that on March 23, 1944, by means of the telephone, the defendants, in Philadelphia, Pennsylvania, accepted the offer of the plaintiff, in Buffalo, New York, to sell them a specific carload of fresh peas. Thus, the- contract would appear to have been made in Pennsylvania; Restatement, Conflict of Laws, Sec. 326, Comment C. It is further undisputed that the car reached Philadelphia, at the latest, on the morning o.f March 27, 1944, and that the defendants refused to take' the peas on the ground that inspection disclosed a failure to conform to the 'qualitative description allegedly given to thém by the plaintiff when the contract was made. The telegraphic exchanges between the parties are summarized in the margin. Later the peas were sold by the plaintiff. The remaining facts are established by the jury’s verdict and .aré controlling, especially since the findings are not now attacked : (1) The defendants were delivered peas of the quality described by the plaintiff, and therefore breached their contract in refusing the car. (2) The carload of peas was purchased under a term of contract, “acceptance final”, which gave them no right of rejection. (3) The carload of peas was not rejected by the defendants within a reasonable time, which, under the Regulations of the Secretary of Agriculture, is not more than twenty-four hours after receipt of notice of the arrival of a rail shipment. It is obvious that, other considerations aside, the jury might well have found for the plaintiff on any one of these three grounds, and on either of the latter two grounds even though the plaintiff had misrepresented the peas. Finally, it may be noted that the reparation award to the plaintiff by the Secretary was based primarily on the finding that the contract included the term “acceptance final”, which defendants had denied. However, it was also found, as fact, that the defendants gave notice of rejection to the plaintiff more than twenty-four hours after delivery and inspection of the car, and'that the contract was for “good” peas only. In this latter respect, the defendants had contended, as they did at the trial below, that the contract was for “U. S. No. 1 peas” with “dark green pods and green calyx”. 1 The defendants asserted the Statute of Frauds in their pleading before the Secretary, but it was found that the telegrams exchanged by the parties constituted a memorandum sufficient to remove the agreement from its operation. The defendants also invoked the Statute of Frauds in their enumeration of the bases for the appeal to the court below. The plaintiff now seeks to avert this defense, on the instant appeal, for the reason that, aside from the pleadings, the defendants did not otherwise raise the issue in the District Court. However, it clearly appears that the defendants included in their requests for charge what is tantamount to a motion for a directed verdict. After the jury was instructed, the defendants took exception to the failure of the trial judge to charge as requested, and were about to state the reasons therefor. At this point in the proceedings, the learned District Judge foreclosed further discussion, advising the defendants that he had not denied, but reserved the point. The defendants acceded, and did not argue the issue at the time. Accordingly, it was proper to raise the issue in the motion for judgment. Notwithstanding this, the parties have devoted their attention to the question, whether the contract met the requirements of the Pennsylvania Statute of Frauds. It may be noted, in this respect, that while the court below found, as did the Secretary, the existence of a memorandum made up of the telegrams of the parties, nevertheless, its finding was in part based upon an error of fact: the telegram of March 23, 1944, was treated as having been sent by the defendants to the plaintiff, in which event it would have been a sufficient memorandum, whereas in fact it was a self-serving communication dispatched by the plaintiff. However, for the reason shortly to be stated, we deem it inadvisable to dispose of this problem at this time. Although the contract, as we have said, was apparently made in Pennsylvania, it must be stated that the controversy is in the federal courts not by reason of diversity of citizenship and jurisdictional amount, but rather because of the federal statute1 already set out. In such event, we are not circumscribed by Erie R. Co. v. Tompkins, 1938, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487, nor are we thus “only another court of the State”. Holmberg v. Armbrecht, 1946, 327 U.S. 392, 394, 66 S.Ct. 582, 583, 90 L.Ed. 743, 162 A.L.R. 719. Were we such, of course, the difficulty here would vanish in view of Cohen v. Beneficial Loan Corp., 1949, 337 U.S. 541, 69 S.Ct. 1221, and Guaranty Trust Co. of New York v. York, 1945, 326 U.S. 99, 65 S.Ct. 1464, 89 L.Ed. 2079, 160 A.L.R. 1231. This being the case, it must be apparent that the effect on these proceedings which the Pennsylvania Statute of Frauds has, or should have, is a decisive problem. Breaking it up into specific questions, they are: (1) Is the Pennsylvania Statute of Frauds, 69 P.S. § 42, substantive or procedural in character ? See Continental Collieries, Inc., v. Shober, 3 Cir., 1942, 130 F.2d 631. (2) Is the reference in 7 U.S.C.A. § 499e (b) a reference to procedural or to substantive rights? (3) If the reference in 7 U.S.C.A. § 499'e (b) be a reference to procedural rights can, or should, the Pennsylvania Statute of Frauds be applied, assuming it is (a) procedural, or (b) substantive in character ? (4) If the reference in 7 U.S.C.A. § 499e(b) be a reference to substantive rights, can, or should, the Pennsylvania Statute of Frauds be applied, assuming it is (a) procedural, or (b) substantive in character? Since the parties have not addressed themselves to the questions stated, we think it desirable, in the interests of fairness and as an aid to the Court, that the litigants have the -opportunity to review them, and to submit their views in briefs and oral argument. To this end, we shall, s<wa sponte, order this case to be reargued, before the full Court. The questions stated are those which we desire the parties to include in. their presentation, but are not in limitation of the scope of the reargument. Judge O’CONNELL participated in the hearing and consideration of this case, but died before the instant conclusion was reached. . 7 U.S.C.A. § 499b: “Unfair conduct; what constitutes “It shall be unlawful in or in connection with any transaction in interstate or foreign commerce— ****** “(2) Por any dealer to reject or fail to deliver in accordance with the terms of the contract without reasonable cause any perishable agricultural commodity bought or sold or contracted to be bought, sold, or consigned in interstate or foreign commerce by such dealer; * * 7 U.S.C.A. § 490e: “TAabiliiy to persons injured — Amount of damages. (a) If any commission merchant, dealer, or broker violates any provision of section 499b of this chapter he shall be liable to the person or persons injured thereby for the full amount of damages sustained in consequence of such violation. “Remedies, (b) Such liability may be enforced either (1) by complaint to the Secretary as hereinafter provided, or (2) by suit in any court of competent jurisdiction ; but this section shall not in any way abridge or alter the remedies now existing at common law or by statute, and the provisions of this chapter are in addition to such remedies.” . A motion for a new trial was withdrawn, but in any event it was denied by the District Judge, and- tlie order denying both motions was properly entered on the Docket. . (1) March 23, 1944, 4:50 P.ftL, plaintiff confirmed diverting the specific car, stating, inter alia, “Buffalo Acceptance Final”, but not referring to the quality of the péás. (2) March 27, 1944, 12:04. P.M., defendants complaint concluding “wish you would place this car elsewhere”. . (3) March 27, 1944, 3:25 P.M., plaintiff stated. nothing could be done. (4) March 28, 1944, 3:12 P.M., defendants stated they, had not read .the telegram of March 23, Í944; that plaintiff had described the car as “good quality dark green pods”; and that defendants would “mail you check 25 cents basket or bac haul car to Buffalo and pay extra charges”. (5) March 28, 1944, 4:31 P.M., plaintiff denied description and offered to buy back the car at “2.50”. (6) March 28, 1944, 8:30 P.M., defendants rejected the car. . See Footnote 3, supra. The term is currently defined in the Regulations of the Secretary of Agriculture as it was at the times here involved: 7 O.F.R. (1949 ed.) § 46.24. As to its application and effect, see LeRoy Dyal Co. v. Allen, 4 Cir., 1947, 161 F.2d 152, 157. . See 7 C.F.R. (1949 ed.) § 46.2(r) and § 46.2(s). . It has been held that a defense may be raised on appeal from a reparation order to the District Court though not raised in the proceedings before the Secretary. Fadler Co. v. Hesser, 10 Cir., 19-18, 166 F.2d 904, 906. . See Footnote 3, supra, paragraph (1). Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". What is the scope of this business? A. local B. neither local nor national C. national or multi-national D. not ascertained Answer:
songer_method	I	What follows is an opinion from a United States Court of Appeals. Your task is to determine the nature of the proceeding in the court of appeals for the case, that is, the legal history of the case, indicating whether there had been prior appellate court proceeding on the same case prior to the decision currently coded. Assume that the case had been decided by the panel for the first time if there was no indication to the contrary in the opinion. The opinion usually, but not always, explicitly indicates when a decision was made "en banc" (though the spelling of "en banc" varies). However, if more than 3 judges were listed as participating in the decision, code the decision as enbanc even if there was no explicit description of the proceeding as en banc. John S. CLAPP, Appellant, v. COLUMBUS BAY CORPORATION, Harold G. Holcombe, Jr., and John B. Faile. No. 14851. United States Court of Appeals Third Circuit. Argued June 18, 1964. Decided June 26, 1964. Rehearing Denied July 21, 1964. Warren H. Young and John D. Marsh, St. Croix, V. I. (Young, Isherwood & Marsh, Christiansted, St. Croix, V. I., on the brief), for appellant. A. Cuyler Ten Eyck, Jr., St. Croix, V. I., for appellee. Before McLAUGHLIN, KALODNER and STALEY, Circuit Judges. PER CURIAM. On review of the record we find no error. The Judgment of the District Court will be affirmed. Question: What is the nature of the proceeding in the court of appeals for this case? A. decided by panel for first time (no indication of re-hearing or remand) B. decided by panel after re-hearing (second time this case has been heard by this same panel) C. decided by panel after remand from Supreme Court D. decided by court en banc, after single panel decision E. decided by court en banc, after multiple panel decisions F. decided by court en banc, no prior panel decisions G. decided by panel after remand to lower court H. other I. not ascertained Answer:
songer_origin	A	What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of court which made the original decision. Code cases removed from a state court as originating in federal district court. For "State court", include habeas corpus petitions after conviction in state court and petitions from courts of territories other than the U.S. District Courts. For "Special DC court", include courts other than the US District Court for DC. For "Other", include courts such as the Tax Court and a court martial. UNITED STATES of America, Plaintiff-Appellee, v. Richard S. BERRY, Defendant-Appellant. No. 79-1698. United States Court of Appeals, Ninth Circuit. Argued and Submitted June 12, 1980. Decided Sept. 8, 1980. David M. Ochoa, Phoenix, Ariz., for defendant-appellant. Dale A. Danneman, Asst. U. S. Atty., Phoenix, Ariz., for plaintiff-appellee; Stephen M. Dichter, Asst. U. S. Atty., Phoenix, Ariz., on brief. Before WRIGHT, CHOY and ALARCON, Circuit Judges. WRIGHT, Circuit Judge: The court’s opinion filed on July 7,1980 is withdrawn and the following Amended Opinion is substituted. Berry argues that his conviction for conspiracy to commit fraud should be reversed because (1) the Arizona District’s jury selection system improperly excluded Indians and (2) the cumulative effect of several errors and instances of prosecutorial misconduct prejudiced him and foreclosed his right to a fair trial. We reject both arguments and affirm the conviction. Berry was indicted for offenses related to perjury and the obstruction of justice by a grand jury selected from the combined Phoenix and Prescott divisions of the District of Arizona. Under the jury selection system then in operation, prospective jurors in each division living more than 100 miles from the division courthouse could exempt themselves from consideration for service. Berry attempted to show that this exemption caused an unconstitutional underrepresentation of Indians. The government challenged his statistical evidence as stale and inaccurate. At his trial, Barnes and Herzberg testified against Berry. Each had been convicted of offenses related to a fraud scheme but, in exchange for their cooperation, the prosecutor informed the parole commission of their cooperation. They testified that Berry advocated their hiding of evidence and lying to the SEC. They were virtually the government’s only witnesses. Berry offered eight witnesses, each of whom testified that the two were untrustworthy. During a recess, the jury foreman read the first few lines of a newspaper story from which he learned that Berry had been disbarred. The foreman was questioned in chambers where he declared that he could still be fair. The court denied the defendant’s motion for a mistrial. In closing argument, the prosecutor declared that the government had separated Barnes and Herzberg so they could not compare their stories. He argued that this made their testimony credible. In rebuttal argument, the prosecutor responded to defense counsel’s attack on Barnes’ credibility by blaming Berry for his criminal conduct. He argued that if Berry had not hidden evidence Barnes would have been incarcerated sooner and could not have committed several crimes. The jury found Berry guilty of conspiracy but not guilty of subornation of perjury or obstruction of justice. On appeal, he argues that his indictment was invalid because the grand jury was selected from a pool in which Indians were unconstitutionally underrepresented and contends that he was prejudiced by the immediate and cumulative effect of various errors and instances of prosecutorial misconduct. CONSTITUTIONALITY OF THE JURY POOL: Berry’s timely motion to dismiss his indictment on the ground that Indians were unconstitutionally excluded by the jury selection system was denied. We review under the test established in Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979): In order to establish a prima facie violation of the fair-cross-section requirement, the defendant must show (1) that the group alleged to be excluded is a “distinctive” group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process. Id. at 364, 99 S.Ct. at 668. The first element is well satisfied. United States v. Brady, 579 F.2d 1121 (9th Cir. 1978), cert. denied, 439 U.S. 1074, 99 S.Ct. 849, 59 L.Ed.2d 41 (1979). Berry attempts to establish the second element statistically. He offers figures purporting to show that, although 4.27% of the population in the combined Phoenix and Prescott divisions are Indians, they comprise only 1.15% of the venire. He seeks to prove the third element, that the jury selection system causes the exclusion of Indians, by linking their alleged underrepresentation to the 100-mile exemption. The Duren test combines a fourth element, however, which is fatal to Berry’s argument. The Court declared: Finally, in order to establish a prima facie case, it was necessary for petitioner to show that the underrepresentation of women, generally and on his venire, was due to their systematic exclusion in the jury-selection process. Id. at 366, 99 S.Ct. at 669 (emphasis added). Berry’s jury was selected from jury wheels filled on January 15, 1977. His statistics purport to show that Indians were underrepresented on jury wheels filled during the following two years. He failed to introduce any evidence showing underrepresentation on his venire. PREJUDICIAL ERROR AND PROSECU-TORIAL MISCONDUCT: Berry objects to several alleged errors and instances of prosecutorial misconduct. He argues that he was prejudiced by them separately and cumulatively. Our discussion of his argument follows the three-step analysis outlined in United States v. Roberts, 618 F.2d 530 (9th Cir. 1980). We address these questions: (1) Did any error or prosecutorial misconduct occur? (2) Were the issues preserved for appeal? (3) Was the defendant prejudiced? If all are answered affirmatively, we must reverse. We will discuss each alleged error and instance of misconduct under the three-step analysis and then address their cumulative effect. NEWSPAPER INCIDENT: During the course of the trial, the jury foreman informed the court that he had inadvertently read the first few lines of a newspaper article which described Berry as a disbarred attorney. Later in the article, the cause of disbarment was revealed. Evidence of the disbarment had been ruled inadmissible. Berry argues that the district court failed to make an adequate investigation of the incident and should have declared a mistrial. THE TRIAL COURT’S INVESTIGATION: With all counsel present, the judge questioned the foreman in chambers. He asked whether the juror continued to read the article after he realized it concerned Berry and whether he read anything which might influence him. He responded negatively to both questions. The judge asked the other jurors in open court whether they had read the article. They indicated they had not. Berry insists the judge should have asked the foreman precisely what he remembered from the article and should have questioned each of the other jurors individually in chambers. The decision to conduct a hearing into alleged jury misconduct and to determine its extent and nature is discretionary. United States v. Hendrix, 549 F.2d 1225, 1227-28 (9th Cir.), cert. denied, 434 U.S. 818, 98 S.Ct. 58, 54 L.Ed.2d 74 (1977). We find no abuse of discretion. The judge’s response was commendable. He questioned the jurors enough to satisfy himself that no significant bias had been caused but refused to conduct such an inquisition that the jurors might conclude that Berry had been involved in other criminal activity. DENIAL OF MISTRIAL MOTION: Berry argues that the judge erred in refusing to grant a mistrial. A mistrial was required if “the misconduct [prejudiced] the defendant to the extent he [did] not receive a fair trial,” United States v. Klee, 494 F.2d 394, 396 (9th Cir.), cert. denied, 419 U.S. 835, 95 S.Ct. 62, 42 L.Ed.2d 61 (1974); United States v. Hendrix, supra, 549 F.2d at 1229. The conscientious foreman volunteered that he had read the opening lines of the article. In response to the court’s questions, he declared that he stopped reading when he realized Berry was mentioned and that he would not be influenced by it. The foreman learned only that Berry was a disbarred attorney. This information may not have impressed him favorably, but we conclude it was not so prejudicial as to deny Berry a fair trial. Id. Whether this incident contributed to a cumulative prejudicial effect we shall consider later in this opinion. ADMITTING EVIDENCE OF OTHER MISCONDUCT: On the first day of trial, the court let the prosecutor develop evidence concerning Berry’s relationship with Barnes and Herzberg but prohibited detailed inquiries about misconduct not covered by the indictment. On the next day, over Berry’s objection, the prosecutor elicited testimony from Barnes that Berry warned him against cooperation with the government: [he told me,] however, be careful as to what areas that I touch on, so that I didn’t harm either he or several business deals that he and I were involved in together. The prosecutor pursued this line until the court sua sponte ruled the evidence inadmissible and cautioned the jury: conversations alluded to by the witness that occurred at the County Jail with the defendant, the Court has decided that those conversations are not material, or not relevant to the charges before this Court. The jury is therefore instructed to disregard that evidence. The Court strikes the same. A timely instruction from the judge usually cures the prejudicial impact of evidence unless it is highly prejudicial or the instruction is clearly inadequate. United States v. Johnson, 618 F.2d 60, 62 (9th Cir. 1980); United States v. Carlos, 478 F.2d 377 (9th Cir. 1973) (giving jurors impression they may not perform traditional fact finding functions not easily cured). The jury could not have been significantly prejudiced by evidence that Berry engaged in “business deals” with Barnes. It conveyed at most a faint suggestion that Berry had participated in Barnes’ other illegal ventures. This improper suggestion was adequately cured by the judge’s instruction. IMPROPER CLOSING ARGUMENT: In closing argument, the prosecutor told the jury that the government had taken “great pains” to keep Barnes and Herzberg apart so the jury could trust them: The government, knowing that you people would like to get to the truth, kept them apart from each other, presented their testimony, each untainted by the other. The argument was improper because the prosecutor may not imply that the government has taken steps to assure the veracity of its witnesses. United States v. Roberts, 618 F.2d 530-536 (9th Cir. 1980). A jury may naturally doubt the testimony of witnesses who have agreed to cooperate in exchange for favors. The prosecutor may bolster their credibility with corroborating extrinsic evidence, but he may not indicate that the government has arranged for credible testimony. Two other cases have recently come to our attention in which prosecutors from Phoenix made improper arguments. We repeat for their benefit and for the benefit of others, the Supreme Court’s classic admonition: The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor — indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one. It is fair to say that the average jury, in a greater or less degree, has confidence that these obligations, which so plainly rest upon the prosecuting attorney, will be faithfully observed. Consequently, improper suggestions, insinuations, and, especially, assertions of personal knowledge are apt to carry much weight against the accused when they should properly carry none. Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed. 1334 (1935). See also, United States v. Perez, 491 F.2d 167, 174 (9th Cir.), cert. denied, 419 U.S. 858, 95 S.Ct. 106, 42 L.Ed.2d 92 (1974) (prosecutor should refrain from arguments diverting jury from their duty to decide case only on the evidence). We should not have to repeat these admonitions. PRESERVING THE ISSUE FOR APPEAL: Berry did not object to the prosecutor’s argument so we may reverse only if the misconduct constituted “plain error.” United States v. Rich, 580 F.2d 929, 936 (9th Cir.), cert. denied, 439 U.S. 935, 99 S.Ct. 330, 58 L.Ed.2d 33 (1978). Under the plain error doctrine, this court has discretionary authority to grant review when the defendant failed to preserve an issue with a proper objection. United States v. Lopez, 575 F.2d 681, 685 (9th Cir. 1978). Applying the Plain Error Doctrine Before granting review under the plain error doctrine, we consider (1) whether the error or misconduct was serious and (2) whether the reasons for .requiring an objection apply. This court will not grant discretionary review unless the error of misconduct affected “substantial rights” of the defendant. United States v. Giese, 597 F.2d 1170, 1199 (9th Cir.), cert. denied, 444 U.S. 979, 100 S.Ct. 480, 62 L.Ed.2d 405, (1979); Fed.R.Crim.P. 52(b). The test for substantiality is similar to that for prejudicial error: Plain error is not determined in a vacuum. The prejudicial nature of unobjected-to error must be determined by reference to the whole case, [citation omitted] Particularly we should attempt to determine the impact of the error on the jurors’ deliberations. If the probability is high that the error materially affected their verdict, reversal may be justified. United States v. Segna, 555 F.2d 226, 231 (9th Cir. 1977). See also, United States v. Lopez, supra, 575 F.2d at 685 (9th Cir. 1978) (error may be sufficiently serious to prompt review, but not reversal). This court may also consider whether the reasons for requiring an objection apply. Objections caution the opposing party to prevent error and avoid misconduct and alert the court to take corrective action. See, Stone v. Morris, 546 F.2d 730, 736 (7th Cir. 1976) (civil case). The defendant may not allow error to go uncorrected and then ask this court to reverse his conviction. The need for an objection may be wholly or partially obviated in a variety of circumstances. For example, the error or misconduct may be so obvious that the trial court should have corrected it sua sponte. United States v. Lopez, supra, 575 F.2d at 685. Similarly, no objection is required when the prejudice cannot be corrected or when objection would exaggerate it. United States v. Young, 463 F.2d 934, 940 (D.C. Cir.1972); United States v. Freeman, 514 F.2d 1314, 1319 n.34 (D.C.Cir.1975), vacated on unrelated grounds, 598 F.2d 306 (D.C.Cir. 1979). This court does not apply the plain error doctrine rigidly. It will grant review whenever: reversal is necessary in order to prevent a clear miscarriage of justice or to preserve the integrity and reputation of the judicial process. United States v. Segna, supra, 555 F.2d at 231. In the interests of judicial economy, we require the defendant to assert his rights at trial but, in the interest of justice, we may reverse a conviction which is improperly obtained. The prosecutor’s misconduct here was not glaring and the prejudice, though not insignificant, is insufficient to persuade us to invoke the plain error doctrine. The misconduct was to imply that the government had manipulated its witnesses so the jury ought to believe them. This argument was only one of many used to bolster the credibility of Barnes and Herzberg, and we hold that it was not decisive in the jury’s decision to believe their testimony. REBUTTAL ARGUMENT: In rebuttal argument, the prosecutor responded to Berry’s attack on Barnes’ credibility by suggesting that Berry was responsible for several of the witness’s crimes. Berry had argued that Barnes’ convictions for fraud-related offenses showed he was untrustworthy. The prosecutor responded: [defense counsel] tells you about Barnes. Barnes was free in 1975, told all these things regarding sale of stock of people who died in Colorado. I submit to you, ladies and gentlemen, that the reason that Barnes was free in 1975 to do these things was because he was not awaiting trial. He was not in jail. He was not anything else, and the reason he wasn’t is because Herzberg and their lawyer, Dick Berry, kept him out of jail by keeping the S.E.C. stymied for a year. Had the records been produced by these witnesses with their attorney instead of being hidden away, they wouldn’t have been free to do the acts they did in 1975. This was irresponsible argument and counsel properly objected. The court sustained the objection and instructed: Members of the jury, it will be up to you to decide what the evidence in this case is and inferences therein. I will instruct you later regarding comments of attorneys. The next day, the court instructed the jurors that they were the sole judges of credibility, that they were to decide the case on the evidence, and that statements of counsel were not evidence. These instructions adequately cured the prejudice. The argument was patently foolish and the judge’s action reminded the jury of their duty. We will not assume they ignored his instructions. United States v. Brady, 579 F.2d 1121, 1127 (9th Cir. 1978), cert. denied, 439 U.S. 1074, 99 S.Ct. 849, 59 L.Ed.2d 41 (1979). MISSTATEMENT OF THE LAW: In closing argument, Berry insisted that Barnes and Herzberg had not told him of their fraudulent schemes. The prosecutor replied that the two had no reason to withhold the information from Berry because they believed communications with an attorney were privileged. Apparently the prosecutor also believed so because he declared: If Barnes had told defendant on or before March 19, 1974, that he had hidden the records and would not turn them over to the SEC, defendant cannot seriously suggest that he would have been able to reveal this confidence to the SEC in the absence of a waiver by his client. The attorney-client privilege does not protect communications made in furtherance of criminal activities. United States v. Hodge and Zweig, 548 F.2d 1347, 1354 (9th Cir. 1977). A prosecutor should not misstate the law in closing argument. United States v. Artus, 591 F.2d 526, 528 (9th Cir. 1979). Berry did not object to this argument, however, and we do not consider the misconduct serious enough to constitute plain error. LAWYER STANDARD OF CONDUCT-. Berry argues that the prosecutor improperly invited the jury to use a stricter “lawyer” standard of conduct to judge him. We read the record differently. The prosecutor argued that Berry was not just a layman involved in a conspiracy but “a lawyer, the person who is sworn to uphold the law as a member of the bar.” The prosecutor was attempting to influence the jurors against Berry, but he was not arguing that a different standard of proof applied to him. Name calling is not an admirable style of argument and we do not condone it, but this court has been reluctant to find it cause for reversal. See U. S. v. Taxe, 540 F.2d 961 (9th Cir.), cert. denied, 429 U.S. 1040, 97 S.Ct. 737, 50 L.Ed.2d 751 (1976). Berry did not object to this argument and we do not find it plain error. CUMULATIVE ERROR: In addressing Berry’s charge of cumulative prejudicial error, we consider all errors and instances of prosecutorial misconduct which were preserved for appeal with a proper objection or which were plain error. We will also consider errors and instances of misconduct which we earlier held were adequately cured by the court’s instruction. We recognize that a trace of prejudice may remain even after a proper instruction is given. If we find a residue of prejudice, we will take it into account. We will not consider actions which we held to be not error misconduct or which we decided not to review as plain error. THE HIBLER “DOCTRINE”: This court has declared that it will be especially sensitive to allegations of prejudice when the government’s case rests on uncorroborated accomplice testimony. United States v. Hibler, 463 F.2d 455 (9th Cir. 1972). The Hibler “doctrine” may be restated more generally: the defendant is more likely to be prejudiced by error or misconduct when the government has a weak case. This is simply the logical corollary of the harmless error doctrine which requires us to affirm a conviction if there is overwhelming evidence of guilt. See, United States v. Potter, 616 F.2d 384, 393-94 (9th Cir. 1979). The government’s case against Berry rested on the virtually uncorroborated testimony of Barnes and Herzberg. It was a weak case in which the credibility of the prosecution witnesses was a critical element. Berry charges non-constitutional error, so we will affirm if the error is more probably harmless than not. United States v. Valle-Valdez, 554 F.2d 911, 915 (9th Cir. 1977). In evaluating this impact, we must keep the Hibler “doctrine” in mind. PREJUDICE: We consider the cumulative prejudicial impact of the following: (1) evidence of Berry’s “business deals” with Barnes, (2) the jury foreman’s knowledge that Berry was a disbarred attorney, and (3) the prosecutor’s argument that Berry was responsible for several of Barnes’ illegal ventures. Irrelevant evidence of Berry’s “business deals” with Barnes was admitted and stricken, and the jury was instructed to disregard it. We conclude this left no residual prejudicial effect. The evidence was relatively benign and a proper instruction was quickly given. The fact that Berry’s foreman knew he was a disbarred attorney may have prejudiced him slightly, but the foreman was a conscientious juror whose desire to be fair is demonstrated by the fact that he brought his conduct to the court’s attention. He stated catergorically that he could set aside what he read and render a verdict solely on the evidence. We conclude that any prejudice to Berry was minimal. The prosecutor’s attempt to blame Berry for Barnes’ illegal ventures was prejudicial, but we do not believe it was so prejudicial that it convinced the jury Berry was guilty. It was inexcusable mud-slinging, but it did not relate to any element of the government’s case nor could it have significantly resuscitated Barnes’ credibility with the jury. We hold that there was no cumulative prejudice and affirm the conviction. . Barnes served two years of a 20-year sentence and Herzberg served about two and one-half years of a 15-year sentence. . The government argues that Berry’s statistics cannot be used because he failed to submit affidavits from those who compiled them. Berry has now moved to make the affidavits part of the record on appeal. Even were we to grant his motion, we would affirm the trial court’s ruling. . The government insists that this argument simply refuted a charge of collusion. But the statements went further, indicating that the government had taken an active role, manufacturing a situation in which collusion was impossible and, that the witnesses remained untainted for the jury. . United States v. Roberts, 618 F.2d 530 (9th Cir. 1980); United States v. Bemis, 620 F.2d 311 (9th Cir. 1980) (Memorandum disposition). . We indicated at oral argument that we are prepared to cite errant prosecutors who persist in such misbehavior and we shall not hesitate to impose sanctions. Continuing to issue admonitions serves little purpose if we affirm convictions in criminal cases while tolerating prosecutors who lack judgment, common sense and knowledge of appropriate courtroom conduct and permissible argument. . We do not employ a two-part test. We weigh the need for an objection and the seriousness of the error or misconduct together. If the harm is serious enough, we may grant review for that reason alone. See Lopez, supra. . Our decision to invoke the plain error doctrine is influenced by the degree of prejudice caused. The cumulative impact of several errors might therefore be sufficient to persuade us to grant review when the impact of each would not. We do not decide whether several errors may constitute “plain error” in the aggregate or whether, once we decline to review an error, we may no longer consider it for any purpose. In this case, we do not consider the cumulative impact sufficient to warrant review. . The jury deliberated for two and one-half days before acquitting Berry on four of five counts. At oral argument, government counsel on appeal characterized this as a “compromise verdict.” Question: What type of court made the original decision? A. Federal district court (single judge) B. 3 judge district court C. State court D. Bankruptcy court, referee in bankruptcy, special master E. Federal magistrate F. Federal administrative agency G. Special DC court H. Other I. Not ascertained Answer:
songer_direct1	A	What follows is an opinion from a United States Court of Appeals. Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider liberal to be for government tax claim; for person claiming patent or copyright infringement; for the plaintiff alleging the injury; for economic underdog if one party is clearly an underdog in comparison to the other, neither party is clearly an economic underdog; in cases pitting an individual against a business, the individual is presumed to be the economic underdog unless there is a clear indication in the opinion to the contrary; for debtor or bankrupt; for government or private party raising claim of violation of antitrust laws, or party opposing merger; for the economic underdog in private conflict over securities; for individual claiming a benefit from government; for government in disputes over government contracts and government seizure of property; for government regulation in government regulation of business; for greater protection of the environment or greater consumer protection (even if anti-government); for the injured party in admiralty - personal injury; for economic underdog in admiralty and miscellaneous economic cases. Consider the directionality to be "mixed" if the directionality of the decision was intermediate to the extremes defined above or if the decision was mixed (e.g., the conviction of defendant in a criminal trial was affirmed on one count but reversed on a second count or if the conviction was afirmed but the sentence was reduced). Consider "not ascertained" if the directionality could not be determined or if the outcome could not be classified according to any conventional outcome standards. UNITED STATES SHIPPING BOARD EMERGENCY FLEET CORPORATION, Defendant-Appellant, v. STANDARD SHIPBUILDING CORPORATION, Albert Conway, William A. Young, and Alfred A. Stein, as Receivers of the Property of Defendant Standard Shipbuilding Corporation, Defendants-Appellees, and Shooters Island Shipyard Company, Complainant-Appellee. (Circuit Court of Appeals, Third Circuit. February 27, 1925. Rehearing Denied April 7, 1925.) No. 3201. Appeal from the District Court of the United States for the District of New Jersey; Joseph L. Bodine, Judge. Walter G. Winne, U. S. Atty., of Hackensack, N. J. (Chauncey G. Parker and John, M. Emery, both of Newark, N. J., of counsel), for appellant. William St. John Tozer and White & Case, all of New York City (Joseph M. Hartfield andl Jeremiah M. Evarts, both of New York City, of counsel), for Shooters Island Co. Conover English, of Newark, N. J., for Standard Co. Before BUFFINGTON, WOOLLEY, and DAVIS, Circuit Judges. WOOLLEY, Circuit Judge. , The main question in this case concerns the priority of liens of two mortgages given by the Standard Shipbuilding Corporation, — one to Shooters Island Shipyard Company covering after-acquired property and the other to the United States Shipping Board Emergency Fleet Corporation covering the same property. This question is one of law and its solution depends on other questions of law, — whether the mortgage to the Shipping Board, the second in point of time, is a purchase money mortgage or is based on an equitable lien. These questions in turn rest on questions of fact to be decided according as the evidence proves or does not prove that certain large advances of money made by the Fleet Corporation to the Standard Shipbuilding Corporation in the early period of the war were made under an agreement between them that the advances should be secured by a first mortgage and, that pursuant to this agreement negotiations were continuously conducted until finally the mortgage in question was given the Shipping Board for that purpose. The District Court found for the Shipping Board and awarded priority of lien to its mortgage. On appeal this court thought differently and, on an opinion reported in 293 F. 706, was about to issue its mandate reversing the decree below when the Shipping Board appeared and represented that it had newly discovered evidence which, if heard, would compel a "different judgment. Hesitatingly this court remanded the case for further proofs. On the remission the newly-acquired evidence was taken. The learned trial judge was of opinion that it did not alter the judgment of this court and entered a decree accordingly. The ease is here on the Shipping Board’s appeal. We shall not review the testimony, nor shall we do .more than say that the new evidence, supplementing the old, fills several gaps which theretofore existed in the record and, quite contrary to what was expected, ■ fortifies the previous judgment of this court by establishing that the mortgage was not given the Shipping Board in pursuance of an agreement to secure the original money advances but to secure further advances with which to finish uncompleted work. The decree below is affirmed. Question: What is the ideological directionality of the court of appeals decision? A. conservative B. liberal C. mixed D. not ascertained Answer:
songer_typeiss	B	What follows is an opinion from a United States Court of Appeals. Your task is to determine the general category of issues discussed in the opinion of the court. Choose among the following categories. Criminal and prisioner petitions- includes appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence or the validity of continued confinement. Civil - Government - these will include appeals from administrative agencies (e.g., OSHA,FDA), the decisions of administrative law judges, or the decisions of independent regulatory agencies (e.g., NLRB, FCC,SEC). The focus in administrative law is usually on procedural principles that apply to administrative agencies as they affect private interests, primarily through rulemaking and adjudication. Tort actions against the government, including petitions by prisoners which challenge the conditions of their confinement or which seek damages for torts committed by prion officials or by police fit in this category. In addition, this category will include suits over taxes and claims for benefits from government. Diversity of Citizenship - civil cases involving disputes between citizens of different states (remember that businesses have state citizenship). These cases will always involve the application of state or local law. If the case is centrally concerned with the application or interpretation of federal law then it is not a diversity case. Civil Disputes - Private - includes all civil cases that do not fit in any of the above categories. The opposing litigants will be individuals, businesses or groups. Steven JOACHIM, Plaintiff-Appellant, v. AT & T INFORMATION SYSTEMS, Defendant-Appellee. No. 86-2095 Summary Calendar. United States Court of Appeals, Fifth Circuit. June 30, 1986. James A. Kosub, San Antonio, Tex., for plaintiff-appellant. George P. Parker, Jr., San Antonio, Tex., Julie D. Nelson, Denver, Colo., for defendant-appellee. Before POLITZ, GARWOOD and JOLLY, Circuit Judges. PER CURIAM: In this Texas diversity case, Steven Joa-chim appeals an adverse summary judgment dismissing his demand for damages for an alleged violation of an implied contract of employment. The issue on appeal is whether defendant’s employee handbook created contractual rights which removed Joachim’s employment from under the Texas employment-at-will provisions. The district court answered this inquiry in the negative. We affirm. Joachim was employed by A T & T as an associate account executive in San Antonio for one year beginning in February 1983. At the end of that period Joachim had not, in the judgment of his immediate supervisor, completed the requirements needed for certification as an account executive. As a consequence, Joachim was conditionally certified, placed on probation, and a sales quota was set for the ensuing 90 days. At the end of that period, Joachim had achieved only one-third of his assigned quota and his employment was terminated. Joachim maintains that he was subjected to job discrimination, including termination, because of his sexual preference — he is a homosexual. A T & T’s personnel handbook, which summarizes company policies, provides that sexual perference will not be used as a basis for job discrimination or termination. Following his dismissal, Joachim filed the instant suit. The sole question presented to the trial court and to this court on appeal is whether the employee handbook impliedly imposed contractual obligations on AT&T. In finding and concluding that the handbook did not create any contractual relationship altering Joachim’s at-will employment status, the district court primarily relied on Reynolds Mfg. Co. v. Mendoza, 644 S.W.2d 536 (Tex.App. — Corpus Christi 1982, no writ) as dispositive of Joachim’s claims. The Texas Court of Appeals there noted, id. at 538: It is well settled in Texas that, absent any existing contractual limitations, when an employment contract provides for an indefinite term of service, either party may put an end to it at will, with or without cause. The Texas appellate court went on to hold that absent an express reciprocal agreement dealing with procedures for discharge, employee handbooks “constituted no more than general guidelines,” id. at 539, and did not create a contractual right in the employees. That identical situation exists in the case now before us. Joachim was employed for an indefinite period after his year of training. He had no basis for challenging his discharge unless the employee handbook gave him a contractual right and imposed a concomitant obligation on A T & T. The holding and rationale of Reynolds belie Joachim’s argument. Joachim urges that Reynolds is not binding on a federal court sitting in diversity, see Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), maintaining that Reynolds would no longer be followed by the Texas courts, in light of jurisprudential developments in other states. Joachim cites no Texas cases rejecting Reynolds; indeed, he cannot since there is none. The sparse post-Reynolds authorities support the conclusion of the district judge, schooled and skilled in the law of Texas. See Totman v. Control Data Corp., 707 S.W.2d 739 (Tex. App. — Ft. Worth 1986, no writ); Vallone v. Agip Petroleum Co., Inc., 705 S.W.2d 757 (Tex.App. — Houston [1st Dist.] 1986, writ ref d N.R.E.). The district judge appropriately declined to predict a turnabout by the Texas courts and correctly applied settled Texas precedents. The judgment of the district court is AFFIRMED. Question: What is the general category of issues discussed in the opinion of the court? A. criminal and prisoner petitions B. civil - government C. diversity of citizenship D. civil - private E. other, not applicable F. not ascertained Answer:
sc_petitioner	097	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the petitioner of the case. The petitioner is the party who petitioned the Supreme Court to review the case. This party is variously known as the petitioner or the appellant. Characterize the petitioner as the Court's opinion identifies them. Identify the petitioner by the label given to the party in the opinion or judgment of the Court except where the Reports title a party as the "United States" or as a named state. Textual identification of parties is typically provided prior to Part I of the Court's opinion. The official syllabus, the summary that appears on the title page of the case, may be consulted as well. In describing the parties, the Court employs terminology that places them in the context of the specific lawsuit in which they are involved. For example, "employer" rather than "business" in a suit by an employee; as a "minority," "female," or "minority female" employee rather than "employee" in a suit alleging discrimination by an employer. Also note that the Court's characterization of the parties applies whether the petitioner is actually single entity or whether many other persons or legal entities have associated themselves with the lawsuit. That is, the presence of the phrase, et al., following the name of a party does not preclude the Court from characterizing that party as though it were a single entity. Thus, identify a single petitioner, regardless of how many legal entities were actually involved. If a state (or one of its subdivisions) is a party, note only that a state is a party, not the state's name. WYATT v. UNITED STATES. No. 119. Argued January 13, 1960. Decided May 16, 1960. Robert R. Rissman and Fred Okrand argued the cause for petitioner. With Mr. Rissman on the brief was A. L. Wirin. Roger G. Connor argued the cause for the United States. With him on the brief were Solicitor General Rankin, Assistant Attorney General Wilkey, Beatrice Rosenberg and Kirby W. Patterson. Mr. Justice Harlan delivered the opinion of the Court. Petitioner was tried and convicted of knowingly transporting a woman in interstate commerce for the purpose of prostitution, in violation of the White Slave Traffic Act, 18 U. S. C. § 2421. At the trial, the woman, who had since the date of the offense married the petitioner, was ordered, over her objection and that of the petitioner, to testify on behalf of the prosecution. The Court of Appeals, on appeal from a judgment of conviction, affirmed the ruling of the District Court. 263 F. 2d 304. As the case presented significant issues concerning the scope and nature of the privilege against adverse spousal testimony, treated last Term in Hawkins v. United States, 358 U. S. 74, we granted certiorari. 360 U. S. 908. We affirm the judgment. First. Our decision in Hawkins established, for the federal courts, the continued validity of the common-law rule of evidence ordinarily permitting a party to exclude the adverse testimony of his or her spouse. However, as that case expressly acknowledged, the common law has long recognized an exception in the case of certain kinds of offenses committed by the party against his, spouse. Id., at 75, citing Stein v. Bowman, 13 Pet. 209, 221. Exploration of the precise breadth of this exception, a matter of some uncertainty, see 8 Wigmore, Evidence (3d ed.), § 2239, can await a case, where it is necessary. For present purposes it is enough to note that every Court of Appeals which has considered the specific question now holds that the exception, and not the rule, applies to a Mann Act prosecution, where the defendant’s wife was the victim of the offense. Such unanimity with respect to a rule of evidence lends weighty credentials to that view. While this Court has never before decided the question, we now unhesitatingly approve the rule followed in five different Circuits. We need not embark upon an extended consideration of the asserted bases for the spousal privilege (see Hawkins, supra, at 77-78; Wigmore, op. cit., supra, § 2228 (3)) and an appraisal of the applicability of each here, id., § 2239, for it cannot be seriously argued that one who has committed this “shameless offense against wifehood,” id., at p. 257, should be permitted to prevent his wife from testifying to the crime by invoking an interest founded on the marital relation or the desire of the law to protect it. Petitioner’s attempt to prevent his wife from testifying, by invoking an asserted privilege of his own, was properly rejected. Second. The witness-wife, however, did not testify willingly, but objected to being questioned by the prosecution, and gave evidence only upon the ruling of the District Court denying her- claimed privilege not to testify. We therefore consider the correctness of that ruling. The United States argues that, once having held, as we do, that in such a case as this the petitioner’s wife could not be prevented from testifying voluntarily, Hawkins establishes that she may be compelled to testify. For, it is said, that case specifically rejected any distinction between voluntary and compelled testimony. 358 U. S., at 77. This argument fails to take account of the setting of our decision in Hawkins. To say that a witness-spouse may be prevented from testifying voluntarily simply means that the party has a privilege to exclude the testimony ; when, on the other hand, the spouse may not be compelled to testify against her will, it is the witness who is accorded a privilege. In Hawkins, the Government took the position that the spousal privilege should be that of the witness, and not that of the party, so that while the wife could decline to testify, she could not be prevented from giving evidence if she elected not to claim a privilege which, it was said, belonged to her alone. Brief for the United States, No. 20, O. T. 1958, pp. 22-43. In declining to hold that the party had no privilege, we manifestly did not thereby repudiate the privilege of the witness. While the question has not often arisen, it has apparently been generally assumed that the privilege resided in the witness as well as in the party. Hawkins referred to “a rule which bars the testimony of one spouse against the other unless both consent,” supra, at 78. (Emphasis supplied.) See Stein v. Bowman, supra, at 223 (wife cannot “by force of authority be compelled to state facts in evidence”); United States v. Mitchell, supra, at 1008 (“the better view is that the privilege is that of either spouse who chooses to claim it”); Wigmore, op. cit., supra, § 2241; McCormick, Evidence, § 66, n. 3. In its Hawkins brief, the Government, while calling for the abolition of the party’s privilege, urged that the common-law development could be explained, and its policies fully vindicated, by recognition of the privilege of the witness. Brief, pp. 22-25, 33, 42-43; see Hawkins, supra, at 77, and concurring opinion, at 82. At least some of the bases of the party’s privilege are in reason applicable to that of the witness. As Wigmore puts it, op. cit., supra, at p. 264: “[W]hile the defendant-husband is entitled to be protected against condemnation through the wife’s testimony, the witness-wife is also entitled to be protected against becoming the instrument of that condemnation, — the sentiment in each case being equal in degree and yet different in quality.” In light of these considerations, we decline to accept the view that the privilege is that of the party alone. Third. Neither can we hold that, whenever the privilege is unavailable to the party, it is ipso facto lost to the witness as well. It is a question in each case, or in each category of cases, whether, in light of the reason which has led to a refusal to recognize the party’s privilege, the witness should be held compellable. Certainly, we would not be justified in laying down a general rule that both privileges stand or fall together. We turn instead to the particular situation at bar. Where a man has prostituted his own wife, he has committed an offense against both her and the marital relation, and we have today affirmed the exception disabling him from excluding her testimony against him. It is suggested, however, that this exception has no application to the witness-wife when she chooses to remain silent. The exception to the party’s privilege, it is said, rests on the necessity of preventing the defendant from sealing his wife’s lips by his own unlawful act, see United States v. Mitchell, supra, at 1008-1009; Wigmore, op. cit., supra, § 2239, and it is argued that where the wife has chosen not to "become the instrument” of her husband’s downfall, it is her own privilege which is in question, and the reasons for according it to her in the first place are fully applicable. We must view this position in light of the congressional' judgment and policy embodied in the Mann Act. "A primary purpose of the Mann Act was to protect women who were weak from men who were bad.” Denning v. United States, 247 F. 463, 465. It was in response to shocking revelations of subjugation of women too weak to resist that Congress acted. See H. R. Rep. No. 47, 61st Cong., 2d Sess., pp. 10-11. As the legislative history discloses, the Act reflects the supposition that the women with whom it sought to deal often had no independent will of their own, and embodies, in effect, the view that they must be protected against themselves. Compare 18 U. S. C. § 2422 (consent of woman immaterial in prosecution under that section). It is not for us to re-examine the basis of that supposition. Applying the legislative judgment underlying the Act, we are led to hold it not an allowable choice for a prostituted witness-wife "voluntarily” to decide to protect her husband by declining to testify against him. For if a defendant can induce a woman, against her "will,” to enter a life of prostitution for his benefit — and the Act rests on the view that he can — by the same token it should be considered that he can, at least as easily, persuade one who has already fallen victim to his influence that she must also protect him. To make matters turn upon ad hoc inquiries into the actual state of mind of particular women, thereby encumbering Mann Act trials with a collateral issue of the greatest subtlety, is hardly an acceptable solution. Fourth. What we have already said likewise governs the disposition of the petitioner’s reliance on the fact that his marriage took place after the commission of the offense. Again, we deal here only with a Mann Act prosecution, and intimate no view on the applicability of the privilege of either a party or a witness similarly circumstanced in other situations. The legislative assumption of lack of independent will applies as fully here. As the petitioner by his power over the witness could, as we have considered should be assumed, have secured her promise not to testify, so, it should be assumed, could he have induced her to go through a marriage ceremony with him, perhaps “in contemplation of evading justice by reason of the very rule which is now sought to be invoked.” United States v. Williams, 55 F. Supp. 375, 380. The ruling of the District Court was correctly upheld by the Court of Appeals. . Affirmed. Although the record is ambiguous as to the fact and time of petitioner’s marriage, we shall consider established, as the Court of Appeals did, the sequence of events stated in the text. Further, the Court of Appeals noted that, while the record did not clearly establish that the petitioner, as well as his wife, claimed a privilege with respect to her testimony, it would assume that he had. 263 F. 2d 304, 308. We accept that assumption. United States v. Mitchell, 137 F. 2d 1006 (C. A. 2d Cir.); Levine v. United States, 163 F. 2d 992 (C. A. 5th Cir.); Shores v. United States, 174 F. 2d 838 (C. A. 8th Cir.), overruling Johnson v. United States, 221 F. 250; Pappas v. United States, 241 F. 665 (C. A. 9th Cir.); Hayes v. United States, 168 F. 2d 996 (C. A. 10th Cir.). The United States does not question the standing of petitioner to seek reversal because of the allegedly erroneous refusal to respect the privilege of his wife. Since such testimony, even if wrongly compelled, is per se admissible, Funk v. United States, 290 U. S. 371, and relevant, it has been argued that the party has suffered no injury of which he may complain. Wigmore, op. cit., supra, § 2196 (2) (a); McCormick, Evidence, §73; Uniform Rules of Evidence, Rule 40; Am. L. Inst. Model Code of Evidence, Rule 234; Note, 30 Col. L. Rev. 686, 693-694. See, e. g., Turner v. State, 60 Miss. 351,353. However, as the point has not been briefed or argued, we have thought it appropriate, in view of our disposition of the case on the merits, not to consider the issue of standing, and of course intimate no view on it. Funk v. United States, supra, abolished, for the federal courts, the disqualification or incompetence of the spouse as a witness, thus establishing the admissibility of his or her testimony, and leaving the question one of privilege only. The petitioner’s further assertion, that apart from the testimony of the wife there was insufficient corroboration of his admission of transportation, thus fails by its own assumption. Question: Who is the petitioner of the case? 001. attorney general of the United States, or his office 002. specified state board or department of education 003. city, town, township, village, or borough government or governmental unit 004. state commission, board, committee, or authority 005. county government or county governmental unit, except school district 006. court or judicial district 007. state department or agency 008. governmental employee or job applicant 009. female governmental employee or job applicant 010. minority governmental employee or job applicant 011. minority female governmental employee or job applicant 012. not listed among agencies in the first Administrative Action variable 013. retired or former governmental employee 014. U.S. House of Representatives 015. interstate compact 016. judge 017. state legislature, house, or committee 018. local governmental unit other than a county, city, town, township, village, or borough 019. governmental official, or an official of an agency established under an interstate compact 020. state or U.S. supreme court 021. local school district or board of education 022. U.S. Senate 023. U.S. senator 024. foreign nation or instrumentality 025. state or local governmental taxpayer, or executor of the estate of 026. state college or university 027. United States 028. State 029. person accused, indicted, or suspected of crime 030. advertising business or agency 031. agent, fiduciary, trustee, or executor 032. airplane manufacturer, or manufacturer of parts of airplanes 033. airline 034. distributor, importer, or exporter of alcoholic beverages 035. alien, person subject to a denaturalization proceeding, or one whose citizenship is revoked 036. American Medical Association 037. National Railroad Passenger Corp. 038. amusement establishment, or recreational facility 039. arrested person, or pretrial detainee 040. attorney, or person acting as such;includes bar applicant or law student, or law firm or bar association 041. author, copyright holder 042. bank, savings and loan, credit union, investment company 043. bankrupt person or business, or business in reorganization 044. establishment serving liquor by the glass, or package liquor store 045. water transportation, stevedore 046. bookstore, newsstand, printer, bindery, purveyor or distributor of books or magazines 047. brewery, distillery 048. broker, stock exchange, investment or securities firm 049. construction industry 050. bus or motorized passenger transportation vehicle 051. business, corporation 052. buyer, purchaser 053. cable TV 054. car dealer 055. person convicted of crime 056. tangible property, other than real estate, including contraband 057. chemical company 058. child, children, including adopted or illegitimate 059. religious organization, institution, or person 060. private club or facility 061. coal company or coal mine operator 062. computer business or manufacturer, hardware or software 063. consumer, consumer organization 064. creditor, including institution appearing as such; e.g., a finance company 065. person allegedly criminally insane or mentally incompetent to stand trial 066. defendant 067. debtor 068. real estate developer 069. disabled person or disability benefit claimant 070. distributor 071. person subject to selective service, including conscientious objector 072. drug manufacturer 073. druggist, pharmacist, pharmacy 074. employee, or job applicant, including beneficiaries of 075. employer-employee trust agreement, employee health and welfare fund, or multi-employer pension plan 076. electric equipment manufacturer 077. electric or hydroelectric power utility, power cooperative, or gas and electric company 078. eleemosynary institution or person 079. environmental organization 080. employer. If employer's relations with employees are governed by the nature of the employer's business (e.g., railroad, boat), rather than labor law generally, the more specific designation is used in place of Employer. 081. farmer, farm worker, or farm organization 082. father 083. female employee or job applicant 084. female 085. movie, play, pictorial representation, theatrical production, actor, or exhibitor or distributor of 086. fisherman or fishing company 087. food, meat packing, or processing company, stockyard 088. foreign (non-American) nongovernmental entity 089. franchiser 090. franchisee 091. lesbian, gay, bisexual, transexual person or organization 092. person who guarantees another's obligations 093. handicapped individual, or organization of devoted to 094. health organization or person, nursing home, medical clinic or laboratory, chiropractor 095. heir, or beneficiary, or person so claiming to be 096. hospital, medical center 097. husband, or ex-husband 098. involuntarily committed mental patient 099. Indian, including Indian tribe or nation 100. insurance company, or surety 101. inventor, patent assigner, trademark owner or holder 102. investor 103. injured person or legal entity, nonphysically and non-employment related 104. juvenile 105. government contractor 106. holder of a license or permit, or applicant therefor 107. magazine 108. male 109. medical or Medicaid claimant 110. medical supply or manufacturing co. 111. racial or ethnic minority employee or job applicant 112. minority female employee or job applicant 113. manufacturer 114. management, executive officer, or director, of business entity 115. military personnel, or dependent of, including reservist 116. mining company or miner, excluding coal, oil, or pipeline company 117. mother 118. auto manufacturer 119. newspaper, newsletter, journal of opinion, news service 120. radio and television network, except cable tv 121. nonprofit organization or business 122. nonresident 123. nuclear power plant or facility 124. owner, landlord, or claimant to ownership, fee interest, or possession of land as well as chattels 125. shareholders to whom a tender offer is made 126. tender offer 127. oil company, or natural gas producer 128. elderly person, or organization dedicated to the elderly 129. out of state noncriminal defendant 130. political action committee 131. parent or parents 132. parking lot or service 133. patient of a health professional 134. telephone, telecommunications, or telegraph company 135. physician, MD or DO, dentist, or medical society 136. public interest organization 137. physically injured person, including wrongful death, who is not an employee 138. pipe line company 139. package, luggage, container 140. political candidate, activist, committee, party, party member, organization, or elected official 141. indigent, needy, welfare recipient 142. indigent defendant 143. private person 144. prisoner, inmate of penal institution 145. professional organization, business, or person 146. probationer, or parolee 147. protester, demonstrator, picketer or pamphleteer (non-employment related), or non-indigent loiterer 148. public utility 149. publisher, publishing company 150. radio station 151. racial or ethnic minority 152. person or organization protesting racial or ethnic segregation or discrimination 153. racial or ethnic minority student or applicant for admission to an educational institution 154. realtor 155. journalist, columnist, member of the news media 156. resident 157. restaurant, food vendor 158. retarded person, or mental incompetent 159. retired or former employee 160. railroad 161. private school, college, or university 162. seller or vendor 163. shipper, including importer and exporter 164. shopping center, mall 165. spouse, or former spouse 166. stockholder, shareholder, or bondholder 167. retail business or outlet 168. student, or applicant for admission to an educational institution 169. taxpayer or executor of taxpayer's estate, federal only 170. tenant or lessee 171. theater, studio 172. forest products, lumber, or logging company 173. person traveling or wishing to travel abroad, or overseas travel agent 174. trucking company, or motor carrier 175. television station 176. union member 177. unemployed person or unemployment compensation applicant or claimant 178. union, labor organization, or official of 179. veteran 180. voter, prospective voter, elector, or a nonelective official seeking reapportionment or redistricting of legislative districts (POL) 181. wholesale trade 182. wife, or ex-wife 183. witness, or person under subpoena 184. network 185. slave 186. slave-owner 187. bank of the united states 188. timber company 189. u.s. job applicants or employees 190. Army and Air Force Exchange Service 191. Atomic Energy Commission 192. Secretary or administrative unit or personnel of the U.S. Air Force 193. Department or Secretary of Agriculture 194. Alien Property Custodian 195. Secretary or administrative unit or personnel of the U.S. Army 196. Board of Immigration Appeals 197. Bureau of Indian Affairs 198. Bonneville Power Administration 199. Benefits Review Board 200. Civil Aeronautics Board 201. Bureau of the Census 202. Central Intelligence Agency 203. Commodity Futures Trading Commission 204. Department or Secretary of Commerce 205. Comptroller of Currency 206. Consumer Product Safety Commission 207. Civil Rights Commission 208. Civil Service Commission, U.S. 209. Customs Service or Commissioner of Customs 210. Defense Base Closure and REalignment Commission 211. Drug Enforcement Agency 212. Department or Secretary of Defense (and Department or Secretary of War) 213. Department or Secretary of Energy 214. Department or Secretary of the Interior 215. Department of Justice or Attorney General 216. Department or Secretary of State 217. Department or Secretary of Transportation 218. Department or Secretary of Education 219. U.S. Employees' Compensation Commission, or Commissioner 220. Equal Employment Opportunity Commission 221. Environmental Protection Agency or Administrator 222. Federal Aviation Agency or Administration 223. Federal Bureau of Investigation or Director 224. Federal Bureau of Prisons 225. Farm Credit Administration 226. Federal Communications Commission (including a predecessor, Federal Radio Commission) 227. Federal Credit Union Administration 228. Food and Drug Administration 229. Federal Deposit Insurance Corporation 230. Federal Energy Administration 231. Federal Election Commission 232. Federal Energy Regulatory Commission 233. Federal Housing Administration 234. Federal Home Loan Bank Board 235. Federal Labor Relations Authority 236. Federal Maritime Board 237. Federal Maritime Commission 238. Farmers Home Administration 239. Federal Parole Board 240. Federal Power Commission 241. Federal Railroad Administration 242. Federal Reserve Board of Governors 243. Federal Reserve System 244. Federal Savings and Loan Insurance Corporation 245. Federal Trade Commission 246. Federal Works Administration, or Administrator 247. General Accounting Office 248. Comptroller General 249. General Services Administration 250. Department or Secretary of Health, Education and Welfare 251. Department or Secretary of Health and Human Services 252. Department or Secretary of Housing and Urban Development 253. Interstate Commerce Commission 254. Indian Claims Commission 255. Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement 256. Internal Revenue Service, Collector, Commissioner, or District Director of 257. Information Security Oversight Office 258. Department or Secretary of Labor 259. Loyalty Review Board 260. Legal Services Corporation 261. Merit Systems Protection Board 262. Multistate Tax Commission 263. National Aeronautics and Space Administration 264. Secretary or administrative unit of the U.S. Navy 265. National Credit Union Administration 266. National Endowment for the Arts 267. National Enforcement Commission 268. National Highway Traffic Safety Administration 269. National Labor Relations Board, or regional office or officer 270. National Mediation Board 271. National Railroad Adjustment Board 272. Nuclear Regulatory Commission 273. National Security Agency 274. Office of Economic Opportunity 275. Office of Management and Budget 276. Office of Price Administration, or Price Administrator 277. Office of Personnel Management 278. Occupational Safety and Health Administration 279. Occupational Safety and Health Review Commission 280. Office of Workers' Compensation Programs 281. Patent Office, or Commissioner of, or Board of Appeals of 282. Pay Board (established under the Economic Stabilization Act of 1970) 283. Pension Benefit Guaranty Corporation 284. U.S. Public Health Service 285. Postal Rate Commission 286. Provider Reimbursement Review Board 287. Renegotiation Board 288. Railroad Adjustment Board 289. Railroad Retirement Board 290. Subversive Activities Control Board 291. Small Business Administration 292. Securities and Exchange Commission 293. Social Security Administration or Commissioner 294. Selective Service System 295. Department or Secretary of the Treasury 296. Tennessee Valley Authority 297. United States Forest Service 298. United States Parole Commission 299. Postal Service and Post Office, or Postmaster General, or Postmaster 300. United States Sentencing Commission 301. Veterans' Administration 302. War Production Board 303. Wage Stabilization Board 304. General Land Office of Commissioners 305. Transportation Security Administration 306. Surface Transportation Board 307. U.S. Shipping Board Emergency Fleet Corp. 308. Reconstruction Finance Corp. 309. Department or Secretary of Homeland Security 310. Unidentifiable 311. International Entity Answer:
sc_issue_4	A	What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue of the Court's decision. Determine the issue of the case on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. James K. KAHLER, Petitioner v. KANSAS No. 18-6135 Supreme Court of the United States. Argued October 7, 2019 Decided March 23, 2020 Derek Schmidt, Attorney General of Kansas, Jeffrey A. Chanay, Chief Deputy Attorney, General, Toby Crouse, Solicitor General of Kansas, Kristafer Ailslieger, Brant M. Laue, Deputy Solicitors General, Dwight R. Carswell, Natalie Chalmers, Rachel L. Pickering, Assistant Solicitors General, Topeka, KS, for Respondent. Jeffrey T. Green, Tobias S. Loss-Eaton, Lucas Croslow, Chike B. Croslin, Gabriel Schonfeld, Sidley Austin LLP, Washington, DC, Naomi Igra, Sidley Austin LLP, San Francisco, CA, Sarah O'Rourke Schrup, Northwestern Supreme, Court Practicum, Chicago, IL, Meryl Carver-Allmond, Clayton J. Perkins, Capital Appellate, Defender Office, for Petitioner. Justice KAGAN delivered the opinion of the Court. This case is about Kansas's treatment of a criminal defendant's insanity claim. In Kansas, a defendant can invoke mental illness to show that he lacked the requisite mens rea (intent) for a crime. He can also raise mental illness after conviction to justify either a reduced term of imprisonment or commitment to a mental health facility. But Kansas, unlike many States, will not wholly exonerate a defendant on the ground that his illness prevented him from recognizing his criminal act as morally wrong. The issue here is whether the Constitution's Due Process Clause forces Kansas to do so-otherwise said, whether that Clause compels the acquittal of any defendant who, because of mental illness, could not tell right from wrong when committing his crime. We hold that the Clause imposes no such requirement. I A In Clark v. Arizona , 548 U.S. 735, 749, 126 S.Ct. 2709, 165 L.Ed.2d 842 (2006), this Court catalogued state insanity defenses, counting four "strains variously combined to yield a diversity of American standards" for when to absolve mentally ill defendants of criminal culpability. The first strain asks about a defendant's "cognitive capacity"-whether a mental illness left him "unable to understand what he [was] doing" when he committed a crime. Id. , at 747, 749, 126 S.Ct. 2709. The second examines his "moral capacity"-whether his illness rendered him "unable to understand that his action [was] wrong." Ibid. Those two inquiries, Clark explained, appeared as alternative pathways to acquittal in the landmark English ruling M'Naghten's Case , 10 Cl. & Fin. 200, 8 Eng. Rep. 718 (H. L. 1843), as well as in many follow-on American decisions and statutes: If the defendant lacks either cognitive or moral capacity, he is not criminally responsible for his behavior. Yet a third "building block[ ]" of state insanity tests, gaining popularity from the mid-19th century on, focuses on "volitional incapacity"-whether a defendant's mental illness made him subject to "irresistible[ ] impulse[s]" or otherwise unable to "control[ ] his actions." Clark , 548 U.S. at 749, 750, n. 11, 126 S.Ct. 2709 ; see, e.g. , Parsons v. State , 81 Ala. 577, 597, 2 So. 854, 866-867 (1887). And bringing up the rear, in Clark 's narration, the "product-of-mental-illness test" broadly considers whether the defendant's criminal act stemmed from a mental disease. 548 U.S. at 749-750, 126 S.Ct. 2709. As Clark explained, even that taxonomy fails to capture the field's complexity. See id. , at 750, n. 11, 126 S.Ct. 2709. Most notable here, M'Naghten 's "moral capacity" prong later produced a spinoff, adopted in many States, that does not refer to morality at all. Instead of examining whether a mentally ill defendant could grasp that his act was immoral , some jurisdictions took to asking whether the defendant could understand that his act was illegal . Compare, e.g. , People v. Schmidt , 216 N.Y. 324, 333-334, 110 N.E. 945, 947 (1915) (Cardozo, J.) (asking about moral right and wrong), with, e.g. , State v. Hamann , 285 N.W.2d 180, 183 (Iowa 1979) (substituting ideas of legal right and wrong). That change in legal standard matters when a mentally ill defendant knew that his act violated the law yet believed it morally justified. See, e.g. , Schmidt , 216 N.Y. at 339, 110 N.E. at 949 ; People v. Serravo , 823 P.2d 128, 135 (Colo. 1992). Kansas law provides that "[i]t shall be a defense to a prosecution under any statute that the defendant, as a result of mental disease or defect, lacked the culpable mental state required as an element of the offense charged." Kan. Stat. Ann. § 21-5209 (2018 Cum. Supp.). Under that statute, a defendant may introduce any evidence of any mental illness to show that he did not have the intent needed to commit the charged crime. Suppose, for example, that the defendant shot someone dead and goes on trial for murder. He may then offer psychiatric testimony that he did not understand the function of a gun or the consequences of its use-more generally stated, "the nature and quality" of his actions. M'Naghten , 10 Cl. & Fin., at 210, 8 Eng. Rep., at 722. And a jury crediting that testimony must acquit him. As everyone here agrees, Kansas law thus uses M'Naghten 's "cognitive capacity" prong-the inquiry into whether a mentally ill defendant could comprehend what he was doing when he committed a crime. See Brief for Petitioner 41; Brief for Respondent 31; Brief for United States as Amicus Curiae 18. If the defendant had no such capacity, he could not form the requisite intent-and thus is not criminally responsible. At the same time, the Kansas statute provides that "[m]ental disease or defect is not otherwise a defense." § 21-5209. In other words, Kansas does not recognize any additional way that mental illness can produce an acquittal. Most important for this case, a defendant's moral incapacity cannot exonerate him, as it would if Kansas had adopted both original prongs of M'Naghten . Assume, for example, that a defendant killed someone because of an "insane delusion that God ha[d] ordained the sacrifice." Schmidt , 216 N.Y. at 339, 110 N.E. at 949. The defendant knew what he was doing (killing another person), but he could not tell moral right from wrong; indeed, he thought the murder morally justified. In many States, that fact would preclude a criminal conviction, although it would almost always lead to commitment in a mental health facility. In Kansas, by contrast, evidence of a mentally ill defendant's moral incapacity-or indeed, of anything except his cognitive inability to form the needed mens rea -can play no role in determining guilt. That partly closed-door policy changes once a verdict is in. At the sentencing phase, a Kansas defendant has wide latitude to raise his mental illness as a reason to judge him not fully culpable and so to lessen his punishment. See §§ 21-6815(c)(1)(C), 21-6625(a). He may present evidence (of the kind M'Naghten deemed relevant) that his disease made him unable to understand his act's moral wrongness-as in the example just given of religious delusion. See § 21-6625(a). Or he may try to show (in line with M'Naghten 's spinoff) that the illness prevented him from "appreciat[ing] the [conduct's] criminality." § 21-6625(a)(6). Or again, he may offer testimony (here invoking volitional incapacity) that he simply could not "conform [his] conduct" to legal restraints. Ibid. Kansas sentencing law thus provides for an individualized determination of how mental illness, in any or all of its aspects, affects culpability. And the same kind of evidence can persuade a court to place a defendant who needs psychiatric care in a mental health facility rather than a prison. See § 22-3430. In that way, a defendant in Kansas lacking, say, moral capacity may wind up in the same kind of institution as a like defendant in a State that would bar his conviction. B This case arises from a terrible crime. In early 2009, Karen Kahler filed for divorce from James Kahler and moved out of their home with their two teenage daughters and 9-year-old son. Over the following months, James Kahler became more and more distraught. On Thanksgiving weekend, he drove to the home of Karen's grandmother, where he knew his family was staying. Kahler entered through the back door and saw Karen and his son. He shot Karen twice, while allowing his son to flee the house. He then moved through the residence, shooting Karen's grandmother and each of his daughters in turn. All four of his victims died. Kahler surrendered to the police the next day and was charged with capital murder. Before trial, Kahler filed a motion arguing that Kansas's treatment of insanity claims violates the Fourteenth Amendment's Due Process Clause. Kansas, he asserted, had "unconstitutionally abolished the insanity defense" by allowing the conviction of a mentally ill person "who cannot tell the difference between right and wrong." App. 11-12. The trial court denied the motion, leaving Kahler to attempt to show through psychiatric and other testimony that severe depression had prevented him from forming the intent to kill. See id. , at 16; § 21-5209. The jury convicted Kahler of capital murder. At the penalty phase, the court permitted Kahler to offer additional evidence of his mental illness and to argue in whatever way he liked that it should mitigate his sentence. The jury still decided to impose the death penalty. Kahler appealed, again challenging the constitutionality of Kansas's approach to insanity claims. The Kansas Supreme Court rejected his argument, relying on an earlier precedential decision. See 307 Kan. 374, 400-401, 410 P.3d 105, 124-125 (2018) (discussing State v. Bethel , 275 Kan. 456, 66 P.3d 840 (2003) ). There, the court denied that any single version of the insanity defense is so "ingrained in our legal system" as to count as "fundamental." Id. , at 473, 66 P.3d at 851. The court thus found that "[d]ue process does not mandate that a State adopt a particular insanity test." Ibid. Kahler then asked this Court to decide whether the Due Process Clause requires States to provide an insanity defense that acquits a defendant who could not "distinguish right from wrong" when committing his crime-or, otherwise put, whether that Clause requires States to adopt the moral-incapacity test from M'Naghten . Pet. for Cert. 18. We granted certiorari, 586 U.S. ----, 139 S.Ct. 1318, 203 L.Ed.2d 563 (2019), and now hold it does not. II A A challenge like Kahler's must surmount a high bar. Under well-settled precedent, a state rule about criminal liability-laying out either the elements of or the defenses to a crime-violates due process only if it "offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental." Leland v. Oregon , 343 U.S. 790, 798, 72 S.Ct. 1002, 96 L.Ed. 1302 (1952) (internal quotation marks omitted). Our primary guide in applying that standard is "historical practice." Montana v. Egelhoff , 518 U.S. 37, 43, 116 S.Ct. 2013, 135 L.Ed.2d 361 (1996) (plurality opinion). And in assessing that practice, we look primarily to eminent common-law authorities (Blackstone, Coke, Hale, and the like), as well as to early English and American judicial decisions. See, e.g. , id. , at 44-45, 116 S.Ct. 2013 ; Patterson v. New York , 432 U.S. 197, 202, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977). The question is whether a rule of criminal responsibility is so old and venerable-so entrenched in the central values of our legal system-as to prevent a State from ever choosing another. An affirmative answer, though not unheard of, is rare. See, e.g. , Clark , 548 U.S. at 752, 126 S.Ct. 2709 ("[T]he conceptualization of criminal offenses" is mostly left to the States). In Powell v. Texas , 392 U.S. 514, 88 S.Ct. 2145, 20 L.Ed.2d 1254 (1968), this Court explained why. There, Texas declined to recognize "chronic alcoholism" as a defense to the crime of public drunkenness. Id. , at 517, 88 S.Ct. 2145 (plurality opinion). The Court upheld that decision, emphasizing the paramount role of the States in setting "standards of criminal responsibility." Id. , at 533, 88 S.Ct. 2145. In refusing to impose "a constitutional doctrine" defining those standards, the Court invoked the many "interlocking and overlapping concepts" that the law uses to assess when a person should be held criminally accountable for "his antisocial deeds." Id. , at 535-536, 88 S.Ct. 2145. "The doctrines of actus reus , mens rea , insanity, mistake, justification, and duress"-the Court counted them off-reflect both the "evolving aims of the criminal law" and the "changing religious, moral, philosophical, and medical views of the nature of man." Id. , at 536, 88 S.Ct. 2145. Or said a bit differently, crafting those doctrines involves balancing and rebalancing over time complex and oft-competing ideas about "social policy" and "moral culpability"-about the criminal law's "practical effectiveness" and its "ethical foundations." Id. , at 538, 545, 548, 88 S.Ct. 2145 (Black, J., concurring). That "constantly shifting adjustment" could not proceed in the face of rigid "[c]onstitution[al] formulas." Id. , at 536-537, 88 S.Ct. 2145 (plurality opinion). Within broad limits, Powell thus concluded, "doctrine[s] of criminal responsibility" must remain "the province of the States." Id. , at 534, 536, 88 S.Ct. 2145. Nowhere has the Court hewed more closely to that view than in addressing the contours of the insanity defense. Here, uncertainties about the human mind loom large. See, e.g. , Ake v. Oklahoma , 470 U.S. 68, 81, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985) ("[P]sychiatrists disagree widely and frequently on what constitutes mental illness, on [proper] diagnos[es, and] on cure and treatment"). Even as some puzzles get resolved, others emerge. And those perennial gaps in knowledge intersect with differing opinions about how far, and in what ways, mental illness should excuse criminal conduct. See Clark , 548 U.S. at 749-752, 126 S.Ct. 2709 (canvassing how those competing views produced a wealth of insanity tests); supra , at 1024 - 1025. "This whole problem," we have noted, "has evoked wide disagreement." Leland , 343 U.S. at 801, 72 S.Ct. 1002. On such unsettled ground, we have hesitated to reduce "experimentation, and freeze [the] dialogue between law and psychiatry into a rigid constitutional mold." Powell , 392 U.S. at 536-537, 88 S.Ct. 2145. Indeed, while addressing the demand for an alcoholism defense in Powell , the Court pronounced-as something close to self-evident-that "[n]othing could be less fruitful" than to define a specific "insanity test in constitutional terms." Id. , at 536, 88 S.Ct. 2145. And twice before we have declined to do so. In Leland v. Oregon , a criminal defendant challenged as a violation of due process the State's use of the moral-incapacity test of insanity-the very test Kahler now asks us to require. See 343 U.S. at 800-801, 72 S.Ct. 1002. According to the defendant, Oregon instead had to adopt the volitional-incapacity (or irresistible-impulse) test to comply with the Constitution. See ibid. ; supra , at 1025. We rejected that argument. "[P]sychiatry," we first noted, "has made tremendous strides since [the moral-incapacity] test was laid down in M'Naghten's Case ," implying that the test seemed a tad outdated. 343 U.S. at 800-801, 72 S.Ct. 1002. But still, we reasoned, "the progress of science has not reached a point where its learning" would demand "eliminat[ing] the right and wrong test from [the] criminal law." Id. , at 801, 72 S.Ct. 1002. And anyway, we continued, the "choice of a test of legal sanity involves not only scientific knowledge but questions of basic policy" about when mental illness should absolve someone of "criminal responsibility." Ibid. The matter was thus best left to each State to decide on its own. The dissent agreed (while parting from the majority on another ground): "[I]t would be indefensible to impose upon the States[ ] one test rather than another for determining criminal culpability" for the mentally ill, "and thereby to displace a State's own choice." Id. , at 803, 72 S.Ct. 1002 (opinion of Frankfurter, J.). A half-century later, we reasoned similarly in Clark . There, the defendant objected to Arizona's decision to discard the cognitive-incapacity prong of M'Naghten and leave in place only the moral-incapacity one-essentially the flipside of what Kansas has done. Again, we saw no due process problem. Many States, we acknowledged, allowed a defendant to show insanity through either prong of M'Naghten . See 548 U.S. at 750, 126 S.Ct. 2709. But we denied that this approach "represents the minimum that a government must provide." Id. , at 748, 126 S.Ct. 2709. In so doing, we invoked the States' traditional "capacity to define crimes and defenses," and noted how views of mental illness had been particularly "subject to flux and disagreement." Id. , at 749, 752, 126 S.Ct. 2709. And then we surveyed the disparate ways that state laws had historically excused criminal conduct because of mental disease-those "strains variously combined to yield a diversity of American standards." See id. , at 749-752, 126 S.Ct. 2709 ; supra , at 1025. The takeaway was "clear": A State's "insanity rule[ ] is substantially open to state choice." Clark , 548 U.S. at 752, 126 S.Ct. 2709. Reiterating Powell ' s statement, Clark held that "no particular" insanity test serves as "a baseline for due process." 548 U.S. at 752, 126 S.Ct. 2709. Or said just a bit differently, that "due process imposes no single canonical formulation of legal insanity." Id. , at 753, 126 S.Ct. 2709. B Yet Kahler maintains that Kansas's treatment of insanity fails to satisfy due process. He sometimes makes his argument in the broadest of strokes, as he did before trial. See supra , at 1026 - 1027. Kansas, he then contends, has altogether "abolished the insanity defense," in disregard of hundreds of years of historical practice. Brief for Petitioner 39. His central claim, though, is more confined. It is that Kansas has impermissibly jettisoned the moral-incapacity test for insanity. See id. , at 1030 - 1031, 1037. As earlier noted, both Clark and Leland described that test as coming from M'Naghten . See 548 U.S. at 749, 126 S.Ct. 2709 ; 343 U.S. at 801, 72 S.Ct. 1002 ; supra , at 1025, 1028 - 1029. But according to Kahler (and the dissent), the moral-incapacity inquiry emerged centuries before that decision, thus forming part of the English common-law heritage this country inherited. See Brief for Petitioner 21, 42; post , at 1039 - 1045 (opinion of BREYER, J.). And the test, he claims, served for all that time-and continuing into the present-as the touchstone of legal insanity: If a defendant could not understand that his act was morally wrong, then he could not be found criminally liable. See Brief for Petitioner 20-23; see also post , at 1045. So Kahler concludes that the moral-incapacity standard is a "principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental." Leland , 343 U.S. at 798, 72 S.Ct. 1002 ; see supra , at 1030. In essence-and contra Clark -that test is the "single canonical formulation of legal insanity" and thus the irreducible "baseline for due process." 548 U.S. at 752-753, 126 S.Ct. 2709 ; see supra , at 1029. One point, first, of agreement: Kahler is right that for hundreds of years jurists and judges have recognized insanity (however defined) as relieving responsibility for a crime. "In criminal cases therefore," Sir William Blackstone wrote, "lunatics are not chargeable for their own acts, if committed when under these incapacities." 4 Commentaries on the Laws of England 24 (1769). Sir Edward Coke even earlier explained that in criminal cases, "the act and wrong of a mad man shall not be imputed to him." 2 Institutes of the Laws of England § 405, p. 247b (1628) (Coke). And so too Henry de Bracton thought that a "madman" could no sooner be found criminally liable than a child. 2 Bracton on Laws and Customs of England 384 (S. Thorne transl. 1968) (Bracton). That principle of non-culpability appeared in case after case involving allegedly insane defendants, on both sides of the Atlantic. "The defense of insanity[ ] is a defense for all crimes[,] from the highest to the lowest," said the Court in Old Bailey. Trial of Samuel Burt (July 19, 1786), in 6 Proceedings in the Old Bailey 874 (E. Hodgson ed. 1788) (Old Bailey Proceedings). Repeated Justice Story, when riding circuit: "In general, insanity is an excuse for the commission of every crime, because the party has not the possession of that reason, which includes responsibility." United States v. Drew , 25 F.Cas. 913, (No. 14993) (CC Mass. 1828); see also, e.g. , State v. Marler , 2 Ala. 43, 49 (1841) ("If the prisoner was insane, he was not an accountable being"); Cornwell v. State , 8 Tenn. 147, 156 (1827) ("[P]erfect madness" will "free a man from punishment for crime"). We have not found a single case to the contrary. But neither do we think Kansas departs from that broad principle. First, Kansas has an insanity defense negating criminal liability-even though not the type Kahler demands. As noted earlier, Kansas law provides that it is "a defense to a prosecution" that "the defendant, as a result of mental disease or defect, lacked the culpable mental state required" for a crime. § 21-5209 ; see supra , at 1025. That provision enables a defendant to present psychiatric and other evidence of mental illness to defend himself against a criminal charge. More specifically, the defendant can use that evidence to show that his illness left him without the cognitive capacity to form the requisite intent. See supra , at 1025 - 1026. Recall that such a defense was exactly what the defendant in Clark wanted, in preference to Arizona's moral-incapacity defense: His (unsuccessful) appeal rested on the trial court's exclusion of psychiatric testimony to show that he lacked the relevant mens rea . See 548 U.S. at 745-747, 126 S.Ct. 2709 ; supra , at 1029. Here, Kahler could do what Clark could not-try to show through such testimony that he had no intent to kill. Of course, Kahler would have preferred Arizona's kind of insanity defense (just as Clark would have liked Kansas's). But that does not mean that Kansas (any more than Arizona) failed to offer any insanity defense at all. Second, and significantly, Kansas permits a defendant to offer whatever mental health evidence he deems relevant at sentencing. See §§ 21-6815(c)(1)(C), 21-6625(a); supra , at 1026. A mentally ill defendant may argue there that he is not blameworthy because he could not tell the difference between right and wrong. Or, because he did not know his conduct broke the law. Or, because he could not control his behavior. Or, because of anything else. In other words, any manifestation of mental illness that Kansas's guilt-phase insanity defense disregards-including the moral incapacity Kahler highlights-can come in later to mitigate culpability and lessen punishment. And that same kind of evidence can persuade a judge to replace any prison term with commitment to a mental health facility. See § 22-3430; supra , at 1039 - 1040. So as noted above, a defendant arguing moral incapacity may well receive the same treatment in Kansas as in States that would acquit-and, almost certainly, commit-him for that reason. See supra , at 1026 - 1027. In sum, Kansas does not bar, but only channels to sentencing, the mental health evidence that falls outside its intent-based insanity defense. When combined with Kansas's allowance of mental health evidence to show a defendant's inability to form criminal intent, that sentencing regime defeats Kahler's charge that the State has "abolish[ed] the insanity defense entirely." Brief for Petitioner 39. So Kahler can prevail here only if he can show (again, contra Clark ) that due process demands a specific test of legal insanity-namely, whether mental illness prevented a defendant from understanding his act as immoral. Kansas, as we have explained, does not use that type of insanity rule. See supra , at 1025 - 1026. If a mentally ill defendant had enough cognitive function to form the intent to kill, Kansas law directs a conviction even if he believed the murder morally justified. In Kansas's judgment, that delusion does not make an intentional killer entirely blameless. See Brief for Respondent 40. Rather than eliminate, it only lessens the defendant's moral culpability. See ibid. And sentencing is the appropriate place to consider mitigation: The decisionmaker there can make a nuanced evaluation of blame, rather than choose, as a trial jury must, between all and nothing. See ibid. In any event, so Kansas thinks. Those views are contested and contestable; other States-many others-have made a different choice. But Kahler must show more than that. He must show that adopting the moral-incapacity version of the insanity rule is not a choice at all-because, again, that version is "so rooted in the traditions and conscience of our people as to be ranked as fundamental." Leland , 343 U.S. at 798, 72 S.Ct. 1002. And he cannot. The historical record is, on any fair reading, complex-even messy. As we will detail, it reveals early versions of not only Kahler's proposed standard but also Kansas's alternative. Early commentators on the common law proposed various formulations of the insanity defense, with some favoring a morality inquiry and others a mens rea approach. Kahler cites William Lambard's 16th-century treatise defining a "mad man" as one who "hath no knowledge of good nor evil" (the right and wrong of the day). Eirenarcha, ch. 21, p. 218 (1581). He likewise points to William Hawkins's statement, over a hundred years later, that a "lunatick[ ]" is not punishable because "under a natural disability of distinguishing between good and evil." 1 Pleas of the Crown § 1, p. 2 (1716) (capitalization omitted). Both true enough. But other early versions of the insanity test-and from a more famous trio of jurists-demanded the kind of cognitive impairment that prevented a defendant from understanding the nature of his acts, and thus intending his crime. Henry de Bracton's 13th-century treatise gave rise to what became known as the "wild beast" test. See J. Biggs, The Guilty Mind 82 (1955). Used for hundreds of years, it likened a "madman" to an "animal[ ] which lack[s] reason" and so could not have "the intention to injure." Bracton 384; see ibid. (A "madman" cannot commit a crime because "[i]t is will and purpose which mark" misdeeds). Sir Edward Coke similarly linked the definition of insanity to a defendant's inability to form criminal intent. He described a legally insane person in 1628 as so utterly "without his mind or discretion" that he could not have the needed mens rea . 2 Coke § 405, at 247b. So too Lord Matthew Hale a century later. He explained that insanity involves "a total alienation of the mind or perfect madness," such that a defendant could not act "animo felonico ," meaning with felonious intent. 1 Pleas of the Crown, ch. 4, pp. 30, 37 (1736); see id. , at 37 ("[F]or being under a full alienation of mind, he acts not per electionem or intentionem [by choice or intent]"). Quite a few of the old common-law cases similarly stressed the issue of cognitive capacity. To be sure, even these cases included some references to the ability to tell right from wrong (and the dissent eagerly cherry-picks every one of them). But the decisions' overall focus was less on whether a defendant thought his act moral than on whether he had the ability to do much thinking at all. In the canonical case of Rex v. Arnold , 16 How. St. Tr. 695 (1724), for example, the jury charge descended straight from Bracton: "[I]t is not every kind of frantic humour or something unaccountable in a man's actions, that points him out to be such a madman as is to be exempted from punishment: it must be a man that is totally deprived of his understanding and memory, and doth not know what he is doing, no more than an infant, than a brute, or a wild beast." Id. , at 764-765. And the court offered an accompanying test linking that lack of reason to mens rea : If a man is "deprived of his reason, and consequently of his intention, he cannot be guilty." Id. , at 764; see ibid. (defining a "madman" as a "person that hath no design"); see also Trial of William Walker (Apr. 21, 1784), in 4 Old Bailey Proceedings 544, 547 (asking whether the defendant had a "distemper of mind which had deprived him of the use of his reason" or instead whether "he knew what he was doing [and] meant to do it"); Beverley's Case , 4 Co. Rep. 123b, 124b, 76 Eng. Rep. 1118, 1121 (K. B. 1603) (asking whether a man "is deprived of reason and understanding" and so "cannot have a felonious intent"). The House of Lords used much the same standard in Rex v. Lord Ferrers , 19 How. St. Tr. 886 (1760), when sitting in judgment on one of its members. There, the Solicitor General told the Lords to address "the capacity and intention of the noble prisoner." Id. , at 948. Relying heavily on Hale's treatise, he defined the legally insane as suffering from an "alienation of mind" and a "total[ ] want of reason." Id. , at 947. And in recapping the evidence on that issue, he asked about the defendant Question: What is the issue of the decision? A. due process: miscellaneous (cf. loyalty oath), the residual code B. due process: hearing or notice (other than as pertains to government employees or prisoners' rights) C. due process: hearing, government employees D. due process: prisoners' rights and defendants' rights E. due process: impartial decision maker F. due process: jurisdiction (jurisdiction over non-resident litigants) G. due process: takings clause, or other non-constitutional governmental taking of property Answer:
sc_issue_10	F	What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue of the Court's decision. Determine the issue of the case on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. UNITED STATES et al. v. BOYD, COMMISSIONER. No. 185. Argued April 20-21, 1964. Decided June 15, 1964. Solicitor General Cox and R. R. Kramer argued the cause for the United States et al. With them on the brief were Assistant Attorney General Oberdorjer, Philip B. Heymann, I. Henry Kutz, George F. Lynch, Joseph F. Hennessey, Charles W. Hill and Jackson C. Kramer. Milton P. Rice, Assistant Attorney General of Tennessee, argued the cause for appellee. With him on the brief were George F. McCanless, Attorney General of Tennessee, and Walker T. Tipton, Assistant Attorney General. Mr. Justice White delivered the opinion of the Court. In Carson v. Roane-Anderson Co., 342 U. S. 232, it was held that § 9 (b) of the Atomic Energy Act barred the collection of the Tennessee sales and use tax in connection with sales to private companies of personal property used by them in fulfilling their contracts with the Atomic Energy Commission. In 1953, Congress repealed the statutory immunity for activities and properties of the AEC contained in § 9 (b) in order to place Atomic Energy Commission contractors on the same footing as other contractors performing work for the Government. In 1955 Tennessee amended its statute by adding a contractor’s use tax which imposes a tax upon contractors using property in the performance of their contracts with others, irrespective of the ownership of the property and of the place where the goods are purchased. This tax, at the sales and use tax rate, is measured by the purchase price or fair market value of the property used by the contractor and is to be collected only when a sales tax on local purchases or a compensating use tax on out-of-state goods has not previously been collected in connection with the same property. Union Carbide Corp. and H. K Ferguson Co. have contracts with the Atomic Energy Commission relating to work and services to be performed at the Oak Ridge, Tennessee, complex. Carbide’s contract obligates it to manage, operate and maintain the Oak Ridge plants and facilities in accordance with such directions and instructions not inconsistent with the contract as the Commission deems necessary to issue from time to time. In the absence of applicable instructions, Carbide is to use its best judgment, skill and care in all matters pertaining to performance. Carbide is charged with the duty of procuring materials, supplies, equipment and facilities although the Government retains the right to furnish any of these items. Payment for purchases is to be made with government funds, and title to all property passes directly from the vendor to the United States. Carbide is generally free to make purchases up to $100,000 without prior approval. Although Carbide exercises considerable managerial discretion from day to day in performing the contract, the Commission retains the right to control, direct and supervise the performance of the work and has issued directions and instructions governing large areas of the operation. Carbide has no investment in the Oak Ridge facility and at the time of this litigation employed some 12,000 employees and supervisors to perform the contract. Its annual fee, renegotiated periodically, was $2,751,000 at the time of suit. The Ferguson contract was a contract to perform construction services relating both to new facilities and to the modification of the existing plant. The contract called for performing those projects ordered by the Commission. Ferguson also operated under instructions and directions of the AEC, it owned none of the property used in the performance of its contract and its purchases, of property were handled in a manner similar to that employed in the case of Carbide except that Ferguson was free to purchase without the consent of the Commission only up to $10,000. Ferguson’s compensation is negotiated twice a year on the basis of the value of the services Ferguson performed during the preceding six months, a fee of $20,000 having been paid for the six months preceding suit. Tennessee collected from Carbide and Ferguson a sales and contractor’s use tax upon purchases made by them under their contracts with the Commission. The companies and the AEC sued to recover these taxes claiming that their collection infringed upon the implied constitutional immunity of the United States. The Tennessee Supreme Court refused to permit the collection of the sales tax but sustained the collection of the contractor’s use tax. This tax, it was held, is imposed upon the use by a contractor of tangible personal property whether the title is in him or in another, and whether or not the other has immunity from state taxation. The contractor’s tax “was intended to be and is a tax upon the use per se by such a contractor. . . . [T]he tax is on [his] private use for [his] own profit and gain, and not a tax directly upon the Government.” 211 Tenn 139, 163, 164, 363 S. W. 2d 193, 203, 204. We noted probable jurisdiction to resolve another of the recurring conflicts between the power of the State to tax persons doing business within its borders and the immunity of the Federal Government, its instru-mentalities and property from state taxation. 375 U. S. 808. We affirm. The Constitution immunizes the United States and its property from taxation by the States, M‘Culloch v. Maryland, 4 Wheat. 316, but it does not forbid a tax whose legal incidence is upon a contractor doing business with the United States, even though the economic burden of the tax, by contract or otherwise, is ultimately borne by the United States. James v. Dravo Contracting Co., 302 U. S. 134; Craves v. New York, 306 U. S. 466; Alabama v. King & Boozer, 314 U. S. 1. Nor is it forbidden for a State to tax the beneficial use by a federal contractor of property owned by the United States, even though the tax is measured by the value of the Government’s property, United States v. City of Detroit, 355 U. S. 466, and even though his contract is for goods or services for the United States. Curry v. United States, 314 U. S. 14; Esso Standard Oil Co. v. Evans, 345 U. S. 495; United States v. Township of Muskegon, 355 U. S. 484. The use by the contractor for his own private ends — in connection with commercial activities carried on for profit — is a separate and distinct taxable activity. The United States accepts all this but insists that under the present contracts Carbide’s and Ferguson’s use of government property is not use by them for their own commercial advantage which the State may tax but a use exclusively for the benefit of the United States. Since they are paid for their services only, make no products for sale to the Government or others, have no investment in the Oak Ridge facility, do not stand to gain or lose by their efficient or nonefficient use of the property, and take no entrepreneurial risks, their use of government property, it is claimed, is in reality use by the United States. We are not persuaded. In the first place, from the facts in this record it is incredible to conclude that the use of government-owned property was for the sole benefit of the Government. Both companies have a substantial stake in the Oak Ridge operation and a separate taxable interest. Both companies maintain a sizable number of employees at Oak Ridge, Carbide some 12,000 men and Ferguson at times over 1,000, and both companies were paid sizable fees over and above their cost, Carbide over $2,000,000 a year. No one suggests that either Carbide or Ferguson has put profit aside in contracting with the Commission, that the fee of either company is not set with commercial, profit-making considerations in mind or that the operations of either company at Oak Ridge were not an important part of their regular business operations. “The vital thing” is that Carbide, as well as Ferguson, “was using the property in connection with its own commercial activities.” United States v. Township of Muskegon, 355 U. S. 484, 486. Secondly, it does not help at all to say that the companies were engaged in furnishing services only, had no investment or risks and made no products for sale to the Government or to others. Undoubtedly a service industry has different characteristics than a manufacturing operation, but the differences are irrelevant for present purposes. The commercial world is replete with profit-making service industries contracting with the Government on a cost-plus basis, using government properties in the performance of the contract and pursuing their own commercial ends within the meaning of United States v. Township of Muskegon, supra. Whether manufacturing products for sale to the Government or furnishing services, the cost-plus contractor has undertaken contractual obligations. If he properly performs his contract, he earns his fee; if he does not, he may lose the contract, be liable for damages and be forced to liquidate the organization which was built to perform the contract. Whatever limitations there are on entrepreneurial risks derive from the fact the companies perform under cost-plus-fixed-fee contracts, a widespread method of contracting with the Government. The Government's argument, if accepted, would not only insulate the cost-plus management contractor from state taxation but also those who make products or perform construction work on a cost-plus basis, a result foreclosed by the Court's prior decisions which the Government seems to accept. Curry v. United States, supra; United States v. Township of Muskegon, supra. In Muskegon, supra, the Court remarked that “[t]he case might well be different if the Government had reserved such control over the activities and financial gain of Continental that it could properly be called a 'servant' of the United States in agency terms.” The Government urges that this is such a case. According to the Government, this case should be viewed as though the Commission was doing its own work through its own employees, the legal incidence of the tax therefore falling on it. But, as in Muskegon, we cannot believe that either Carbide or Ferguson was “so assimilated by the Government as to become one of its constituent parts.” 355 U. S., at 486. Because of the extraordinary range and complexity of the work to be performed in the research and development of atomic energy, Congress empowered the AEC to choose between performing these undertakings directly, through its own facilities, personnel and staff, and seeking the assistance of private enterprise by means of grants and contracts. Act of August 30, 1954, c. 1073, 68 Stat. 919, 927-928, 42 U. S. C. §§ 2051 (a), 2052. In order to utilize the skill, technical know-how, knowledge and experience of American industry, the Government has, since the inception of the atomic energy program, generally chosen private companies to conduct the various and sundry activities involved in the undertaking, including the management and operation of Atomic Energy plants. See Carson v. Roane-Anderson Co., supra. As is well stated in the preface to Carbide’s contract: “ [S] uch agreement arose out of the need for the services of an organization with personnel of proved capabilities, both technical and administrative, to manage and operate certain facilities of the Commission and to perform certain work and services for the Commission; and the Commission recognizes the Corporation as an organization having such personnel, and that the initiative, ingenuity and other qualifications of such personnel should be exercised ... to the fullest extent practicable ....’’ The help of these companies was not sought merely to supply skilled manpower for employment by the United States and it is not argued that Carbide’s 12,000 men have somehow become employees of the Commission rather than of Carbide. See Powell v. United States Cartridge Co., 339 U. S. 497; Mahoney v. United States, 216 F. Supp. 523 (D. C. E. D. Tenn.). Of course there are governmental directives and instructions which must be obeyed, for the Commission decides the uses of and needs for fissionable material; and, of course, in the sensitive area of atomic energy operations the Commission’s controls are subject to modification and change in the light of technical and other developments. But Carbide and Ferguson brought to the Oak Ridge operation both skill and judgment the United States needed and did not have and there is substantial room for the exercise of both, within and without the broad directives issued by the Commission. Should the Commission intend to build or operate the plant with its own servants and employees, it is well aware that it may do so and familiar with the ways of doing it. It chose not to do so here. We cannot conclude that Carbide and Ferguson, both cost-plus contractors for profit, have been so incorporated into the government structure as to become instrumentalities of the United States and thus enjoy governmental immunity. It is undoubtedly true, as the Government points out, that subjection of government property used by AEC contractors to state use taxes will result in a substantial future tax liability. But this result was brought to the attention of Congress in the debates on the repeal of § 9 (b), which exempted the activities of AEC contractors from state taxation; indeed the AEC argued that the repeal would substantially increase the cost of the atomic energy program by subjecting AEC contractors to state “sales and use taxes” and “business and occupation” taxes. Nonetheless, Congress, well aware of the principle that “constitutional immunity does not extend to cost-plus-fixed-fee contractors of the Federal Government, but is limited to taxes imposed directly on the United States,” S. Rep. No. 694, 83d Cong., 1st Sess., 2, repealed the statutory exemption for the declared purpose of placing AEC contractors in the same position as all other government contractors. Act of August 13, 1953, c. 432, 67 Stat. 575. The principles laid down in King & Boozer, Curry, Esso, and Muskegon, we think, strike a proper judicial accommodation between the interests of the States’ power to tax and the concerns of the Nation, they are workable, and we adhere to them. If they unduly intrude upon the business of the Nation, it is for Congress, in the valid exercise of its proper powers, not this Court, to make the desirable adjustment. Affirmed. 60 Stat. 765, c. 724, 42 U. S. C. (1952 ed.) § 1809 (b). The section read in pertinent part: “The Commission, and the property, activities, and income of the Commission, are hereby expressly exempted from taxation in any manner or form by any State, county, municipality, or any subdivision thereof.” Act of August 13, 1953, 67 Stat. 575, c. 432. The Tennessee Retailers Sales Tax Act provides in pertinent part, 12 Tenn. Code Ann. § 67-3004 (1963 Cum. Supp.): “Where a contractor or subcontractor hereinafter defined as a dealer, uses tangible personal property in the performance of his contract, or to fulfill contract or subcontract obligations, whether the title to such property be in the contractor, subcontractor, contractee, subeontractee, or any other person, or whether the title holder of such property would be subject to pay the sales or use tax, except where the title holder is a church and the tangible personal property is for church construction, such contractor or subcontractor shall pay a tax at the rate prescribed by § 67-3003 measured by the purchase price or fair market value of such property, whichever is greater, unless such property has been previously subjected to a sales or use tax, and the tax due thereon has been paid. “Provided, further, that the tax imposed by this section or by any other provision of this chapter, as amended shall have no application with respect to the use by, or the sale to, a contractor or subcontractor of atomic weapon parts, source materials, special nuclear materials and by-product materials, all as defined by the atomic energy act of 1954, or with respect to such other materials as would be excluded from taxation as industrial materials under paragraph (c) 2 of § 67-3002 when the items referred to in this proviso are sold or leased to a contractor or subcontractor for use in, or experimental work in connection with, the manufacturing processes for or on behalf of the atomic energy commission or when any of such items are used by a contractor or subcontractor in such experimental work or manufacturing processes.” The following is included among the terms and conditions attached to the order forms used by Carbide in making purchases: “It is understood and agreed that this Order is entered into by the Company for and on behalf of the Government; that title to all supplies furnished hereunder by the Seller shall pass directly from the Seller to the Government, as purchaser, at the point of delivery; that the Company is authorized to and will make payment hereunder from Government funds advanced and agreed to be advanced to it by the Commission, and not from its own assets and administer this Order in other respects for the Commission unless otherwise specifically provided for herein; that administration of this Order may be transferred from the Company to the Commission or its designee, and in ease of such transfer and notice thereof to the Seller the Company shall have no further responsibilities hereunder and that nothing herein shall preclude liability of the Government for any payment properly due hereunder if for any reason such payment is not made by the Company from such Government funds.” Relying on Kern-Limerick, Inc., v. Scurlock, 347 U. S. 110, the Tennessee court determined that the United States itself was the actual purchaser, and that Carbide and Ferguson acted only as purchasing agents. No question in respect to the correctness of this determination is raised on this appeal and the validity of the contractor’s use tax, as against a constitutional claim of immunity, in no way depends on the legality of the sales tax. The Government’s reliance on United States v. Livingston, 179 F. Supp. 9, aff’d -per curiam, 364 U. S. 281, is misplaced. There a South Carolina statute imposed a sales tax and a tax on use, defined as the exercise of any right or power over property “by any transaction in which possession is given,” on contractors “purchasing such property ... as agents of the United States or its instrumentalities.” The Government sought to enjoin collection of the tax from the du Pont Company, which performed management services under a contract, similar in many respects to Carbide’s, with the AEC. The difference, however, was that du Pont was paid costs plus a nominal fee of one dollar for its entire undertaking. Passing over doubts as to whether the “use tax” was on the contractor’s beneficial use rather than on the purchase of property for the Government, the District Court held the sales tax invalid in reliance on Kern-Limerick, Inc., v. Scurlock, 347 U. S. 110, and the use tax invalid principally because du Pont entered the contract solely “out of the high sense of public responsibility” and not for profit. The property was therefore not used in du Pont’s commercial or business activities. This Court affirmed, 364 U. S. 281, without opinion or citation, on the basis of the jurisdictional papers, which stressed the fact that the ruling below “was based upon a close analysis of the ’extraordinary' contractual relationship between du Pont and AEC at this plant . . .” and the factual determination that du Pont received no benefits from the contract. Because the services involved herein are performed for a substantial fee in the course of the contractor’s commercial operation the Livingston decision is not controlling. The general purposes of Commission control and direction are stated in the preface to the contract: “Whereas, the Corporation recognizes that attainment of the Commission’s over-all objectives and discharge of its responsibility for economy and efficiency in the conduct of the atomic energy program require the Commission’s general direction of the program, supervision of Government-financed activities of organizations managing Commission facilities and related functions so as to assure conformity with applicable law and policies of the Commission, and full access to information concerning such activities; and that the Commission’s program of administration under the Atomic Energy Act requires integration and coordination of such activities which the various organizations may be in a position to perform, for the utilization of their services and of information, materials, facilities, funds and other property of the Commission, in the manner most advantageous to the Government.” See S. Rep. No. 694, 83d Cong., 1st Sess., 1-3. Id., at 4-6. The AEC stated: “Reducing the Commission’s exemption from State and local taxes to the constitutional immunity generally applicable would result in an increase of several million dollars annually in the costs of the atomic energy program, in the form of added State and local taxes borne by the Federal Government. It is apparent that this consideration should not be regarded as decisive since it is the policy of the Federal Government to forego such savings in connection with other Federal activities, as is evidenced by the fact that other components of the Government are exempt from State and local taxation only to the extent of the constitutional immunity as delimited in the King and Boozer decision. We feel, however, that there are special aspects of the impact of the atomic energy program upon the fiscal position of the affected States and localities which should be taken into account in determining whether the broader tax exemption applicable to AEC should be preserved.” Id.., at 5. The Commission went on to note that generally its installations had a favorable economic impact in the areas where they were located and where its contractors performed, although it conceded a few special problems in certain small communities. It recommended direct payments by the Government in lieu of property taxes on property acquired by the Commission and the adjustment of internal state-local arrangements to insure that the distribution of revenues would take into account the problems of these special locales. It then added: "Eliminating the exemption applicable to sales and use taxes, to business and occupation taxes, and to the other minor taxes now comprehended by section 9 (b) might not modify the revenues of the few localities burdened by Commission activities . . . Id., at 5-6. (Emphasis supplied.) The purpose of the repeal is well revealed in the following excerpt from the Senate Report: “The United States Supreme Court in Carson v. Roane-Anderson Co. (342 U. S. 232 (1952)) interpreted the last sentence of the foregoing subsection as exempting transactions involving certain AEC contractors from the Tennessee sales and use taxes. The Court held that 'activities’ of the Commission, as that term is used in section 9 (b), may be performed by independent contractors of the Commission, as well as by its agents, and that, as a consequence, private contractors performing the governmental function under the Atomic Energy Act are within the scope of the section 9 (b) exemption from State and local taxation. “This decision has the effect of affording the Atomic Energy Commission an exemption from State and local taxation much broader in scope than that available to the other departments and agencies of the Federal Government, which rely only upon the constitutional immunity of the Federal Government for their exemption from taxation. The Supreme Court, in Alabama v. King and Boozer (314 U. S. 1), established the principle that the constitutional immunity does not extend to cost-plus-fixed-fee contractors of the Federal Government, but is limited to taxes imposed directly upon the United States. Thus, the Atomic Energy Commission’s contractors, by reason of the statutory exemption as interpreted by the Supreme Court, are entitled to an exemption from taxation which is not enjoyed by comparably situated contractors of other agencies and departments. “A number of States have expressed the view that section 9 (b), as interpreted in the Roane-Anderson decision carves out an area of exemption from State and local taxation which deprives State and local governmental units of substantial revenue, particularly in those areas in which the Atomic Energy Commission carries on large scale activities.” S. Rep. No. 694, 83d Cong., 1st Sess., 2. Question: What is the issue of the decision? A. federal-state ownership dispute (cf. Submerged Lands Act) B. federal pre-emption of state court jurisdiction C. federal pre-emption of state legislation or regulation. cf. state regulation of business. rarely involves union activity. Does not involve constitutional interpretation unless the Court says it does. D. Submerged Lands Act (cf. federal-state ownership dispute) E. national supremacy: commodities F. national supremacy: intergovernmental tax immunity G. national supremacy: marital and family relationships and property, including obligation of child support H. national supremacy: natural resources (cf. natural resources - environmental protection) I. national supremacy: pollution, air or water (cf. natural resources - environmental protection) J. national supremacy: public utilities (cf. federal public utilities regulation) K. national supremacy: state tax (cf. state tax) L. national supremacy: miscellaneous M. miscellaneous federalism Answer:
songer_circuit	I	What follows is an opinion from a United States Court of Appeals. Your task is to identify the circuit of the court that decided the case. In Re REQUEST FOR JUDICIAL ASSISTANCE FROM the SEOUL DISTRICT CRIMINAL COURT, SEOUL, KOREA. Young Sool SHIN, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee. No. 77-1561. United States Court of Appeals, Ninth Circuit. June 13, 1977. James R. Frolik (argued), Frolik, Filley & Schey, Mark Horlings (argued), San Francisco, Cal., for petitioner-appellant. James L. Browning, Jr., U. S. Atty., Bruno A. Ristau (argued), Chief Atty. for Foreign Litigation Unit, Civil Division, Dept, of Justice, Washington, D. C., for respondent-appellee. Before MERRILL and HUFSTEDLER, Circuit Judges, and BONSAL, District Judge. Hon. Dudley B. Bonsai, U.S. District Judge of the Southern District of New York, sitting by designation. MERRILL, Circuit Judge: Young Sool Shin has taken this appeal from an order by the District Court of the Northern District of California commanding the Bank of Tokyo of California (now California First Bank) to produce certain bank records respecting appellant’s account with that bank. The order was issued in response to a request for judicial assistance issued by the Seoul District Criminal Court, Republic of Korea, pursuant to 28 U.S.C. § 1782. The request was transmitted by the Korean Embassy to the Department of State, and by the Department of State to the Department of Justice. It was presented to the court below by the United States Attorney, and the Department of Justice is here representing the Seoul District Criminal Court, and the United States is named herein as appellee. Section 1782 provides in part: “(a) The district court of the district in which a person resides or is found may order him to give his testimony or statement or to produce a document or other thing for use in a proceeding in a foreign or international tribunal. The order may be made pursuant to a letter rogatory issued, or request made, by a foreign or international tribunal * * The principal question upon the merits of the appeal is whether the request was entitled to be honored by the district court under § 1782. 1. Jurisdiction The government does not here dispute the appealability of the order granting the request. We feel, however, that we should express our view that it was final and therefore appealable. In In re Letters Rogatory from City of Haugesund, Norway, 497 F.2d 378, 379-81 (9th Cir. 1974), we held that a district court order directing a witness to answer questions in response to a letter rogatory was not a final order because the court had not yet held the witness in contempt. Haugesund, however, is inapplicable because the order there was directed against a party to the suit in Norway for which the letter rogatory was issued. Here, the subpoena is directed against a bank, not the appellant who is the party of interest in the proceeding before the foreign tribunal. The bank is unlikely to suffer a finding of contempt to protect appellant’s rights. Under these circumstances, we conclude that the district court’s order is appealable. In re Letters Rogatory Issued by the Director of Inspection of the Gov’t of India, 385 F.2d 1017, 1018 (2d Cir. 1964). 2. Standing The government contends that since the order was directed to the Bank of Tokyo and relates to records of that bank which are not the property of appellant, appellant does not have standing to challenge the order. We disagree. While appellant may not have standing to challenge the disclosure of bank records on fourth or fifth amendment grounds, the question is whether judicial assistance should have been granted under the statute. The request warrant states that the records are sought in connection with criminal charges pending against appellant. The party against whom requested bank records are to be used has standing to challenge the validity of the order to the bank to produce the records. In re Letter Rogatory from the Justice Court District of Montreal, Canada, 523 F.2d 562, 563-64 (6th Cir. 1975). 3. Authority of the Seoul Court to Make the Request A request for judicial assistance respecting appellant’s alleged criminal activity was first transmitted to the Department of State in June, 1976. The request (denominated a warrant) stated that it would expire on December 31, 1976, and explained that under Korean law, upon expiration, a new warrant would have to be issued. The request was duly transmitted to the Department of Justice, presented to the court below by the United States Attorney, and a subpoena duces tecum was issued. Appellant vigorously sought to quash the subpoena and hearings were had before a court commissioner who ultimately ruled in appellant’s favor that the request for assistance should be denied. In January, 1977, the government moved the district court for review of the commissioner’s ruling and appellant opposed the motion, in large part on the ground that the Korean request had expired. In February, a supplemental request for judicial assistance was received from Korea and filed with the district court. It was identical to the earlier request, except for an expiration date of June 30, 1977. Hearing by the district court was had and the district court ordered that the request be honored. It is from that order that this appeal was taken. In the meantime proceedings against appellant in the Seoul trial court had been concluded, and an appeal had been taken to the Appellate Division of the Seoul District Criminal Court. Appellant’s principal contention on appeal is that the court making the second request, having concluded its trial, was without jurisdiction over the controversy in connection with which the bank records were sought, and thus was without jurisdiction to make the request; that under these circumstances it was error or abuse of discretion to honor the request. Under the statute the only restrictions explicitly stated are that the request be made by a foreign or international tribunal, and that the testimony or material requested be for use in a proceeding in such a tribunal. This court also has held that the investigation in connection with which the request is made must relate to a judicial or quasi-judicial controversy. In re Letters of Request to Examine Witnesses from the Court of Queen’s Bench for Manitoba, Canada, 488 F.2d 511, 512 (9th Cir. 1973). There is no question but that such conditions are met here. The question raised by appellant is whether a tribunal that has already entertained trial of the controversy and thus is aware of the issues presented and of what evidence would be relevant to those issues, can, under Korean law, request assistance on behalf of the tribunal where review is now pending. In our judgment our federal courts, in responding to requests, should not feel obliged to involve themselves in technical questions of foreign law relating to subject-matter jurisdiction of foreign or international tribunals, or the admissibility before such tribunals of the testimony or material sought. This is not to say that jurisdiction of the requesting court is never an appropriate inquiry. If departures from our concepts of fundamental due process and fairness are involved, a different question is presented— one that is not presented here and which we do not reach. A request for judicial assistance is an appeal to the discretion of the district court. In re Letters Rogatory from Tokyo Dist., 539 F.2d 1216, 1219 (9th Cir. 1976). Here it is not disputed that the Korean courts have a legitimate basis for the exercise of judicial authority over appellant and that a controversy is there entertained in which the records would be of use. We find no abuse of discretion in honoring the request under these circumstances. 4. Other Issues 28 U.S.C. § 1782 also provides in part: “A person may not be compelled to give his testimony or statement or to produce a document or other thing in violation of any legally applicable privilege.” Appellant contends that under California law a bank’s records, with respect to its customers, are the subject of a quasi-privilege which would serve to make applicable the quoted language. California law does not extend this far. In Valley Bank of Nevada v. Superior Court of San Joaquin County, 15 Cal.3d 652, 125 Cal.Rptr. 553, 554-555, 542 P.2d 977, 978-79 (1975), the Supreme Court of California held that the California Evidence Code did not provide a common-law privilege with respect to bank customer information; that privileges contained in the code are exclusive and that courts are not free to create new privileges as a matter of judicial policy. The court did, however, recognize that the state’s constitutional right of privacy served to afford limited protection to such records: the bank is to be deemed to have agreed not to divulge such information in absence of a court order. 125 Cal.Rptr. at 555, 542 P.2d at 979. Since production by the bank here would be in response to a court order, the California law of privilege is of no help to appellant. Appellant contends that assistance in criminal matters involving a foreign country’s currency control laws should, as a matter of policy, be rendered only if there exists a tax treaty between the United States and the requesting country. We reject this contention. It finds no support in the language of the Act or in its legislative history, nor has our attention been drawn to any judicial decision so holding. The fact that the Department of Justice here supports the giving of assistance, with the implicit approval of the Department of State, suggests to us that there is no executive policy supporting appellant’s position. All other contentions of appellant we find to be without merit. The order of the district court is affirmed. . We are given to understand that the appellate division court can, under Korean law, receive new evidence and thus that the records requested are for use in a proceeding still pending in a foreign judicial tribunal. . Appellant complains that the court below accelerated hearing on the request and refused to give consideration to an affidavit of a former Korean judge as to the state of Korean law, thus making it impossible for appellant effectively to establish lack of jurisdiction. In light of our views already expressed, this action was not prejudicial. . “Letters Rogatory in aid of criminal proceedings are authorized by 28 U.S.C. § 1782.” In re Letters Rogatory from Tokyo Dist., 539 F.2d 1216, 1219 (9th Cir. 1976). Question: What is the circuit of the court that decided the case? A. First Circuit B. Second Circuit C. Third Circuit D. Fourth Circuit E. Fifth Circuit F. Sixth Circuit G. Seventh Circuit H. Eighth Circuit I. Ninth Circuit J. Tenth Circuit K. Eleventh Circuit L. District of Columbia Circuit Answer:
songer_direct1	A	What follows is an opinion from a United States Court of Appeals. Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider liberal to be for the defendant. Consider the directionality to be "mixed" if the directionality of the decision was intermediate to the extremes defined above or if the decision was mixed (e.g., the conviction of defendant in a criminal trial was affirmed on one count but reversed on a second count or if the conviction was afirmed but the sentence was reduced). Consider "not ascertained" if the directionality could not be determined or if the outcome could not be classified according to any conventional outcome standards. UNITED STATES of America, Appellee, v. Parnell Robert FLAGG, Appellant. No. 90-1689. United States Court of Appeals, Eighth Circuit. Submitted Nov. 13, 1990. Decided Nov. 23, 1990. Don Nickerson, Des Moines, Iowa, for appellant. Lester A. Paff, Des Moines, Iowa, for appellee. Before LAY, Chief Judge, FAGG, Circuit Judge, and LARSON, Senior District Judge. The HONORABLE EARL R. LARSON, Senior United States District Judge for the District of Minnesota, sitting by designation. PER CURIAM. Parnell Robert Flagg was convicted of being a felon in possession of a firearm (18 U.S.C. § 922(g)(1) (1989) and 18 U.S.C. § 924(a)(2) (1989)), conspiring to distribute a controlled substance (21 U.S.C. § 841(a)(1) (1989)), possessing with intent to deliver a controlled substance (21 U.S.C. §§ 841(a), (b)(l)(A)(iii) (1989) and 18 U.S.C. § 2 (1989)), and using a firearm in relation to drug trafficking (18 U.S.C. § 924(c)(1) (1989)). He was sentenced to 300 months imprisonment. He appeals from the district court’s order denying his motion to suppress evidence that was seized from his apartment pursuant to a search warrant on the ground that the search warrant application contained deliberate or reckless omissions or misstatements. We affirm. BACKGROUND • On November 14, 1989, Des Moines police obtained a search warrant authorizing them to search Flagg’s apartment. They obtained the warrant after a confidential informant allegedly purchased narcotics from Flagg at his apartment. In executing the warrant, the officers used lawful force to enter the apartment. While inside the apartment, the officers observed in plain view plastic baggies that appeared to contain cocaine base, a dish that contained a white powder substance, a bag containing $301.00 in cash, and a pager. The officers then searched the apartment and discovered numerous weapons. Flagg and three other individuals were present at the time the apartment was searched. Flagg was arrested and charged with conspiring to distribute cocaine base, possessing with intent to distribute cocaine base, possessing a firearm during a drug trafficking crime, and possessing a firearm as a convicted felon. He subsequently filed a motion to suppress the evidence seized from his home, alleging that the officers intentionally or recklessly failed to include in the search warrant application information indicating that the informant had a long history of drug addiction, moral turpitude and dishonesty and that the informant faced prosecution by state authorities at the time of the alleged drug purchases. Flagg also requested the court to conduct an in camera inspection of the police department file to determine whether the search warrant application was premised on intentional or reckless omissions. After the district court held a suppression hearing, it denied Flagg’s motion to suppress and his request for an in camera inspection of the police department file. DISCUSSION In Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), the Supreme Court recognized that an affidavit supporting a search warrant is presumptively valid. The Court held that the Fourth Amendment requires an evidentiary hearing if the party challenging a search warrant makes an offer of proof that the affiant in the warrant affidavit deliberately or recklessly included false statements. Id. at 171, 98 S.Ct. at 2684. The Franks Court also stated that a hearing is required if the challenged statements in the affidavit are necessary to a finding of probable cause. Id. Based on Franks, this court held in United States v. Reivich, 793 F.2d 957, 960 (8th Cir.1986), that an individual may challenge a facially insufficient affidavit on the ground that it contains deliberate or reckless falsehoods or deliberate omissions. To prevail, however, the challenger must show “(1) that the police omitted facts with the intent to make, or in reckless disregard of whether they thereby made, the affidavit misleading; and (2) that the affidavit if supplemented by the omitted information would not have been sufficient to support a finding of probable cause.” Id. at 961. Omissions of facts are not misrepresentations unless they cast doubt on the existence of probable cause. United States v. Parker, 836 F.2d 1080, 1083 (8th Cir.1987). Flagg argues the district court should have granted his request for an in camera review of the pertinent police department file under Franks. He asserts that his motion to suppress included specific allegations of omissions pertaining to prior felony convictions, drug addiction, and pending charges by state law enforcement officials. In addition, his motion contained an affidavit of counsel indicating an offer of proof as to what the police files would reveal. We conclude the district court properly denied Flagg’s motion to suppress the evidence and his request for an in camera review of the police department file. First, Flagg failed to satisfy the Reivich test by showing that the police officer who prepared the search warrant application intentionally or recklessly omitted facts. The district court found the officer who prepared the search warrant application was credible. In addition, the persons whom Flagg suspected of being informants did not testify or provide affidavits at the suppression hearing and Flagg failed to describe in the record any evidence that may have been in the police file concerning the informants. Moreover, even if the confidential informant had a criminal record and was cooperating under a plea agreement, these facts are not clearly critical to the finding of probable cause. In United States v. Parker, this court recognized it is not necessary to notify the Magistrate of an informant’s criminal history if the informant’s information is at least partly corroborated. Id. In the instant case, independent police investigation corroborated the information supplied by the confidential informant. Furthermore, Flagg did not make the required showing under Reivich that the affidavit supplemented by the omitted information could not have supported the finding of probable cause. The officer who prepared the search warrant indicated in his affidavit that the confidential informant had supplied information in the past that was reliable and that the informant had not given false information in the past. Furthermore, a magistrate generally would not be misled by the alleged omissions of facts in this case because informants frequently have criminal records and often supply information to the government pursuant to plea arrangements. Finally, we are satisfied that the district court struck a fair balance between the government’s interest in protecting the identity of the confidential informant and. Flagg’s interest in excluding evidence secured by means of a false affidavit. See Roviaro v. United States, 353 U.S. 53, 61-62, 77 S.Ct. 623, 628-629, 1 L.Ed.2d 639 (1957). The district court’s order is affirmed. . The Honorable Charles R. Wolle, United States District Judge for the Southern District of Iowa, presiding. Question: What is the ideological directionality of the court of appeals decision? A. conservative B. liberal C. mixed D. not ascertained Answer:
songer_appbus	1	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of appellants in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. Harry E. MANNING, Appellant, v. UNITED STATES of America. No. 12493. Circuit Court of Appeals, Eighth Circuit. March 27, 1944. Ralph M, Russell, of Kansas City, Mo., for appellant. Maurice M. Milligan, U. S. Atty., and Thomas A. Costolow, Asst. U. S. Atty., both of Kansas City, Mo., for appellee. PER CURIAM. Appeal from District Court dismissed, on motion of appellee. Question: What is the total number of appellants in the case that fall into the category "private business and its executives"? Answer with a number. Answer:
sc_petitionerstate	07	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the state associated with the petitioner. If the petitioner is a federal court or federal judge, note the "state" as the United States. The same holds for other federal employees or officials. COLORADO v. CONNELLY No. 85-660. Argued October 8, 1986 Decided December 10, 1986 Rehnquist, C. J., delivered the opinion of the Court, in which White, Powell, O’Connor, and Scalia, JJ., joined, and in all but Part III-A of which Blackmun, J., joined. Blackmun, J., filed an opinion concurring in part and concurring in the judgment, post, p. 171. Stevens, J., filed an opinion concurring in the judgment in part and dissenting in part, post, p. 171. Brennan, J., filed a dissenting opinion, in which Marshall, J., joined, post, p. 174. Nathan B. Coats argued the cause for petitioner. With him on the briefs was Norman S. Early, Jr. Andrew J. Pincus argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Fried, Assistant Attorney General Trott, and Deputy Solicitor General Frey. Thomas M. Van Cleave III argued the cause for respondent. With him on the brief were David F. Vela, Robin Desmond, and Abelardo P. Bernal. Briefs of amici curiae urging reversal were filed for the State of Colorado et al. by Duane Woodard, Attorney General of Colorado, Charles B. Howe, Deputy Attorney General, Richard H. Forman, Solicitor General, and Eric Perryman, Assistant Attorney General, Charles A. Graddick, Attorney General of Alabama, John Van de Kamp, Attorney General of California, John J. Kelly, Chief State’s Attorney of Connecticut, Charles M. Oberly, Attorney General of Delaware, Jim Smith, Attorney General of Florida, Richard Opper, Attorney General of Guam, Jim Jones, Attorney General of Idaho, Neil F. Hartigan, Attorney General of Illinois, Linley E. Pearson, Attorney General of Indiana, Thomas J. Miller, Attorney General of Iowa, David L. Armstrong, Attorney General of Kentucky, William J. Guste, Jr., Attorney General of Louisiana, Frank J. Kelley, Attorney General of Michigan, Hubert H. Humphrey III, Attorney General of Minnesota, Edwin L. Pittman, Attorney General of Mississippi, William L. Webster, Attorney General of Missouri, Mike Greely, Attorney General of Montana, Brian McKay, Attorney General of Nevada, Stephen E. Merrill, Attorney General of New Hampshire, W. Cary Edwards, Attorney General of New Jersey, Lacy H. Thornburg, Attorney General of North Carolina, Nicholas J. Spaeth, Attorney General of North Dakota, Anthony J. Celebrezze, Jr., Attorney General of Ohio, Michael Turpén, Attorney General of Oklahoma, David Frohnmayer, Attorney General of Oregon, Travis Medlock, Attorney General of South Carolina, W. J. Michael Cody, Attorney General of Tennessee, Jim Mattox, Attorney General of Texas, David L. Wilkinson, Attorney General of Utah, Jeffrey L. Amestoy, Attorney General of Vermont, Leroy A. Mercer, Attorney General of the Virgin Islands, Mary Sue Terry, Attorney General of Virginia, Kenneth 0. Eikenberry, Attorney General of Washington, and Archie G. McClintock, Attorney General of Wyoming; and for the American Psychological Association by Bruce J. Ennis, Jr., and Donald N. Bersoff. Michael L. Perlin filed a brief for the Coalition for the Fundamental Rights and Equality of Ex-patients as amicus curiae urging affirmance. Fred E. Inbau, Wayne W. Schmidt, James P. Manak, Jack E. Yelver-ton, David Crump, Daniel B. Hales, and William C. Summers filed a brief for Americans for Effective Law Enforcement, Inc., et al. as amici curiae. Chief Justice Rehnquist delivered the opinion of the Court. In this case, the Supreme Court of Colorado held that the United States Constitution requires a court to suppress a confession when the mental state of the defendant, at the time he made the confession, interfered with his “rational intellect” and his “free will.” Because this decision seemed to conflict with prior holdings of this Court, we granted certiorari. 474 U. S. 1050 (1986). We conclude that the admissibility of this kind of statement is governed by state rules of evidence, rather than by our previous decisions regarding coerced confessions and Miranda waivers. We therefore reverse. I On August 18, 1983, Officer Patrick Anderson of the Denver Police Department was in uniform, working in an off-duty capacity in downtown Denver. Respondent Francis Connelly approached Officer Anderson and, without any prompting, stated that he had murdered someone and wanted to talk about it. Anderson immediately advised respondent that he had the right to remain silent, that anything he said could be used against him in court, and that he had the right to an attorney prior to any police questioning. See Miranda v. Arizona, 384 U. S. 436 (1966). Respondent stated that he understood these rights but he still wanted to talk about the murder. Understandably bewildered by this confession, Officer Anderson asked respondent several questions. Connelly denied that he had been drinking, denied that he had been taking any drugs, and stated that, in the past, he had been a patient in several mental hospitals. Officer Anderson again told Connelly that he was under no obligation to say anything. Connelly replied that it was “all right,” and that he would talk to Officer Anderson because his conscience had been bothering him. To Officer Anderson, respondent appeared to understand fully the nature of his acts. Tr. 19. Shortly thereafter, Homicide Detective Stephen Antuna arrived. Respondent was again advised of his rights, and Detective Antuna asked him “what he had on his mind.” Id., at 24. Respondent answered that he had come all the way from Boston to confess to the murder of Mary Ann Junta, a young girl whom he had killed in Denver sometime during November 1982. Respondent was taken to police headquarters, and a search of police records revealed that the body of an unidentified female had been found in April 1983. Respondent openly detailed his story to Detective Antuna and Sergeant Thomas Haney, and readily agreed to take the officers to the scene of the killing. Under Con-nelly’s sole direction, the two officers and respondent pro-eeeded in a police vehicle to the location of the crime. Respondent pointed out the exact location of the murder. Throughout this episode, Detective Antuna perceived no indication whatsoever that respondent was suffering from any kind of mental illness. Id., at 33-34. Respondent was held overnight. During an interview with the public defender’s office the following morning, he became visibly disoriented. He began giving confused answers to questions, and for the first time, stated that “voices” had told him to come to Denver and that he had followed the directions of these voices in confessing. Id., at 42. Respondent was sent to a state hospital for evaluation. He was initially found incompetent to assist in his own defense. By March 1984, however, the doctors evaluating respondent determined that he was competent to proceed to trial. At a preliminary hearing, respondent moved to suppress all of his statements. Dr. Jeffrey Metzner, a psychiatrist employed by the state hospital, testified that respondent was suffering from chronic schizophrenia and was in a psychotic state at least as of August 17, 1983, the day before he confessed. Metzner’s interviews with respondent revealed that respondent was following the “voice of God.” This voice instructed respondent to withdraw money from the bank, to buy an airplane ticket, and to fly from Boston to Denver. When respondent arrived from Boston, God’s voice became stronger and told respondent either to confess to the killing or to commit suicide. Reluctantly following the command of the voices, respondent approached Officer Anderson and confessed. Dr. Metzner testified that, in his expert opinion, respondent was experiencing “command hallucinations.” Id., at 56. This condition interfered with respondent’s “volitional abilities; that is, his ability to make free and rational choices.” Ibid. Dr. Metzner further testified that Connelly’s illness did not significantly impair his cognitive abilities. Thus, respondent understood the rights he had when Officer Anderson and Detective Antuna advised him that he need not speak. Id., at 56-57. Dr. Metzner admitted that the “voices” could in reality be Connelly’s interpretation of his own guilt, but explained that in his opinion, Connelly’s psychosis motivated his confession. On the basis of this evidence the Colorado trial court decided that respondent’s statements must be suppressed because they were “involuntary.” Relying on our decisions in Townsend v. Sain, 372 U. S. 293 (1963), and Culombe v. Connecticut, 367 U. S. 568 (1961), the court ruled that a confession is admissible only if it is a product of the defendant’s rational intellect and “free will.” Tr. 88. Although the court found that the police had done nothing wrong or coercive in securing respondent’s confession, Connelly’s illness destroyed his volition and compelled him to confess. Id., at 89. The trial court also found that Connelly’s mental state vitiated his attempted waiver of the right to counsel and the privilege against compulsory self-incrimination. Accordingly, respondent’s initial statements and his custodial confession were suppressed. Id., at 90. The Colorado Supreme Court affirmed. 702 P. 2d 722 (1985). In that court’s view, the proper test for admissibility is whether the statements are “the product of a rational intellect and a free will.” Id., at 728. Indeed, “the absence of police coercion or duress does not foreclose a finding of involuntariness. One’s capacity for rational judgment and free choice may be overborne as much by certain forms of severe mental illness as by external pressure.” Ibid. The court found that the very admission of the evidence in a court of law was sufficient state action to implicate the Due Process Clause of the Fourteenth Amendment to the United States Constitution. The evidence fully supported the conclusion that respondent’s initial statement was not the product of a rational intellect and a free will. The court then considered respondent’s attempted waiver of his constitutional rights and found that respondent’s mental condition precluded his ability to make a valid waiver. Id., at 729. The Colorado Supreme Court thus affirmed the trial court’s decision to suppress all of Connelly’s statements. II The Due Process Clause of the Fourteenth Amendment provides that no State shall “deprive any person of life, liberty, or property, without due process of law.” Just last Term, in Miller v. Fenton, 474 U. S. 104, 109 (1985), we held that by virtue of the Due Process Clause “certain interrogation techniques, either in isolation or as applied to the unique characteristics of a particular suspect, are so offensive to a civilized system of justice that they must be condemned.” See also Moran v. Burbine, 475 U. S. 412, 432-434 (1986). Indeed, coercive government misconduct was the catalyst for this Court’s seminal confession case, Brown v. Mississippi, 297 U. S. 278 (1936). In that case, police officers extracted confessions from the accused through brutal torture. The Court had little difficulty concluding that even though the Fifth Amendment did not at that time apply to the States, the actions of the police were “revolting to the sense of justice.” Id., at 286. The Court has retained this due process focus, even after holding, in Malloy v. Hogan, 378 U. S. 1 (1964), that the Fifth Amendment privilege against compulsory self-incrimination applies to the States. See Miller v. Fenton, supra, at 109-110. Thus the cases considered by this Court over the 50 years since Brown v. Mississippi have focused upon the crucial element of police overreaching. While each confession case has turned on its own set of factors justifying the conclusion that police conduct was oppressive, all have contained a substantial element of coercive police conduct. Absent police conduct causally related to the confession, there is simply no basis for concluding that any state actor has deprived a criminal defendant of due process of law. Respondent correctly notes that as interrogators have turned to more subtle forms of psychological persuasion, courts have found the mental condition of the defendant a more significant factor in the “voluntariness” calculus. See Spano v. New York, 360 U. S. 315 (1959). But this fact does not justify a conclusion that a defendant’s mental condition, by itself and apart from its relation to official coercion, should ever dispose of the inquiry into constitutional “voluntariness.” Respondent relies on Blackburn v. Alabama, 361 U. S. 199 (1960), and Townsend v. Sain, 372 U. S. 293 (1963), for the proposition that the “deficient mental condition of the defendants in those cases was sufficient to render their confessions involuntary.” Brief for Respondent 20. But respondent’s reading of Blackburn and Townsend ignores the integral element of police overreaching present in both cases. In Blackburn, the Court found that the petitioner was probably insane at the time of his confession and the police learned during the interrogation that he had a history of mental problems. The police exploited this weakness with coercive tactics: “the eight- to nine-hour sustained interrogation in a tiny room which was upon occasion literally filled with police officers; the absence of Blackburn’s friends, relatives, or legal counsel; [and] the composition of the confession by the Deputy Sheriff rather than by Blackburn.” 361 U. S., at 207-208. These tactics supported a finding that the confession was involuntary. Indeed, the Court specifically condemned police activity that “wrings a confession out of an accused against his will.” Id., at 206-207. Townsend presented a similar instance of police wrongdoing. In that case, a police physician had given Townsend a drug with truth-serum properties. 372 U. S., at 298-299. The subsequent confession, obtained by officers who knew that Townsend had been given drugs, was held involuntary. These two cases demonstrate that while mental condition is surely relevant to an individual’s susceptibility to police coercion, mere examination of the confessant’s state of mind can never conclude the due process inquiry. Our “involuntary confession” jurisprudence is entirely consistent with the settled law requiring some sort of “state action” to support a claim of violation of the Due Process Clause of the Fourteenth Amendment. The Colorado trial court, of course, found that the police committed no wrongful acts, and that finding has been neither challenged by respondent nor disturbed by the Supreme Court of Colorado. The latter court, however, concluded that sufficient state action was present by virtue of the admission of the confession into evidence in a court of the State. 702 P. 2d, at 728-729. The difficulty with the approach of the Supreme Court of Colorado is that it fails to recognize the essential link between coercive activity of the State, on the one hand, and a resulting confession by a defendant, on the other. The flaw in respondent’s constitutional argument is that it would expand our previous line of “voluntariness” cases into a far-ranging requirement that courts must divine a defendant’s motivation for speaking or acting as he did even though there be no claim that governmental conduct coerced his decision. The most outrageous behavior by a private party seeking to secure evidence against a defendant does not make that evidence inadmissible under the Due Process Clause. See Walter v. United States, 447 U. S. 649, 656 (1980); Coolidge v. New Hampshire, 403 U. S. 443, 487-488 (1971); Burdeau v. McDowell, 256 U. S. 465, 476 (1921). We have also observed that “[j Jurists and scholars uniformly have recognized that the exclusionary rule imposes a substantial cost on the societal interest in law enforcement by its proscription of what concededly is relevant evidence.” United States v. Janis, 428 U. S. 433, 448-449 (1976). See also United States v. Havens, 446 U. S. 620, 627 (1980); United States v. Calandra, 414 U. S. 338 (1974). Moreover, suppressing respondent’s statements would serve absolutely no purpose in enforcing constitutional guarantees. The purpose of excluding evidence seized in violation of the Constitution is to substantially deter future violations of the Constitution. See United States v. Leon, 468 U. S. 897, 906-913 (1984). Only if we were to establish a brand new constitutional right — the right of a criminal defendant to confess to his crime only when totally rational and properly motivated — could respondent’s present claim be sustained. We have previously cautioned against expanding “currently applicable exclusionary rules by erecting additional barriers to placing truthful and probative evidence before state juries . . . .” Lego v. Twomey, 404 U. S. 477, 488-489 (1972). We abide by that counsel now. “[T]he central purpose of a criminal trial is to decide the factual question of the defendant’s guilt or innocence,” Delaware v. Van Arsdall, 475 U. S. 673, 681 (1986), and while we have previously held that exclusion of evidence may be necessary to protect constitutional guarantees, both the necessity for the collateral inquiry and the exclusion of evidence deflect a criminal trial from its basic purpose. Respondent would now have us require sweeping inquiries into the state of mind of a criminal defendant who has confessed, inquiries quite divorced from any coercion brought to bear on the defendant by the State. We think the Constitution rightly leaves this sort of inquiry to be resolved by state laws governing the admission of evidence and erects no standard of its own in this area. A statement rendered by one in the condition of respondent might be proved to be quite unreliable, but this is a matter to be governed by the evidentiary laws of the forum, see, e. g., Fed. Rule Evid. 601, and not by the Due Process Clause of the Fourteenth Amendment. “The aim of the requirement of due process is not to exclude presumptively false evidence, but to prevent fundamental unfairness in the use of evidence, whether true or false.” Lisenba v. California, 314 U. S. 219, 236 (1941). We hold that coercive police activity is a necessary predicate to the finding that a confession is not “voluntary” within the meaning of the Due Process Clause of the Fourteenth Amendment. We also conclude that the taking of respondent’s statements, and their admission into evidence, constitute no violation of that Clause. III A The Supreme Court of Colorado went on to affirm the trial court’s ruling that respondent’s later statements made while in custody should be suppressed because respondent had not waived his right to consult an attorney and his right to remain silent. That court held that the State must bear its burden of proving waiver of these Miranda rights by “clear and convincing evidence.” 702 P. 2d, at 729. Although we have stated in passing that the State bears a “heavy” burden in proving waiver, Tague v. Louisiana, 444 U. S. 469 (1980) (per curiam); North Carolina v. Butler 441 U. S. 369, 373 (1979); Miranda v. Arizona, 384 U. S., at 475, we have never held that the “clear and convincing evidence” standard is the appropriate one. In Lego v. Twomey, supra, this Court upheld a procedure in which the State established the voluntariness of a confession by no more than a preponderance of the evidence. We upheld it for two reasons. First, the voluntariness determination has nothing to do with the reliability of jury verdicts; rather, it is designed to determine the presence of police coercion. Thus, voluntariness is irrelevant to the presence or absence of the elements of a crime, which must be proved beyond a reasonable doubt. See In re Winship, 397 U. S. 358 (1970). Second, we rejected Lego’s assertion that a high burden of proof was required to serve the values protected by the exclusionary rule. We surveyed the various reasons for excluding evidence, including a violation of the requirements of Miranda v. Arizona, supra, and we stated that “[i]n each instance, and without regard to its probative value, evidence is kept from the trier of guilt or innocence for reasons wholly apart from enhancing the reliability of verdicts.” Lego v. Twomey, 404 U. S., at 488. Moreover, we rejected the argument that “the importance of the values served by exclusionary rules is itself sufficient demonstration that the Constitution also requires admissibility to be proved beyond a reasonable doubt.” Ibid. Indeed, the Court found that “no substantial evidence has accumulated that federal rights have suffered from determining admissibility by a preponderance of the evidence.” Ibid. We now reaffirm our holding in Lego: Whenever the State bears the burden of proof in a motion to suppress a statement that the defendant claims was obtained in violation of our Miranda doctrine, the State need prove waiver only by a preponderance of the evidence. See Nix v. Williams, 467 U. S. 431, 444, and n. 5 (1984); United States v. Matlock, 415 U. S. 164, 178, n. 14 (1974) (“[T]he controlling burden of proof at suppression hearings should impose no greater burden than proof by a preponderance of the evidence . . .”). Cf. Moore v. Michigan, 355 U. S. 155, 161-162 (1957). If, as we held in Lego v. Twomey, supra, the voluntariness of a confession need be established only by a preponderance of the evidence, then a waiver of the auxiliary protections established in Miranda should require no higher burden of proof. “[Exclusionary rules are very much aimed at deterring lawless conduct by police and prosecution and it is very doubtful that escalating the prosecution’s burden of proof in . . . suppression hearings would be sufficiently productive in this respect to outweigh the public interest in placing probative evidence before juries for the purpose of arriving at truthful decisions about guilt or innocence.” Lego v. Twomey, supra, at 489. See also United States v. Leon, 468 U. S., at 906-913. B We also think that the Supreme Court of Colorado was mistaken in its analysis of the question whether respondent had waived his Miranda rights in this case. Of course, a waiver must at a minimum be “voluntary” to be effective against an accused. Miranda, supra, at 444, 476; North Carolina v. Butler, supra, at 373. The Supreme Court of Colorado in addressing this question relied on the testimony of the court-appointed psychiatrist to the effect that respondent was not capable of making a “free decision with respect to his constitutional right of silence . . . and his constitutional right to confer with a lawyer before talking to the police.” 702 P. 2d, at 729. We think that the Supreme Court of Colorado erred in importing into this area of constitutional law notions of “free will” that have no place there. There is obviously no reason to require more in the way of a “voluntariness” inquiry in the Miranda waiver context than in the Fourteenth Amendment confession context. The sole concern of the Fifth Amendment, on which Miranda was based, is governmental coercion. See United States v. Washington, 431 U. S. 181, 187 (1977); Miranda, supra, at 460. Indeed, the Fifth Amendment privilege is not concerned “with moral and psychological pressures to confess emanating from sources other than official coercion.” Oregon v. Elstad, 470 U. S. 298, 305 (1985). The voluntariness of a waiver of this privilege has always depended on the absence of police overreaching, not on “free choice” in any broader sense of the word. See Moran v. Burbine, 475 U. S., at 421 (“[T]he relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion or deception. . . . [T]he record is devoid of any suggestion that police resorted to physical or psychological pressure to elicit the statements”); Fare v. Michael C., 442 U. S. 707, 726-727 (1979) (The defendant was “not worn down by improper interrogation tactics or lengthy questioning or by trickery or deceit. . . . The officers did not intimidate or threaten respondent in any way. Their questioning was restrained and free from the abuses that so concerned the Court in Miranda”). . Respondent urges this Court to adopt his “free will” rationale, and to find an attempted waiver invalid Whenever the defendant feels compelled to waive his rights by reason of any compulsion, even if the compulsion does not flow from the police. But such a treatment of the waiver issue would “cut this Court’s holding in [Miranda] completely loose from its own explicitly stated rationale.” Beckwith v. United States, 425 U. S. 341, 345 (1976). Miranda protects defendants against government coercion leading them to surrender rights protected by the Fifth Amendment; it goes no further than that. Respondent’s perception of coercion flowing from the “voice of God,” however important or significant such a perception may be in other disciplines, is a matter to which the United States Constitution does not speak. I — i <1 The judgment of the Supreme Court of Colorado is accordingly reversed, and the cause is remanded for further proceedings not inconsistent with this opinion. It is so ordered. E. g., Mincey v. Arizona, 437 U. S. 385 (1978) (defendant subjected to 4-hour interrogation while incapacitated and sedated in intensive-care unit); Greenwald v. Wisconsin, 390 U. S. 519 (1968) (defendant, on medication, interrogated for over 18 hours without food or sleep); Beecher v. Alabama, 389 U. S. 35 (1967) (police officers held gun to the head of wounded eonfessant to extract confession); Davis v. North Carolina, 384 U. S. 737 (1966) (16 days of incommunicado interrogation in closed cell without windows, limited food, and coercive tactics); Reck v. Pate, 367 U. S. 433 (1961) (defendant held for four days with inadequate food and medical attention until confession obtained); Culombe v. Connecticut, 367 U. S. 568 (1961) (defendant held for five days of repeated questioning during which police employed coercive tactics); Payne v. Arkansas, 356 U. S. 560 (1958) (defendant held incommunicado for three days with little food; confession obtained when officers informed defendant that Chief of Police was preparing to admit lynch mob into jail); Ashcraft v. Tennessee, 322 U. S. 143 (1944) (defendant questioned by relays of officers for 36 hours without an opportunity for sleep). Even where there is causal connection between police misconduct and a defendant’s confession, it does not automatically follow that there has been a violation of the Due Process Clause. See, e. g., Frazier v. Cupp, 394 U. S. 731, 739 (1969). Petitioner conceded at oral argument that when Officer Anderson handcuffed respondent, the custody requirement of Miranda was satisfied. For purposes of our decision we accept that concession, and we similarly assume that the police officers “interrogated” respondent within the meaning of Miranda. It is possible to read the opinion of the Supreme Court of Colorado as finding respondent’s Miranda waiver invalid on other grounds. Even if that is the ease, however, we nonetheless reverse the judgment in its entirety because of our belief that the Supreme Court of Colorado’s analysis was influenced by its mistaken view of “voluntariness” in the constitutional sense. Reconsideration of other issues, not inconsistent with our opinion, is of course open to the Supreme Court of Colorado on remand. Question: What state is associated with the petitioner? 01. Alabama 02. Alaska 03. American Samoa 04. Arizona 05. Arkansas 06. California 07. Colorado 08. Connecticut 09. Delaware 10. District of Columbia 11. Federated States of Micronesia 12. Florida 13. Georgia 14. Guam 15. Hawaii 16. Idaho 17. Illinois 18. Indiana 19. Iowa 20. Kansas 21. Kentucky 22. Louisiana 23. Maine 24. Marshall Islands 25. Maryland 26. Massachusetts 27. Michigan 28. Minnesota 29. Mississippi 30. Missouri 31. Montana 32. Nebraska 33. Nevada 34. New Hampshire 35. New Jersey 36. New Mexico 37. New York 38. North Carolina 39. North Dakota 40. Northern Mariana Islands 41. Ohio 42. Oklahoma 43. Oregon 44. Palau 45. Pennsylvania 46. Puerto Rico 47. Rhode Island 48. South Carolina 49. South Dakota 50. Tennessee 51. Texas 52. Utah 53. Vermont 54. Virgin Islands 55. Virginia 56. Washington 57. West Virginia 58. Wisconsin 59. Wyoming 60. United States 61. Interstate Compact 62. Philippines 63. Indian 64. Dakota Answer:
sc_certreason	J	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the reason, if any, given by the court for granting the petition for certiorari. HIATT, WARDEN, v. BROWN. No. 359. Argued February 6-7, 1950. Decided March 13, 1950. Stanley M. Silverberg argued the cause for petitioner. With him on the brief were Solicitor General Perlman, James M. Mclnerney, Robert S. Erdahl, Philip R. Monahan and Israel Convisser. Walter G. Cooper argued the cause and filed a brief for respondent. Mr. Justice Clark delivered the opinion of the Court. Respondent, while serving as an enlisted soldier in the United States Army in Germany, was convicted by a general court-martial of committing murder on December 25, 1946, in violation of the 92d Article of War, 41 Stat. 805, 10 U. S. C. § 1564. The sentence imposed was dishonorable discharge, forfeiture of all pay and allowances, and life imprisonment, which was reduced to twenty years upon recommendation of the Judge Advocate General. On petition for a writ of habeas corpus, the District Court for the Northern District of Georgia ordered respondent discharged from the federal penitentiary in Atlanta, 81 F. Supp. 647 (1948), and the Court of Appeals for the Fifth Circuit affirmed, one judge dissenting. 175 F. 2d 273 (1949). Both the District Court and the Court of Appeals concluded that the military tribunal which convicted respondent was improperly constituted and lacked jurisdiction of the offense. The Court of Appeals held further that the record was “replete with highly prejudicial errors and irregularities” which deprived respondent of due process of law under the Fifth Amendment and afforded an independent ground for sustaining the writ. We brought the case here, on petition of the warden having custody of respondent, in view of the importance of the decision below in the administration of military justice. 338 U. S. 890 (1949). Our jurisdiction to review the judgment of the Court of Appeals is under 28 U. S. C. § 1254 (l). Respondent was tried in Germany on January 9 and 14, 1947, before a general court-martial which had been appointed by order of the commanding general of the Continental Base Section, European Theatre, on December 7, 1946. The detail appointed was comprised of a trial judge advocate and two assistant trial judge advocates, defense counsel and two assistant defense counsel, the law member and twelve other officers. The ranking officer of the detail, a colonel of the Field Artillery with twenty-five years of commissioned service, was appointed law member. The only member of the detail appointed from the Judge Advocate General’s Department was a captain who was designated an assistant trial judge advocate. He was absent from respondent’s trial on verbal orders of the commanding general. The Court of Appeals determined that , under these circumstances the court-martial had been appointed in disregard of the 8th Article of War, 41 Stat. 788, 10 U. S. C. § 1479. The relevant provision of this article as in force at the time of respondent’s trial is set forth in the margin. The article was interpreted by the Court of Appeals as requiring, “certainly in times of peace, that the presence of a duly qualified law member from the Judge Advocate General’s Department be made a jurisdictional prerequisite to the validity of such court-martial proceeding, except in the single instance where such officer is actually, and in fact, ‘not available.’ ” 175 F. 2d at 276. The Court of Appeals held that the availability of a law member from the Judge Advocate General’s Department was conclusively indicated by the order detailing an officer from that department in another capacity without any explanation. Thus the court concluded that the proceeding was void. We are unable to agree with the Court of Appeals that this record discloses any disregard of the 8th Article of War in the appointment of the tribunal which convicted respondent. Under the interpretation placed on the 8th Article by the court below, an officer from the Judge Advocate General’s Department was “available” for appointment as law member if he was appointed on the detail in another capacity and nothing otherwise appeared to negative his availability as law member. The article has been construed differently by the Court of Appeals for the Second Circuit in Henry v. Hodges, 171 F. 2d 401 (1948). In that case, in which the interpretative issue was similarly-raised on petition for habeas corpus, one officer from the Judge Advocate General’s Department had been appointed trial judge advocate and a second designated counsel for another accused. The court through Judge Learned Hand declared: “There remains the . . . question . . . whether any member of the Judge Advocate General’s Department was ‘available’ at the time. We cannot say that it was not more in the interest of justice to detail Beatty to defend Feltman than to put him on the court; or that it was not better judgment to make Swan a prosecutor than a judge .... The whole question is especially one of discretion; and, if it is ever reviewable, certainly the record at bar is without evidence which would justify a review. The commanding officer who convenes the court must decide what membership will be least to the ‘injury of the service,’ and what officers are ‘available.’ ‘Available’ means more than presently ‘accessible’; it demands a balance between the conflicting demands upon the service, and it must be determined on the spot.” 171 F. 2d at 403. We agree with the latter interpretation that the availability of an officer as law member was intended by Congress to be a matter within the sound discretion of the appointing authority. Ordinarily the “availability” of military personnel who are subject to assignment by an appointing authority is understood to depend upon a discretionary determination by the superior. Cf. Kahn v. Anderson, 255 U. S. 1 (1921); Swaim v. United States, 165 U. S. 553 (1897); Mullan v. United States, 140 U. S. 240 (1891); Martin v. Mott, 12 Wheat. 19 (1827). Moreover, the phrase adopted in the 8th Article, “available for the purpose,” expresses a clear intent that the concept of availability should include the exercise of discretion by the appointing authority. The 8th Article has also been consistently interpreted and applied by the Army as vesting a discretion in the appointing authority, which when exercised is conclusive in determining not only the accessibility of personnel but also the suitability of the officer detailed as the law member of a general court-martial. CM 231963, Hatteberg, 18 B. R. 349, 366-369 (1943); CM ETO 804, Ogletree, 2 B. R. (ETO) 337, 346 (1943); CM 209988, Cromwell, 9 B. R. 169, 196 (1938) ; Digest of Opinions of The Judge Advocate General (1912-1940) § 365 (9). This established interpretation is entitled to great weight in our determination of the meaning of the article. Cf. United States ex rel. Hirshberg v. Cooke, 336 U. S. 210, 216 (1949). The exercise of the discretion thus conferred on the appointing authority may be reviewed by the courts only if a gross abuse of that discretion would have given rise to a defect in the jurisdiction of the court-martial. However, we need not determine at this time whether the provision of the 8th Article relied upon below imposed a requirement going to the jurisdiction of the court-martial, for nothing in the record here involved indicates that the discretion of the appointing authority was improperly exercised. Clearly no abuse is disclosed by the appointment of an officer from the Judge Advocate General’s Department to a capacity other than law member on the detail, or by reassignment of that officer to other duty at the time of trial, or by the standard of competence in legal matters shown by the law member at the trial. The Court of Appeals also concluded that certain errors committed by the military tribunal and reviewing authorities had deprived respondent of due process. We think the court was in error in extending its review, for the purpose of determining compliance with the due process clause, to such matters as the propositions of law set forth in the staff judge advocate’s report, the sufficiency of the evidence to sustain respondent’s conviction, the adequacy of the pretrial investigation, and the competence of the law member and defense counsel. Cf. Humphrey v. Smith, 336 U. S. 695 (1949). It is well settled that “by habeas corpus the civil courts exercise no supervisory or correcting power over the proceedings of a court-martial .... The single inquiry, the test, is jurisdiction.” In re Grimley, 137 U. S. 147, 150 (1890). In this case the court-martial had jurisdiction of the person accused and the offense charged, and acted within its lawful powers. The correction of any errors it may have committed is for the military authorities which are alone authorized to review its decision. In re Yamashita, 327 U. S. 1, 8-9 (1946); Swaim v. United States, supra, 165 U. S. at 562. It results that the judgment is Reversed. Mr. Justice Douglas took no part in the consideration or decision of this case. Respondent contends that this Court lacks jurisdiction to review a court of appeals’ judgment ordering discharge of a prisoner or affirming such an order, in view of the omission from revised Title 28 of any provision comparable to former § 463c which expressly authorized review of such judgments on certiorari. We think this contention is without merit in view of the broad provision of § 1254 that “Cases in the courts of appeals may be reviewed by the Supreme Court ... (1) By writ of certiorari granted upon the petition of any party to any civil or criminal case . . . .” The Court of Appeals stated in its opinion that two officers of the Judge Advocate General’s Department were appointed to the detail. However, the record indicates that only one of those mentioned below was appointed from that department. “The authority appointing a general court-martial shall detail as one of the members thereof a law member, who shall be an officer of the Judge Advocate General’s Department, except that when an officer of that department is not available for the purpose the appointing authority shall detail instead an officer of some other branch of the service selected by the appointing authority as specially qualified to perform the duties of law member. . . .” 41 Stat. 788, 10 U. S. C. § 1479. The 8th Article was amended substantially in 1948, 62 Stat. 628-629. See note 5, infra. The relevant legislative history of the provision of the 8th Article relating to the law member supports this interpretation. Prior to the adoption of the 8th Article of War in 1920, military law did not provide for the service of a law member on a court-martial. Under the impetus for reform following World War I, the original draft of what became the 8th Article provided that every general court-martial should have a judge advocate whose duties were to be similar to those of the “law member,” as finally provided for. The proposed Article would have provided further that such judge advocate of the court be a member of the Judge Advocate General’s Department or an officer whose qualifications were approved by the Judge Advocate General. Hearings on S. 64, Subcommittee of the Senate Committee on Military Affairs, 66th Cong., 1st Sess., p. 5. The proposed Article was, however, abandoned for the provisions of the 8th Article. See 18 B. R. 349, 366-367 (1943). The 8th Article of War, as in force since February 1, 1949, expressly imposes as a jurisdictional requirement that the law member be an officer from the Judge Advocate General’s Department or an officer whose qualification for such detail has been certified by the Judge Advocate General. 62 Stat. 628-629. The following instances of error in the military proceedings were cited by the Court of Appeals: “(1) Accused was convicted on the theory that although he was on duty as a sentry at the time of the offense, it was incumbent upon him to retreat from his post of duty. “(2) Accused has been convicted of murder on evidence that does not measure to malice, premeditation, or deliberation. “(3) The record reveals that the law member appointed was grossly incompetent. “(4) There was no pre-trial investigation whatever upon the charge of murder. “(5) The record shows that counsel appointed to defend the accused was incompetent, gave no preparation to the case, and submitted only a token defense. “(6) The appellate reviews by the Army reviewing authorities reveal a total misconception of the applicable law.” 175 F. 2d at 277. Question: What reason, if any, does the court give for granting the petition for certiorari? A. case did not arise on cert or cert not granted B. federal court conflict C. federal court conflict and to resolve important or significant question D. putative conflict E. conflict between federal court and state court F. state court conflict G. federal court confusion or uncertainty H. state court confusion or uncertainty I. federal court and state court confusion or uncertainty J. to resolve important or significant question K. to resolve question presented L. no reason given M. other reason Answer:
songer_numresp	1	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Your specific task is to determine the total number of respondents in the case. If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. JONES DAIRY FARM, Petitioner/Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent/Cross-Petitioner, and Local 538, United Food and Commercial Workers Union, AFL-CIO-CLC, Intervening Respondent. Nos. 89-2512, 89-2821. United States Court of Appeals, Seventh Circuit. Argued April 10, 1990. Decided Aug. 7, 1990. Herbert P. Wiedemann, Foley & Lardner, Milwaukee, Wis., for petitioner/cross-respondent. Aileen A. Armstrong, N.L.R.B., Appellate Court — Enforcement Litigation, Joseph Oertel, Paul J. Spielberg, N.L.R.B., Washington, D.C., George F. Squillacote, N.L. R.B., Milwaukee, Wis., for respondent/cross-petitioner. Kenneth R. Loebel, Previant, Goldberg, Uelman, Gratz, Miller & Brueggeman, Milwaukee, Wis., for intervening respondent. Before CUDAHY, COFFEY and MANION, Circuit Judges. CUDAHY, Circuit Judge. On June 15, 1989, the National Labor Relations Board (the “Board,” the “NLRB”) ordered Jones Dairy Farm (“Jones”) to cease and desist from implementing a mandatory “work hardening” program. Jones asks us to review and set aside the Board’s order; the Board cross-petitions for enforcement of its order. Jones raises two points in its petition. First, Jones argues that the Wisconsin Worker’s Compensation Act, Wis.Stat. § 102.01 et seq., grants it a right to implement the program in order to reduce its disability payments to injured and ill employees. Second, Jones contends that the administrative law judge (the “AU”) and the NLRB violated its right to due process by deciding the case on the basis of a no-strike clause in the collective bargaining agreement (the “CBA”), despite the fact that Local 538 (the “Union”) did not prosecute its case on that theory. For the reasons discussed below, we deny Jones’s petition for review and grant the NLRB’s petition for enforcement of its order. I. BACKGROUND At the time the dispute arose over the work hardening program, Jones and the Union were parties to a CBA effective from November 9, 1985, to October 1, 1988. The CBA contained seniority and sick pay provisions. Article XI, the seniority clause, provided in material part: 11. In cases of proven disability, where an employee is not able to perform a job according to his seniority, the Company and the Union may deviate from the seniority provisions in order to place him on a job he can perform. General Counsel’s Exh. 2, at 34. Article XVI set out the sick pay provisions. It read: 1. Regular full-time employees with twelve (12) months or more of continuous service with the Company, who are absent because of physical disability due to sickness or accident (except where such disability is covered by the Workmen’s Compensation Law of Wisconsin), where such disability is supported by acceptable medical evidence, shall receive Sick Pay. 2. Subject to the other provision [sic] of this Article, Sick Pay shall be payable for each period the employee is prevented by such disability from performing any and every duty pertaining to the employee’s occupation. 5. In cases of disability which would have been covered by this article but for the fact that they are covered by the Workmen’s Compensation Law of the State of Wisconsin, the employee, if eligible under this article, will receive the difference between what he received as compensation under said law and the amount he would have received under this article but for the exclusion of the disability because of his being covered by the Workmen’s Compensation Law. Id. at 43, 45-46. Further, the CBA contained a no-strike/no-lockout clause that read in part: 1. Since arbitration is provided for grievances, since the procedures of the National Labor Relations Board are available for claims of unfair labor practices, and since negotiation on matters not covered by this Agreement is to be deferred until the expiration of this Agreement, the Union will not call or sanction any strike, stoppage, slowdown or other interference with work during the term of this Agreement and the Company will not lock out any or all of its employees. Id. at 42 (emphasis added). Because of a high work-related accident rate, Jones and its worker’s compensation insurer, EBI, began studying methods to reduce the number and severity of acci-' dents and the cost of the company’s disability payments. Among the options explored by the company was a so-called “work hardening” program offered by Opportunities, Inc. (“OI”), an organization specializing in boosting the confidence and strength of temporarily partially disabled workers and preparing them to return to their regular jobs. OI provides light duty jobs in a factory setting to temporarily partially disabled employees of participating companies. The companies pay a service fee to OI and also pay wages to their own employees. Under the program, a participating company’s physician would examine a disabled employee and determine what, if any, work he could perform. An appropriate assignment would be made at OI, and the employee would work at the assigned position under the supervision and direction of OI. The employee would earn wages, which would be offset by a reduction in disability benefits. Jones proposed to pay its employees assigned to 01 an hourly wage of $4.00 — about one-third of the normal wages prescribed by the CBA. Jones Dairy Farm and Local No. P-1236, United Food and Commercial Workers Union, AFL-CIO-CLC, Case No. 30-CA-9395, at 3 (June 23, 1987) (hereafter the “ALJ’s findings”). Jones asserts that even after state and federal taxes, the partially disabled employee would be no worse off than if he had remained on temporary total disability status. If the employee declines the limited duty work, however, his benefits are still reduced according to the formula, and he obviously does not receive any wages. On June 23, 1986, Jones first notified the Union that it was considering the work hardening program as well as several plans directed at accident prevention and injury and health counseling. Representatives of Jones, EBI and the Union toured OI’s facilities two days later, but when Jones again raised the proposal at a regular grievance meeting on July 14, the Union refused to give its consent. On September 29, 1986, Jones informed the Union that it intended to implement the 01 program unilaterally on October 15; at the Union’s request, Jones delayed action on the plan until it met with Union officials at a special meeting on October 17. At the meeting, the Union refused to consent to the work hardening program and specifically stated as its major concern the issue of bargaining unit employees working outside of Jones’s premises. On October 24, Jones advised the Union that it would unilaterally implement the program on November 3; the company sent letters to the same effect to all of its employees on October 31. On November 11, the Union filed a grievance protesting Jones’s unilateral implementation of the work hardening program, General Counsel’s Exh. 7, and on November 17, the Union filed its charge with the NLRB. The complaint issued by the General Counsel of the NLRB pursuant to the Union’s charge accuses Jones of engaging in unfair labor practices in violation of sections 8(a)(1) and (5) and 8(d) of the National Labor Relations Act (the “Act,” the “NLRA”), 29 U.S.C. §§ 158(a)(1) and (5), 158(d). Jones’s App. at 32-37. The complaint explicitly alleges that the work hardening program modified the seniority and sick pay provisions without the Union’s consent. The complaint mentions neither the no-strike clause nor the “management rights” clause contained in Article V of the CBA. General Counsel’s Exh. 2, at 9. Between November 1986 and April 1987 (when the parties presented their cases to the AU), Jones assigned seven of its employees to the 01 work hardening program. Four agreed to participate; three refused and suffered reduced disability compensation. AU’s findings at 5. The AU concluded that the work hardening program was encompassed within “wages, hours, and other terms and conditions of employment” and was therefore a mandatory subject of bargaining under section 8(d) of the NLRA. The AU further determined that the Wisconsin Worker’s Compensation Act was not preempted by the NLRA since the employer was not required to implement a light duty/rehabilitation program. Rather, according to the AU, the implementation of such a program was negotiable. The AU next addressed the Union’s contention that the program impermissibly expanded the bargaining unit. He concluded that “farming out” bargaining unit employees, AU’s findings at 12, was a permissible subject of bargaining that required the consent of both the Union and the employer. The AU then rejected Jones’s contention that the no-strike clause permitted it to take unilateral action on any subject (like the work hardening program) not covered by the CBA. The ALJ read the no-strike clause in a manner wholly contrary to Jones’s interpretation, concluding that, in fact, the clause mandated that the status quo be preserved during the term of the CBA with regard to any subjects not specifically addressed in the CBA. Consequently, the AU ordered Jones to cease and desist from implementing the work hardening program without the Union’s consent. Jones fared no better with the NLRB, although the NLRB did modify the AU’s findings in some respects. The NLRB agreed with the AU that the work hardening program was a mandatory bargaining subject under section 8(d) because worker’s compensation benefits, although provided by state law, are nevertheless “emoluments of value which accrue to employees out of their employment relationship.” Jones Dairy Farm and Local No. P-1236, United Food and Commercial Workers Union, AFL-CIO-CLC, 295 N.L.R.B. No. 20, at 7 (June 15, 1989) (citations omitted) (hereafter the “NLRB decision”). The Board rejected the AU's finding that the program was a permissive bargaining subject because it expanded the scope of the bargaining unit. However, the Board concluded that this aspect of the AU’s determination was not necessary to the resolution of the case, since the Board also agreed with the AU that the no-strike clause prohibited Jones from unilaterally implementing the OI program. II. JONES’S CLAIMED RIGHT TO IMPLEMENT THE OI PROGRAM UNILATERALLY Jones asserts, essentially, that its implementation of the work hardening program was authorized by state law and was none of the NLRB’s concern. In support of its position, Jones cites the Supreme Court’s decisions in Fort Halifax Packing Co. v. Coyne, 482 U.S. 1, 107 S.Ct. 2211, 96 L.Ed.2d 1 (1987), and Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S. 724, 105 S.Ct. 2380, 85 L.Ed.2d 728 (1985). Neither of these cases, however, removed the OI program from the purview of the NLRA and the regulatory jurisdiction of the Board. Although neither the AU nor the NLRB devoted much attention to the matter, we consider it important to inquire initially whether the Wisconsin Worker’s Compensation Act did in fact grant Jones a right to-impose a light duty rehabilitation program as a means of reducing its disability indemnity. None of the parties has directed us to a provision of the Worker’s Compensation Act that expressly vests an employer with such a right. The record, too, is ambiguous on this point. Jones relies in large measure on a decision in its favor rendered by an AU in the Worker’s Compensation Division of Wisconsin’s Department of Industry, Labor and Human Relations (the “DILHR”). Castenon v. Jones Dairy Farm, Nos. 87 64614 & 88 11916 (Mar. 20, 1989), reprinted in Jones’s App. at 38-46. The Casten-on decision, which explicitly declined to consider the applicability of federal labor law to the matter, referred to Wis.Stat. section 102.35(3), but then stated that the present matter was not a section 102.35(3) dispute. That section provides: (3) Any employer who without reasonable cause refuses to rehire an employe who is injured in the course of employment, where suitable employment is available within .the employe’s physical and mental limitations, upon order of the department and in addition to other benefits, has exclusive liability to pay to the employe the wages lost during the period of such refusal, not exceeding one year’s wages. In determining the availability of suitable employment the continuance in business of the employer shall be considered and any written rules promulgated by the employer with respect to seniority or the provisions of any collective bargaining agreement with respect to seniority shall govern. (Emphasis added.) Section 102.35(3) is clearly concerned with the rights of recuperating employees. It may be that the Wisconsin AU in Castenon extrapolated from this provision to a corresponding right in employers to insist that temporarily partially disabled employees work up to their physical and mental capacities. Another section of the Worker’s Compensation Act that may apply is section 102.-43(2). That section provides that the weekly compensation schedule for partial disability is “such proportion of the weekly indemnity rate for total disability as the actual loss of the injured employe bears to his average weekly wage at the time of his injury.” Chris M. Faulhaber, Jr., Administrator of the Worker’s Compensation Division of the DILHR, referred to section 102.43(2) in a letter to the Union’s president and explained how benefits for partial disability are affected by earnings from part-time work. It could be inferred from Faul-haber’s letter — although the letter did not say so expressly — that the DILHR would require a healing worker to accept a position within his capabilities if such a position were offered by his employer. But the letter emphasized that any “part-time or limited employment must be employment with the employer for whom the employe was working when injured” and “should be within the parameters of the union contract in effect.” General Counsel’s Exh. 8. Jones cites another source in support of its claimed right — the Worker’s Compensation Handbook (1983 & Supp.1985) prepared by the Wisconsin Bar and reprinted in Jones’s Exhibit 8. The Handbook does say that an employee is required to take light duty work (to the extent of his capacities) if it is offered by his own employer; however, the Handbook does not address whether an employee must take light duty work, assuming he is able, with a different employer or on different terms of employment. Further, the Handbook makes no mention of the potential effect of a CBA on the recuperating employee’s obligation to return to light duty work. Finally, the Handbook asserts that its summary of employees’ obligation to take light duty work is based on the “long-standing construction of the [Worker’s Compensation] Statutes” by the DILHR and one unpublished opinion of the Wisconsin Circuit Court. Jones’s App. at 36-37. The Handbook cites as its sole authority an unpublished Wisconsin Circuit Court case — Gillette Well Drilling v. DILHR, Case No. 143-142 (Dane Co. Cir.Ct. April 7, 1975). Under Wisconsin Civil Procedure Rule 809.23(3), unpublished cases have no precedential value. It may be under Wisconsin law that employers do have a right to insist that their partially disabled employees accept positions they are capable of performing, if the employer has such a position and makes it available. The parties have cited no published case, nor has our own research uncovered any, that establishes such a right. The evidence of DILHR policy contained in the record is inconclusive. Nevertheless, for the purposes of resolving this matter, we will assume that an employer is entitled under Wisconsin law to recall a recovering employee to an appropriate job at the employer’s place of business. Jones attempts to equate its asserted right with rights guaranteed to workers under state laws prescribing, for example, minimum wages and maximum hours. Such laws predated the federal labor laws, and they form a floor for the negotiation of the substantive terms of a collective bargaining agreement. See Fort Halifax Packing Co. v. Coyne, 482 U.S. 1, 21, 107 S.Ct. 2211, 2222, 96 L.Ed.2d 1 (1987) (“[P]re-emption should not be lightly inferred in [the area of state regulation establishing minimum terms of employment], since the establishment of labor standards falls within the traditional police power of the State.”); Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S. 724, 757, 105 S.Ct. 2380, 2398, 85 L.Ed.2d 728 (1985) (“When a state law establishes a minimal employment standard not inconsistent with the general legislative goals of the NLRA, it conflicts with none of the purposes of the Act.”). By comparing its asserted right, which it also labels an unqualified right, to minimum labor standards laws, Jones would require us to choose between recognizing its asserted right or declaring the Wisconsin Worker’s Compensation Act preempted. Such a choice is unnecessary. The Wisconsin statute has been drafted and interpreted to account for CBA provisions. Section 102.35(3) expressly defers to any applicable seniority provisions in a labor contract, and Faulhaber’s letter to the Union’s president emphasized that the employer’s recall of an employee is subject to the terms of a binding CBA. In our view, therefore, the NLRB persuasively argues that even if Jones had a right under Wisconsin law to insist that its injured workers accept employment up to their capacities, Jones was not required by state law to exercise that right. The right — if it indeed existed — was negotiable. The Board accepted the ALJ’s conclusion that the OI program was a mandatory subject of bargaining, since it clearly fell within the scope of “wages, hours, and other terms and conditions of employment.” 29 U.S.C. § 158(d). The Board’s findings of fact must be upheld if they are supported by substantial evidence on the record as a whole, 29 U.S.C. § 160(e); David R. Webb Co. v. NLRB, 888 F.2d 501, 503 (7th Cir.1989), cert. denied, — U.S. -, 110 S.Ct. 2560, 109 L.Ed.2d 743 (1990). Further, the Board’s legal conclusions should be accepted and enforced unless they are irrational or inconsistent with the act. NLRB v. Financial Institution Employees, 475 U.S. 192, 202, 106 S.Ct. 1007, 1012-13, 89 L.Ed.2d 151 (1986); Ford Motor Co. v. NLRB, 441 U.S. 488, 497, 99 S.Ct. 1842, 1849, 60 L.Ed.2d 420 (1979); David R. Webb Co., 888 F.2d at 503, 505; Maas & Feduska v. NLRB, 632 F.2d 714 (9th Cir.1979). In particular, we give substantial deference to the Board’s determinations about mandatory and permissive subjects of bargaining. Ford Motor Co., 441 U.S. at 497, 99 S.Ct. at 1849; Jack Thompson Oldsmobile, Inc. v. NLRB, 684 F.2d 458, 461-62 (7th Cir.1982); Maas & Feduska, 632 F.2d at 718-19. The NLRB noted that the OI program affected temporarily disabled employees’ wages, hours, types of work and workloads. Further, the program would have reduced employees’ sick pay and disability benefits, and these welfare benefits are a mandatory subject of collective bargaining. See Metropolitan Life, 471 U.S. at 751-52, 105 S.Ct. at 2395-96 (citing Chemical & Alkali Workers v. Pittsburgh Plate Glass Co., 404 U.S. 157, 159 & n. 1, 92 S.Ct. 383, 387 & n. 1, 30 L.Ed.2d 341 (1971)). Even if sick pay and disability benefits were not per se mandatory bargaining items, they became so by their inclusion in the CBA. Article XVI(2) clearly stated that sick pay “shall be payable for each period that the employee is prevented by such disability from performing any and every duty pertaining to the employee’s occupation.” (Emphasis added.) Subsection 5 of the same article required Jones to make up the difference, if any, between an employee’s state-mandated worker’s compensation benefits and “the amount [the employee] would have received under this article but for the exclusion of the disability because of his being covered by the Workmen’s Compensation Law.” Jones’s obligations under the CBA with regard to sick pay and disability benefits were explicit. Jones could not attempt to modify unilaterally those provisions during the term of the CBA without obtaining the Union’s consent or bargaining to impasse. 29 U.S.C. § 158(d). The NLRB’s conclusion that the OI program was a mandatory bargaining topic is, therefore, objectively reasonable and wholly supported. We accept that determination as conclusive in these circumstances. The Board did not reach the question, however, whether Jones had bargained with the Union over the OI program in good faith to impasse. Jones does not argue in its petition to us that impasse was reached, or even sought. In the alternative to its claim of an unqualified right to implement the OI program unilaterally, Jones maintained before the ALJ and the Board that the no-strike clause permitted it to take action unilaterally with respect to any item not covered by the CBA. Both the ALJ and the Board took the opposite view of the no-strike clause’s import, and the Board resolved the matter on the basis of its reading of that clause. We owe the Board no special deference in matters of contractual interpretation. Irvin H. Whitehouse & Sons Co. v. NLRB, 659 F.2d 830, 833 (7th Cir.1981); Local Union 1395, Int’l Bhd. of Electric Workers, AFL-CIO v. NLRB, 797 F.2d 1027, 1030-31 (D.C.Cir.1986). But we are, of course, mindful of the Board’s considerable experience in interpreting collective bargaining agreements. According to the Board, the no-strike clause was intended by the parties to preserve the status quo during the agreement’s term on mandatory bargaining matters not addressed by the CBA, “just as Section 8(d) [of the NLRA] preserves the status quo as to subjects covered by the agreement.” NLRB decision at 8. Thus, any alteration of the terms of employment during the life of the CBA required mutual assent, and it is undisputed that the Union withheld its consent here. The no-strike clause clearly evinced a desire by the parties to defer negotiation on mandatory items, not, as Jones argues, to waive it. Therefore, we agree with the NLRB and the ALJ that Jones was not free to implement the OI program during the term of the CBA without the Union’s consent; nor could Jones insist that the Union bargain to impasse on that subject. Jones’s unilateral implementation of the OI program therefore violated sections 8(a)(1) and (5) of the NLRA. The Board properly ordered Jones to cease and desist from unilaterally implementing the program and to make restitution to the affected employees. III. JONES’S DUE PROCESS CLAIM Having failed to convince the AU or the NLRB of its “right” to implement the OI program, Jones now claims that its due process rights were violated because the AU and the NLRB resolved the matter on the basis of the no-strike clause. Since the Union’s charge did not specifically allude to the no-strike clause, Jones complains that it did not receive fair notice of that theory and that it was consequently deprived of an opportunity to prepare an adequate defense. It is somewhat incongruous that Jones should charge the NLRB with a due process violation, since it was Jones that drew the AU’s and the Board’s attention to the no-strike clause in the first place. This clause was, indeed, a principal component of Jones’s defense in the administrative proceedings to the Union’s unfair labor practice charge. Jones is now dissatisfied with the intepretation of the clause rendered by the AU and accepted by the NLRB (and by this court). That the AU and Board disagreed with Jones over the meaning of the no-strike clause, however, is no basis for a claim that Jones was denied due process. Evidently, Jones hopes for a remand so that it can introduce some unspecified evidence from the bargaining history in support of its reading of the no-strike clause. But Jones has already been afforded two opportunities to marshall its evidence. We will not remand the case merely because Jones “assures” this court that such evidence exists, Jones’s Brief at 13, without making any effort to particularize the substance of its would-be proffer. Finally, Jones argues that, had it been apprised that the AU and NLRB would base their decisions on the no-strike clause, it would have defended its position by referring to a “management rights” clause in the CBA. Since Jones itself brought up the no-strike clause, it could have (and should have) drawn the NLRB’s attention to the management rights clause as support for its reading of the no-strike clause. Jones’s inexcusable failure to avail itself before the Board of all of its possible defenses, particularly after the adverse decision of the AU, deprives it of the right to have those arguments decided here. Jones’s claim that it was denied due process of law rings hollow. IV. CONCLUSION The NLRB concluded that “[n]othing in the management-rights, sick leave, no-strike/no-lockout provisions or any other section of the collective bargaining agreement permitted the Respondent to alter the status quo in the manner that it has in this case.” NLRB decision at 9-10. Because we agree with the Board’s reading of the CBA, Jones’s petition for review is Denied, and the NLRB’s order is Enforced. . In 1966, Jones recognized Local P-1236 of the United Food and Commercial Workers Union as the bargaining agent of its production and maintenance, employees. Local P-1236 merged with Local 538 during the pendency of this case. The parties do not dispute that Local 538 is the successor to Local P-1236. See NLRB’s Brief at 4 n. 3. . Jones gives the following example of the program's operation: Assume the employee’s regular wage is $8.00 per hour and he regularly works 40 hours per week. His average weekly earnings are $320 ($8.00 X 40 hours). His worker’s compensation indemnity for temporary total disability is $213.00 (Vi X $320.00) [sic] If he works 20 hours per week on a limited duty job he is paid $80.00 ($4.00 x 20 hours) for that work. His wage loss is thus reduced from $320.00 to $240.00, i.e., from 100% to 75% ($240.00 divided by $320.00). This, results in a worker’s compensation indemnity for partial disability of $159.75 (.75 X $213.00). He receives that indemnity, $159.75, plus the pay for the limited duty work, $80.00, for a total of $239.75, which is $26.75 more than the indemnity for temporary total disability. Jones’s Brief at 8-9. . Jones does not explain precisely how much of the employee’s wages from the limited duty work would be subject to federal and state taxes. Jones directs us to its Exhibit 13 in the administrative record, but that document expressly involves calculations based only on gross earnings. In light of our disposition of this case, however, the effect of taxes on the disability package is irrelevant. . The Union concedes that a temporarily partially disabled employee may be required to accept light duty work at Jones's plant. Subsection 11 of Article XI (the seniority provision of the CBA) nevertheless appears to require the consent of both the Union and Jones to place a recovering employee in a suitable position. . Shortly after implementing the program, Jones declared that it would not apply to employees whose sickness or disability was not work-related; Jones feared that subjecting such employees to the 01 program would violate the sick pay provisions of the CBA. Jones’s Brief at 5 n. 3. Jones does not explain, however, why application of the program to employees suffering from a work-related disability would not ¡also violate the CBA’s sick pay regimen. . We discuss the management rights clause below. . Hereafter, we follow the pagination of Jones’s Appendix when referring to the Castenon decision. . Indeed, the Labor and Industry Review Commission, to which Castenon and his fellow claimants appealed the state ALJ’s decision, reversed the state ALJ’s decision and declared the matter preempted in light of the NLRB’s decision and order in the present case. Intervenor's Motion to Supplement the Record filed Oct. 10, 1989, at 1-7. Whether a matter that may be governed by state law is preempted by an applicable federal law is, of course, a question of Congress’s intent. Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 208, 105 S.Ct. 1904, 1909-10, 85 L.Ed.2d 206 (1985); Malone v. White Motor Corp., 435 U.S. 497, 504, 98 S.Ct. 1185, 1190, 55 L.Ed.2d 443 (1978). For the reasons we give in this section, we agree with the NLRB that the NLRA and the Wisconsin Worker’s Compensation Act can "peacefully coexist.” NLRB decision at 6. . The Wisconsin AU who rendered the Casten-on decision testified before the NLRB that Cas-tenon reflects the DILHR’s interpretation of the Worker’s Compensation Act. Tr. at 94-112. . Unpublished opinions may be cited only "to support a claim of res judicata, collateral estop-pel or law of the case." Wis.Civ.P.R. 809.23(3). . Jones declares in its brief: “Even if the collective bargaining agreement in haec verba were to preclude Jones from providing limited duty work, a unilateral modification of the agreement to elimination [sic] that prohibition would not constitute a violation of section 8(d).” Jones's Brief at 19. Since we have some difficulty accepting Jones's argument that such a right exists at all, we have considerably more reservations about deeming the “right” absolute and independent of Jones's collective bargaining obligations. . As we noted above, the ALJ rested his decision on the determination that Jones’s "farming out” of bargaining unit employees to OI was a permissive subject of bargaining that could not be implemented without the Union’s consent. Although the Board disagreed with this aspect of the ALJ’s findings, the issue did not affect the outcome óf the case. Since we resolve the matter on other grounds, we do not reach the Union’s contention that the OI program illegally enlarged the scope of the bargaining unit. . In any event, it appears that the NLRB, which had the entire CBA before it as an exhibit, in fact considered whether the CBA gave Jones residual authority to take unilateral action in the furtherance of its business with respect to matters not covered by the CBA. NLRB decision at 9 n. 13. The Board found no such broad grant of authority in the CBA in this case. Question: What is the total number of respondents in the case? Answer with a number. Answer:
songer_appnonp	99	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of appellants in the case that fall into the category "groups and associations". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. NEW ENGLAND ACCESSORIES TRADE ASSOCIATION, INC., et al., Plaintiffs, Appellants, v. James E. TIERNEY, et al., Defendants, Appellees. No. 81-1886. United States Court of Appeals, First Circuit. Submitted June 11, 1982. Decided Sept. 28, 1982. James M. Smith, Denver, on brief, for plaintiffs, appellants. James E. Tierney, Atty. Gen., James W. Brannigan, Jr., Deputy Atty. Gen., and William R. Stokes, Asst. Atty. Gen., Augusta, Me., on brief, for defendants, appellees. Before CAMPBELL, BOWNES and BREYER, Circuit Judges. BOWNES, Circuit Judge. Challenged here is the facial validity of portions of the Maine Drug Paraphernalia Act, Me.Rev.Stat.Ann.tit. 17A, § 1111-A, an act patterned on the Drug Enforcement Administration’s Model Drug Paraphernalia Act. The district court struck subsection 3(F) of the act, but concluded the act was otherwise facially valid. Plaintiffs, a trade association, wholesalers, and retailers subject to the act, have appealed. The Maine Act is set forth in the appendix to this opinion. Plaintiffs, pointing to the definitional section (subsection 1 of the Maine Act) which does not expressly state whose intent is relevant in determining whether an item is drug paraphernalia, first argue that the statute exposes a defendant to criminal responsibility for the intent or misdeeds of another. Interpreting a New Hampshire statute which contained a substantially identical definition of drug paraphernalia, see N.H.Rev.Stat.Ann.c. 318-B:1 X-a, we rejected a similar “transferred intent” argument concluding that a fair reading of the statute as a whole, including the portions defining the substantive offenses which focus on the mental state of the accused, indicated the intent referred to is that of the person alleged to have violated the statute. See New England Accessories Trade Association, Inc. v. City of Nashua, 679 F.2d 1, 5-6 (1st Cir. 1982) and cases cited therein. See also Tobacco Accessories and Novelty Craftsmen Merchants Association of Louisiana v. Treen, 681 F.2d 378, 383 (5th Cir. 1982) (“[t]he ‘intended for use’ language applies to the state of mind of the individual charged with the offense of selling, distributing, or displaying drug paraphernalia”); Florida Businessmen for Free Enterprise v. City of Hollywood, 673 F.2d 1213, 1219 (11th Cir. 1982) (“[t]o ensure that defendants will not be convicted based on the transferred intent of others ... the . .. states of mind on which the definition of drug paraphernalia relies . . . require proof of general criminal intent of the accused”). It is true that unlike the situation in City of Nashua, we are not here aided by a state supreme court interpretation of the Maine statute, but that does not preclude us from ascertaining the meaning of the Maine statute. It is also true that, unlike the New Hampshire statute, the substantive trafficking offense of the Maine Act contains the “reasonably should know” language of the Model Act, compare N.H.Rev.Stat. Ann.c. 318-B:2 II with Me.Rev.Stat.Ann.tit. 17-A, § 1111-A 5, but this difference does not affect our determination that the definitional section itself, subsection 1 of the Maine Act, requires proof of the defendant’s intent. Accord, Levas and Levas v. Village of Antioch, 684 F.2d 446, 452-53 (7th Cir. July 7, 1982); Tobacco Accessories, 681 F.2d at 383; Florida Businessmen, 673 F.2d at 1219; Hejira Corp. v. MacFarland, 660 F.2d 1356, 1366-1367 (10th Cir. 1981); Casbah, Inc. v. Thone, 651 F.2d 551, 559, 561 (8th Cir. 1981), cert. denied, 455 U.S. 1005, 102 S.Ct. 1642, 71 L.Ed.2d 874 (1982) (No. 81-415); Record Revolution No. 6, Inc. v. City of Parma, 638 F.2d 916, 928-929 (6th Cir. 1980), vacated, 451 U.S. 1013, 101 S.Ct. 2998, 68 L.Ed.2d 384 (1981); Delaware Accessories Trade Association v. Gebelein, 497 F.Supp. 289, 292-293 (D.Del.1980). Once the definitional section is so read, plaintiffs’ further argument that subsection 5' — which makes it “unlawful for any person to traffick in or furnish drug paraphernalia, knowing, or under circumstances where one reasonably should know” that it will be used for illegal drug purposes, Me.Rev.Stat.Ann.tit. 17-A, § 1111-A 5 (emphasis added) — permits conviction on a negligence standard looses its foundation. This is because in view of the definitional section — which, as interpreted, renders an item in a seller’s hands drug paraphernalia only if the seller intends it to be used with scheduled drugs — constructive knowledge of the buyer’s purpose alone is not enough for conviction: “In the context of an alleged sale or delivery of drug paraphernalia, the Act requires the state to prove both (1) that the defendant intended that an item would be used for the production or consumption of controlled substances and also (2) that he either knew, or that he acted in a set of circumstances from which a reasonable person would know, that the buyer of the item would thereafter use it for those purposes. So-called constructive knowledge thus has significance only in a situation where the defendant is selling or delivering items that he intends to be used to produce or consume illicit drugs in the first place. The legitimate merchant who sells innocuous items need make no judgment about the purpose of the buyer based upon the surrounding circumstances. The dealer, on the other hand, who sells innocuous items with the intent that they be used with drugs is, in effect, put on notice by the illicit nature of his activity that he must be careful to conform his conduct to the law. Even the illicit dealer, however, is not held legally responsible ... for guessing what is in the mind of a buyer. The seller is safe as long as he does not actually know the buyer’s purpose and as long as the objective facts that are there for him to observe do not give fair notice that illegal use will ensue.” Delaware Accessories, 497 F.Supp. at 294. See also Casbah, Inc. v. Thone, 651 F.2d at 561 (following Delaware Accessories). The foregoing is the interpretation of the act the Maine Attorney General advanced and the lower court adopted. New England Accessories Trade Association v. Tierney, 528 F.Supp. 404 (D.Me.1981). Plaintiffs nevertheless contend the statute is unconstitutionally vague because the standard of intent is itself so vague that it provides no guidance to actors or prosecutors. Plaintiffs claim merchants are unable to discern what mental state on their part— i.e., whether knowledge that an innocuous object may be used with scheduled drugs is enough — will transgress the act. Both “intentionally” and “knowingly” are defined in the Maine criminal code, and we find these definitions sufficiently specific to avoid a due process vagueness problem. While plaintiffs argue that the facts listed in subsection 3 fail to provide black and white standards from which law enforcement officers can determine a merchant’s intent, law enforcement always requires the exercise of some judgment, Grayned v. City of Rockford, 408 U.S. 104, 114, 92 S.Ct. 2294, 2302, 33 L.Ed.2d 222 (1972), and the assessment called for under the Maine Act is no different in kind than that ordinarily encountered. Delaware Accessories, 497 F.Supp. at 295. In New England Accessories, 679 F.2d at 6, we rejected a similar attack leveled against a list containing 13 of the same 14 factors, and we adhere to that view. Plaintiffs’ last argument — that subsection 1(K) creates a mandatory presumption that the objects listed therein are drug paraphernalia — fails. The list gives examples of items which, depending on the circumstances — actual use or the accused’s intent — may be drug paraphernalia. Affirmed. APPENDIX § 1111-A. Sale and use of drug paraphernalia 1. As used in this section the term “drug paraphernalia” means all equipment, products and materials of any kind which are used or intended for use in planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing, packaging, repackaging, storing, containing, concealing, injecting, ingesting, inhaling or otherwise introducing into the human body a scheduled drug in violation of this chapter or Title 22, section 2383. It-includes, but is not limited to: A. Kits used or intended for use in planting, propagating, cultivating, growing or harvesting of any species of plant which is a scheduled drug or from which a scheduled drug can be derived; B. Kits used or intended for use in manufacturing, compounding, converting, producing, processing or preparing scheduled drugs; C. Isomerization devices used or intended for use in increasing the potency of any species of plant which is a scheduled drug; D. Testing equipment used or intended for use in identifying or in analyzing the strength, effectiveness or purity of scheduled drugs; E. Scales and balances used or intended for use in weighing or measuring scheduled drugs; F. Dilutents and adulterants, such as quinine hydrochloride, mannitol, mannite, dextrose and lactose, used or intended for use in cutting scheduled drugs; G. Separation gins and sifters, used or intended for use in removing twigs and seeds from, or in otherwise cleaning or refining, marijuana; H. Blenders, bowls, containers, spoons and mixing devices used or intended for use in compounding scheduled drugs; I. Capsules, balloons, envelopes and other containers used, or intended for use in packaging small quantities of scheduled drugs; J. Containers and other objects used or intended for use in storing or concealing scheduled drugs; and K. Objects used or intended for [sic] in ingesting, inhaling or otherwise introducing marijuana, cocaine, hashish or hashish oil into the human body, such as: (1) Metal, wooden, acrylic, glass, stone, plastic or ceramic pipes with or without screens, permanent screens, hashish heads or punctured metal bowls; (2) Water pipes; (3) Carburetion tubes and devices; (4) Smoking and carburetion masks; (5) Roach clips, meaning objects used to hold burning material, such as a marijuana cigarette that has become too small or too short to be held in the hand; (6) Miniature cocaine spoons and cocaine vials; (7) Chamber pipes; (8) Carburetor pipes; (9) Electric pipes; (10) Air-driven pipes; (11) Chillums; (12) Bongs; or (13) Ice pipes or chillers. 2. For purposes of this section, drug paraphernalia does not include hypodermic apparatus. Possession of, furnishing or trafficking in hypodermic apparatus constitute separate offenses under sections 1110 and 1111. 3. In determining whether an object is drug paraphernalia, a court or other authority should consider, in addition to all other logically relevant factors, the following: A. Statements by an owner or by anyone in control of the object concerning its use; B. Prior convictions, if any, of an owner, or of anyone in control of the object, under any state or federal law relating to any scheduled drug; C. The proximity of the object, in time and space, to a direct violation of this chapter; D. The proximity of the object to scheduled drugs; E. The existence of any residue of scheduled drugs on the object; F. Direct or circumstantial evidence of the intent of an owner, or of anyone in control of the object, to deliver it to persons whom he knows, or should reasonably know, intend to use the object to facilitate a violation of this chapter; the innocence of an owner, or of anyone in control of the object, as to a direct violation of this chapter shall not prevent a finding that the object is intended for use as drug paraphernalia; G. Instructions, oral or written, provided with the object concerning its use; H. Descriptive materials accompanying the object which explain or depict its use; I. National and local advertising concerning its use; J. The manner in which the object is displayed for sale; K. Whether the owner, or anyone in control of the object, is a legitimate supplier of like or related items to the community, such as a licensed distributor or dealer of tobacco products; L. Direct or circumstantial evidence of the ratio of sales of the object to the total sales of the business enterprise; M. The existence and scope of legitimate uses for the object in the community; and N. Expert testimony concerning its use. 4. It is unlawful for any person to use, or to possess with intent to use, drug paraphernalia to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, conceal, inject, ingest, inhale or otherwise introduce into the human body a scheduled drug in violation of this chapter or Title 22, section 2383. 5. It is unlawful for any person to traffick in or furnish drug paraphernalia, knowing, or under circumstances where one reasonably should know, that it will be used to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, conceal, inject, ingest, inhale or otherwise introduce into the human body a scheduled drug in violation of this chapter or Title 22, section 2383. 6. It is unlawful for any person to place in any newspaper, magazine, handbill or other publication any advertisement, knowing, or under circumstances where one reasonably should know, that the purpose of the advertisement, in whole or in part, is to promote the sale of objects intended for use as drug paraphernalia. 7. Violation of subsection 4 is a civil violation for which a forfeiture of not more than $200 may be adjudged. 8. Violation of subsection 5 or 6 is a Class E crime, except that, if the actor trafficks or furnishes drug paraphernalia to a child under 16 years of age, it is a Class D crime. 9. Any drug paraphernalia possessed in violation of this section is declared to be contraband and may be seized and confiscated by the State. . Plaintiffs argue that those federal courts which have read state statutory drug paraphernalia definitions patterned after the Model Act as referring to the intent of the accused have engaged in an impermissible process of placing a limiting construction on an act, a function a federal court has no authority to perform when reviewing a state statute. We disagree. It is the meaning of the Maine statute as written which both the district court and we have sought to ascertain through the use of traditional and appropriate canons of statutory interpretation. See Casbah, Inc. v. Thone, 651 F.2d 551, 557-558 (8th Cir. 1981), cert. denied, 455 U.S. 1005, 102 S.Ct. 1642, 71 L.Ed.2d 874 (1982). . Courts reaching this result have relied on the general principle of statutory interpretation that statutes should be read to avoid an unconstitutional result, see, e.g., Record Revolution, 638 F.2d at 928-929; Delaware Accessories v. Gebelein, 497 F.Supp. at 292; the structure of the Model Act — the initial ambiguity in § 1, viewed alone, being explained by the fact that it was drafted to be appropriate in the context of a number of different prohibited activities including possession (subsection 4 of the Maine Act), manufacturing or selling (subsection 5), and advertising (subsection 6), all of which substantive offenses focus on the mental state of the violator, see, e.g., Casbah, Inc. v. Thone, 651 F.2d at 559; Delaware Accessories Trade Association v. Gebelein, 497 F.Supp. at 292 and n.1; and the Model Act comments indicating the relevant intent for purposes of the definitional section is that of the defendant, see, e.g., Delaware Accessories, 497 F.Supp. at 293. . “1. ‘Intentionally.’ “A. A person acts intentionally with respect to a result of his conduct when it is his conscious object to cause such a result. “B. A person acts intentionally with respect to attendant circumstances when he is aware of the existence of such circumstances or believes that they exist. “2. ‘Knowingly.’ “A. A person acts knowingly with respect to a result of his conduct when he is aware that it is practically certain that his conduct will cause such a result. “B. A person acts knowingly with respect to attendant circumstances when he is aware that such circumstances exist.” Me.Rev.Stat.Ann.tit. 17-A, § 35. Question: What is the total number of appellants in the case that fall into the category "groups and associations"? Answer with a number. Answer:
songer_casetyp1_3-2	A	What follows is an opinion from a United States Court of Appeals. Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Your task is to determine the specific issue in the case within the broad category of "First Amendment". LAMB’S CHAPEL and John Steigerwald, Plaintiffs-Appellants, v. CENTER MORICHES UNION FREE SCHOOL DISTRICT and Louise Tramontano, in her official capacity as president of the Board of Education for Center Moriches Schools, Defendants-Appellees, New York State Attorney General’s Office, Intervenor. No. 470, Docket 91-7718. United States Court of Appeals, Second Circuit. Argued Nov. 4, 1991. Decided March 18, 1992. Mark N. Troobnick, Washington, D.C. (Jordan W. Lorence, Concerned Women for America Legal Foundation, Jay A. Seku-low, Walter M. Weber, Free Speech Advocates, of counsel), for plaintiffs-appellants. Harold G. Trabold, Patchogue, N.Y. (Dranitzke, Lechtrecker & Trabold, Pat-chogue, N.Y., August H. Englert, Fiedel-man & Hoefling, Jericho, N.Y., of counsel) for defendants-appellees Center Moriches Union Free School Dist. and Louise Tra-montano. Jeffrey I. Slonim, Asst. Atty. Gen., New York City (Robert Abrams, Atty. Gen., Lawrence S. Kahn, Deputy Sol. Gen., Atty. Gem’s Office, State of N.Y., of counsel), for intervenor New York State Atty. Gen. Jay Worona, Albany, N.Y. (Cynthia P. Fletcher, New York State School Boards Ass’n, Inc., of counsel) for amicus curiae New York State School Boards Ass’n, Inc. Before CARDAMONE, PIERCE and MINER, Circuit Judges. MINER, Circuit Judge: Plaintiffs-appellants Lamb’s Chapel and John Steigerwald appeal from a summary judgment entered in the United States District Court for the Eastern District of New York (Wexler, J.) in favor of defendants-appellees Center Moriches Union Free School District and Louise Tramontano, as President of the Board of Education of the School District. Lamb’s Chapel is an Evangelical Christian church, incorporated under the New York not-for-profit corporation law, located at Center Moriches, Suffolk County, New York. John Steigerwald is the Pastor of Lamb’s Chapel. The School District is a subdivision of the State of New York duly organized to provide public education in Suffolk County. This action was brought to secure declaratory and injunctive relief as redress for the refusal of the School District to allow the use of School District facilities, during non-school hours, for the showing of a series of religious films. The School District relied on a New York statute as well as a local rule in denying use of the facilities. In granting summary judgment, the district court determined that the School District’s facilities were “limited public forums,” which had not been opened to religious groups by policy or practice. Accordingly, the court concluded that the facilities properly were barred to the plaintiffs in accordance with the New York Education Law and the School District’s own Local Rules. On appeal, appellants contend that the School District, having created public forums by policy and practice, has excluded speech from the forum on the basis of content. This, they urge, is violative of the First Amendment. Appellants also contend that the denial to them of equal access to the School District’s facilities, based on the religious content of their speech, is a violation of the Establishment Clause. Finally, they contend that a prior decision of this Court upholding the New York statute that allows the exclusion of religious groups from school district facilities in the absence of a practice of opening the facilities to other religious organizations is erroneous and should not be followed. Finding no merit in any of these contentions, we affirm the judgment of the district court. BACKGROUND By application dated November 19, 1988, Pastor Steigerwald sought the use of rooms in the Center Moriches High School for Lamb’s Chapel Sunday morning services and for Sunday School. The hours specified were 9:00 A.M. to 1:00 P.M., and the time period indicated was one year, beginning in December of 1988. The application was made on a form provided by the School District and entitled “Application For Use of School District Facilities.” Attached to the application form was a sheet entitled “Rules and Regulations for Community Use of School Facilities.” Rule No. 7 was set out as follows: “The school premises shall not be used by any group for religious purposes.” Above his signature on the application form, Pastor Steigerwald indicated that he had read the Rules and Regulations and agreed to comply fully with them “excluding #7.” Accompanying the application, and dated November 21, 1988, was a letter to Alice Schoener, School District Clerk, from the Pastor. In the letter, Pastor Steigerwald introduced himself and his Church and noted that their “paramount objective [was] to share the love of Christ in very real and practical ways.” He also indicated that he had taken a tour of the Center Moriches High School to “see if the school had adequate facilities for a movie series on the family that will be free of charge and open for the community to attend.” Pastor Steigerwald stated in his letter that he had met with the high school principal, who was concerned that the content of the film be nonsectarian in view of the constitutional requirement for the “separation of church and state.” The letter continued: “Those who espouse such a ... view are seriously misinformed. Enclosed you will find several articles that correctly interpret the law that is presently being upheld by the Supreme Court of the United States of America.” By letter dated November 23, 1988 on behalf of the School District, Ms. Schoener advised Pastor Steigerwald that the application “requesting the use of the high school for your Sunday services” was denied, citing Local Rule No. 7 as well as the State Education law. Referring to scheduling problems, Ms. Schoener further advised that she was “very much afraid that, even without the prohibited religious activity aspect, your request would have to be denied.” Undeterred, Pastor Steigerwald pressed forward on December 16, 1988 with another application for use of the high school facilities, the second application being limited to one evening per week for five weeks. The hours designated were 7:00 P.M. to 10:00 P.M. and the activity specified was “Family emphasis & Movie presentation by Dr. James Dobson.” The purpose set forth was “To open up the film to share some pracital [sic] insights about the family.” The facilities requested were the auditorium or gymnasium. In response to the second application Ms. Schoener wrote to Pastor Steigerwald on January 18, 1989 to request “a more detailed description of your proposed use (including a brochure describing the film),” noting that she was “hard pressed to determine from your description, what the five-part movie would represent” but “suspected] that it would certainly have religious connotations.” In the letter requesting additional information, Ms. Schoener observed that “[t]he district has not, in the past, allowed the high school auditorium to be used by any group primarily for its own purposes.” A brochure describing the film, “Turn Your Heart Toward Home,” was forwarded by Pastor Steigerwald to Ms. Schoener on February 2, 1989. According to the brochure, the film comes in a 6-part series “every parent should see.” In the film, Dr. James Dobson, said to be an expert on family life, “reminds parents of society’s slide toward humanism — the undermining influences of radio, television, films and the press — which can only be counterbalanced by a loving home where Christian values are instilled from an early age.” In her response dated February 8, 1989, Ms. Schoener advised Pastor Steigerwald as follows: “This film does appear to be church related and therefore your request must be refused.” Additionally, Ms. Schoener denied a request made by Pastor Steigerwald on February 2,1989, for use of the elementary or high school on Friday or Saturday evenings “for ‘non-religious purposes’ such as volley ball.” The reason given was: “We do not schedule outside organizations to use the facilities on Fridays and Saturdays.” Pastor Steigerwald continued to press his petition. On October 11, 1989, he submitted yet another application for the use of Center Moriches School District facilities to show the same film series, described in this application as a “Family oriented movie from a Christian perspective.” The stated purpose of Lamb’s Chapel was “To invite community of Center Moriches to view this very practical movie for family raising.” Once again, the use of an auditorium for five week days over a five-week period was sought. This last application met with a terse response by Ms. Schoener: “This film does appear to be church related and therefore your request must be refused.” The complaint in this action was filed on February 9, 1990 and includes four causes of action: violation of the Freedom of Speech and Assembly Clauses; violation of the Equal Protection Clause; violation of the Free Exercise Clause; and violation of the Establishment Clause. As to each cause, the plaintiffs allege that the defendants’ actions were taken under color of state law and in violation of the Civil Rights Act of 1866, 42 U.S.C. § 1983. The injunctive relief sought was an order permitting plaintiffs the use of the auditorium of the high school or elementary school to show the film series and to allow religious groups use of the facilities without discrimination because of the religious content of their speech. Also sought was a judgment declaratory of plaintiffs’ rights to use the facilities in question in accordance with constitutional protections guaranteed by the First and Fourteenth Amendments, including the Free Speech, Freedom of Assembly, Free Exercise, Establishment and Equal Protection Clauses of the Constitution. Plaintiffs also sought a declaration of the unconstitutionality of section 414 of the New York Education Law to the extent it bars the use of school district facilities for purposes of religious speech. Plaintiffs’ motion for a preliminary injunction to compel the School District to allow the use of the District’s facilities was denied by the district court in a Memorandum and Order dated May 16, 1990. The court reviewed the facts presented on the motion as well as the applicable legal and constitutional principles and concluded that plaintiffs had “not shown either a substantial likelihood of success on the merits or sufficiently serious questions going to the merits.” Lamb’s Chapel v. Center Moriches Union Free School Dist., 736 F.Supp. 1247, 1254 (E.D.N.Y.1990). An appeal to this Court from the Order denying the preliminary injunction was withdrawn, and the matter was returned to the district court for further proceedings. Thereafter, the plaintiffs moved for summary judgment and the School District cross-moved for the same relief. After hearing testimony as well as considering exhibits and affidavits, the district court granted the School District’s motion and denied the plaintiffs’ motion in a Memorandum and Order dated July 15, 1991, giving rise to this appeal. In granting summary judgment, the district court found “that if the intended use of school facilities is not required or authorized by statute, there is no constitutional right to such use where a school district has not, by policy or practice, permitted a similar use in the past.” Lamb’s Chapel v. Center Moriches Union Free School Dist., 770 F.Supp. 91, 98 (E.D.N.Y.1991). Although it determined that the Center Mo-riches School District facilities are limited public forums, the court concluded that the “District ha[d] not, by policy or practice, opened its doors to groups akin to Lamb’s Chapel,” and therefore held “that the School District’s denial of plaintiffs’ applications to show the film series [was] viewpoint-neutral and, hence, constitutional.” Id. at 99. We agree with the conclusion reached by the district court. DISCUSSION According to the Supreme Court, the extent of permissible governmental regulation of expressive activity on publicly owned property is dependent upon the character of the public property in question. See Perry Education Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 44, 103 S.Ct. 948, 954, 74 L.Ed.2d 794 (1983). The Court has identified three categories of publicly owned property and has defined what regulatory power, consistent with the First Amendment, may be exercised in each category. See Cornelius v. NAACP Legal Defense and Educational Fund, Inc., 473 U.S. 788, 802, 105 S.Ct. 3439, 3448, 87 L.Ed.2d 567 (1985). The power of the State to regulate expression is most limited in regard to the category of public property designated “traditional public forum.” Streets, parks and similar locales, said to “have immemorially been held in trust for the use of the public and [which], time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions,” Hague v. CIO, 307 U.S. 496, 515, 59 S.Ct. 954, 964, 83 L.Ed. 1423 (1939), fall within this classification. In such a forum, a regulation providing a content-based exclusion may be enforced only when “necessary to serve a compelling state interest” and must be “narrowly drawn” to serve that purpose. Perry, 460 U.S. at 45, 103 S.Ct. at 955. Also, narrowly tailored, content-neutral regulations pertaining to the time, place and manner of expression in a traditional public forum may be enforced, if they “serve a significant government interest, and leave open ample alternative channels of communication.” Id. See Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 2753, 105 L.Ed.2d 661 (1989). The second category of public property pertinent to this analysis is made up of property purposefully opened for use by the public for expressive activity. Although government is not required to open this sort of forum or to keep it open indefinitely, the regulation of expression in a locale encompassed within the second category must meet the same standards as are applicable to a traditional public forum. Perry, 460 U.S. at 46, 103 S.Ct. at 955. Places opened specifically for the use of certain speakers or for the discussion of certain subjects are referred to as “limited” or “designated” fora. See Longo v. U.S. Postal Service, 953 F.2d 790, 793-94 (2d Cir.1992); Travis v. Owego-Apalachin School Dist., 927 F.2d 688, 692 (2d Cir.1991). As to these fora, “the first amendment protections provided to traditional public forums only apply to entities of a character similar to those the government admits to the forum.” Calash v. City of Bridgeport, 788 F.2d 80, 82 (2d Cir.1986). Least restricted is the power of government to regulate expression in the third category of public property — the nonpublic forum. Included in this category is property that is not open for communicative purposes either by tradition or designation. Perry, 460 U.S. at 46, 103 S.Ct. at 955. With respect to such property, where governmental control is analogous to that of a private owner, see United States Postal Service v. Council of Greenburgh, 453 U.S. 114, 129-30, 101 S.Ct. 2676, 2685, 69 L.Ed.2d 517 (1981), a reasonableness standard prevails, see International Soc’y For Krishna Consciousness v. Lee, 925 F.2d 576, 580 (2d Cir.1991), cert. granted, — U.S. -, 112 S.Ct. 855, 116 L.Ed.2d 764 (1992). The standard is met when the applicable restrictions “reflect a legitimate government concern and do not suppress expression merely because public officials oppose the speaker’s view.” See Paulsen v. County of Nassau, 925 F.2d 65, 69 (2d Cir.1991). The Center Moriches School District facilities appellants sought to use do not fall within the categories of “traditional public forum” or “non-public forum,” and appellants do not contend that they do. What appellants do contend is that the school authorities in the Center Moriches School District by policy and practice have opened the facilities for the use of the general public and that the exclusion of religious speech is prohibited under the standards governing the second category. See Hazelwood School Dist. v. Kuhlmeier, 484 U.S. 260, 267, 108 S.Ct. 562, 567, 98 L.Ed.2d 592 (1988). An examination of pertinent policy and actual practices, however, convinces us that the school property in question falls within the subcategory of “limited public forum,” the classification that allows it to remain non-public except as to specified uses. See Deeper Life Christian Fellowship v. Board of Educ., 852 F.2d 676, 679 (2d Cir.1988) (Deeper Life I). In the matter of School District policy, the District is governed by section 414 of the New York Education Law and its own Local Rule No. 7. Section 414 sets out ten purposes for which the use of schoolhouse facilities may be granted throughout the State of New York: instruction; public library purposes; social, civic and recreational meetings; events for which admission fees are charged, if the fees are to be applied to educational and charitable (but not religious) purposes; elections and political meetings; civic forums and community centers; classes for mentally retarded minors; recreation and athletics; child care services during non-school hours; and graduation exercisés held by not-for-profit elementary and secondary schools, provided no religious service is performed. N.Y.Educ.Law § 414[l](a)-(j) (McKinney 1988 & Supp.1992). Religious uses are nowhere permitted in this enumeration. All the uses specified are subject to such regulations as may be adopted by boards of education in the various school districts of the state, but the regulations must not conflict with the state law. See id. As previously noted, the Board of Education of the Center Moriches Union Free School District has provided in its Local Rule No. 7 that “[t]he school premises shall not be used by any group for religious purposes.” In Deeper Life I we adopted a state court interpretation of section 414 that the use of New York school facilities is confined to nonreligious purposes, see Trietley v. Board of Educ., 65 A.D.2d 1, 5-6, 409 N.Y.S.2d 912, 915 (4th Dep’t 1978), and thereby ascertained the state’s intent to create a limited public forum from which religious uses would be excluded. See Deeper Life I, 852 F.2d at 680. We determined in that case that under the statute and applicable New York City Board of Education regulations, the School Board had no discretion with respect to the granting of use permits to religious groups. See Deeper Life Christian Fellowship v. Sobol, 948 F.2d 79, 83 (2d Cir.1991) (Deeper Life II). Appellants argue, in effect, that once the school district facilities are opened as a public forum for one purpose, they are opened for all purposes. They take issue with our view that “property remains a nonpublic forum as to all unspecified uses ..., and exclusion of uses — even if based upon subject matter or the speaker’s identity — need only be reasonable and viewpoint-neutral to pass constitutional muster,” Deeper Life I, 852 F.2d at 679-80 (citations omitted), and contend that our view does not represent a proper interpretation of Supreme Court precedent. That challenge is barred by the rule of stare decisis, not only as a consequence of the Deeper Life cases but also as a consequence of our decision in Travis, where we held that “in a limited public forum, government is free to impose a blanket exclusion on certain types of speech, but once it allows expressive activities of a certain genre, it may not selectively deny access for other activities of that genre.” 927 F.2d at 692. In Travis, the school district was constrained to open its facilities to a religiously-oriented, fund-raising entertainment event benefitting a pregnancy counselling organization affiliated with an organization that promoted Christian gospel evangelism, having previously opened the facilities to a religious Christmas program involving the collection of toys for needy children. “The Christmas program .., created at least a limited public forum for fund-raisers with religious themes.” Id. at 693. In Deeper Ufe I, we sustained a preliminary injunction in a case in which a church sought the temporary use of an elementary school building, finding as a fair ground for litigation that “the School Board ha[d] opened this forum to [the church] through a practice of granting permits to use public school facilities to other religious organizations.” 852 F.2d at 680. Whether Center Moriches has opened its facilities to religious uses and purposes presents a close question here. On appeal, appellants principally rely upon three prior uses of school district facilities to demonstrate a prior practice of opening Center Moriches public schools to outside of school religious uses: a Salvation Army Band Benefit Concert; a Gospel Music Concert; and a lecture series entitled “Psychology and the Unknown,” given by Jerry Huck. The Band Benefit Concert involved performances by the Center Mo-riches High School Band as well as the Salvation Army Greater New York Youth Band. The money raised at this concert was used to provide a scholarship for a high school band member and to provide funds for children to go to summer camp. The only religious connotations found in the Joint Band Program were the invocation, the performance of a piece called “Jericho Revisited” and the finale, “God Bless America.” Although appellants adduced evidence that “the Salvation Army is a church or a quasi-church,” the Joint Band Program hardly can be described as any kind of a religious use of school district property. The theme of the Program was not religious and any reference to religion was incidental at best. The Gospel Music Concert was performed by a group called the “Southern Harmonizers Gospel Singers.” The purpose of the program was to raise money for the school’s black student scholarship fund. The program consisted in the main of gospel and spiritual music. The business manager of the Singers defined gospel music as “the good news of God.” Included in the program were such well-known religious songs as “Amazing Grace!” and “The Lord is my Shepherd” from the Twenty-Third Psalm of the Old Testament. The business manager responded in the affirmative when asked if the concert could be enjoyed for the music itself. Obviously, this is so. Much of the world’s greatest music has some religious connotation but can be enjoyed by people of all religious beliefs as well as people of no religious beliefs. The performance by the Southern Harmonizers was not a religious service or event but a musical and cultural one. It took place in a non-religious context and had a non-religious purpose. The lecture series, “Psychology and The Unknown,” by Jerry Huck, was sponsored by the Center Moriches Free Public Library. The library’s newsletter characterized Mr. Huck as a psychotherapist who would discuss such topics as parapsychology, transpersonal psychology, physics and metaphysics in his 4-night series of lectures. Mr. Huck testified that he lectured principally on parapsychology, which he defined by “reference to the human unconscious, the mind, the unconscious emotional system or the body system.” When asked whether his lecture involved matters of both a spiritual and a scientific nature, Mr. Huck responded: “It was all science. Anything I speak on based on parapsychology, analytic, quantum physicists [sic].” Although some incidental reference to religious matters apparently was made in the lectures, Mr. Huck himself characterized such matters as “a fascinating sideline” and “not the purpose of the [lecture].” As is apparent from the foregoing, none of the prior uses pointed to by the appellants were for religious purposes. Nor are we able to discern any previous uses of any school district property for religious purposes upon an examination of the record. Incidental references to religion or religious figures, the occasional use of religious terms, and the performance of music with religious overtones do not convert a secular program into a religious one. The programs cited as examples did not carry out religious themes nor were they presented in a religious context. We simply have not been able to identify any prior use of Center Moriches School District facilities for purposes that are religious in any meaningful way. We therefore conclude that the facilities were limited forums not opened to religious uses by policy or practice and that there was no constitutional violation in the failure of the School District to afford access to appellants. Widmar v. Vincent, 454 U.S. 263, 102 S.Ct. 269, 70 L.Ed.2d 440 (1981) and Board of Educ. of the Westside Community Schs. v. Mergens, 496 U.S. 226, 110 S.Ct. 2356, 110 L.Ed.2d 191 (1990), relied upon appellants, do not dictate a contrary result. In Widmar, the Court held that a state university could not deny access to university facilities to students who wished to conduct religious meetings on campus. Widmar, 454 U.S. at 273, 102 S.Ct. at 276. The Court found in that case that “[t]hrough its policy of accommodating their meetings, the University has created a forum generally open for use by student groups,” noting that “the campus of a public university, at least for its students, possesses many of the characteristics of a public forum.” Id. at 267 & n. 5, 102 S.Ct. at 273 & n. 5. In Mergens, the Court held that the Equal Access Act, 20 U.S.C. § 4071(b) prohibited a high school from “discriminating, based on the content of the students’ speech, against students who wish to meet on school premises during noninstructional time.” 496 U.S. at 247, 110 S.Ct. at 2370. The high school had created a limited open forum- by allowing noncurriculum-related student groups to use the school facilities. The denial of a request to form a Christian club, under the circumstances revealed, constituted a denial of equal access under- the Equal Access Act. Although appellants contend that our Deeper Life opinions are incompatible with these Supreme Court decisions and that the decisions compel a reversal of the district court in the case at bar, the contention is baseless. Widmar involved the use of university property by student groups in a situation where a number of such groups had been afforded access, to the point where, as to the students, a “generally open forum” was created. 454 U.S. at 267, 102 S.Ct. at 273. Similarly, in Mergens, the religious use of school property was sought by students, who have a greater claim on the use of school property than outsiders, especially when the property generally is open to student groups. The Supreme Court decided Mergens purely on statutory grounds, noting that it did not need to decide whether the First Amendment requires the same result. In the Deeper Life cases, as in the case at bar, we are presented with outside organizations seeking access where access has been limited and all religious use has been barred by policy and practice. The appellants argue that denial of access somehow violated the Establishment Clause of the First Amendment as well as the Freedom of Speech Clause. It is difficult to see how this is so. If anything, a claim of a violation of the Free Exercise Clause would be expected. Nevertheless, there is no basis for any claim of First Amendment violation here. We have considered all of the arguments advanced by the appellants and find them meritless. CONCLUSION The judgment of the district court is affirmed in all respects. Question: What is the specific issue in the case within the general category of "First Amendment"? A. religion, press, commercial B. speech and other expression Answer:
songer_procedur	A	What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal rule of procedures, judicial doctrine, or case law, and if so, whether the resolution of the issue by the court favored the appellant. Mrs. Amanda Stewart RABB, Administratrix of the Estate of Johnny Rabb, Plaintiff-Appellant, v. The CANAL BARGE COMPANY, Defendant-Appellee. No. 28866. United States Court of Appeals, Fifth Circuit. June 18, 1970. Norman L. Breland, Holleman & Necaise, Gulfport, Miss., Robert L. Netterville, Natchez, Miss., for plaintiff-appellant. George Morse, Gulfport, Miss., John Peters, Jr., Jones'^ Walker, Waechter, Poitevant, Carrere & Denegre, New Orleans, La., for defendant-appellee. Before BELL, COLEMAN and AINSWORTH, Circuit Judges. AINSWORTH, Circuit Judge: The issue before us is whether there is an evidentiary basis to sustain the jury’s finding of no negligence or unseaworthiness in this action against Canal Barge Company, Inc., growing out of the unexplained drowning of Johnny Rabb, a seaman. We find that there is and affirm. Suit was brought under the Jones Act and the general maritime law by decedent’s mother as the administratrix of his estate. Decedent is also survived by sisters and brothers. On the date in question, Johnny Rabb was employed by appellee ' Canal Barge Company as a deck hand aboard the tug, The M/V Eugenia P. Jones. The vessel at the time was pushing seven barges loaded with sulphur up the Ohio River. Rabb, who had been standing available for a fog watch, was last seen alive about midnight on August 2, 1968. Shortly before 3:25 a. m. he was ordered by the Pilot through the ship’s intercom to proceed to the head of the tow as the vessel was beginning to come into fog. After a lapse of several minutes, the Pilot, having been unable to see a flashlight on the tow and having failed in his attempts to contact Rabb through the intercom, awakened the Captain who immediately ordered and shortly thereafter assisted with a general search of the tug and the barges in an attempt to find Rabb. A searchlight was turned on, and the vessel immediately following the tug and all towboats in the vicinity were notified to keep watch. Some time later, about daylight, a launch was put over the side to look for Rabb. The search, however, proved futile. Rabb’s body, without a life jacket, was found the next day. By special verdict, the jury found for defendant. The Court denied motions of both parties for a directed verdict and all other post-trial motions. Appellant’s argument, basically a factual one, is addressed to the weight of the evidence and the Court’s refusal to grant a peremptory instruction on both the negligence and unseaworthiness issues. The standard for testing the sufficiency of the evidence in a Jones Act case is that expressed by the Supreme Court in Lavender v. Kurn, 327 U.S. 645, 653, 66 S.Ct. 740, 744, 90 L.Ed. 916 (1946), as follows: “It is no answer to say that the jury’s verdict involved speculation and conjecture. Whenever facts are in dispute or the evidence is such that fair-minded men may draw different inferences, a measure of speculation and conjecture is required on the part of those whose duty it is to settle the dispute by choosing what seems to them to be the most reasonable inference. Only when there is a complete absence of probative facts to support the conclusion reached does a reversible error appear. But where, as here, there is an evidentiary basis for the jury’s verdict, the jury is free to discard or disbelieve whatever facts are inconsistent with its conclusion. And the appellate court’s function is exhausted when that evidentiary basis becomes apparent, it being immaterial that the court might draw a contrary inference or feel that another conclusion is more reasonable.” See also McBride v. Loffland Bros. Co. & Travelers Ins. Co., 5 Cir., 1970, 422 F.2d 363. Cf. Boeing Company v. Shipman, 5 Cir., 1969, 411 F.2d 365. We must determine, therefore, whether there was a reasonable evidentiary basis upon which the jury could have found for appellee. Appellant calls attention to the following omissions of the Captain of the vessel and appellee barge line: the alleged dilatory actions of the Captain by remaining in bed ten to fifteen minutes after having been told of Rabb’s disappearance; his further delay in stopping the vessel and in putting a launch over to look for Rabb; failure to provide a backup man to watch for men overboard in dense fog; and failure to sound distress signals. Appellant further alleges that the failure of appellee to provide adequate lighting and guard rails around the tug constituted actionable unseaworthiness of the vessel. Having been given the proper instructions by the Court on negligence, unseaworthiness and proximate cause, it was the jury’s function properly to assess that evidence against the following evidence favorable to appellee in determining whether there was liability: Deck hands, venturing out on the barge, were required under all circumstances to wear life jackets and encouraged to use flashlights. There was no life jacket on decedent’s body, and the Pilot looked for, but was unable to see, a flashlight on the head of the tow. Under these circumstances, the jury could have reasonably concluded that decedent’s negligence was the sole proximate cause of his drowning. There were no eyewitnesses to the accident, thus necessitating the jury to draw on inferences. We may assume, therefore, that a certain amount of conjecture forms the basis of the verdict. This, however, does not detract from its validity. As said by the Supreme Court in a F.E.L.A. case, the counterpart of a Jones Act proceeding, “Fact finding does not require mathematical certainty. Jurors are supposed to reach their conclusions on the basis of common sense, common understanding and fair beliefs, grounded on evidence consisting of direct statements by witnesses or proof of circumstances from which inferences can fairly be drawn.” Schulz v. Pennsylvania Railroad Company, 350 U.S. 523, 527, 76 S.Ct. 608, 610, 100 L.Ed. 668 (1956). (Emphasis supplied.) See also Lavender v. Kurn, 327 U.S. at 653, 66 S.Ct. at 744. Appellant stresses the alleged negligent failure of the tug’s Captain to take proper and adequate measures when informed of Rabb’s disappearance. We cannot say that the jury was unreasonable in refusing to find the Captain derelict or dilatory in his duty by allowing no more than fifteen minutes to lapse between being awakened and actively participating in the search. There was evidence that the vessel had already been stopped and that the Captain was aware of it, indicating that the necessary emergency measures were already in motion. Nevertheless, the Captain responded immediately by ordering a search; a searchlight was used to assist; all towboats in the vicinity were notified to keep watch; any search of the river and the banks by launch prior to daylight and a break in the fog would have been dangerous and useless. There was also evidence to refute appellant’s contention that the absence of handrails and additional lights on the barges constituted unseaworthiness. Testimony showed the impracticality and danger of placing life lines around the perimeter of the barges; that all necessary navigational lights were in use and that any other lights aboard the barges would have created confusion and danger. There was also evidence that a one-man fog watch was normal; that there was a clear and unobstructed walkway for a deck hand to use in proceeding to the bow to serve as fog watch. Around the perimeter of the barges was a white glossy enamel stripe about eighteen inches wide painted there as a safety measure to warn a deck hand that he was approaching the edge of a barge. Appellant nevertheless urges that the tug was unseaworthy as a matter of law and that the unexplained drowning of Rabb requires the application of the res ipsa loquitur doctrine. Resort to this doctrine, however, is not warranted in the absence of showing at least a malfunction, failure or misuse of the vessel, its appurtenances or gear, or some defect therein. Compare Vega v. The Malula, 5 Cir., 1961, 291 F.2d 415; Marshall v. Ove Skou Rederi A/S, 5 Cir., 1967, 378 F.2d 193. The facts of this case are vastly distinguishable from those of Gibbs v. Kiesel, 5 Cir., 1967, 382 F.2d 917, and authorities cited therein, relied on by appellant. In Gibbs the petitioner was struck from behind by doors which unaccountably fell from above. Inability of petitioner to pinpoint the cause which triggered the doors to fall did not preclude a finding of unseaworthiness. We expressed our approval of the application of the res ipsa doctrine to an action for unseaworthiness noting that “the logical inference is often that the gear or appurtenance would not have broken had it not been defective.” 382 F.2d at 919. Here, however, there was no evidence of any untoward effect from which a possible unseaworthy “cause” could be argued. The District Judge, in a very fair and comprehensive charge, instructed the jury that all of the alleged derelictions of appellee were matters to be decided by them in determining whether there was causal negligence or unseaworthiness. The Court properly instructed the jury on the “slight-negligence” test to be applied in determining liability under the Jones Act. See Webb v. Illinois Central Railroad Co., 352 U.S. 512, 77 S.Ct. 451, 1 L.Ed.2d 503 (1957); Ferguson v. Moore McCormack Lines, 352 U.S. 521, 522, 77 S.Ct. 457, 1 L.Ed.2d 511 (1957). The Court also informed the jury of the absolute duty of the shipowner in respect to seaworthiness. See Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 80 S.Ct. 926, 4 L.Ed.2d 941 (1960). The jury nevertheless found for appellee on both issues. We cannot say the verdict was without evidentiary basis. Affirmed. Question: Did the interpretation of federal rule of procedures, judicial doctrine, or case law by the court favor the appellant? A. No B. Yes C. Mixed answer D. Issue not discussed Answer:
songer_counsel1	A	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. Your task is to determine the nature of the counsel for the appellant. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party J. Norman “Stoney” STONE, Appellant, v. The Honorable WYOMING SUPREME COURT, Appellee. No. 5372. United States Court of Appeals Tenth Circuit. Aug. 4, 1956. J. Norman Stone, Washington, D. C., pro se. Robert H. McPhillamey, Deputy Atty. Gen. (George F. Guy, Atty. Gen. of Wyoming, and Howard B. Black, Asst. Atty. Gen., of Wyoming, were with him on the brief), amicus curiae. Before BRATTON, Chief Judge, PHILLIPS, Circuit Judge, and ROGERS, District Judge. BRATTON, Chief Judge. J. Norman Stone, hereinafter referred to as petitioner, made application for admission to the Bar of Wyoming. After certain intervening procedure, the application was denied. Application of Stone, Wyo., 288 P.2d 767. Petitioner then filed in the United States Court for Wyoming this proceeding in which he sought a writ of mandamus to compel the Supreme Court of Wyoming to admit him to the Bar of that state. Honorable T. Blake Kennedy, United States Judge for Wyoming, retired, but assigned to active service in the court, entered an order dismissing the petition for want of jurisdiction. Petitioner then filed in the proceeding a pleading styled “Motion for Permission to Exercise Legal Right of Argument in Open Court and for Disqualification of Honorable Judge Blake T. Kennedy”. An order was entered denying the motion. Petitioner thereafter filed a pleading denominated “Motion to Reconsider Honorable Court’s Order Overruling Plaintiff’s Motion to Exercise Legal Right of Argument in Open Court and for Disqualification of Honorable Judge T. Blake Kennedy and Motion for Citation by Honorable Judge TV Blake Kennedy of Cases Supporting Said Denial as Explained in Judge’s Memorandum”. An order was entered denying such motion. Later, petitioner filed a pleading styled “Motion for Leave to File Amended Complaint and for Disqualification of Hon. T. Blake Kennedy, Retired Judge”. An affidavit of prejudice and a proposed amended complaint were tendered with the motion. At the same time, petitioner filed a pleading styled “Motion for Leave to Argue Motion for Leave to File Amended Complaint and for Disqualification of Honorable T. Blake Kennedy, Retired Judge”. At that juncture a letter was filed in the proceeding. The letter was written by the judge to the clerk. It was stated in the letter that the orders already entered in the cause formed the basis of any appeal upon the question of the court’s action in declining jurisdiction and on all collateral issues involved; that the court would make no further orders in the case except those necessary to expedite an appeal; that the letter should become a part of the files in the case; and that a copy thereof be transmitted to plaintiff for his information. Petitioner appealed. Courts of appeals are courts of limited jurisdiction; and save for excepted instances in which it is provided otherwise by statute, they have jurisdiction to review only final decisions of the district courts. Reeves v. Beardall, 316 U.S. 283, 62 S.Ct. 1085, 86 L.Ed. 1478; Crutcher v. Joyce, 10 Cir., 134 F.2d 809; State Tax Commission of Utah v. United States, 10 Cir., 136 F.2d 903; Breeding Motor Freight Lines v. Reconstruction Finance Corp., 10 Cir., 172 F.2d 416, certiorari denied 338 U.S. 814, 70 S.Ct. 54, 94 L.Ed. 493; Kanatser v. Chrysler Corp., 10 Cir., 195 F.2d 104; The Atchi-son, Topeka and Santa Fe Railway Co. v. Jackson, 10 Cir., 235 F.2d 390. With exceptions which do not have any material bearing here, Rule of Civil Procedure 73(a), 28 U.S.C.A., provides that when an appeal is permitted by law from a district court to a court of appeals, it shall be taken by filing with the district court a notice of appeal, and that such notice shall be filed within thirty days after entry of the judgment from which the appeal is taken. And the filing of the notice within that time is essential to the jurisdiction of the court of appeals. Spengler v. Hughes Tool Co., 10 Cir., 169 F.2d 166. The order of the court dismissing the petition for the writ was entered on December 16, 1955, and the notice of appeal by which the proceeding was brought to this court was filed February 28, 1956. If the notice could be considered as an attempt to appeal from the final order dismissing the petition for the writ, it did not operate to effectuate such appeal for the reason that it was not filed within the time specified in the rule. Rule of Civil Procedure 73(b), 28 U.S. C.A., provides in presently pertinent part that the notice of appeal shall designate the judgment or part thereof appealed from. That exaction constitutes a mandatory requirement and the jurisdiction of the court of appeals is limited to the judgment or portion thereof designated. Long v. Union Pacific R. Co., 10 Cir., 206 F.2d 829. The notice of appeal filed in this case did not make any reference to the final order dismissing the petition for the writ. It expressly stated that the appeal was taken “from the order on motion of plaintiff to reconsider motion entered in this action on January 25, 1956, and from a communication directed to Clerk, U. S. District Court for Wyoming by Honorable Judge T. Blake Kennedy, retired, * * * stating that he will make no further orders in this case * A direct appeal will not lie from a post-judgment order denying a motion to reconsider earlier action taken on a post-judgment motion. American Fire & Casualty Co. v. Allison, 5 Cir., 189 F.2d 255; Vaughan v. City Bank & Trust Co., Natchez, Miss., 5 Cir., 218 F.2d 802, cer-tiorari denied 350 U.S. 832, 76 S.Ct. 67. Neither will a direct appeal lie from an announced declination to enter further post-judgment orders in a case. And a dissatisfied suitor may not maintain a direct appeal from an order denying requested disqualification of the judge. Skirvin v. Mesta, 10 Cir., 141 F.2d 668. The appeal is dismissed. Question: What is the nature of the counsel for the appellant? A. none (pro se) B. court appointed C. legal aid or public defender D. private E. government - US F. government - state or local G. interest group, union, professional group H. other or not ascertained Answer:
songer_appbus	1	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of appellants in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. LEESONA CORPORATION, Appellant, v. COTWOOL MANUFACTURING CORPORATION, JUDSON MILLS DIVISION, Deering Milliken Research Corporation, and Whitin Machine Works, Appellees. No. 8684. United States Court of Appeals Fourth Circuit. Argued Jan. 23, 1963. Decided March 19, 1963. See also 308 F.2d 895. Robert F. Conrad, Washington, D. C. (Raymond P. DeMember, and Watson, Cole, Grindle & Watson, Washington, D. C., on brief), for appellant. Frederic P. Houston, New York City (James D. Poag, and Price & Poag, Greenville, S. C., Melvin Liebowitz and Otterbourg, Steindler, Houston & Rosen, New York City, on brief), for Deering Milliken Research Corp., appellee. Before HAYNSWORTH, BOREMAN and BRYAN, Circuit Judges. ALBERT V. BRYAN, Circuit Judge. Arbitration provided for in a patent license covering machinery and processes has been temporarily stayed by the District Court from enforcement by appellant licensor who was seeking thereby to recover royalties of the licensee on products made with an assertedly infringing process and machine. The suspension is effective until the conclusion of a current suit instituted by the licensor against the alleged infringers. The licensor maintains here that neither the pendency of the suit, nor its outcome, may preclude licensor from a decision of the infringement and royalty issue by arbitration. It is both a contractual right based on the license, licensor asserts, and one secured also by the United States Arbitration Act, 9 U.S.C. §§ 1-14. But we uphold the decree as a temporary injunction auxiliary to the defense of the licensor’s suit. The order was one within the discretion of the trial judge and we find no misuse of his responsibility. Licensor is the Leesona Corporation, the owner of three patents (the patent) covering certain textile machinery and processes. Licensee is Schwarzenbach Huber Company. The license, dated June 17, 1955, permits licensee itself to make the machines, or have them made, as well as to manufacture the products under the patented process. The arbitration clause is in these words: “Any dispute or controversy arising under, out of, or relating to this agreement shall be submitted to arbitration in accordance with the rules at the time prevailing of the American Arbitration Association, New York City, New York, U.S.A. The decision of the arbitrators shall be final and binding upon the parties hereto and shall be available to the parties hereto as the basis for judgment in any of the United States, at the instance of the party entitled to any award given by the said arbitrators.” The primary, accused infringer is Deering Milliken Research Corporation. In 1957 it obtained the exclusive right to allow the use in the United States of a process and machine devised and constructed in France and competing with the process and machine of licensor Lee-sona. Thereafter Whitin Machine Works obtained the exclusive right to manufacture and distribute the French machine in the United States. Deering and Whit-in approved use of the French machine by Leesona’s licensee Huber who then put it into productive operation. Thus Huber was at the same time a licensee of Lee-sona and a holder of use-rights on the French machine from Deering and Whit-in. Leesona charges first that the French process and machine are an infringement of its patent. It then claims, as initially noted, that Huber is using the French process and machine to turn out products protected by the Leesona patent. On this basis Leesona predicates its claim against Huber and invokes the arbitration clause of the license agreement. Before the claim for arbitration was asserted, Leesona had commenced the present suit in the United States District Court for the Western District of South Carolina against Cotwool Manufacturing Corporation, an affiliate of Deering. It averred infringement by Cotwool in using, under permit of Deering and Whitin, one of the French machines at its South Carolina plant. Whitin then began an action in the Federal District Court in Massachusetts for a declaratory judgment to the effect that Leesona’s patent was invalid. Later, Deering and Whitin were made parties defendant to Leesona’s South Carolina action. At the instance of Whitin and for the convenience of the parties the District Court severed Leesona’s complaint as against Whitin and transferred that part of the litigation to the Massachusetts Federal District Court. The South Carolina Court simultaneously suspended further proceedings in the action as against Deering and Cotwool. We heretofore approved the severance, transfer and suspension. Leesona Corp. v. Cotwool Manufacturing Corp., 308 F.2d 895 (4 Cir. 1962). With the issue of infringement thus before the Massachusetts District Court, the District Judge in South Carolina believed the arbitration demanded by licen-sor Leesona of licensee Huber should be stayed until a determination of the litigation in Massachusetts, inasmuch as the arbitrator would have the same question before him. Leesona argues that .the Court had no authority so to interfere with the contractual right and obligation established by the license as between Leesona and Huber. It urges that the intent of the parties to save expense and time by providing for arbitration in lieu of suit to resolve their differences has been thwarted. It acknowledges the accepted practice of enjoining related suits to enforce a patent until its validity has been adjudged in an action pending between the principal parties to determine that question. Telephonics Corp. v. Lindly & Co., 291 F.2d 495 (2 Cir.1961); International Nickel Co. v. Martin J. Barry, Inc., 204 F.2d 583, 585-586 (4 Cir.1953). Nevertheless this course is not appropriate here, Leesona continues, first because the parties have expressly contracted otherwise, and secondly, because the underlying reason for the procedure is absent, the court decision in Massachusetts having no binding effect in the arbitration between licensor and licensee. Leesona also emphasizes its objection to the decree by stressing that the stay was granted at the instance of Deering, not of licensee Huber who was not a party to the suit. The answer to this argument, however, is that the decree does not abrogate the arbitral clause and in no degree passes upon its validity or efficacy. Access to arbitration is not barred but only intermitted. The injunction is no more than it has been denominated, a “stay”, altogether ancillary and temporary. That a contractual clause for arbitration is subject to suspension by injunction has been recognized. Amazon Cotton Mills Co. v. Duplan Corp., 245 N.C. 496, 96 S.E.2d 267, 270 (1957). The injunction is clearly incident to the defense of Leesona’s suit. In these circumstances the issuance of an injunction — whether considered interlocutory or final — is something within the judgment of the chancellor. He balances the equities: the injury to applicant if the decree is not allowed, and the injury to the opponent if the restraint is granted. If he acts with concern for the rights of both parties upon a reasonable foundation, his determination will not be disturbed. The District Court quite comprehensively considered all of the arguments of Leesona. However, it believed them outweighed by other consequences which might reasonably be expected to follow immediate pursuit of arbitration. On this subject, District Judge Wyehe said: “In view of the identity of the infringement issue, it seems likely that continued prosecution of the arbitration proceeding may cause irreparable injury to Research [Deering], to Whitin and to Schwarzenbach [Huber], Before this action is concluded, customers and prospective customers of Research [Deering] and Whitin (who are also licensed under the [French machine] patents in suit), fearing arbitration proceedings and litigation, may turn from ‘FT [French] Machines’ to competitive machinery and a later decision by this Court favorable to Research [Deering] and Whitin could not repair the damage. “The arbitration decision cannot be set aside for errors of law or fact. Consequently, a prior unfavorable decision by the arbitration panel would bind Whitin’s customer (and Research’s [Deering’s] licensee) Schwarzenbach [Huber] despite a later decision by this Court in favor of Research [Deering] and Whitin. The result would be an anomalous situation wherein Schwarzenbach [Huber] would have to pay royalties to Leesona for ‘FT [French] Machine’ production although this Court would have held that the licensed patents do not cover ‘FT [French] Machines’.” True, delay will result, but it is noteworthy that the demand for arbitration, as the District Judge remarks, was not presented by Leesona until its litigation had been pending for more than a year. Again, a staunch, practical reason exists for the delay: the ruling of the Federal Court in Massachusetts upon infringement will be highly persuasive, if not dispositive, in the decision of the arbitrator. The principles we have discussed are expounded with clarity in Hecht Co. v. Bowles, 321 U.S. 321, 329-330, 64 S.Ct. 587, 591-592, 88 L.Ed. 754 (1944), by Mr. Justice Douglas: “We are dealing here with the requirements of equity practice with a background of several hundred years of history. Only the other day we stated that ‘An appeal to the equity jurisdiction conferred on federal district courts is an appeal to the sound discretion which guides the determinations of courts of equity.’ Meredith v. Winter Haven, 320 U.S. 228, 235 [64 S.Ct. 7, 88 L.Ed. 9]. The historic injunctive process was designed to deter, not to punish. The essence of equity jurisdiction has been the power of the Chancellor to do equity and to mould each decree to the necessities of the particular case. Flexibility rather than rigidity has distinguished it. The qualities of mercy and practicality have made equity the instrument for nice adjustment and reconciliation between the public interest and private needs as well as between competing private claims. * * * ” See also Rackley v. Board of Trustees, 310 F.2d 141 (4 Cir.1962); Smith v. Staso Milling Co., 18 F.2d 736, 738 (2 Cir.1927); 7 Moore, Federal Practice 1686-87 (2 ed. 1955). The District Judge has closely adhered to these fundamentals and his decree is not without warrant in equity and justice. Nor do we feel that in holding the arbitration in abeyance the decree breaches the Arbitration Act, 9 U.S.C. §§ 1-14. The District Court, to repeat, has not declined to recognize or enforce the arbitration provision. It has merely postponed resort to that remedy until termination of litigation commenced by Leesona. If after judicial settlement of that controversy Leesona still desires arbitration, it remains available. The Act does not oust the jurisdiction of the court. Equity may still prevent premature use of the clause. The statute itself envisages exertion by the court of equitable checks and balances; supervision of the arbitration by the court is expected. See Radiator Specialty Co. v. Cannon Mills, Inc., 97 F.2d 318, 319, 117 A.L.R. 299 (4 Cir.1938); American Locomotive Co. v. Chemical Research Corp., 171 F.2d 115 (6 Cir.1948), cert. denied, 336 U.S. 909, 69 S.Ct. 515, 93 L. Ed. 1074 (1949); Fremont Cake & Meal Co. v. Wilson & Co., 86 F.Supp. 968 (D. Neb.1949), aff’d, 183 F.2d 57 (8 Cir. 1950); cf. Shanferoke Coal & Supply Corp. v. Westchester Serv. Corp., 293 U.S. 449, 452-453, 55 S.Ct. 313, 79 L.Ed. 583 (1935). We find no fault in the decree on review. Affirmed. Question: What is the total number of appellants in the case that fall into the category "private business and its executives"? Answer with a number. Answer:
songer_usc1sect	462	What follows is an opinion from a United States Court of Appeals. Your task is to identify the number of the section from the title of the most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 50. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA". UNITED STATES of America ex rel. James Anderson DEANS, Sr., a/k/a Richard B. Jenkins, Appellant, v. Honorable Clark CLIFFORD, Secretary of Defense of the United States of America, Honorable Stanley Resor, Secretary of the Army of the United States of America, Major General Kenneth W. Collins, Commander, United States Army, Fort Dix, New Jersey. No. 17794. United States Court of Appeals Third Circuit. Argued Oct. 2, 1969. Decided Jan. 5, 1970. Edward Carl Broege, Jr., New York City, for appellant, William Subin, Asst. U. S. Atty., Camden, N. J. & (Donald Horowitz, U. S,. Atty., B. Dennis O’Connor, Asst. U. S. Atty., Newark, N. J., on the brief), for appellees. Before STALEY, SEITZ and VAN DUSEN, Circuit Judges. OPINION OF THE COURT VAN DUSEN, Circuit Judge. This appeal is taken from a District Court order denying relator’s petition for a writ of habeas corpus. He has been in the custody of the United States Army since his induction on July 16, 1968. Most of the facts of this case were stipulated prior to argument before this court, and the stipulation was approved pursuant to Rule 10(e) of the Federal Rules of Appellate Procedure. After conviction on September 23, 1966, for failing to submit to induction into the Army, under the Selective Service Act of 1948, Title 1, § 12, as amended, 50 U. S.C. App. § 462(b) (6) (1968), relator was sentenced to a three-year prison term. On February 1, 1967, relator petitioned the Attorney General for parole into the custody of the Armed Forces of the United States, pursuant to Executive Order 11,325, 32 C.F.R. § 1643 (1967). That Order provides that anyone convicted of a violation of the Selective Service laws may be granted a parole into the custody of the Armed Forces of the United States by the Attorney General “if it is compatible with the public interest and the enforcement of the Military Selective Service Act of 1967.” 32 C.F.R. § 1643.2. Application to the Attorney General must be made by the prisoner, and he must consent to induction into the Armed Forces. Id. § 1643.5(c) (1). If the parolee is not inducted into the Armed Forces, he must be returned to the correctional institution to complete his sentence. Id. § 1643.7. He is discharged from further confinement and supervision for the violation of the Selective Service laws upon his completion of his military service under honorable conditions. Id. § 1643.9. The February 1, 1967, petition and several subsequent, similar petitions prior to July 16, 1968, were denied because of an embezzlement indictment containing three counts, which had been outstanding against relator since July 6, 1966. Because of the representations of relator that the pending indictment had been dismissed, he was paroled into the custody of the United States Army on July 16, 1968, pursuant to Executive Order 11,325. Consistent with these representations, relator failed to list the outstanding indictment on two induction questionnaires and he affirmatively listed the indictment as dismissed on his Statement of Personal History taken six days after his induction at Fort Jackson, South Carolina. The relator and all Government officials involved believed that the indictment had been dismissed before relator’s induction. The indictment was not in fact dismissed until October 8, 1968. The dismissal was probably based'on a request by relator’s former employer that the charges be dismissed on the fact that restitution was being made to the employer, and possibly on relator’s induction into the Army. Relator now challenges the July 1968 induction because of the outstanding indictment, relying on Army Regulation 601-270(23) (d), which provides: “Criminal charges filed and pending. Men who have criminal charges filed and pending against them alleging a violation of a State, Federal, or territorial statute are unacceptable. * * * Waivers will not be granted in these instances.” Relying on the alleged principle that a Government agency is required to follow its own regulations, relator reasons that induction was illegal. See Oshatz v. United States, 404 F.2d 9 (9th Cir. 1968); Hammond v. Lenfest, 398 F.2d 705, 715 (2nd Cir. 1968); Briggs v. United States, 397 F.2d 370 (9th Cir. 1968); Roberts v. Vance, 119 U.S.App. D.C. 367, 343 F.2d 236 (1964); Cherne-koff v. United States, 219 F.2d 721, 725 (9th Cir. 1955). Alternatively, relator argues that the Army was required to investigate the alleged dismissal of the pending charges before inducting him. The Government argues that the Army Regulations are for the Army’s internal convenience alone, and therefore cannot be used by an inductee to challenge his induction. See United States v. Brooks, printed at 415 F.2d 507-510 (M.D.Tenn. 1968) , aff’d. 415 F.2d 502 (6th Cir. 1969) . The Government also argues that the federal courts are without jurisdiction to grant habeas corpus relief to an inductee alleging illegal induction until such time as he has pursued administrative remedies within the Army to secure his release. See Craycroft v. Ferrall, 408 F.2d 587 (9th Cir. 1969). But see United States ex rel. Caputo v. Sharp, 282 F.Supp. 362 (E.D.Pa. 1968); cf. Powers v. Powers, 400 F.2d 438 (5th Cir. 1968). Because we feel that relator, under the unusual circumstances of this case, is estopped from challenging his induction on the basis of the pending criminal charges, we need not reach these issues. Several applications of relator for parole under Executive Order 11,325 were denied because of his pending indictment. Prior to the induction he challenges here, he represented to the Government that the indictment had been dismissed; the Attorney General relied on this representation in granting his application for parole, and his draft board and the Army relied on this representation in accepting him for induction. Had relator contradicted this representation at any time, he most probably would have been refused induction (despite his consent) and returned to prison. Having represented that the indictment was dismissed, he is now es-topped from denying that fact. See, e. g., Reliance Molded Plastics, Inc. v. Jiffy Products, 215 F.Supp. 402, 413 (D. N.J. 1963), aff’d. per curiam 337 F.2d 857 (3rd Cir. 1964); Vigdor v. Young, 102 U.S.App.D.C. 414, 254 F.2d 333, cert. den. 358 U.S. 854, 79 S.Ct. 84, 3 L. Ed.2d 88 (1958); cf. Nickerson v. United States, 391 F.2d 760, 763 (10th Cir.), cert. den. 392 U.S. 907, 88 S.Ct. 2061, 20 L.Ed.2d 1366 (1968). That his representation was innocently made in no way alters this result. E. g., Countway v. Commissioner of Internal Revenue, 127 F.2d 69 (1st Cir. 1942). The order of the District Court will be affirmed. . Relator was convicted in 1966 for a violation of the Selective Service Act of 1948. According to its terms, Executive Order 11,325 applies only to persons convicted for violating the Military Selective Service Act of 1967. Since neither relator nor the Government has suggested that the parole was therefore unauthorized, we need not consider the effect of this discrepancy. . Paragraph 7 of the Stipulation provides: “The Attorney General relied on appellant’s representations that the indictments had been dismissed in granting appellant’s [relator’s] parole into the custody of the Army, and the Army relied on appellant’s representations in accepting him for induction.” . In addition to a Record of Induction in which relator failed to list the pending indictment, relator also filled out an Eligibility Questionnaire prior to his induction on July 16, 1968. This document was signed by relator and provided: “I understand the information I have furnished is to be used in determining my eligibility for military service and it will be treated as privileged information. * * * I have not been given any advice by induction personnel to conceal any information regarding the entries I have made on this form * * . I understand that this is my last opportunity to reveal this information. I certify that the answers to the above questions are my own, they are true and correct and I have furnished complete details concerning all answers marked ‘yes’.” Relator answered the questions concerning prior convictions and pending actions “yes,” but failed to list the pending state court indictment for embezzlement, either as outstanding or dismissed. . Under Army Regulation 601-270(3-9), a registrant is required to obtain a moral waiver from the Armed Forces Moral Waiver Determination Board if he has been convicted of a crime. Nevertheless, “Moral waivers will not be forwarded to the Armed Forces Moral Waiver Determination Board where the results of the investigation made * * show that the criminal charges against the individual have been dismissed * * * without an adjudication of guilt. However, these cases will be thoroughly investigated before determination is made that no convictions * * * exist and to determine whether [any criminal charges are pending].” . Approximately 20 letters prior to July 16, 1968, from relator to the Judge who had sentenced him for failing to submit to induction indicated relator’s realization that his parole under Executive Order 11,325 was being held up due to the pending state court indictment. Question: What is the number of the section from the title of the most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 50? Answer with a number. Answer:
songer_numappel	99	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Your specific task is to determine the total number of appellants in the case. If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. UNITED STATES of America, Petitioner-Plaintiff-Appellee, v. 63.04 ACRES OF LAND, MORE OR LESS, SITUATE AT LIDO BEACH, NEAR CITY OF LONG BEACH, TOWN OF HEMPSTEAD, COUNTY OF NASSAU, State of NEW YORK, and Irving A. Nemerov et al., Defendants-Appellants. No. 251, Docket 24886. United States Court of Appeals Second Circuit. Argued March 14, 1958. Decided June 24, 1958. Paul Windels, Brooklyn, N. Y., for defendants-appellants. (On the brief: Nathan D. Shapiro, Brooklyn, N. Y., for Bessie N. Shapiro, Samuel Kresberg and Benjamin Kresberg; Jacob Patent, Brooklyn, N. Y., for Gilbert D. Paisner et al.; Leonard R. Fisher, New York City, for Irving A. Nemerov; Isidor E. Leinwand, New York City, for Sam H. Lipson, Trustee in Bankruptcy for William T. Nemerov and Joseph Margolis.) Harry T. Dolan, Sp. Asst, to Atty. Gen., for petitioner-plaintiff-appellee. (On the brief: Perry W. Morton, Asst. Atty. Gen., Roger P. Marquis and Elizabeth Dudley, Attorneys, Department of Justice, Washington, D. C.) Before CLARK, Chief Judge, HINCKS, Circuit Judge, and BRENNAN, District Judge. PER CURIAM. Shortly after the remand of this condemnation case as ordered in our earlier opinion, 245 F.2d 140, Chief Judge Inch, who had served as trier at the first trial, assigned the case for prompt hearing and announced that he construed the appellate order to require only a reopening of the judgment and of the record already made to permit of the introduction of evidence of the September 1954 sale, the exclusion of which had been the only ground of reversal. We think this interpretation not unreasonable: it is consistent with procedure sanctioned when a trial judge grants a “motion for a new trial” under Rule 59(a), Federal Rules of Civil Procedure. Even though the opinion several times spoke of a “new trial” and remanded “for a new trial on the valuation of the condemned property,” it also noted that the “new trial” was necessary only because of the exclusion of the September sale and thus might be deemed to imply that the proceedings on remand need go no further than to expand the record by proofs as to the September sale and a redetermination of the value on the record thus enlarged. This interpretation was obviously in harmony with considerations of expedition and of economy in judicial administration. Cf. United States v. City of New York, 2 Cir., 165 F.2d 526. And the practice which it envisaged had previously been utilized in this circuit. United States v. Brooklyn Union Gas Co., 168 F.2d 393 ; United States v. 25.4 Acres of Land, D. C., 83 F.Supp. 433; Gulbenkian v. Gulbenkian, 147 F.2d 173; Riordan v. Ferguson, 147 F.2d 983. If the defendants, when first informed of the Judge’s ruling, had promptly applied to the panel of this court which had handed down the former opinion for a clarification, cf. National Comics Publications v. Fawcett Publications, 2 Cir., 198 F.2d 927, it is highly likely, especially in view of the cases just above cited, that Judge Inch’s interpretation of the mandate would have been approved. In view of all the foregoing, we dispose of the defendants’ principal ground of appeal by sustaining Judge Inch’s action in limiting the scope of the proceedings on remand. Other grounds of appeal are still less tenable. In view of the limited scope of the proceedings, we think the celerity with which the hearing was scheduled and held was not improper. The denial of the motion for trial by jury first made after the remand was not erroneous. And we find no error in denying on July 3, 1957 the other requests in the defendants’ motion of June 28, 1957. Affirmed. Question: What is the total number of appellants in the case? Answer with a number. Answer:
songer_two_issues	A	What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there are two issues in the case. By issue we mean the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. UNITED STATES of America, Appellee, v. Augusto Tarquino Arias FLORES, Defendant-Appellant. No. 72-1175. United States Court of Appeals, First Circuit. Heard Feb. 9, 1973. Decided April 13, 1973. Arturo Aponte Pares, San Juan, P. R., by appointment of the Court, for appellant. Jorge Rios Torres, Asst. U. S. Atty., with whom Julio Morales Sanchez, U. S. Atty., was on brief, for appellee. Before COFFIN, Chief Judge, McENTEE and CAMPBELL, Circuit Judges. CAMPBELL, Circuit Judge. Appellant Arias Flores appeals from a conviction of importing cocaine in violation of 21 U.S.C. § 174, contending that the cocaine should have been suppressed as the product of a search violative of the Fourth Amendment. On March 24, 1970, appellant, a resident of Venezuela, arrived at San Juan International Airport, Puerto Rico, after a flight from Venezuela via Curacao, Netherlands Antilles. An experienced customs agent, Juan Jiminez-Rosario, observed that appellant appeared “very, very nervous” as he awaited inspection of his baggage: “. . .he was looking to all places and his hands were trembling and due to my past experience as a low [law] enforcement officer I noticed him out of the crowd.” Jiminez-Rosario and another agent, Juan del Toro, intercepted appellant as' he left the baggage area and requested that he accompany them into an office. They were joined later by a customs supervisor, Juan Pinol. Jiminez-Rosario asked appellant to empty his pockets. When he had done so, but not completely, Jiminez-Rosario searched the pockets, uncovering about six hundred small “emerald-type stones” and four ladies rings. Jiminez-Rosario checked appellant’s customs declaration sheet and found that these articles had not been declared. Thereupon, “suspicious”, “[d]ue to the circumstances that he had brought these stones without declaring them,” Jiminez-Rosario asked appellant to take off his clothes. The agents noticed a white envelope inside his underpants. Pinol seized it. After a field test disclosed that white powder in the envelope was cocaine, appellant was arrested. Border searches are subject to less stringent constitutional restraints than searches within our borders. Officers may initiate searches on grounds less objective and substantial than required for other searches, and need not procure warrants. Carroll v. United States, 267 U.S. 132, 153-154, 45 S.Ct. 280, 69 L.Ed. 543 (1925) (dictum); see generally, United States v. Glaziou, 402 F.2d 8, 12 (2nd Cir. 1968), cert. denied, 393 U.S. 1121, 89 S.Ct. 999, 22 L.Ed.2d 126 (1969) and cases cited; and Note, Border Searches and the Fourth Amendment, 77 Yale L.J. 1007, 1007-8 (1968). The initial search of appellant's pockets was clearly justified, especially in light of the objective signs of nervousness detected by the agent. As we said recently, “a customs officer may search an individual’s baggage and outer clothing, in a reasonable manner, based on subjective suspicion alone, or even on a random basis.” United States v. Stornini, 443 F.2d 833, 835 (1st Cir. 1971) (citations omitted). We have not yet determined what grounds less than probable cause may justify a so-called strip search. (In Stornini, we assumed without deciding the validity of the standard adopted by the Ninth Circuit: a “real suspicion”— a “subjective suspicion supported by objective, articulable facts.” United States v. Guadalupe-Garza, 421 F.2d 876, 879 (9th Cir. 1970); United States v. Johnson, 425 F.2d 630 (9th Cir. 1970), cert. granted, 400 U.S. 990, 91 S.Ct. 451, 27 L.Ed.2d 437 (1971), dismissed pursuant to Supreme Court Rule 60, 404 U.S. 802, 92 S.Ct. 38, 30 L.Ed.2d 35 (1971).) In this case we need not attempt to define the minimum showing necessary for a strip search. Wherever the line is ultimately to be drawn, the search here was well inside it. Failure to declare the emeralds and rings exposed them to forfeiture and the defendant to criminal prosecution. 19 U.S.C. §§ 1497, 1498; 18 U.S.C. § 545; 19 C.F.R. § 10.19. We do not say that every minor technical violation of the customs laws necessarily gives ground for a strip search. But we think the possession of several hundred undeclared emerald-like stones does. The nature, location and profusion of the undeclared articles plainly suggested that defendant was consciously engaged in smuggling activities. It was only reasonable to suppose that more contraband might be found on his person. That during the ensuing lawful search the customs officials discovered cocaine instead of jewelry does not make the seizure of the cocaine illegal. Harris v. United States, 331 U.S. 145, 154, 67 S.Ct. 1098, 91 L.Ed. 1399 (1947); Alderman v. United States, 394 U.S. 165, 177, n. 10, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969). We hold that the search and seizure did not violate the Fourth Amendment. Appellant’s other argument, that the customs officers were required to inform him of his rights prior to the arrest, needs no consideration inasmuch as no prejudicial statements of his were offered into evidence. Affirmed. . Repealed, Publ.L. 91-513, Title III, § 1101(a)(2)(4), Oct. 27, 1970, 84 Stat. 1291. Unlawful importation of cocaine and other drugs is now covered by 21 U. S.C. § 960. . The agent further testified, “The defendant came in, he was waiting in line and he was very nervous like this, he was looking like this, looking this, his eyes and the characteristics of his face and then — his movements and he was not still like the other passengers that were waiting to be, you know, to be waiting for luggage inspection.” . 19 U.S.C. § 482 states: Any of the officers or persons authorized to board or search vessels may stop, search, and examine, as well without as within their respective districts, any vehicle, beast, or person, on which or whom he or they shall suspect there is merchandise which is subject to duty, or shall have been introduced into the United States in any manner contrary to law. . . . Question: Are there two issues in the case? A. no B. yes Answer:
songer_geniss	G	What follows is an opinion from a United States Court of Appeals. Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Consider the following categories: "criminal" (including appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence), "civil rights" (excluding First Amendment or due process; also excluding claims of denial of rights in criminal proceeding or claims by prisoners that challenge their conviction or their sentence (e.g., habeas corpus petitions are coded under the criminal category); does include civil suits instituted by both prisoners and callable non-prisoners alleging denial of rights by criminal justice officials), "First Amendment", "due process" (claims in civil cases by persons other than prisoners, does not include due process challenges to government economic regulation), "privacy", "labor relations", "economic activity and regulation", and "miscellaneous". Petition of ATLANTIC GULF & WEST INDIES S. S. LINES et al. Appeal of FEDERAL SHIPBUILDING & DRY DOCK CO. No. 323. Circuit Court of Appeals, Second Circuit. April 20, 1931. Kirlin, Campbell, Hickox, Keating & MeGrann, of New York City (Cletus Keating and Edwin S. Murphy, both of New York City, of counsel), for appellant. Burlingham, Veeder, Fearey, Clark & Hupper, of New York City (Chauncey I. Clark and P. Fearson Shortridge, both of New York City, of counsel), for appellees. Before MANTON, L. HAND, and CHASE, Circuit Judges. PEE CUEIAM. In these limitation proceedings, the Federal Shipbuilding & Dry Dock Company filed a claim on its own behalf, as owner of the tug Federal No. 2, and on behalf of the charterer and erew of the tug for salvage services rendered while the steamship Agwisun was on fire on December 11, 1926, at the Eobins Dry Dock, Brooklyn, N. Y. The Agwisun was a steel tank steamer, length 429.3, breadth 59.2, depth 33.2; her tonnage was 10,600 dead weight, 6,784 gross, and 4207 net. She was classed by Lloyds X100 A-l before the explosion. The tug Federal No. 2, measured length 95, beam 24%; depth 12; her tonnage 178 gross, and 29 net. She had a erew of five men on board at the time of the salvage services. The Agwisun had been taken out of dry dock and was on the southeast side of the pier directly adjacent to the dry-dock. She was moored bow in with her port-side to the pier. Her stern projected well out into the stream. The master of the tug observed and heard an explosion and fire on the vessel, and immediately went full speed toward her. The erew set up the pumps for operation; the No. 2 arrived alongside before any other assistance, and rescued the erew and repairmen from the stern of the vessel and labored to prevent further explosions by extinguishing the flameé in the blazing drip barrel, playing water on the flames wherever seen, and on the heated plates and the structure of the vessel. The importance of this as a preventive was recognized by witnesses. There was danger of further explosions, for there was gas aboard the vessel even after the explosion which had taken pljce. In performing the services, the tug and crew incurred risks which should be recognized in ascertaining the amount to be awarded for salvage. The vessel was valued at $341,395; the tug at about $70,000 at the time. The services were meritorious, and the amount awarded of $1,000 is insufficient. An allowance of $3,000 we think fair under all the circumstances. The salvage awarded should be in a sum sufficient to reward the salvors and to encourage them and other seamen to render prompt service under similar peril in the future. The Blackwall, 10 Wall. (77 U. S.) 1, 19 L. Ed. 870; The Niels Nielsen, 277 F. 164 (C. C. A. 2); Huasteca Petroleum Co. v. United States, 27 F.(2d) 734 (C. C. A. 2). The decree will be modified.- Question: What is the general issue in the case? A. criminal B. civil rights C. First Amendment D. due process E. privacy F. labor relations G. economic activity and regulation H. miscellaneous Answer:
sc_lcdisposition	C	What follows is an opinion from the Supreme Court of the United States. Your task is to determine the treatment the court whose decision the Supreme Court reviewed accorded the decision of the court it reviewed, that is, whether the court below the Supreme Court (typically a federal court of appeals or a state supreme court) affirmed, reversed, remanded, denied or dismissed the decision of the court it reviewed (typically a trial court). Adhere to the language used in the "holding" in the summary of the case on the title page or prior to Part I of the Court's opinion. Exceptions to the literal language are the following: where the Court overrules the lower court, treat this a petition or motion granted; where the court whose decision the Supreme Court is reviewing refuses to enforce or enjoins the decision of the court, tribunal, or agency which it reviewed, treat this as reversed; where the court whose decision the Supreme Court is reviewing enforces the decision of the court, tribunal, or agency which it reviewed, treat this as affirmed; where the court whose decision the Supreme Court is reviewing sets aside the decision of the court, tribunal, or agency which it reviewed, treat this as vacated; if the decision is set aside and remanded, treat it as vacated and remanded. VIRGINIA v. MOORE CERTIORARI TO THE SUPREME COURT OF VIRGINIA No. 06-1082. Argued January 14, 2008 Decided April 23, 2008 Stephen R. McCullough, Deputy State Solicitor General of Virginia, argued the cause for petitioner. With him on the briefs were Robert F. McDonnell, Attorney General, William E. Thro, State Solicitor General, William C. Mims, Chief Deputy Attorney General, Marla Graff Decker, Deputy Attorney General, and Leah A. Darron, Senior Assistant Attorney General. Deputy Solicitor General Dreeben argued the cause for the United States as amicus curiae. With him on the brief were Solicitor General Clement, Assistant Attorney General Fisher, and Matthew D. Roberts. Thomas C. Goldstein argued the cause for respondent. With him on the brief were S. Jane Chittom, Pamela S. Karlan, Jeffrey L. Fisher, Amy Howe, and Kevin K. Russell Briefs of amici curiae urging reversal were filed for the State of Texas et al. by Greg Abbott, Attorney General of Texas, Kent C. Sullivan, First Assistant Attorney General, Eric J. R. Nichols, Deputy Attorney General for Criminal Justice, R. Ted Cruz, Solicitor General, and Susanna Dokupil and Adam W. Aston, Assistant Solicitors General, by Roberto J. SdnchezRamos, Secretary of Justice of Puerto Rico, and by the Attorneys General for their respective States as follows: Troy King of Alabama, Terry Goddard of Arizona, Dustin McDaniel of Arkansas, John W. Suthers of Colorado, Bill McCollum of Florida, Lawrence G. Wasden of Idaho, Michael A. Cox of Michigan, Jim Hood of Mississippi, Catherine Cortez Masto of Nevada, Kelly A. Ayotte of New Hampshire, W. A. Drew Edmondson of Oklahoma, Hardy Myers of Oregon, Thomas W. Corbett, Jr., of Pennsylvania, Henry D. McMaster of South Carolina, Lawrence E. Long of South Dakota, Mark L. Shurtleff of Utah, and Bruce A Salzburg of Wyoming; and for Wayne County, Michigan, by Kym L. Worthy and Timothy A. Baughman. Briefs of amici curiae urging affirmance were filed for the American Bar Association by William H. Neukom and Rory K Little; for the American Civil Liberties Union et al. by Susan N. Herman, Steven R. Shapiro, and Rebecca Glenberg; and for the Virginia Trial Lawyers Association by David B. Hargett. E. Joshua Rosenkranz, Warrington S. Parker III, and Pamela Harris filed a brief for the National Association of Criminal Defense Lawyers as amicus curiae. Justice Scalia delivered the opinion of the Court. We consider whether a police officer violates the Fourth Amendment by making an arrest based on probable cause but prohibited by state law. I On February 20, 2008, two city of Portsmouth police officers stopped a car driven by David Lee Moore. They had heard over the police radio that a person known as “Chubs” was driving with a suspended license, and one of the officers knew Moore by that nickname. The officers determined that Moore’s license was in fact suspended, and arrested him for the misdemeanor of driving on a suspended license, which is punishable under Virginia law by a year in jail and a $2,500 fine, Va. Code Ann. §§18.2-11 (Lexis 2004), 18.2-272 (Supp. 2007), 46.2-301(0 (2005). The officers subsequently searched Moore and found that he was carrying 16 grams of crack cocaine and $516 in cash. See 272 Va. 717, 636 S. E. 2d 395 (2006); 45 Va. App. 146, 609 S. E. 2d 74 (2005). Under state law, the officers should have issued Moore a summons instead of arresting him. Driving on a suspended license, like some other misdemeanors, is not an arrestable offense except as to those who “fail or refuse to discontinue” the violation, and those whom the officer reasonably believes to be likely to disregard a summons, or likely to harm themselves or others. Va. Code Ann. §19.2-74 (Lexis 2004). The intermediate appellate court found none of these circumstances applicable, and Virginia did not appeal that determination. See 272 Va., at 720, n. 3, 636 S. E. 2d, at 396-397, n. 3. Virginia also permits arrest for driving on a suspended license in jurisdictions where “prior general approval has been granted by order of the general district court,”' Va. Code Ann. §46.2-936; Virginia has never claimed such approval was in effect in the county where Moore was arrested. Moore was charged with possessing cocaine with the intent to distribute it in violation of Virginia law. He filed a pretrial motion to suppress the evidence from the arrest search. Virginia law does not, as a general matter, require suppression of evidence obtained in violation of state law. See 45 Va. App., at 160-162, 609 S. E. 2d, at 82 (Annunziata, J., dissenting). Moore argued, however, that suppression was required by the Fourth Amendment. The trial court denied the motion, and after a bench trial found Moore guilty of the drug charge and sentenced him to a 5-year prison term, with one year and six months of the sentence suspended. The conviction was reversed by a panel of Virginia’s intermediate court on Fourth Amendment grounds, id., at 149-150, 609 S. E. 2d, at 76, reinstated by the intermediate court sitting en banc, 47 Va. App. 55, 622 S. E. 2d 253 (2005), and finally reversed again by the Virginia Supreme Court, 272 Va., at 725, 636 S. E. 2d, at 400. The Court reasoned that since the arresting officers should have issued Moore a citation under state law, and the Fourth Amendment does not permit search incident to citation, the arrest search violated the Fourth Amendment. Ibid. We granted certiorari. 551 U. S. 1187 (2007). II The Fourth Amendment protects “against unreasonable searches and seizures” of (among other things) the person. In determining whether a search or seizure is unreasonable, we begin with history. We look to the statutes and common law of the founding era to determine the norms that the Fourth Amendment was meant to preserve. See Wyoming v. Houghton, 526 U. S. 295, 299 (1999); Wilson v. Arkansas, 514 U. S. 927, 931 (1995). We are aware of no historical indication that those who ratified the Fourth Amendment understood it as a redundant guarantee of whatever limits on search and seizure legislatures might have enacted. The immediate object of the Fourth Amendment was to prohibit the general warrants and writs of assistance that English judges had employed against the colonists, Boyd v. United States, 116 U. S. 616, 624-627 (1886); Payton v. New York, 445 U. S. 573, 583-584 (1980). That suggests, if anything, that founding-era citizens were skeptical of using the rules for search and seizure set by government actors as the index of reasonableness. Joseph Story, among others, saw the Fourth Amendment as “little more than the affirmance of a great constitutional doctrine of the common law,” 3 Commentaries on the Constitution of the United States § 1895, p. 748 (1833), which Story defined in opposition to statutes, see Codification of the Common Law in The Miscellaneous Writings of Joseph Story 698, 699, 701 (W. Story ed. 1852). No early case or commentary, to our knowledge, suggested the Amendment was intended to incorporate subsequently enacted statutes. None of the early Fourth Amendment cases that scholars have identified sought to base a constitutional claim on a violation of a state or federal statute concerning arrest. See Davies, Recovering the Original Fourth Amendment, 98 Mich. L. Rev. 547, 613-614 (1999); see also T. Taylor, Two Studies in Constitutional Interpretation 44-45 (1969). Of course such a claim would not have been available against state officers, since the Fourth Amendment was a restriction only upon federal power, see Barron ex rel. Tiernan v. Mayor of Baltimore, 7 Pet. 243 (1833). But early Congresses tied the arrest authority of federal officers to state laws of arrest. See United States v. Di Re, 332 U. S. 581, 589 (1948); United States v. Watson, 423 U. S. 411, 420 (1976). Moreover, even though several state constitutions also prohibited unreasonable searches and seizures, citizens who claimed officers had violated state restrictions on arrest did not claim that the violations also ran afoul of the state constitutions. The apparent absence of such litigation is particularly striking in light of the fact that searches incident to warrantless arrests (which is to say arrests in which the officer was not insulated from private suit) were, as one commentator has put it, “taken for granted” at the founding, Taylor, supra, at 45, as were warrantless arrests themselves, Amar, Fourth Amendment First Principles, 107 Harv. L. Rev. 757, 764 (1994). There are a number of possible explanations of why such constitutional claims were not raised. Davies, for example, argues that actions taken in violation of state law could not qualify as state action subject to Fourth Amendment constraints. 98 Mich. L. Rev., at 660-663. Be that as it may, as Moore adduces neither case law nor commentaries to support his view that the Fourth Amendment was intended to incorporate statutes, this is “not a case in which the claimant can point to ‘a clear answer [that] existed in 1791 and has been generally adhered to by the traditions of our society ever since/” Atwater v. Lago Vista, 532 U. S. 318, 345 (2001) (alteration in original). Ill A When history has not provided a conclusive answer, we have analyzed a search or seizure in light of traditional standards of reasonableness “by assessing, on the one hand, the degree to which it intrudes upon an individual’s privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.” Houghton, 526 U. S., at 300; see also Atwater, 532 U. S., at 346. That methodology provides no support for Moore’s Fourth Amendment claim. In a long line of cases, we have said that when an officer has probable cause to believe a person committed even a minor crime in his presence, the balancing of private and public interests is not in doubt. The arrest is constitutionally reasonable. Id., at 354; see also, e. g., Devenpeck v. Alford, 543 U. S. 146, 152 (2004); Gerstein v. Pugh, 420 U. S. 103, 111 (1975); Brinegar v. United States, 338 U. S. 160, 164, 170, 175-176 (1949). Our decisions counsel against changing this calculus when a State chooses to protect privacy beyond the level that the Fourth Amendment requires. We have treated additional protections exclusively as matters of state law. In Cooper v. California, 386 U. S. 58 (1967), we reversed a state court that had held the search of a seized vehicle to be in violation of the Fourth Amendment because state law did not explicitly authorize the search. We concluded that whether state law authorized the search was irrelevant. States, we said, remained free “to impose higher standards on searches and seizures than required by the Federal Constitution,” id., at 62, but regardless of state rules, police could search a lawfully seized vehicle as a matter of federal constitutional law. In California v. Greenwood, 486 U. S. 35 (1988), we held that search of an individual’s garbage forbidden by California’s Constitution was not forbidden by the Fourth Amendment. “[W]hether or not a search is reasonable within the meaning of the Fourth Amendment,” we said, has never “depended] on the law of the particular State in which the search occurs.” Id., at 43. While “[individual States may surely construe their own constitutions as imposing more stringent constraints on police conduct than does the Federal Constitution,” ibid., state law did not alter the content of the Fourth Amendment. We have applied the same principle in the seizure context. Whren v. United States, 517 U. S. 806 (1996), held that police officers had acted reasonably in stopping a car, even though their action violated regulations limiting the authority of plainclothes officers in unmarked vehicles. We thought it obvious that the Fourth Amendment’s meaning did not change with local law enforcement practices — even practices set by rule. While those practices “vary from place to place and from time to time,” Fourth Amendment protections are not “so variable” and cannot “be made to turn upon such trivialities.” Id., at 815. Some decisions earlier than these excluded evidence obtained in violation of state law, but those decisions rested on our supervisory power over the federal courts, rather than the Constitution. In Di Re, 332 U. S. 581, federal and state officers collaborated in an investigation that led to an arrest for a federal crime. The Government argued that the legality of an arrest for a federal offense was a matter of federal law. Id., at 589. We concluded, however, that since Congress had provided that arrests with warrants must be made in accordance with state law, the legality of arrests without warrants should also be judged according to state-law standards. Id., at 589-590. This was plainly not a rule we derived from the Constitution, however, because we repeatedly invited Congress to change it by statute — saying that state law governs the validity of a warrantless arrest “in [the] absence of an applicable federal statute,” id., at 589, and that the Di Re rule applies “except in those cases where Congress has enacted a federal rule,” id., at 589-590. Later decisions did not expand the rule of Di Re. Johnson v. United States, 333 U. S. 10 (1948), relied on Di Re to suppress evidence obtained under circumstances identical in relevant respects to those in that case. See 333 U. S., at 12, 15, n. 5. And Michigan v. DeFillippo, 443 U. S. 31 (1979), upheld a warrantless arrest in a case where compliance with state law was not at issue. While our opinion said that “[w]hether an officer is authorized to make an arrest ordinarily depends, in the first instance, on state law,” it also said that a warrantless arrest satisfies the Constitution so long as the officer has “probable cause to believe that the suspect has committed or is committing an offense.” Id., at 36. We need not pick and choose among the dicta: Neither Di Re nor the cases following it held that violations of state arrest law are also violations of the Fourth Amendment, and our more recent decisions, discussed above, have indicated that when States go above the Fourth Amendment minimum, the Constitution’s protections concerning search and seizure remain the same. B We are convinced that the approach of our prior cases is correct, because an arrest based on probable cause serves interests that have long been seen as sufficient to justify the seizure. Whren, supra, at 817; Atwater, supra, at 354. Arrest ensures that a suspect appears to answer charges and does hot continue a crime, and it safeguards evidence and enables officers to conduct an in-custody investigation. See W. LaFave, Arrest: The Decision to Take a Suspect Into Custody 177-202 (1965). Moore argues that a State has no interest in arrest when it has a policy against arresting for certain crimes. That is not so, because arrest will still ensure a suspect’s appearance at trial, prevent him from continuing his offense, and enable officers to investigate the incident more thoroughly. State arrest restrictions are more accurately characterized as showing that the State values its interests in forgoing arrests more highly than its interests in making them, see, e. g., Dept, of Justice, National Institute of Justice, D. Whitcomb, B. Lewin, & M. Levine, Issues and Practices: Citation Release 17 (Mar. 1984) (describing cost savings as a principal benefit of citation-release ordinances); or as showing that the State places a higher premium on privacy than the Fourth Amendment requires. A State is free to prefer one search- and-seizure policy among the range of constitutionally permissible options, but its choice of a more restrictive option does not render the less restrictive ones unreasonable, and hence unconstitutional. If we concluded otherwise, we would often frustrate rather than further state policy. Virginia chooses to protect individual privacy and dignity more than the Fourth Amendment requires, but it also chooses not to attach to violations of its arrest rules the potent remedies that federal courts have applied to Fourth Amendment violations. Virginia does not, for example, ordinarily exclude from criminal trials evidence obtained in violation of its statutes. See 45 Va. App., at 161, 609 S. E. 2d, at 82 (Annunziata, J., dissenting) (citing Janis v. Commonwealth, 22 Va. App. 646, 651, 472 S. E. 2d 649, 652 (1996)). Moore would allow Virginia to accord enhanced protection against arrest only on pain of accompanying that protection with federal remedies for Fourth Amendment violations, which often include the exclusionary rule. States unwilling to lose control over the remedy would have to abandon restrictions on arrest altogether. This is an odd consequence of a provision designed to protect against searches and seizures. Even if we thought that state law changed the nature of the Commonwealth’s interests for purposes of the Fourth Amendment, we would adhere to the probable-cause standard. In determining what is reasonable under the Fourth Amendment, we have given great weight to the “essential interest in readily administrable rules.” Atwater, 532 U. S., at 347. In Atwater, we acknowledged that nuanced judgments about the need for warrantless arrest were desirable, but we nonetheless declined to limit to felonies and disturbances of the peace the Fourth Amendment rule allowing arrest based on probable cause to believe a law has been broken in the presence of the arresting officer. Id., at 346-347. The rule extends even to minor misdemeanors, we concluded, because of the need for a bright-line constitutional standard. If the constitutionality of arrest for minor offenses turned in part on inquiries as to risk of flight and danger of repetition, officers might be deterred from making legitimate arrests. Id., at 351. We found little to justify this cost, because there was no “epidemic of unnecessary minor-offense arrests,” and hence “a dearth of horribles demanding redress.” Id., at 353. Incorporating state-law arrest limitations into the Constitution would produce a constitutional regime no less vague and unpredictable than the one we rejected in Atwater. The constitutional standard would be only as easy to apply as the underlying state law, and state law can be complicated indeed. The Virginia statute in this case, for example, calls on law enforcement officers to weigh just the sort of case-specific factors that Atwater said would deter legitimate arrests if made part of the constitutional inquiry. It would authorize arrest if a misdemeanor suspect fails or refuses to discontinue the unlawful act, or if the officer believes the suspect to be likely to disregard a summons. Va. Code Ann. § 19.2-74.A.1. Atwater specifically noted the “extremely poor judgment” displayed in arresting a local resident who would “almost certainly” have discontinued the offense and who had “no place to hide and no incentive to flee.” 532 U. S., at 346-347. It nonetheless declined to make those considerations part of the constitutional calculus. Atwater differs from this case in only one significant respect: It considered (and rejected) federal constitutional remedies for all minor-misdemeanor arrests; Moore seeks them in only that subset of minor-misdemeanor arrests in which there is the least to be gained — that is, where the State has already acted to constrain officers’ discretion and prevent abuse. Here we confront fewer horribles than in Atwater, and less of a need for redress. Finally, linking Fourth Amendment protections to state law would cause them to “vary from place to place and from time to time,” Whren, 517 U. S., at 815. Even at the same place and time, the Fourth Amendment’s protections might vary if federal officers were not subject to the same statutory constraints as state officers. In Elkins v. United States, 364 U. S. 206, 210-212 (1960), we noted the practical difficulties posed by the “silver-platter doctrine,” which had imposed more stringent limitations on federal officers than on state police acting independent of them. It would be strange to construe a constitutional provision that did not apply to the States at all when it was adopted to now restrict state officers more than federal officers, solely because the States have passed search-and-seizure laws that are the prerogative of independent sovereigns. We conclude that warrantless arrests for crimes committed in the presence of an arresting officer are reasonable under the Constitution, and that while States are free to regulate such arrests however they desire, state restrictions do not alter the Fourth Amendment’s protections. IV Moore argues that even if the Constitution allowed his arrest, it did not allow the arresting officers to search him. We have recognized, however, that officers may perform searches incident to constitutionally permissible arrests in order to ensure their safety and safeguard evidence. United States v. Robinson, 414 U. S. 218 (1973). We have described this rule as covering any “lawful arrest,” id., at 235, with constitutional law as the reference point. That is to say, we have equated a lawful arrest with an arrest based on probable cause: “A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification.” Ibid, (emphasis added). Moore correctly notes that several important state-court decisions have defined the lawfulness of arrest in terms of compliance with state law. See Brief for Respondent 32-33 (citing People v. Chiagles, 237 N. Y. 193, 197, 142 N. E. 583, 584 (1923); People v. DeFore, 242 N. Y. 13, 17-19, 150 N. E. 585, 586 (1926)). But it is not surprising that States have used “lawful” as shorthand for compliance with state law, while our constitutional decision in Robinson used “lawful” as shorthand for compliance with constitutional constraints. The interests justifying search are present whenever an officer makes an arrest. A search enables officers to safeguard evidence, and, most critically, to ensure their safety during “the extended exposure which follows the taking of a suspect into custody and transporting him to the police station.” Robinson, supra, at 234-235. Officers issuing citations do not face the same danger, and we therefore held in Knowles v. Iowa, 525 U. S. 113 (1998), that they do not have the same authority to search. We cannot agree with the Virginia Supreme Court that Knowles controls here. The state officers arrested Moore, and therefore faced the risks that are “an adequate basis for treating all custodial arrests alike for purposes of search justification.” Robinson, supra, at 235. The Virginia Supreme Court may have concluded that Knowles required the exclusion of evidence seized from Moore because, under state law, the officers who arrested Moore should have issued him a citation instead. This argument might have force if the Constitution forbade Moore’s arrest, because we have sometimes excluded evidence obtained through unconstitutional methods in order to deter constitutional violations. See Wong Sun v. United States, 371 U. S. 471, 484-485, 488 (1963). But the arrest rules that the officers violated were those of state law alone, and as we have just concluded, it is not the province of the Fourth Amendment to enforce state law. That Amendment does not require the exclusion of evidence obtained from a constitutionally permissible arrest. We reaffirm against a novel challenge what we have signaled for more than half a century. When officers have probable cause to believe that a person has committed a crime in their presence, the Fourth Amendment permits them to make an arrest, and to search the suspect in order to safeguard evidence and ensure their own safety. The judgment of the Supreme Court of Virginia is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered. The arresting officers did not perform a search incident to arrest immediately upon taking Moore into custody, because each of them mistakenly believed that the other had done so. App. 54-55; see also id., at 33-34. They realized their mistake after arriving with Moore at Moore’s hotel room, which they had obtained his consent to search, and they searched his person there. Ibid. Moore does not contend that this delay violated the Fourth Amendment. Atwater v. Lago Vista, 532 U. S. 318 (2001), rejected the view Justice Ginsburg advances that the legality of arrests for misdemeanors involving no breach of the peace “depended on statutory authorization.” Post, at 178, n. 1 (opinion concurring in judgment). Atwater cited both of the sources on which Justice Ginsburg relies for a limited view of common-law arrest authority, but it also identified and quoted numerous treatises that described common-law authority to arrest for minor misdemeanors without limitation to eases in which a statute authorized arrest. See 532 U. S., at 330-332. Atwater noted that many statutes authorized arrest for misdemeanors other than breaches of the peace, but it concluded that the view of arrest authority as extending beyond breaches of the peace also reflected judge-made common law. Id., at 330-331. Particularly since Atwater considered the materials on which Justice Ginsbukg relies, we see no reason to revisit the case’s conclusion. Of the early cases that Davies collects, see 98 Mich. L. Rev., at 613, n. 174; id., at 614, n. 175, the lone decision to treat statutes as relevant to the Fourth Amendment’s contours simply applied the principle that statutes enacted in the years immediately before or after the Amendment was adopted shed light on what citizens at the time of the Amendment’s enactment saw as reasonable. Boyd v. United States, 116 U. S. 616, 622-623 (1886). Massachusetts, for example, had a state constitutional provision paralleling the Fourth Amendment, but the litigants in the earliest eases we have identified claiming violations of arrest statutes in the Commonwealth did not argue that their arrests violated the Commonwealth’s Constitution. See Brock v. Stimson, 108 Mass. 520 (1871); Phillips v. Fadden, 125 Mass. 198 (1878); see also Tubbs v. Tukey, 57 Mass. 438 (1849) (asserting violation of state common law concerning arrest but not asserting violation of state constitution). Question: What treatment did the court whose decision the Supreme Court reviewed accorded the decision of the court it reviewed? A. stay, petition, or motion granted B. affirmed C. reversed D. reversed and remanded E. vacated and remanded F. affirmed and reversed (or vacated) in part G. affirmed and reversed (or vacated) in part and remanded H. vacated I. petition denied or appeal dismissed J. modify K. remand L. unusual disposition Answer:
songer_counsel1	D	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. Your task is to determine the nature of the counsel for the appellant. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party Shirley J. HARRIS, Appellant, v. UNITED STATES of America, Appellee. No. 9354. United States Court of Appeals Tenth Circuit. Oct. 17, 1967. Rehearing Denied Nov. 24, 1967. Sid White, Oklahoma City, Okl., for appellant. John E. Green, Oklahoma City, Okl., for appellee. Before PHILLIPS, JONES and LEWIS, Circuit Judges. Of the Fifth Circuit, sitting by designation. PER CURIAM: Shirley J. Harris has appealed from a judgment forfeiting an automobile and its tools and appliances on a libel filed under 26 U.S.C.A. §§ 7302 and 7323, which charged they were property unlawfully possessed for intended use in violating the provisions of the internal revenue laws of the United States and had been so used. Appellant has not filed a brief. On oral argument, counsel for appellant appeared and belatedly asserted that the record in a subsequent criminal proceeding would show the use of the vehicle on a particular occasion was the result of entrapment by federal officers. Counsel admitted that in such proceeding the defense of entrapment failed and the defendant was convicted. The trial court in the libel proceeding found that the vehicle was unlawfully possessed for intended use in violation of the internal revenue laws of the United States and had been so used. The record is wholly devoid of any evidence of entrapment and the findings of possession, intended use and actual use of the vehicle in violating the internal revenue laws of the United States are amply supported by the evidence. Hence, the judgment must be and it is affirmed. Question: What is the nature of the counsel for the appellant? A. none (pro se) B. court appointed C. legal aid or public defender D. private E. government - US F. government - state or local G. interest group, union, professional group H. other or not ascertained Answer:
songer_two_issues	B	What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there are two issues in the case. By issue we mean the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. UNITED STATES of America, Appellee, v. Wayne Douglas KING, Defendant-Appellant. No. 71-1224. United States Court of Appeals, First Circuit. Heard Jan. 4, 1972. Decided Feb. 2, 1972. Gerald J. Billow, Cambridge, Mass., by appointment of the Court, with whom Remeho, Billow & Haroz, Michael J. Ha-roz, Lawrence E. Katz, and Bernard Nevas, Cambridge, Mass., were on brief, for appellant. Robert B. Collings, Asst. U. S. Atty., with whom James N. Gabriel, U. S. Atty., was on brief, for appellee. Before ALDRICH, Chief Judge, and McENTEE and COFFIN, Circuit Judges. COFFIN, Circuit Judge. Appellant Wayne King was convicted in a jury trial of refusing to report for and submit to induction in violation of 50 U.S.C. App. § 462(a). On appeal, he asserts that he was entitled to acquittal because the army failed to follow its regulations applying to the conduct of his pre-induction physical examination or because the clerk of his local board failed to bring to the attention of the members of the board certain facts which he alleges might have warranted a physical deferment. Alternatively, he contends that a new trial must be granted on any of the three grounds that evidence as to his conscientious objection to war was improperly excluded, that the court erred in instructing the jury that receipt of a notice of classification must conclusively be presumed from its mailing, and that certain testimonial evidence as to order of call was improperly admitted. PHYSICAL EXAMINATION King held a II-S deferment as a student at Westfield State College when, on April 15, 1968, his local board received notification from Westfield that he had withdrawn. Having been reclassified IA on April 23, he was ordered to report for a physical examination on June 17. At the examining station, King completed the customary Standard Form 89, Report of Medical History, cheeking, among others, the items “dizziness or fainting spells”; “depression or excessive worry” ; “frequent trouble sleeping”; “stomach, liver or intestinal trouble”; “recent gain or loss of weight”; and “any drug or narcotic habit”. In the space which called for a “statement of ex-aminee’s present health in own words”, King wrote merely “good”. As required by Form 89, the examining physician wrote a brief “summary and elaboration” of each checked item after an interview with King. His notes included, with reference to the “drug or narcotic habit”, “psychedelic drugs 2% years”. On Standard Form 88, Report of Medical Examination, the examining physician checked “abnormal” for the categories “upper extremities”, “spine”, and “psychiatric”, explaining respectively, “claim mild pain in shoulder & neck — no records”, “claim mild pain in low back— no records”, and “takes psychedelic drugs 2y2 years”. He concluded that King was qualified for induction, and stamped on the form a paragraph indicating that King “claims ailments not verified by the medical officer and has been advised to present documentary evidence, ‘at his own expense’ to substantiate claims to his Selective Service local board prior to his induction.” Based solely on these forms, King asserts that his physical examination was improper in that he was not accorded an examination by a psychiatric specialist. The matter is governed by Army Regulation 601-270, j[ 4-20h(l) (b). “A specific psychiatric evaluation will be made by the Chief, Medical Examining Section, whenever the examining physician has reason to question the examinee’s emotional, social, or intellectual adequacy for military service.” As is apparent from the language of the regulation, discretion is reposed in the examining physician. To be sure, as King points out, a registrant may be rejected for drug addiction, AR 40-501, j[ 2-34a(4), but the mere fact, even if true, that a registrant has taken psychedelic drugs for two and one-half years does not entitle him to a specialist examination. It was apparently the opinion of the examining physician that King showed no appreciable ill effects from any taking of drugs and met the current psychiatric standards for induction. Nor do the present facts show an abuse of discretion. As further criticism of the conduct of his physical examination, King cites the failure of the examining physisian to attach to Form 88, as required by AR 601-270, ¶ 4-20h (6), letters allegedly brought to the examination. The sole evidence at trial concerning these letters was the following colloquy on direct examination: “Q. What were these letters? A. They just stated about my stomach condition, I had been treated for injuries I had received in an automobile accident. Q. What did you do with these letters? A. I took then to the physical with me. I handed them to a doctor. He looked at them, handed them back to me.” Notably, neither the letters nor copies were introduced into evidence, nor was there testimony as to their specific contents. Since the testimony does not indicate that the stomach condition was a disqualifying one or even that it had persisted until the time of the physical examination, the district court properly refused to instruct that King must be acquitted if the jury found that he presented letters to the examining physician. REOPENING In criticizing the admitted failure of the local board clerk to bring to the attention of the members of the board Forms 88 and 89 when they were returned by the examining station to the local board, King relies on the decision of this court in United States v. Ford, 431 F.2d 1310 (1st Cir. 1970). In Ford, we reasoned from Mulloy v. United States, 398 U.S. 410, 90 S.Ct. 1766, 26 L.Ed.2d 362 (1970), which requires that the local board reopen a registrant’s classification when he makes a prima facie claim for a new classification, that allegations of new facts must be shown to the members of the board by the clerk in order that the board may determine whether the registrant has made a prima facie claim. King would have us interpret Ford as requiring that the statements on his Forms 88 and 89, primarily “takes psychedelic drugs during 2% years”, should have been considered by the local board as a possible prima facie claim of a “personality disorder” which would entitle him to a I-Y or IV-F classification. We are not persuaded. The Ford decision did not signal an abandonment of common sense and relevancy. Forms 88 and 89, as their titles, Report of Medical Examination and Report of Medical History, suggest, are not intended to be vehicles for the presentation of claims to local boards. Nor, more importantly, are they detailed enough to be of use to the board other than to indicate summary conclusions about assorted symptoms: the brevity of the entries forecloses the meaningful evaluation which was at the base of Ford. The present case is illustrative — “takes psychedelic drugs 2% years” tells the board little. Appellant did not present his psychiatric claim, to the local board, as he was advised to do by the stamp on his Form 88. To impose upon the board the duty of inspecting every Form 88 and 89 returned by the examining station would be to compel it to misallocate its time. REFUSAL OF FORMS Appellant also contends that he is entitled to a new trial on the ground that the trial judge improperly excluded testimony which would have tended to support his theory that on four occasions he had requested and been refused forms on which to indicate conscientious objection. The court instructed the jury that “If you find he did ask for them prior to his receipt of the order to report for induction, then I tell you the order to report for induction was invalid.” King was permitted to testify that he refused induction because he was a conscientious objector and to testify in some detail about the four alleged requests for forms. The court did not permit him to testify in more detail about his beliefs nor his pastor to testify corroborating his conscientious objection, and excluded the deposition testimony of his mother. These items of testimony would, appellant maintains, have established more clearly for the jury that King was a conscientious objector. Because an objector is more likely than a non-objector to ask for forms, he continues, the jury could have inferred that King did so. While the predicate is patently correct, the conclusion follows no more than to say that because a sober driver is less likely to drive through a red light than an inebriated one, proof of a driver’s reputation for sobriety among his neighbors must be admitted in a negligence action against him. Recognizing that the trial court did permit the testimony sketched above, which was relevant to no other issue, and instructed the jury as to appellant’s requests, we hold that it did not abuse its discretion in excluding further offers of proof which might needlessly have confused the jury. MAILING OF NOTICE The court instructed, essentially, that the government must prove beyond a reasonable doubt that an SSS Form 110, Notice of Classification, was mailed to King on the occasion of his being placed in Class I-A, but that it need not prove receipt. King attacks this instruction as a denial of due process, but we find this attack inconceivable on the present facts. Due process may be satisfied by actual knowledge from sources other than a Form 110, that one has been reclassified. In the case before us, King filed an SSS Form 104, Request for Undergraduate Student Deferment, on October 4, 1967, and was classified II-S on October 31. On April 15, 1968, his local board received notice from his college that he had withdrawn due to academic failure. He was ordered for a physical examination on May 21, examined on June 17, and notified of his acceptability on June 24. Not until January 16, 1969, was he ordered to report for induction on February 4. In light of this history, his testimony at trial that until January, 1971, he believed that he remained II-S is plainly incredible. A registrant who has applied for a deferment to pursue a “full-time course of instruction” will not be heard to claim that he had no notice that he was no longer classified II-S while driving trucks three years later or even nine months later. Having been found physically acceptable and not having requested any other classification, he may be charged with knowledge of the I-A classification. At an absolute minimum, he was obliged to inquire as to his status. What we said in a different context is relevant here as well: “We cannot . consider it unreasonable to require a registrant to exercise at least a minimum amount of diligence in his own interest.” United States v. Walker, 424 F.2d 1069, 1070 (1st Cir. 1970). ORDER OF CALL Appellant’s contention as to the order of call, finally, is a complex one, in which evidentiary matters are entangled with substantive ones. The difficulty here as elsewhere is that an order of call sufficiently off the mark will mean acquittal and is thus a matter of intense interest to the defendant, while, from the government’s perspective, order of call is an entirely collateral issue. In a defendant’s ideal world, proper order of call would be treated as an “element of the offense” and the government would bear from the outset a burden of demonstrating with documentary evidence from individual files that a defendant was in no way prejudiced by his local board’s action. This would involve a justification in the first instance by the government of all classification decisions or series of such decisions which have removed other registrants from the list of those being called. In a prosecutorial utopia, order of call would be styled an “affirmative defense”, and defendant would bear the burden of demonstrating from public records that he was prejudiced, whereupon the government might respond with the conclusory testimony of a clerk that defendant was called in the proper order. In structuring the substantive and procedural sub-issues relating to order of call, courts have sought to allocate burdens and regulate discovery in ways which permit the occasional defendant who has a substantial order of call claim to raise it without unduly burdening the government or the courts in the majority of cases, where the issue is irrelevant. Our decisions have settled two major points: that improper order of call is not a defense unless the registrant would not otherwise have been called when he was, United States v. Ca-mara, 451 F.2d 1122 (1st Cir., filed Dec. 2, 1971), and that the burden of going forward shifts from the defendant, where it rests initially, to the government, when a defendant raises the issue. Yates v. United States, 404 F.2d 462 (1st Cir. 1968), rehg. denied, 407 F.2d 50 (1969). The present case requires us to consider in greater detail the responsibility of a defendant to raise the issue and the proper procedure to be utilized by the government in carrying its resulting burden. At the time King was ordered to report for induction, the regulation provided essentially that the oldest registrants under age 26 in Class I-A must be called first. Eleven younger men having been ordered to report for induction on the same day as he was, King would show prejudice only if twelve or more registrants who were not called should have been called before he was. United States v. Camara, supra, at 1125. The order of call issue was inartfully raised in the court below. Prior to the trial, appellant moved for and was granted discovery of “Copies of the Classification Record of local board No. 3 (SSS Form 102) for the years of birth 1942-1949 inclusive.”7 Discovery was denied but appellant was given free access to the Form 102 books, which contain a skeletal record of the contact of all registrants with a local board, spaces being provided for, among other things, name, date of birth, class and date of mailing for each classification or reclassification, appeal to appeal board, and date and results of armed forces physical examination. From the Form 102 books, counsel for King evidently identified two hundred registrants who should perhaps have been called before King. King’s Reply Brief on appeal indicates that he then sought to inspect the files of these registrants with the U. S. Attorney but that the U. S. Attorney declined to do so, offering instead to inspect the files himself and then to present documents deemed relevant to King. King did not seek a court order to inspect the documents and refused to indicate in advance of trial the precise number and identity of registrants who he would claim at trial should have been called before him. At trial, photostats of the relevant pages of the Form 102 books were introduced into evidence when appellant again raised the issue on the cross-examination of the Executive Secretary of the local board. King established on cross-examination by reference to Form 102 that sixty-one registrants older than himself who were in Class I-A on the date he was ordered to report for induction were not called. On redirect, the Executive Secretary, relying in part on the Form 102 books and in part on her notes from the files of those registrants explained why fifty-six of those sixty-one were not called. Appellant argues that by discovery motion, by informal conversation, and by cross-examination of the Executive Secretary, he adequately raised the order of call issue, Yates, supra, and that thereupon, the burden of going forward having shifted to the government, the court should not have permitted the Executive Secretary to testify from her notes, but should instead have compelled the government to produce the “best evidence” of the reasons why other registrants were not called, that is, documents from the selective service files of those registrants. The government admits that the issue was raised as to the sixty-one registrants mentioned above but that the testimony of the Executive Secretary sufficed as a substitute for the “best evidence”. Each party argues, as no doubt it should, that its position was adopted in Yates, supra. Yates not having raised the order of call issue, the question as to the proper mode of proof when the issue is raised was not before us there, and our opinion may consequently have been ambiguous in this regard. We address the matter now. We find United States v. Baker, 416 F.2d 202 (9th Cir. 1969), directly on point and persuasive. In that case, Baker demonstrated that six registrants older than himself and classified I-A according to the Form 102 book had not been called. By way of justification, the government then sought to inquire of its witness the reasons that the six registrants had been passed by. In discussing Baker’s objection to that question, the court stated that “the question called for testimony of the witness concerning the contents of writings which were part of the older registrants’ selective service files. The best evidence of such writings was of course the writings themselves . . ..” 416 F.2d at 205. Cf. United States v. Dobie, 444 F.2d 417 (4th Cir. 1971); United States v. Weintraub, 429 F.2d 658 (2d Cir. 1970), cert. denied, 400 U.S. 1014, 91 S.Ct. 572, 27 L.Ed.2d 627 (1971). While we adopt Baker, we apply it to the present case only with some hesitation. Even though, the defendant having raised an order of call issue, the burden of proof shifts to the government, the burden is peculiar in that its scope is determined in part by the defendant. In the present case, the government did not know until the cross-examination of the Executive Secretary which registrants King would claim should have been called. At trial, appellant challenged only sixty-one of the approximately two hundred which he had suggested he might challenge. Notwithstanding this differential, the Executive Secretary had examined the files of the sixty-one registrants, had taken notes, and was fully prepared to testify. The necessity of putting the government on notice relates not to the form of evidence which the government must present, but rather to whether it must present evidence at all. Without appreciably greater preparation, the Executive Secretary could have testified from selected documents in the registrants’ files where they were necessary to supplement the Form 102 books. We do not, however, think it appropriate to order a new trial. As we indicated in Yates and have reaffirmed here, proper order of call is not to be treated as an ordinary “element of the offense”. Having reconsidered our dictum in Yates that order of call is a question for the jury, we presently feel that the complexity of order of call makes it an issue to be addressed to and decided by the court. Innumerable cases have held that in a prosecution for failure to report for or to submit to induction or to report for civilian work, the question of whether the registrant was properly classified so as to make appropriate an order to report has been held to be one for the court, see, e. g., Cox v. United States, 332 U.S. 442, 68 S.Ct. 115, 92 L.Ed. 59, rehg. denied, Thompson v. United States, 333 U.S. 830, 68 S.Ct. 449, 92 L.Ed. 1115 (1947); Lancaster v. United States, 153 F.2d 718, 723 (1st Cir. 1946); indicating that the Sixth Amendment right to a jury trial in a criminal case is not infringed by entrusting the court with some authority to test the adequacy of local board actions. The Ninth Circuit has gone well beyond Cox in stating that all issues relating to the validity of the induction order are for the court. United States v. Lloyd, supra, 431 F.2d at 164. Cf. United States v. Witmer, 115 F.Supp. 19 (M. D.Pa.1953), aff’d, 213 F.2d 95 (3d Cir. 1954), aff’d, 348 U.S. 375, 75 S.Ct. 392, 99 L.Ed. 428 (1955) (reopening and reclassification). Taking no position on the broader reaches of this approach, we note that one of the issues expressly held to be for the court in Lloyd and in United States v. Jones, 431 F.2d 619 (9th Cir. 1970), cert. denied, 401 U.S. 926, 91 S.Ct. 882, 27 L.Ed.2d 829 (1971), was whether the local board had observed the relevant regulations in establishing its order of call. With this we agree, at least as a general matter. Our ruling that the government must sustain its burden with documentary evidence when available means that, as a practical matter, the order of call issue will turn not on the credibility of witnesses but on whether the board, on uncontroverted facts, has followed its regulations in ordering a particular registrant to report for induction. Such is evidently the case here. Accordingly, we remand to the district court for a hearing to determine whether King was prejudiced by an improper order of call. Unless the issue is shown on remand to depend on the credibility of witnesses, we instruct the court to decide the issue. On remand, the court need not reopen entirely the order of call question. The appellant did not seek discovery of the selective service files of the two hundred or even of the sixty-one contested registrants, and cannot now do so by indirection. Documentary evidence, supported by testimonial evidence to the extent necessary, should be taken as to the reasons for the board’s bypass of the sixty-one registrants discussed at trial. This need not be an extended inquiry. The Executive Secretary testified, for example, that, as to twenty-nine of the sixty-one registrants, the registrants were reclassified after the compilation of the Delivery List (SSS Form 261) on the basis of new information supplied to the board prior to the compilation. As to these, assuming no irregularity, the government need only introduce copies of the registrants’ correspondence to the board setting forth the new information. The Executive Secretary testified that thirteen additional registrants were not called because they had not been fully examined. As to these, again absent an apparent irregularity, the government need only introduce such documents as are required to establish that the registrant should not have been ordered to undergo examination prior to King or that postponement was justified by some other regulation. The Executive Secretary testified that seven registrants were not called because they had failed to report for induction on an earlier occasion. It would suffice for the government to introduce a document from each registrant’s file indicating that he failed to report. Appellant conceded at trial that one of the challenged sixty-one had in fact been ordered to report at the same time as King. Documentary evidence substantiating the varied reasons for not calling the remaining eleven registrants would be hardly more extensive. If, after such hearing, which might appropriately be conducted by a magistrate, the district court concludes that the government has established beyond a reasonable doubt that fifty or more of the sixty-one registrants were properly bypassed, appellant’s conviction will stand. If not, appellant will be acquitted. Because of the confusion surrounding the order of call question in this and other cases, we add this afterword. In cases coming to trial in February, 1972, or later, a defendant will be deemed to have waived the order of call issue if he failed to raise it, after discovery, by moving for a judgment of acquittal on that ground prior to the trial-in-ehief. Liberal discovery or inspection of the files consistent with the Federal Rules of Criminal Procedure shall be afforded upon application, although the court may impose such restrictions as may be necessary to protect the confidentiality of selective service files. After discovery, the defendant shall designate those registrants who he has reason to believe should have been called for induction before he was called. The district court, assisted by a magistrate where desired, shall hear any such motion prior to the trial, except that in a jury-waived trial the court may if it chooses consolidate the hearing and the trial. At any hearing called for this purpose, the government shall bear the burden of demonstrating by documentary evidence concerning the designated registrants, supplemented by testimonial evidence where necessary, that the defendant was not prejudiced by an improper order of call. The court shall then determine the issue, except that in a jury trial the court shall reserve for the jury any justifications for bypassing registrants which depend on the credibility of witnesses if the issue turns on such bypasses. Remanded for further proceedings as to the order of call. Affirmed in all other respects. . This is indicated by the notation “1” under the letter “S” of Item 76.A (Form 88). “[A]ny examinee who meets the current psychiatric standards for military service will be profiled 1 (no profile limitation), under the ‘S’ factor . . . .” AR 601-270, ¶ 4-20h(l) (b). United States v. Powell, 449 F.2d 706, 708 (3d Cir. 1971). . AR 601-270, ¶ 4-20(6) states in part that “When documents prepared by physicians are submitted by the examinee in evidence of an existing physical condition which indicates that the individual has received treatment for a reported condition, such documents will be attached to each Standard Form 88.” . For fitness standards relating to the abdomen and gastrointestinal system, see AR 40-501, ¶ 2-3. . Of. United States v. Lloyd, 431 F.2d 160 (9th Cir. 1970). In Lloyd, the court affirmed the trial court’s rejection of an offer of proof that a similar letter from a named doctor was not attached to defendant’s file by the examining station, on the grounds that no showing was made as to its contents or as to the unavailability of a copy. 431 F.2d at 164 n. 10, 166. . More specifically, King emphasizes that one cause for rejection is a “character or behavior disorder” as evidenced by “(1) Frequent encounters with law enforcement agencies, or antisocial attitudes or behavior which, while not a cause for administrative rejection, are tangible evidence of an impaired char-acterological capacity to adapt to the military service. (4) Drug addiction.” AR 40-501, ¶ 2-34a. . Appellant testified that he discovered that he was I-A only when, having lost his wallet, he obtained a duplicate SSS Form 110 from his local board in January, 1971. . “Such registrants . . . shall be selected and ordered to report for induction in the following order: (3) Non-volunteers who have attained the age of 19 years and have no [sic] attained the age of 26 years ... in the order of their dates of birth with the oldest being selected first.” 32 C.F.R. § 1631.7(a) (1967). . The Motion for Discovery states that these documents were sought “to determine if the defendant was called for induction and physical examination in the proper order and whether or not others should have been called instead of him. 32 C.F.R. 1628.11 and 1631.7, Yates v. United States, 404 F.2d 462, reh. [denied] 407 F.2d 50 (1st Cir. 1968 [1969]).” Question: Are there two issues in the case? A. no B. yes Answer:
songer_r_fiduc	1	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of respondents in the case that fall into the category "fiduciaries". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. BARROW et al. v. IRVING TRUST CO. No. 137. Circuit Court of Appeals, Second Circuit. Jan. 8, 1934. Abram P. Staples, of Roanoke, Va., for appellants. Cravath, de Gorsdorff, Swaine & Wood, of New York City (William D. Whitney, of New York City, of counsel), for appellee. Before L. HAND, SWAN, and AUGUSTUS N. HAND, Circuit Judges. PER CURIAM. This appeal raises no other questions than those which we dealt with in Manhattan Properties, Inc., v. Irving Trust Co., 66 F.(2d) 470, and Malavazos v. Irving Trust Co., 66 F.(2d) 482, except that here we must consider a point of Virginia law. The lessors, who are the claimants, assert that hy the law of that state when a lessee repudiates the lease, the lessor may sell the term and sue at once for liquidated damages; by which we mean the difference between the discounted future rents and the value of the term as realized. The claimants did not indeed take that course here; rather they procured from a Virginia court a receiver who is collecting the rents for the interest of whom it may concern. But their position is that the bankruptcy court may sell the term in their stead by way of liquidating the claim, and offset the sum received against the discounted future rents. We are not clear that under James v. Kibler’s Adm’r, 94 Va. 165, 26 S. E. 417, this course is open to a lessor; that is, whether he must not himself resell the term upon the lessee’s repudiation. However, we shall assume that he may leave the sale to the court, if he positively elects to pursue that remedy; just as we assume that the bankruptcy is a repudiation of the lease by the lessee. We have never held that the lessor would not have a provable claim in bankruptcy in case the lease contained a covenant that upon repudiation the lessee would pay the discounted future rents, less the present value of the term. In re Roth & Appel (C. C. A. 2) 181 F. 667, 31 L. R. A. (N. S.) 270, did not touch such a covenant; though the lessee had promised to pay the difference between the rent reserved as it fell due, and the rente received by the lessor on any reletting. We thought such a claim too contingent,' because each payment was conditional upon the continuance of the term, and the- covenant was as little absolute as the prime covenant to pay the rents. A covenant to pay at once the discounted rent would not be so conditioned; it would be, in substance, a covenant for liquidated damages, as we have already called it; and we reserve its provability. Arguendo we will assume that it would be provable. In James v. Kibler’s Adm’r, supra, 94 Va. 165, 26 S. E. 417, the lessor was allowed to recover without such a covenant in the lease; the remedy was the same as though it had existed. If the lessee had entered, we should have to decide the question we have just reserved. However, he had not, and that was expressly mentioned as an important, if not controlling, circumstance; the situation was treated as an ordinary breach of contract. In Crowder v. Virginia Bank of Commerce, 127 Va. 299, 103 S. E. 578, the lessee had entered and the lessor had not resold the term. The lessee urged this as an excuse when the lessor sued for the full rent, his theory being that by neglecting to sell the lessor had failed in his duty to minimize his damages. This the court answered by distinguishing between the repudiation of a contract to lease and of the lease itself ; in the first the lessor must minimize damages, in the second he may let the rent roll up and sue for it. The last was a doctrine of real property, different from that applicable to contráete generally. Of course, it would be possible to say that the lessor has such a remedy after entry, but that for especial reasons he need not use it; it is possible to lay down any rule whatever. But at least the distinction made in Crowder v. Virginia Bank of Commerce leaves us doubtful whether the circumstances that in James v. Kibler’s Adm’r, supra, 94 Va. 165, 26 S. E. 417, the term had not begun, may not have been the controlling factor. Certainly no such remedy was known to the common law in the absence of specific covenant. Branning Mfg. Co. v. Norfolk-Southern R. Co., 138 Va. 43, 121 S. E. 74, again concerned a lease in which the term had not begun; it adds nothing to James v. Kibler. Cook v. Payne, unreported, was merely a refusal without opinion to entertain an appeal; we have no means of knowing what were the court’s reasons; certainly they may have been other than what the claimants here assume. Our conclusion is that the law of Virginia has not been shown to vary from the common law, and that In re Roth & Appel, supra, 181 F. 667, 31 L. R. A. (N. S.) 270, rules this appeal. The order is affirmed, but if the appellants wish the mandate will be held up until the decision of the Supreme Court on the main issues now pending before it on certiorari. Question: What is the total number of respondents in the case that fall into the category "fiduciaries"? Answer with a number. Answer:
songer_two_issues	A	What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there are two issues in the case. By issue we mean the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. COMMONWEALTH COMMERCIAL STATE BANK v. LUCAS, Com'r of Internal Revenue. No. 4941. Court of Appeals of District of Columbia. Argued April 10, 1930. Decided May 5, 1930. Lawrence A. Baker and Henry Ravenel, both of Washington, D. C., for appellant. Mabel W. Willebrandt, Asst. Atty. Gen., and C. M. Charest, Shelby S. Faulkner, Sewall Key, and Barham R. Gary, all of Washington, D. C., for appellee. . Before MARTIN, Chief Justice, and ROBB and VAN OESDEL, Associate Justices. ROBB, Associate Justice. Appeal from a decision by the Board of Tax Appeals involving income taxes for the calendar year 1921 in the amount of $3,358.08. On July 10, 1916, appellant, located at Detroit, Mich., purchased Imperial Russian Government 6% per cent, bonds, at par value of $40,000. On May 31, 1917, if purchased Imperial Russian Government 5% per cent, bonds at par value of $11,000. In March, 1917, the Imperial Russian .Government was overthrown, and in 1918 the Soviet Government repudiated the financial obligations of the Imperial Government, in-eluding the above-mentioned bonds then held by appellant. Several times during the year 1921 the state bank examiner of the state of Michigan directed appellant to write off its books the above-described bonds to the full extent of their par value. Appellant complied. This' action was approved by the state bank commissioner. The Board of Tax Appeals found that “at the close of the year 1921 each class of the above described bonds was quoted on the exchange at about 10 per cent of their par value.” Appellant kept its books on -a cash receipts and disbursements basis. In its return for the year 1921 it deducted as a bad debt loss the amount of $51,000, representing its total investment in the Russian bonds. The question here (as stated by appellant) is whether the Board erred in disallowing this amount, or 90 per cent, thereof, as a debt ascertained to be worthless and Charged off. Section 234(a) (5) of the Revenue Act of 1921 (42 Stat. 227, 255) provided, in part, that in computing the net' income of a corporation subject to the tax imposed by section 230 “there shall be allowed as deductions: * * * Debts ascertained to be worthless and charged off within the taxable year (or in the discretion.of the Commissioner, a reasonable addition to a reserve for bad debts); and when satisfied that a debt is recoverable only in part, the Commissioner may 'allow such debt to be charged off in part. % * » - The Treasury Department, charged with the duty of interpreting and giving effect to this statute, adopted certain regulations, the pertinent provisions of which are as follows: “Art. 151. Bad Debts. — Bad debts may be treated in either of two ways — (1) by a deduction from income in respect of debts ascertained to be worthless in whole or in part, or (2) by a deduction from income of an addition to a reserve .for bad -debts. * * where banks or other corporations which are subject to supervision by Federal authorities (or by State authorities maintaining substantially equivalent standards) in obedience to the specific orders, or in accordance with the general policy of such supervisory officers, charge off debts in whole or in part, such debts shall, in the absence of affirmative evidence clearly establishing the contrary, be presumed, for income tax purposes, to be worthless or recoverable only in part, as the case may be.” “Art. 154. Worthless securities. * * * Bonds purchased since February 28, 1913, when ascertained to be worthless, may be treated as bad debts to the amount actually páid for them. * * * ” Section 234(a) (5) of the Act of 1921 was-re-enacted without change in the Revenue Act of June 2, 1924 (43 Stat. 253, 284), and in the Revenue Act of February 26, 1926 (44 Stat. 9, 42), 26 USCA § 986(a) (5). The articles of the Treasury Regulations to which we have referred were re-adopted without change in Regulations 65 under the act of 1924 and in Regulations 69 under the act of' 1926. The Treasury Department, in conformity with the foregoing regulations, had' consistently permitted th'e holders of bonds-similar to those here involved, when ascertained to be worthless, to be treated as bad debts. In January, 1928, the Board of Tax Appeals, in the case of First National Bank of St. Paul v. Commissioner, 10 B. T. A. 32, held that such a bond is not a debt within the-meaning of the bad debt provision of the act of 1921 and subsequent acts. That ruling-accounts for the action of the Commissioner of Internal Revenue in refusing to permit a deduction in the present ease. Prior to that time the rulings had been in harmony with the views of the Treasury Department. Appeal of Murchison National Bank, 1 B. T. A. 617; Appeal of Samuel Bird, 4 B. T. A. 259. In Komada v. United States, 215 U. S. 392, 396, 30 S. Ct. 136, 137, 54 L. Ed. 249, the court, quoting with approval from United States v. Cerecedo Hermanos Y. Compania, 209 U. S. 337, 339, 28 S. Ct. 532, 52 L. Ed. 821, said: “ ‘We have said that when, the meaning of a statute is doubtful, great weight should be given to the construction, placed upon it by the department charged! with its execution. Robertson v. Downing, 127 U. S. 607, 8 S. Ct. 1328, 32 L. Ed. 269; United States v. Healey, 160 U. S. 136, 16 S. Ct. 247, 40 L. Ed. 369. And we have decided that the - re-enactment by Congress,. without change, oí a statute which had previously received long-continued executive construction, is an adoption by Congress of such construction. United States v. Falk, 204 U. S. 143, 152, 27 S. Ct. 191, 51 L. Ed. 411, 4141 ” A similar observation was made in National Lead Co. v. United States, 252 U. S. 140, 146, 140 S. Ct. 237, 239, 64 L. Ed. 496: “The re-enacting of the drawback provision four times, without substantial change, while this method of determining what should he paid under it was being constantly employed, amounts to an implied legislative recognition and approval of the executive construction of the statute (United States v. Philbrick, supra [120 U. S. 52, 59, 7 S. Ct. 413, 30 L. Ed. 559]; United States v. G. Falk & Brother, 204 U. S. 143, 152, 27 S. Ct. 191, 51 L. Ed. 411; United States v. Cerecedo Hermanos Y. Compania, 209 U. S. 337, 28 S. Ct. 532, 52 L. Ed. 821), for Congress is presumed to have legislated with knowledge of such an established usage of an executive department of the government.” In Logan v. Davis, 233 U. S. 613, 627, 34 S. Ct. 685, 690, 58 L. Ed. 1121, the court said it is a “settled rule that the practical interpretation of an ambiguous or uncertain statute by the executive department charged with its administration is entitled to the highest respect, and * * " will not he disturbed except for very cogent reasons.” To the same effect are McLaren v. Fleischer, 256 U. S. 477, 481, 41 S. Ct. 577, 65 L. Ed. 1052; Kern River Co. v. United States, 257 U. S. 147, 154, 42 S. Ct. 60, 66 L. Ed. 175; Paducah Water Co. v. Commissioner of Internal Revenue, 59 App. D. C. 84, 33 F.(2d) 559, 560; Corning Glass Works v. Lucas, 59 App. D. C. 168, 37 F.(2d) 798, 800; American Auto Trimming Co. v. Lucas, 59 App. D. C. 171, 37 F.(2d) 801, 803. In the present ease, the contemporaneous and continued interpretation by the Treasury Department was both equitable and reasonable, and apparently met with tho approval of Congress, as otherwise wo must assume there would have been a change in the wording of the statute. There is no cogent reason for now adopting tho more technical interpretation which the Board has placed upon tho statute. It follows, therefore, that the Board erred in not allowing a, deduction of 90 per cent of the cost of the bonds as a bad debt. Decision reversed. Reversed. Question: Are there two issues in the case? A. no B. yes Answer:
songer_usc1sect	1332	What follows is an opinion from a United States Court of Appeals. Your task is to identify the number of the section from the title of the most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 28. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA". VAREKA INVESTMENTS, N.V., a Netherlands Antilles Corp., Plaintiff-Appellee, v. AMERICAN INVESTMENT PROPERTIES, INC., a Florida Corp., Defendant-Appellant. No. 82-5722. United States Court of Appeals, Eleventh Circuit. Feb. 9, 1984. Rehearing Denied March 21, 1984. Lawrence H. Rogovin, North Miami Beach, Fla., for defendant-appellant. Steel, Hector & Davis, Vance E. Salter, Miami, Fla., for plaintiff-appellee. Before RONEY, HATCHETT and ANDERSON, Circuit Judges. HATCHETT, Circuit Judge: In this diversity case, we review the district court’s award of damages to a lessor resulting from a commercial lease transaction and the termination of the lease. We affirm. FACTS Vareka Investments, N.V. (Vareka) was incorporated under the laws of the Netherlands Antilles on October 20, 1978, to serve as a passive investment vehicle. With the exception of a shareholder who is a citizen of Italy residing in Montreal, Canada, all of the shareholders of Vareka are citizens and residents of the Republic of Ecuador. Leonard E. Treister and Jerome J. Cohen were shareholders, officers, and directors of American Investment Properties, Inc. (AIP). In January, 1978, AIP purchased The Quarters Office Park. During 1978, a company half owned by Treister and Cohen, Greater American Management Corporation (GAMC), operated The Quarters Office Park (The Quarters). In January, 1979, Vareka purchased The Quarters from AIP. Simultaneously, AIP leased The Quarters back from Vareka under a fifteen-year net lease under which AIP was obligated to pay Vareka a minimum “net” return of Vare-ka’s cash investment. AIP was also obligated to pay all expenses and assume all duties to the subtenants and to operate The Quarters. Vareka had no liability whatsoever for the operation, maintenance, or expenses of The Quarters. Treister and Cohen, individually, guaranteed AIP’s performance under the lease for the first five years, with an aggregate liability of $100,-000. On January 15, 1979, Vareka filed an “Application by Foreign Corporation for Authorization to Transact Business in Florida” with the Florida Department of State. The State of Florida granted the application, and Vareka became qualified to transact business in Florida. The qualification listed as the “address of principal office” of Vareka, 1400 Southeast First National Bank Building, Miami, Florida. A Resident Agent Certificate was also filed with the Secretary of State of Florida. On the certificate, Vareka designated an attorney at a Miami, Florida, law firm as its resident agent. The law firm had represented Vareka in the negotiations and consummation of the transaction, and continues to represent Vareka in Florida. In August, 1979, AIP notified Vareka that AIP intended to terminate the lease. The present actions were commenced in September, 1979, when Vareka filed suit. In October, 1979, the district court authorized Vareka to re-enter the premises for the purposes of operation and management, pursuant to the lease agreement. Vareka hired Coldwell Banker Property Management Company (Coldwell Banker) to operate the property from October, 1979, through the date of the trial. PROCEDURAL HISTORY On September 4, 1979, soon after AIP advised Vareka of its intent to terminate, Vareka sued AIP under the lease. On September 14, 1979, Vareka sued Treister and Cohen based on the Guaranty. The trial court consolidated the cases. Vareka moved for partial summary judgment on liability. The district court withheld ruling on Vareka’s motion for summary judgment pending a determination of whether the court lacked subject matter jurisdiction. After holding an evidentiary hearing and considering memoranda of law on the issue of jurisdiction, the district court concluded that subject matter jurisdiction existed. Thereafter, the district court granted Vareka’s motion for summary judgment as to the liability of AIP, Treister, and Cohen. The district court conducted a bench trial and found that Vareka suffered $548,000 in damages due to AIP’s breach of the lease, and that Vareka was entitled to collect $100,000 of that amount from Treister and Cohen under the Guaranty. AIP, Treister, and Cohen (appellants) then filed a “Motion to Alter or Amend Judgment” and a “Notice of Appeal.” The district court denied the motion to alter or amend judgment. The appellants did not file a new notice of appeal. ISSUES On appeal, we must decide whether the district court correctly concluded that it had subject matter jurisdiction; whether the district court correctly granted summary judgment; whether Vareka’s cause of action for damages was premature; whether Vareka properly mitigated those damages; whether there was sufficient evidence to support the district court’s award of damages; and whether Federal Rule of Appellate Procedure 4(a)(4) requires dismissal of this appeal. A. Subject Matter Jurisdiction Appellant, AIP, contends that the district court’s finding that Vareka’s principal place of business was in Quito, Ecuador, • is clearly erroneous. After conducting an evidentiary hearing, the district court concluded that it had subject matter jurisdiction based on diversity. Under 28 U.S.C.A. § 1332(c), a foreign corporation is deemed to be a citizen of the state in which it has its principal place of business. Jerguson v. Blue Dot Investment, Inc., 659 F.2d 31, 35 (5th Cir.1981), cert. denied, 456 U.S. 946, 102 S.Ct. 2013, 72 L.Ed.2d 469 (1982). One looks to the “total activity” of the corporation in order to determine its principal place of business. Village Fair Shopping Center v. Sam Broadhead Trust, 588 F.2d 431, 434 (5th Cir.1979). This analysis incorporates both the “place of activities” test (focus on production or sales activities), and the “nerve center” test (emphasis on the locus of the managerial and policymaking functions of the corporation). Toms v. Country Quality Meats, Inc., 610 F.2d 313, 315 (5th Cir.1980). The question of a corporation’s principal place of business is a question of fact. Village Fair at 433. Thus, we review the district court’s determination that Vareka’s principal place of business was Ecuador to determine whether it is clearly erroneous. The district court found that all of Vareka’s shareholders were citizens and residents of the Republic of Ecuador, with the exception of DiGiorgis, a citizen of Italy, residing in Montreal, Canada. Prior to institution of the present case, all corporate meetings were conducted, and all corporate decisions were made in Ecuador. The appellants were at all times relevant to this case residents and citizens of the state of Florida. The managing director of Vareka was a citizen and resident of Ecuador; the major investor in Vareka is an Ecuadorian corporation. Vareka was formed as a passive investment vehicle in order to invest funds in United States real estate. Jose Perez, the managing director of Vareka, received materials offering The Quarters for sale at his offices in Quito, Ecuador. In connection with the purchase of The Quarters, Vareka obtained loans from several Ecuadorian citizens. These loans were evidenced by promissory notes made, executed, and delivered in Quito, Ecuador. Under the long-term lease, AIP was obligated to pay all the expenses, assume all the duties to the subtenants, and operate The Quarters Office Park. Thus, Vareka was not involved in the day-to-day operation of this commercial property. At no time did any officer, director, employee, shareholder, or other representative of Vareka meet or communicate with any of the tenants at The Quarters. Likewise, no officer, director, employee, shareholder, or representative ever paid any utility bills, taxes, or service payments applicable to The Quarters, or take any other action which might be construed as operating or managing the property. Vareka had no corporate office in Miami, Florida. Although Vareka did not maintain a distinct corporate office in Quito, Ecuador, it maintained its books and records and held corporate meetings in Quito. Vareka’s books and records were maintained with the part-time assistance of Perez’s legal secretary and the accountant of another shareholder, in Quito. Otherwise, Vareka had no employees in Florida or elsewhere. Vareka directed AIP to make all lease payments to a Miami bank account. The sole signatories on the bank account were investors of Vareka. In August, 1979, when AIP notified Vareka that it intended to terminate the lease, AIP sent the notification to Vareka in Quito, Ecuador, via telex. The investors and shareholders of Vareka then met in Quito and responded to the advice of termination. AIP argues that the final negotiations and closing occurred in Miami, Florida. Vareka qualified to do business in Florida and appointed a resident agent in Miami, Florida. All payments were to be sent to a Miami address. Correspondence from Vareka to AIP emanated from the office of the Miami lawyer. Finally, Vareka maintained a bank account in Florida for the purpose of receiving and disbursing all payments relating to The Quarters. Based on the many factors cited by the district court, we conclude that the district court’s holding that Vareka’s principal place of business is in Ecuador, is not clearly erroneous. Since all appellants were citizens and residents of the state of Florida, the district court correctly concluded that it had subject matter jurisdiction. B. Summary Judgment as to Liability AIP argues that because Vareka resumed possession of The Quarters on AIP’s account, on an election of remedies theory, the cause of action for damages does not accrue until the end of the term of the lease. The relevant portion of the Lease provides that the landlord may, without further notice to the tenant, in the event of default, exercise any one or more of the remedies set forth in the Lease. Section 9.02(b) provides: Landlord may, without barring later election of any other remedy and without terminating this lease, at any time and from time to time (i) re-enter the premises with or without process of law, and manage and operate the same (ii) sublease any vacant portion of the Premises or any part or parts thereof, to any persons, and (iii) assume Tenant’s interest in any or all subleases, for the account of Tenant or otherwise, and receive and collect the rents therefrom. In the latter event Landlord shall apply such rents first to the payment of such expenses as Landlord may have paid, assumed or incurred in recovering possession of the Premises, including costs, expenses, attorney’s fees, and for placing the same in good order and condition or preparing or altering the same for subleasing, and all other expenses, commissions, and charges paid, assumed or incurred by Landlord in or in connection with subleasing the Premises, and then to the fulfillment of the covenants of Tenant. Any such subleasing as provided for herein may be for the remainder of the term of this lease or for a longer or shorter period. Landlord may execute any sublease made pursuant to the terms hereof either in Landlord’s own name or in the name of Tenant, or assume Tenant’s interest to and in any existing sublease of the Premises, as Landlord may see fit. No subtenant shall in any such event be under any obligation for the application by Landlord of any rent collected by Landlord from such subtenant to any and all sums due and owing under the provisions of this lease. In such event Tenant shall have no right or authority whatever to collect any rent whatever from any subtenant on the Premises. In any case, and whether or not the Premises or any part thereof be re-let Tenant, until the end of what would have been the term of this lease in the absence of such expiration and whether or not the Premises or any part thereof shall [have] been re-let shall be liable to Landlord for, and shall pay to Landlord, any amount equal to: (i) all Minimum Rent and Additional Rent which is otherwise payable under this lease, less (ii) the net proceeds, if any, of any re-letting effected for the account of Tenant pursuant to the provisions of this Section 9.02, after deducting all Landlord’s expenses in connection with such re-letting, including, without limitation, all repossession costs, brokerage commissions, legal expenses, attorneys’ fees, expenses of employees, alteration costs, and expenses of preparation for such re-letting. Tenant shall pay such amount to Landlord monthly on the days on which the Minimum Rent is payable under this lease, and Landlord shall be entitled to recover the same from Tenant on each such day. In its May 19, 1982, order, the district court correctly stated that under Florida law, a lessor has an election of three alternative courses of action when the lease is breached by the lessee. The lessor may treat the lease as terminated and retake possession for his own account, thus terminating any further liability on the part of the lessee; or the lessor may retake possession of the premises for the account of the lessee, holding the lessee liable for the difference between rental stipulated to be paid under the lease agreement and what, in good faith, the lessor is able to recover from a re-letting; or the lessor may stand by and do nothing, holding the lessee liable for the rent due as it matures, which means all remaining rent due if there is an acceleration clause and the lessor chooses to exercise the right to accelerate. Coast Federal Savings and Loan Association v. DeLoach, 362 So.2d 982 (Fla.App.1978). Re-entering the premises and re-letting for the account of the lessee is, thus, a remedy available under both the Lease and Florida law. Section 9.02(b) of the Lease. In this case, the parties are in agreement, and the district court concluded, that the lease has not been terminated. Vareka re-entered The Quarters to manage and operate it for the account of AIP, pursuant to section 9.02(b). AIP argues that under Florida law a lessor’s cause of action for damages does not accrue until the time when the forfeited term, if it had not been forfeited, would have expired. Hyman v. Cohen, 73 So.2d 393, 398 (Fla.1954); Kanter v. Safran, 68 So.2d 553, 558 (Fla.1953). Consequently, the court’s grant of summary judgment regarding liability was error at this time. AIP also cites Coast Federal Savings for the proposition that when a lessor retakes possession for the account of the lessee, he loses the right to recover the full amount of the remaining rental due under an acceleration clause. Coast Federal Savings and Loan Association v. DeLoach, 362 So.2d 982, 984 (Fla.1978). Coast Federal Savings is distinguishable. In this case, Vareka does not seek to recover “the full amount of remaining rental due.” In its May 20, 1982, order, the district court specifically stated: Issues have been raised and arguments have been presented concerning prospective rights and liabilities under the lease agreement. This ruling does not address those issues. It deals only with the liability of the defendants up to the date of trial. Whether the defendants could seek a recovery of future profits, should they ever exist, if the plaintiff continues to hold the property for their account, remains an open question. [Emphasis added.] Neither Kanter nor Hyman preclude summary judgment as to liability. The district court correctly cited Chandler for the proposition that, under Florida law, parties may negotiate any contract not violative of law or public policy. Chandler Leasing Division, etc. v. Florida-Vanderbilt Development Corp., 464 F.2d 267, 271 (5th Cir.), cert. denied, 409 U.S. 1041, 93 S.Ct. 527, 34 L.Ed.2d 491 (1972). In Chandler the court stated, We recognize that under the Florida case law there are three remedies available to lessors when their lessees breach a lease agreement. However, these remedies are not established as the sole remedies which may be provided for lease breaches, but are intended to supply remedies when none are provided in the lease or when broader contractual lease remedies violate public policy. In this case, the lease specifically provides that when the landlord takes possession upon default and re-lets for the account of the tenant, the tenant is liable for minimum rent due minus the net proceeds of re-letting on a monthly basis. Further, the lease entitled the landlord to “recover the same from Tenant on each such day.” Because the parties have stipulated that the lease was not terminated and that Vareka is in possession of the premises for the account of AIP, the district court correctly granted summary judgment as to liability based upon section 9.02(b) of the lease. C. Accrual of the Cause of Action for Damages AIP also argues that under Florida law, a lessor operating for the account of the lessee has an affirmative duty to mitigate damages by making a good-faith effort to re-let the premises. Robinson v. Peterson, 375 So.2d 294, 296 (Fla.App.1979). AIP argues that hiring Coldwell Banker to operate the office park and entering into subleases of office suites with new and renewing subtenants did not satisfy the affirmative duty to use good efforts to re-let. At oral argument, it became clear that AIP’s position is that Vareka was required to re-let the premises to a prime tenant, such as AIP had been, who would then sublease to other tenants. AIP correctly states Florida law: Had the lessee prevailed on the question of whether the lessor did in fact use good efforts to re-let, the lessor’s right of recovery would have been entirely defeated. Robinson v. Peterson at 297. This language does not preclude recovery of damages in this case. After resuming possession, Yareka retained Coldwell Banker Property Management Corporation to manage The Quarters. Although Coldwell Banker did not find a new prime tenant, AIP concedes that Cold-well Banker entered into subleases of office suites with new and renewing subtenants. The cases cited by AIP for the proposition that Vareka had an affirmative duty to re-let, Robinson v. Peterson and Coast Federal Savings, both involve a single lease rather than a “prime lease and sublease” fact pattern. Robinson v. Peterson, 375 So.2d 294 (Fla.App.1979); Coast Federal Savings and Loan Association v. DeLoach, 362 So.2d 982 (Fla.App.1978). Thus, in their single lease fact patterns, “re-letting” was the only means available to mitigate damages. In Kanter v. Safran, the court stated: [This case] eliminates any thought that the lessor is necessarily required to seek an assignment of the defaulting lessee’s specific interests or to sell only the remaining term of the original lease, since that term is ‘at an end.’ He is required only to recoup only what he can in good faith, consistent with his own interest as well as that of the defaulting lessee. Kanter v. Safran, 82 So.2d 508, 509 (Fla.1955). Although not specifically applicable to this case, Kanter indicates that Florida law requires a good-faith effort to mitigate damages as opposed to requiring mitigation of damages by a specific method. Further, section 9.02(b) of the lease specifically gives the landlord authority to execute any subleases and specifies that the tenant is liable for damages “whether or not the Premises or any part thereof be re-let.” Because the district court found that Coldwell Banker’s management had “been efficient and successful,” Vareka satisfied Florida’s requirement that the lessor mitigate damages and thus, was not precluded from recovering damages. D. Mitigation of Damages AIP asserts that the documentary evidence was insufficient to show damages. Upon re-entry, Vareka retained Coldwell Banker Property Management Corporation to manage the operation of The Quarters Office Park. Review of the record indicates that there was sufficient detail to support the expenses recoverable by Vareka under the terms of the lease. The district court concluded that the “monthly reports for the operation of The Quarters, as prepared by Coldwell Banker, are not in error.” Thus, we find the district court’s award of damages correct. E. The Jurisdictional Prerequisites of Rule 4(a)(4) Vareka argues that AIP’s trial court motion to alter or amend was not in fact a motion under Fed.R.Civ.P. 60, but a motion to alter or amend under Fed.R.Civ.P. 59(e). Consequently, AIP should have filed a notice of appeal within thirty days after docketing of the order denying the motion to alter or amend. Fed.R.App.P. 4(a)(4). On June 14, 1982, AIP filed a motion to alter or amend pursuant to Rules 59 and 60 of the Federal Rules of Civil Procedure. On July 9, 1982, the district court, without discussion, denied the motion. On October 29, 1982, a panel of this court denied Vareka’s motion to dismiss this appeal, stating that the trial court motion in question was to be treated as a “rule 60 motion rather than a rule 59 motion, so that Fed.R.App.P. 4(a)(4) does not apply.” The panel correctly denied the motion to dismiss. Review of AIP’s original motion to alter or amend did not address itself to the merits of the case, as Vareka argues. Consequently, this appeal is properly before the court. Smith v. United States Parole Commission, 721 F.2d 346 (11th Cir.1983). We therefore affirm the final judgment of the district court. AFFIRMED. . Title 28 U.S.C.A. § 1332(a) and (c) provides in pertinent part: (a) The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $10,000, exclusive of interest and costs, and is between— (1) citizens of different States; (2) citizens of a State and citizens or subjects of a foreign state; (3) citizens of different States in which citizens or subjects of a foreign state are additional parties; and (4) a foreign state, defined in section 1603d(a) of this title, as plaintiff and citizens of a State or of different States. (c) For the purposes of this section and section 1441 of this title, a corporation shall be deemed a citizen of any State by which it has been incorporated and of the State where it has its principal place of business.... . Former Fifth Circuit case, Section 9(1) of Public Law 96-452-October 14, 1980. Question: What is the number of the section from the title of the most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 28? Answer with a number. Answer:
songer_appnatpr	99	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of appellants in the case that fall into the category "natural persons". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. Kathleen POWERS, etc., et al., Plaintiffs-Appellants Cross-Appellees, v. SOUTH CENTRAL UNITED FOOD & COMMERCIAL WORKERS UNIONS AND EMPLOYERS HEALTH & WELFARE TRUST, etc., Defendant-Appellee Cross-Appellant. No. 82-2319. United States Court of Appeals, Fifth Circuit. Oct. 31, 1983. Rehearing Denied Dec. 1,1983. Eliot P. Tucker, Houston, Tex., for plaintiffs-appellants cross-appellees. Jeffrey P. Clark, Milwaukee, Wis., J.D. Page, Houston, Tex., for defendant-appellee cross-appellant. Before CLARK, Chief Judge, THORN-BERRY and RANDALL, Circuit Judges. RANDALL, Circuit Judge: The decisive issue presented by this appeal is the propriety of the defendant’s removal of this action to federal court from the Texas state court in which it was brought. Upon its removal, the federal district court denied the plaintiff’s motion to remand, and granted the defendant’s motion to dismiss. The court’s dismissal was premised on its finding that the plaintiff’s state law causes of action, which consisted of alleged violations of the Texas Deceptive Trade Practices-Consumer Protection Act, negligence, and fraud, were preempted by the Employment Retirement Income Security Act of 1974 (“ERISA”). Thus, the district court found that because the state court did not have original jurisdiction over the matter, the federal court did not have derivative jurisdiction under the removal statute. See, e.g., Lambert Run Coal Co. v. B. & O. R.R. Co., 258 U.S. 377, 382, 42 S.Ct. 349, 351, 66 L.Ed. 671 (1922). Because we conclude that this action does not arise under federal law, the state court did have jurisdiction over the case and the removal and resulting dismissal were improper; thus, we remand to the district court with directions to remand to the state court in which the action originated. I. FACTS AND PROCEDURAL BACKGROUND. The defendant in this case, South Central United Food & Commercial Workers Unions and Employers Health and Welfare Trust (the “Plan”), is a jointly trusteed employee health and welfare benefit plan, maintained in accordance with the Labor Management Relations Act (the “Taft-Hartley Act”), 29 U.S.C. § 141 et seq. (1976 & Supp. V 1981), and subject to ERISA’s regulatory scheme, 29 U.S.C. § 1001 et seq. (1976 & Supp. V 1981). The plaintiff, Kathleen Powers, is a participant in the Plan, and her son is a beneficiary of the Plan. In 1981, Powers sought to have her son hospitalized at the Deer Park General Hospital. Because Powers was unsure whether the Plan would cover expenses incurred at Deer Park, a hospital employee telephoned the Plan. The Plan employee with whom the Deer Park employee spoke represented that the Plan would provide coverage. Powers hospitalized her son at Deer Park, where his expenses aggregated $10,534.60. Upon receiving bills for this amount, the Plan denied coverage and refused to pay. It is undisputed that the Plan does not provide coverage for the expenses at issue, because Deer Park does not fall within the Plan’s definition of “hospital.” Powers brought suit in state court, alleging that the Plan’s misrepresentation of coverage constituted negligence and fraud, and violated the Texas Deceptive Trade Practices-Consumer Protection Act (“DTPA”), Tex.Bus. & Com.Code Ann. § 17.41 et seq. (Vernon 1982 Supp.). The Plan petitioned for removal to federal court under 28 U.S.C. § 1441 (1976), asserting that Powers’ claim was preempted by ERI-SA and by the Taft-Hartley Act; thus, the action “arose under” federal law. Powers filed a motion to remand the case to state court, alleging that no federal question was presented by her complaint. The district court concluded that Powers’ complaint stated a claim under ERISA, that her state claim was preempted by ERISA, and that, because the claim was one falling within the exclusive jurisdiction of the federal courts and could not have been brought originally in state court, the federal court did not have derivative removal jurisdiction. The court’s finding was based on its determination that the Plan employee who made the misrepresentation concerning coverage was a Plan fiduciary as defined in 29 U.S.C. § 1002: [One who] exercises any discretionary authority or discretionary control respecting management of such plan or exercises any authority or control respecting management or disposition of its assets. Section 1104(a) provides that a plan fiduciary must discharge his or her duties solely in the interest of the participants and beneficiaries ... with the care, skill, prudence, and diligence under the circumstances then prevailing that a prudent man acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aims.... Because section 1132(a)(3) authorizes civil actions by plan participants or beneficiaries to enforce any of ERISA’s provisions, the district court reasoned, Powers’ suit stated a violation of the standard of care provided by section 1104(a); thus her claim stated a federal question. The enforcement provisions of ERISA provide that the state and federal courts shall have concurrent jurisdiction over actions: [T]o recover benefits due to him under the terms of his plan, or to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan.... 29 U.S.C. § 1132(a)(1)(B). The federal courts have exclusive jurisdiction over all other civil actions. 29 U.S.C. § 1132(e)(1). Powers’ claim does not fall within section 1132(a)(1)(B), because it is undisputed that the Plan does not cover the expenses in controversy. Thus, the district court concluded that the case is one within the exclusive jurisdiction of the federal courts under section 1132(e)(1). Our disposition of this appeal precludes our reaching the merits of the case or the district court’s determinations thereon. II. REMOVAL. The basic removal statute, 28 U.S.C. § 1441, provides: (a) Except as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending. Moreover, section 1446 provides: (b) The petition for removal of a civil action or proceeding shall be filed within thirty days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, ... 28 U.S.C. § 1446(b) (1976 & Supp. V 1981) (emphasis added). In construing the removal statutes, the Supreme Court has mandated a “strict construction” approach, in recognition of the congressional intent to restrict the jurisdiction of federal courts on removal. See American Fire & Casualty Co. v. Finn, 341 U.S. 6, 10, 71 S.Ct. 534, 538, 95 L.Ed. 702 (1951) (“The Congress, in [§ 1441], carried out its purpose to abridge the right of removal”); Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108-09, 61 S.Ct. 868, 872, 85 L.Ed. 1214 (1941) (referring to precursor to § 1441); see also La Chemise Lacoste v. Alligator Co., 506 F.2d 339, 344 (3d Cir.1974), cert. denied, 421 U.S. 937, 95 S.Ct. 1666, 44 L.Ed.2d 94 (1975). The “original jurisdiction” to which section 1441 refers can rest with the federal courts because of diversity of citizenship between the parties, see 28 U.S.C. § 1332 (1976), because the claim “arises under” federal law, see 28 U.S.C. § 1331 (1976 & Supp. Y 1981), or by virtue of some other explicit grant of jurisdiction, see, e.g., 28 U.S.C. § 1337 (discussed infra). In the instant case there is no diversity of citizenship; thus, for removal to have been proper under section 1441, our inquiry must focus on whether Powers’ complaint stated a claim “arising under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. III. DISCUSSION. We begin by noting that the “arising under” component of federal subject matter jurisdiction has been exhaustively analyzed by courts and commentators alike. The Supreme Court has recently noted that “when considered in light of § 1441’s removal jurisdiction, the phrase ‘arising under’ masks a welter of issues regarding the interrelation of federal and state authority and the proper management of the federal judicial system.” Franchise Tax Board of California v. Construction Laborers Vacation Trust for Southern California, - U.S. -, 103 S.Ct. 2841, 2846, 77 L.Ed.2d 420 (1983). While the precise boundaries to which federal jurisdiction extends are not matters upon which all agree, certain principles are firmly established, and none more so than the “well-pleaded complaint” rule. As stated by the Supreme Court in Taylor v. Anderson, 234 U.S. 74, 75-76, 34 S.Ct. 724, 724, 58 L.Ed. 1218 (1914), that doctrine provides: See also Franchise Tax Board, supra; Pan American Petroleum Corp. v. Superior Court, 366 U.S. 656, 81 S.Ct. 1303, 6 L.Ed.2d 584 (1961); Gully v. First National Bank in Meridian, 299 U.S. 109, 57 S.Ct. 96, 81 L.Ed. 70 (1936); Louisville & Nashville R. Co. v. Mottley, 211 U.S. 149, 29 S.Ct. 42, 53 L.Ed. 126 (1908). The well-pleaded complaint rule dictates that “a defendant may not remove a case to federal court unless the plaintiff’s complaint establishes that the case ‘arises under’ federal law.” Franchise Tax Board, 103 S.Ct. at 2847 (emphasis in original). It is insufficient for jurisdictional purposes that the plaintiff asserts that federal law deprives the defendant of a possible defense, see Taylor v. Anderson, supra, and Mottley, supra, or that the defendant’s anticipated defense would not serve to defeat the plaintiff’s claim, see Tennessee v. Union & Planters’ Bank, 152 U.S. 454, 14 S.Ct. 654, 38 L.Ed. 511 (1894). Likewise, neither the defendant’s answer nor its petition for removal may serve as the basis for federal jurisdiction to the extent that each may assert that the plaintiff’s claim “arises under” federal law. See Franchise Tax Board, supra. [Wjhether a case is one arising under the Constitution or a law or treaty of the United States, in the sense of the jurisdictional statute ... must be determined from what necessarily appears in the plaintiff’s statement of his own claim in the bill or declaration, unaided by anything alleged in anticipation or avoidance of defenses which it is thought the defendant may interpose. Further, and more pertinent here, an asserted or anticipated defense predicated on federal preemption of state law is, in jurisdictional terms, a defense like any other, and will not serve to invoke federal jurisdiction. See Franchise Tax Board, supra (ERISA); Pan American Petroleum Corp. v. Superior Court, supra (Natural Gas Act); Trent Realty Associates v. First Federal Savings & Loan Ass’n of Philadelphia, 657 F.2d 29 (3d Cir.1981) (Home Owner’s Loan Act); First National Bank of Aberdeen v. Aberdeen National Bank, 627 F.2d 843 (8th Cir.1980) (en banc) (National Bank Act); State of Washington v. American League of Professional Baseball Clubs, 460 F.2d 654 (9th Cir.1972) (antitrust). Franchise Tax Board is particularly applicable to the case at bar. There, a state agency (the “Board”) sought to collect certain delinquent state taxes by levying on money held by a benefit plan for its members. The Board filed suit in state court, asserting its levy authority by virtue of a state statute empowering the Board to enforce the state’s tax law, and seeking a declaratory judgment that ERISA did not preempt the Board’s power to levy. The plan removed the action to federal court, contending that ERISA preempted the Board’s statutory levy power as against an ERISA-regulated plan. The Supreme Court found that the federal courts lacked original subject matter jurisdiction, and remanded the case for remand to the state court. The Court’s analysis of the propriety of removal in Franchise Tax Board rested fundamentally on the “powerful doctrine” of the well-pleaded complaint rule as it has developed from Taylor, Mottley, and Gully. See Franchise Tax Board, 103 S.Ct. at 2846-48. With regard to the Board’s first cause of action, to enforce its levy, the Court found that: [A] straightforward application of the well-pleaded complaint rule precludes original federal court jurisdiction. California law establishes a set of conditions, without reference to federal law, under which a tax levy may be enforced; federal law becomes relevant only by way of a defense to an obligation created entirely by state law, and then only if appellant has made out a valid claim for relief under state law.... The well-pleaded complaint rule was framed to deal with precisely such a situation.... [A] case may not be removed to federal court on the basis of a federal defense, including the defense of preemption, even if the defense is anticipated in the plaintiff’s complaint, and even if both parties admit that the defense is the only question truly at issue in the case. Id. at 2848 (emphasis added). Similarly, in Pan American Petroleum Corp. v. Superior Court, supra, the Court considered the merits of an attack on the jurisdiction of a state court. The defendants asserted, in a contract price dispute, that the Natural Gas Act, 15 U.S.C. § 717 et seq. (1976), superseded by the Emergency Natural Gas Act of 1977,15 U.S.C. § 717 et seq. (Supp. V 1981), preempted state law on the issue of wholesale natural gas prices. The Supreme Court had, in an earlier decision, confirmed the preemptive power of the Natural Gas Act. See Phillips Petroleum Co. v. Wisconsin, 347 U.S. 672, 74 S.Ct. 794, 98 L.Ed. 1035 (1954). Nonetheless, in Pan American Petroleum both the Delaware and United States Supreme Courts found that the federal courts lacked original jurisdiction, since the Natural Gas Act arose only as a defense to the plaintiff's state law contract claim: [Questions of exclusive federal jurisdiction and ouster of jurisdiction of state courts are, under existing jurisdictional legislation, not determined by ultimate substantive issues of federal law. The answers depend on the particular claims a suitor makes in a state court — on how he casts his action. Since “the party who brings a suit is master to decide what law he will rely upon,” The Fair v. Kohler Die & Specialty Co., 228 U.S. 22, 25 [33 S.Ct. 410, 411, 57 L.Ed. 716] [1913], the complaints in the Delaware Superior Court determine the nature of the suits before it. 366 U.S. at 662, 81 S.Ct. at 1307. The settled preemptive effect of the Natural Gas Act, the Court found, did not alter the jurisdictional structure at issue: “Exclusive jurisdiction” is given the federal courts but it is “exclusive” only for suits that may be brought in the federal courts. Exclusiveness is a consequence of having jurisdiction, not the generator of jurisdiction because of which state courts are excluded. Id. at 664, 81 S.Ct. at 1308. We think that the analysis employed in Franchise Tax Board and Pan American Petroleum, in light of Mottley, Gully, and their progeny, is clearly dispositive in the instant case. Its application is a simple exercise. Powers alleged no federal cause of action, raised no federal issue, and relied on no federal statute. Rather, she seeks relief based on the Texas DTPA, negligence, and fraud. ERISA’s preemptive effect or the lack thereof arises solely on the basis of the Plan’s pleadings and petition for removal. As an initial proposition, therefore, the “law that creates the cause of action” is state law, and original federal jurisdiction is lacking unless Powers’ claim falls victim to an exception to the well-pleaded complaint rule. An independent and established corollary of the well-pleaded complaint doctrine provides that a plaintiff may not defeat removal by fraudulent means or by “artfully” failing to plead essential federal issues in the complaint. See Franchise Tax Board, 103 S.Ct. at 2853; Avco Corp. v. Aero Lodge No. 7S5, International Ass’n of Machinists, 376 F.2d 337, 339-40 (6th Cir. 1967), aff’d, 390 U.S. 557, 88 S.Ct. 1235, 20 L.Ed.2d 126 (1968), Fraudulent or “artful” pleading frequently arises in the context of unnecessary joinder of non-diverse parties in an attempt to defeat removal based on diversity jurisdiction. See, e.g., Wilson v. Republic Iron & Steel Co., 257 U.S. 92, 97, 42 S.Ct. 35, 37, 66 L.Ed. 144 (1921); Wecker v. National Enameling & Stapling Co., 204 U.S. 176, 27 S.Ct. 184, 51 L.Ed. 430 (1907); Covington v. Indemnity Insurance Co. of North America, 251 F.2d 930 (5th Cir.), cert. denied, 357 U.S. 921, 78 S.Ct. 1362, 2 L.Ed.2d 1365 (1958). We note the inapplicability of these eases here. Not all cases of “artful” pleading involve diversity jurisdiction, however. In Federated Department Stores, Inc. v. Moitie, 452 U.S. 394, 101 S.Ct. 2424, 69 L.Ed.2d 103 (1981), the Supreme Court considered the propriety of the district court’s denial of the plaintiff’s motion to remand an action removed on the basis of federal question jurisdiction. In Moitie, the plaintiff originally brought suit in federal court, alleging violations of the federal antitrust laws. When the suit was dismissed for failure to state a claim, the plaintiff refiled in state court, alleging antitrust violations based on the same transactions and theories set forth in the original complaint, but couched solely in terms of state law. The Supreme Court sanctioned the district court’s refusal to remand the case to state court upon its removal to federal court, holding that the plaintiff’s “artful pleading” was merely a device employed to avoid explicitly raising “essentially federal law claims.” 452 U.S. at 397 n. 2, 101 S.Ct. at 2427 n. 2. Clearly, Moitie presented a problem different from the one at hand. Powers has not evidenced a desire to proceed under federal law; rather, she has consistently and vociferously attempted to avail herself of the state forum and relief to which she asserts entitlement. That her claims may be “essentially federal” is a proposition resting on the assumption that ERISA totally preempts her state law claims. As we have discussed, federal preemption of state law is a defense to Powers’ claim and, while its assertion may well interject a federal question into this case, not every federal question presented in a case means that the case “arises under” federal law for purposes of original jurisdiction under section 1331. See Franchise Tax Board, 103 S.Ct. at 2847; Pan American Petroleum, 366 U.S. at 664, 81 S.Ct. at 1308; Mottley, 211 U.S. at 152, 29 S.Ct. at 43. Only when the plaintiff’s complaint clearly establishes that the claim is one necessarily arising under federal law will the federal issue suffice to support removal to federal court. See, e.g., Federated Department Stores, Inc. v. Moitie, 452 U.S. at 406-08, 101 S.Ct. at 2431-2432, 2433 (Brennan, J., dissenting); Trent Realty Associates, 657 F.2d at 35. As the Third Circuit noted in Trent Realty: In contrast to exclusive federal jurisdiction, preemption by federal statute or regulation may not be an unavoidable issue. Experienced litigators may almost certainly expect that a defendant will assert federal preemption if that doctrine supports its position, but this anticipated defense is indistinguishable for this purpose from the defense that federal law precludes maintenance of the state claim. Because the unavailability of removal in the latter situation is solidly entrenched, ... we can find no basis for removal jurisdiction in the anticipated defense of federal preemption. Id. (citing Mottley, supra). That the preemption defense is not merely anticipated but actually articulated by the defendant, as in the instant case, is a distinction without a difference. See Pan American Petroleum, 366 U.S. at 662-64, 81 S.Ct. at 1307-1308. The Plan also asserts that removal jurisdiction properly rested with the federal court because Powers’ complaint presented a claim preempted by the Taft-Hartley Act, 29 U.S.C. § 141 et seq. The district court, relying on our holding in Woodfork v. Marine Cooks & Stewards Union, 642 F.2d 966, 975 (5th Cir.1981), that the Taft-Hartley Act does not preempt state regulation of pension law, found that Powers’ complaint did not “necessarily present[] a federal question under the Taft-Hartley Act.” We do not comment on the correctness of this determination, because the lack of removal jurisdiction precludes our doing so. Rather, that the Plan’s assertion of Taft-Hartley preemption is subject to the same defects discussed above with regard to the issue of ERISA preemption is dispositive of this argument. Finally, the Plan asserts that, because both ERISA and Taft-Hartley are acts of Congress regulating interstate commerce, Powers’ claim falls within the original jurisdiction of the federal courts by virtue of 28 U.S.C. § 1337(a) (1976 & Supp. V 1981), which provides in pertinent part: The district courts shall have original jurisdiction of any civil action or proceeding arising under any Act of Congress regulating commerce or protecting trade and commerce against restraints and monopolies .... Again, this argument must yield to our analysis with regard to the ERISA preemption issue. A case does not “arise under” federal law for purposes of section 1337(a) where the act of Congress regulating commerce is interjected into the suit as a defense. See Franchise Tax Board, 103 S.Ct. at 2845 n. 7; Trent Realty Associates, 657 F.2d at 35. IV. CONCLUSION. In summary, we hold that a defense of federal preemption of state law claims does not suffice to bring a case within the original jurisdiction of the federal courts. The extent to which a federal question is raised by such a defense will not serve to define the action as one “arising under” federal law for purposes of removal. The decision of the district court is REVERSED and the case REMANDED for proceedings consistent with this opinion. . See, e.g., Franchise Tax Board of the State of California v. Construction Laborers Vacation Trust for Southern California, - U.S. -, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983); Phillips Petroleum Co. v. Texaco, Inc., 415 U.S. 125, 94 S.Ct. 1002, 39 L.Ed.2d 209 (1974); Pan American Petroleum Corp. v. Superior Court, 366 U.S. 656, 81 S.Ct. 1303, 6 L.Ed.2d 584 (1961); Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 70 S.Ct. 876, 94 L.Ed. 1194 (1950); Gully v. First National Bank in Meridian, 299 U.S. 109, 57 S.Ct. 96, 81 L.Ed. 70 (1936); Smith v. Kansas City Title & Trust Co., 255 U.S. 180, 41 S.Ct. 243, 65 L.Ed. 577 (1921); Hopkins v. Walker, 244 U.S. 486, 37 S.Ct. 711, 61 L.Ed. 1270 (1917); Taylor v. Anderson, 234 U.S. 74, 34 S.Ct. 724, 58 L.Ed. 1218 (1914); Louisville & Nashville R. Co. v. Mottley, 211 U.S. 149, 29 S.Ct. 42, 53 L.Ed. 126 (1908); Tennessee v. Union & Planters’ Bank, 152 U.S. 454, 14 S.Ct. 654, 38 L.Ed. 511 (1894); Osborn v. Bank of the United States, 9 Wheat. 738, 6 L.Ed. 204 (1824); Trent Realty Associates v. First Federal Savings & Loan Ass’n of Philadelphia, 657 F.2d 29 (3d Cir.1981); First National Bank of Aberdeen v. Aberdeen National Bank, 627 F.2d 843 (8th Cir.1980) (en banc) (and cases cited therein); La Chemise Lacoste v. Alligator Co., 506 F.2d 339 (3d Cir.1974), cert. denied, 421 U.S. 937, 95 S. Ct. 1666, 44 L.Ed.2d 94 (1975); State of Washington v. American League of Professional Baseball Clubs, 460 F.2d 654 (9th Cir.1972); T. B. Harms v. Eliscu, 339 F.2d 823 (2d Cir. 1964); C. Wright, A. Miller & E. Cooper, Federal Practice & Procedure: Jurisdiction §§ 3562-3567 (1975); P. Bator, P. Mishkin, D. Shapiro & H. Wechsler, The Federal Courts and the Federal System 889 (2d ed. 1973); Aycock, Introduction to Certain Members of the Federal Question Family, 49 N.C.L.Rev. 1 (1970); Bergman, Reappraisal of Federal Question Jurisdiction, 46 MichX.Rev. 17 (1946); Chadboum & Levin, Original Jurisdiction of Federal Questions, 90 U. Pa.L.Rev. 639 (1942); Cohen, The Broken Compass: The Requirement that a Case Arise “Directly” Under Federal Law, 115 U.Pa.L.Rev. 890 (1967); Forrester, The Nature of a Federal Question, 16 Tul.L.Rev. 363 (1942); Fraser, Some Problems in Federal Question Jurisdiction, 49 Mich.L.Rev. 73 (1950); Mishkin, The Federal “Question” in the District Courts, 53 Colum.L.Rev. 157 (1953). . See generally C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure: Jurisdiction §§ 3562-3567 (1975). . With regard to the Board’s second cause of action, for declaratory relief under the state declaratory judgment statute, the Court noted that although ERISA was explicitly invoked by the Board in its complaint, Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 70 S.Ct. 876, 94 L.Ed. 1194 (1950), mandated a finding of lack of federal jurisdiction. The Court held that federal courts do not have original or removal jurisdiction when a federal question is presented in an action under a state declaratory judgment statute. See Franchise Tax Board, supra, 103 S.Ct. at 2851. . American Well Works Co. v. Layne & Bowler Co., 241 U.S. 257, 260, 36 S.Ct. 585, 586, 60 L.Ed. 987 (1916). . With regard to the instant action, we note that although it was disclosed during oral argument that Powers has filed a parallel suit in federal court, she has done so to avoid running afoul of the statute of limitations should our decision preclude her proceeding further in state court. That her federal suit evidently alleges violations of ERISA based on the same set of circumstances involved in the instant case does not bring her within Moitie, however, because her federal suit is merely a tactical manuever, instituted after her Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number. Answer:
sc_authoritydecision	D	What follows is an opinion from the Supreme Court of the United States. Your task is to determine the bases on which the Supreme Court rested its decision with regard to the legal provision that the Court considered in the case. Consider "judicial review (national level)" if the majority determined the constitutionality of some action taken by some unit or official of the federal government, including an interstate compact. Consider "judicial review (state level)" if the majority determined the constitutionality of some action taken by some unit or official of a state or local government. Consider "statutory construction" for cases where the majority interpret a federal statute, treaty, or court rule; if the Court interprets a federal statute governing the powers or jurisdiction of a federal court; if the Court construes a state law as incompatible with a federal law; or if an administrative official interprets a federal statute. Do not consider "statutory construction" where an administrative agency or official acts "pursuant to" a statute, unless the Court interprets the statute to determine if administrative action is proper. Consider "interpretation of administrative regulation or rule, or executive order" if the majority treats federal administrative action in arriving at its decision.Consider "diversity jurisdiction" if the majority said in approximately so many words that under its diversity jurisdiction it is interpreting state law. Consider "federal common law" if the majority indicate that it used a judge-made "doctrine" or "rule; if the Court without more merely specifies the disposition the Court has made of the case and cites one or more of its own previously decided cases unless the citation is qualified by the word "see."; if the case concerns admiralty or maritime law, or some other aspect of the law of nations other than a treaty; if the case concerns the retroactive application of a constitutional provision or a previous decision of the Court; if the case concerns an exclusionary rule, the harmless error rule (though not the statute), the abstention doctrine, comity, res judicata, or collateral estoppel; or if the case concerns a "rule" or "doctrine" that is not specified as related to or connected with a constitutional or statutory provision. Consider "Supreme Court supervision of lower federal or state courts or original jurisdiction" otherwise (i.e., the residual code); for issues pertaining to non-statutorily based Judicial Power topics; for cases arising under the Court's original jurisdiction; in cases in which the Court denied or dismissed the petition for review or where the decision of a lower court is affirmed by a tie vote; or in workers' compensation litigation involving statutory interpretation and, in addition, a discussion of jury determination and/or the sufficiency of the evidence. HILLSIDE DAIRY INC. et al. v. LYONS, SECRETARY, CALIFORNIA DEPARTMENT OF FOOD AND AGRICULTURE, et al. No. 01-950. Argued April 22, 2003 Decided June 9, 2003 Stevens, J., delivered the opinion of the Court, Parts I and III of which were unanimous, and Part II of which was joined by Rehnquist, C. J., and O’Connor, Scalia, Kennedy, Souter, Ginsburg, and Breyer, JJ. Thomas, J., filed an opinion concurring in part and dissenting in part, post, p. 68. Roy T Englert, Jr., argued the cause for petitioners in both cases. With him on the briefs were Lawrence S. Robbins, Charles M. English, Jr., Wendy M. Yoviene, and Nicholas C. Geale. Barbara McDowell argued the cause for the United States as amicus curiae urging reversal. With her on the brief were Solicitor General Olson, Assistant Attorney General McCollum, Deputy Solicitor General Kneedler, and Mark B. Stern. Mark J. Urban argued the cause for respondents in both cases. With him on the brief were Bill Lockyer, Attorney General of California, Manuel M. Medeiros, State Solicitor General, Richard M. Frank, Chief Assistant Attorney General, Bruce F. Reeves and Mark J. Urban, Deputy Attorneys General, and Andrea Hackett Henningsen. Together with No. 01-1018, Ponderosa Dairy et al. v. Lyons, Secretary, California Department of Food and Agriculture, et al., also on certiorari to the same court. Briefs of amici curiae urging reversal were filed for the State of Nevada et al. by Brian Sandoval, Attorney General of Nevada, and by the Attorneys General for their respective States as follows: Mike Hatch of Minnesota, Mike McGrath of Montana, Hardy Myers of Oregon, Christine Ó. Gregoire of Washington, and Peggy A. Lautenschlager of Wisconsin; for Continental Dairy Products, Inc., et al. by Benjamin F. Yale; and for the Dairy Institute of California by Thomas S. Knox. John J. Vlahos filed a brief for Western United Dairymen as amicus curiae urging affirmance. Justice Stevens delivered the opinion of the Court. In most of the United States, not including California, the minimum price paid to dairy farmers producing raw milk is regulated pursuant to federal marketing orders. Those orders guarantee a uniform price for the producers, but through pooling mechanisms require the processors of different classes of dairy products to pay different prices. Thus, for example, processors of fluid milk pay a premium price, part of which goes into an equalization pool that provides a partial subsidy for cheese manufacturers who pay a net price that is lower than the farmers receive. See West Lynn Creamery, Inc. v. Healy, 512 U. S. 186, 189, n. 1 (1994). The California Legislature has adopted a similar program to regulate the minimum prices paid by California processors to California producers. In the cases before us today, out-of-state producers are challenging the constitutionality of a 1997 amendment to that program. They present us with two questions: (1) whether § 144 of the Federal Agriculture Improvement and Reform Act of 1996, 110 Stat. 917, 7 U. S. C. § 7254, exempts California’s milk pricing and pooling regulations from scrutiny under the Commerce Clause; and (2) whether the individual petitioners’ claim under the Privileges and Immunities Clause is foreclosed because those regulations do not discriminate on their face on the basis of state citizenship or state residence. I Government regulation of the marketing of raw milk has been continuous since the Great Depression. In California, three related statutes establish the regulatory structure for milk produced, processed, or sold in California. First, in 1935, the State enacted the Milk Stabilization and Marketing Act, Cal. Food & Agric. Code Ann. §§61801-62403 (West 2001), “to establish minimum producer prices at fair and reasonable levels so as to generate reasonable producer incomes that will promote the intelligent and orderly marketing of market milk . . . § 61802(h). Then, California created requirements for composition of milk products in the Milk and Milk Products Act of 1947. §§ 32501-39912. The standards created under this Act mandate minimum percentages of fat and solids-not-fat in dairy products and often require fortification of milk by adding solids-not-fat. In 1967, California passed another milk pricing Act, the Gonsalves Milk Pooling Act, §§ 62700-62731, to address deficiencies in the existing pricing scheme. Together, these three Acts (including numerous subsequent revisions) create the state milk marketing structure: The 1935 and 1967 Acts establish the milk pricing and pooling plans, while the 1947 Act governs the composition of milk products sold in California. While it serves the same purposes as the federal marketing orders, California’s regulatory program is more complex. Federal orders typically guarantee all producers the same minimum price and create only two or three classes of end uses to determine the processors’ contributions to, or withdrawals from, the equalization pools, whereas under the California scheme some of the farmers’ production commands a “quota price” and some receives a lower “overbase price,” and the processors’ end uses of the milk are divided into five different classes. The complexities of the California scheme are not relevant to these cases; what is relevant is the fact California processors of fluid milk pay a premium price (part of which goes into a pool) that is higher than either of the prices paid to the producers. During the early 1990’s, market conditions made it profitable for some California processors to buy raw milk from out-of-state producers at prices that were higher than either the quota prices or the overbase prices guaranteed to California farmers yet lower than the premium prices they had to pay when making in-state purchases. The regulatory scheme was at least partially responsible for the advantage enjoyed by out-of-state producers because it did not require the processors to make any contribution to the equalization pool on such purchases. In other words, whereas an in-state purchase of raw milk resold as fluid milk required the processor both to pay a guaranteed minimum to the farmer and also to make a contribution to the pool, an out-of-state purchase at a higher price would often be cheaper because it required no pool contribution. In 1997, the California Department of Food and Agriculture amended its plan to require that contributions to the pool be made on some out-of-state purchases. It is the imposition of that requirement that gave rise to this litigation. Petitioners in No. 01-950 operate dairy farms in Nevada; petitioners in No. 01-1018 operate such farms in Arizona. They contend that the 1997 amendment discriminates against them. In response, the California officials contend that it merely eliminated an unfair competitive advantage for out-of-state producers that was the product of the regulatory scheme itself. Without reaching the merits of petitioners’ constitutional claims, the District Court dismissed both cases and the Court of Appeals for the Ninth Circuit affirmed. 259 F. 3d 1148 (2001). Relying on its earlier decision in Shamrock Farms Co. v. Veneman, 146 F. 3d 1177 (1998), the court held that a federal statute enacted in 1996 had immunized California’s milk pricing and pooling laws from Commerce Clause challenge. It also held that the corporate petitioners had no standing to raise a claim under the Privileges and Immunities Clause, and that the individuals’ claim under that Clause failed because the 1997 plan amendments did not, “on their face, create classifications based on any individual’s residency or citizenship.” 259 F. 3d, at 1156. We granted certiorari to review those two holdings, 537 U. S. 1099 (2003), but in doing so we do not reach the merits of either constitutional claim. II In some respects, the State’s composition standards set forth in the 1947 Act exceed those set by the federal Food and Drug Administration (FDA). For example, California’s minimum standard for reduced fat milk requires that it contain at least 10 percent solids-not-fat (which include protein, calcium, lactose, and other nutrients). Cal. Food & Agric. Code Ann. §38211 (West 2001). Federal standards require that reduced fat milk contain only 8.25 percent solids-not-fat. See 21 CFR §§131.110, 101.62 (2002). Some of California’s standards were arguably pre-empted by Congress’ enactment of the Nutrition Labeling and Education Act of 1990, 104 Stat. 2353, which contains a prohibition against the application of state quality standards to foods moving in interstate commerce. See 21 U. S. C. § 343-l(a). The District Court so held in Shamrock Farms Co. v. Veneman, No. Civ-S-95-318 (ED Cal., Sept. 25, 1996). In response to that decision, California sought an exemption from both the FDA and Congress. See Shamrock Farms, 146 F. 3d, at 1180. Before the FDA acted, Congress responded favorably with the enactment of the statute that governs our disposition of these cases. That statute, § 144 of the Federal Agriculture Improvement and Reform Act of 1996, provides: “Nothing in this Act or any other provision of law shall be construed to preempt, prohibit, or otherwise limit the authority of the State of California, directly or indirectly, to establish or continue to effect any law, regulation, or requirement regarding— “(1) the percentage of milk solids or solids not fat in fluid milk products sold at retail or marketed in the State of California; or “(2) the labeling of such fluid milk products with regard to milk solids or solids not fat.” 7 U. S. C. § 7254. Thereafter, Shamrock Farms brought another suit against the Secretary of the California Department of Food and Agriculture challenging the validity of both the State’s compositional standards and its milk pricing and pooling laws. In that case, the Court of Appeals held that § 144 had immunized California’s marketing programs as well as the compositional standards from a negative Commerce Clause chai-lenge. Shamrock Farms, 146 F. 3d, at 1182. In adhering to that ruling in the cases before us today, the Ninth Circuit erred. The text of the federal statute plainly covers California laws regulating the composition and labeling of fluid milk products, but does not mention laws regulating pricing. Congress certainly has the power to authorize state regulations that burden or discriminate against interstate commerce, Prudential Ins. Co. v. Benjamin, 328 U. S. 408 (1946), but we will not assume that it has done so unless such an intent is clearly expressed. South-Central Timber Development, Inc. v. Wunnicke, 467 U. S. 82, 91-92 (1984). While § 144 unambiguously expresses such an intent with respect to California’s compositional and labeling laws, that expression does not encompass the pricing and pooling laws. This conclusion is buttressed by the separate California statutes addressing the composition and labeling of milk products, on the one hand, and the pricing and pooling of milk on the other. See supra, at 62-65 and this page. The mere fact that the composition and labeling laws relate to the sale of fluid milk is by no means sufficient to bring them within the scope of §144. Because §144 does not clearly express an intent to insulate California’s pricing and pooling laws from a Commerce Clause challenge, the Court of Appeals erred in relying on § 144 to dismiss the challenge. III Article IV, § 2, of the Constitution provides: “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.” Petitioners, who include both individual dairy farmers and corporate dairies, have alleged that California’s milk pricing laws violate that provision. The Court of Appeals held that the corporate petitioners have no standing to advance such a claim, and it rejected the individual petitioners’ claims because the California laws “do not, on their face, create classifications based on any individual’s residency or citizenship.” 259 F. 3d, at 1156. Petitioners do not challenge the first holding, but they contend that the second is inconsistent with our decision in Chalker v. Birmingham & Northwestern R. Co., 249 U. S. 522 (1919). We agree. In Chalker, we held that a Tennessee tax imposed on a citizen and resident of Alabama for engaging in the business of constructing a railroad in Tennessee violated the Privileges and Immunities Clause. The tax did not on its face draw any distinction based on citizenship or residence. It did, however, impose a higher rate on persons who had their principal offices out of State. Taking judicial notice of the fact that “the chief office of an individual is commonly in the State of which he is a citizen,” we concluded that the practical effect of the provision was discriminatory. Id., at 527. Whether Chalker should be interpreted as merely applying the Clause to classifications that are but proxies for differential treatment against out-of-state residents, or as prohibiting any classification with the practical effect of discriminating against such residents, is a matter we need not decide at this stage of these cases. Under either interpretation, we agree with petitioners that the absence of an express statement in the California laws and regulations identifying out-of-state citizenship as a basis for disparate treatment is not a sufficient basis for rejecting this claim. In so holding, however, we express no opinion on the merits of petitioners’ Privileges and Immunities Clause claim. * * * The judgment of the Court of Appeals is vacated, and these cases are remanded for further proceedings consistent with this opinion. It is so ordered. The history and purpose of federal regulation of milk marketing is described in some detail in Zuber v. Allen, 396 U. S. 168, 172-187 (1969). Because processors of fluid milk typically manufacture some other products as well, their respective pool contributions reflect the relative amounts of those end uses. Each processor’s mix of end uses produces an individual monthly “blend price” that is multiplied by its total purchases. Under federal orders the term “blend price” has a different meaning; it usually refers to the price that the producer receives. See West Lynn Creamery, Inc. v. Healy, 512 U. S. 186, 189, n. 1 (1994). After the 1997 amendment, processors whose blend price exceeds the quota price must make contributions to the pool on their out-of-state purchases as well as their in-state purchases. Question: What is the basis of the Supreme Court's decision? A. judicial review (national level) B. judicial review (state level) C. Supreme Court supervision of lower federal or state courts or original jurisdiction D. statutory construction E. interpretation of administrative regulation or rule, or executive order F. diversity jurisdiction G. federal common law Answer:
songer_genapel1	A	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task is to determine the nature of the first listed appellant. In re FINN. Appeal of MORRIS PLAN INDUSTRIAL BANK OF NEW YORK. No. 7577. Circuit Court of Appeals, Third Circuit. April 10, 1941. Henry W. Parker, of New York City, for appellant. Russell C. MacFall, of Ridgewood, N. J., for appellee. Before BIGGS, CLARK, and GOODRICH, Circuit Judges. BIGGS, Circuit Judge. The bankrupt, Roy George Finn, is alleged by the appellant, The Morris Plan Industrial Bank of New York, to have made certain material false statements to it in connection with obtaining a loan for $675 and the appellant contends that for this reason the bankrupt is not entitled to his discharge, citing the provisions of Section 14, sub. c(3), of the Bankruptcy Act as amended, 52 Stat. 850, 11 U.S.C.A. § 32, sub. c(3). The appellant filed objections with the referee who overruled them and granted the discharge. Upon petition for review the District Court affirmed the referee’s order. The appeal at bar followed. The appellant contends that the bankrupt stated in his loan application to it that he was not making installment payments. In answer to the question upon the application, “Are you making installment payments on a loan or for merchandise? If so, to whom ?”, the bankrupt wrote the word “None”. The information thus furnished by the bankrupt was certainly one of the considerations which caused the appellant to grant the loan and the answer given by him was not true. He had become indebted to the Paterson Wimsett System for a loan of $300 upon which he was obligated to make monthly installment payments. The Paterson Wimsett System loan had been made to the bankrupt only a few weeks prior to the time of his application to the appellant for a loan. The referee found as a fact that the answer, “None”, given by the bankrupt was not given with the intention of deceiving the appellant; that the appellant must have known that the answer was false because the bankrupt was already indebted to it for a prior loan at the time the application was executed and that the appellant may have made the loan because the bankrupt had a “. . long record of perfect payments.” Section 14, sub. c, 11 U.S.C.A. § 32, sub. c, expressly provides, “ * * * That if, upon the hearing of an objection to a discharge, the objector shall show to the satisfaction of the court that there are reasonable grounds for believing that the bankrupt has committed any of the acts which, under this subdivision c, would prevent his discharge in bankruptcy, then the burden of proving that he has not committed any of such acts shall be upon the bankrupt.” The burden was upon the bankrupt to prove that he had not committed any of the acts prohibited by the statute. Here the bankrupt made a false statement. The ruling of the referee that this false statement was immaterial because the bankrupt did not intend to deceive the appellant is erroneous as a matter of law. The statement was material if the appellant relied on it in making the loan. The evidence is overwhelming that the appellant did rely on it. That the bankrupt knew that the statement was false when he made it is almost beyond conjecture. He is and was employed by the Borough of Glen Rock as a policeman. That the mind of a man of modest affairs would not advert to a loan of $300 recently incurred by him and upon which very recent payments had been made is inconceivable. It is not necessary, however, to go this far. Express knowledge of falsity is not necessary. It is enough if he who obtains credit makes the false statement carelessly and with reckless indifference. Morimura, Arai & Co. v. Taback, 279 U.S. 24, 33, 49 S.Ct. 212, 73 L.Ed. 586; In re Lassman, D.C., 32 F.Supp. 830, affirmed Morris Plan Industrial Bank v. Lassman, 2 Cir., 116 F.2d 473; Klecka v. Shuttles Bros. & Lewis, 5 Cir., 115 F.2d 573; Woolen Corp. of America v. Gitnig, 3 Cir., 33 F.2d 259. That the bankrupt gave the answer “None” upon his application with reckless indifference is well illustrated by the question asked him on direct examination before the referee, “You did tell him [the appellant’s assistant manager] that you owed the Paterson Wimsett System $120?”, and the bankrupt’s answer, “He did not ask me that.” The decree of the court below is re-versed and the cause is remanded to the court below with directions to deny the bankrupt his discharge. Question: What is the nature of the first listed appellant? A. private business (including criminal enterprises) B. private organization or association C. federal government (including DC) D. sub-state government (e.g., county, local, special district) E. state government (includes territories & commonwealths) F. government - level not ascertained G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization) H. miscellaneous I. not ascertained Answer:
songer_casetyp1_1-3-1	P	What follows is an opinion from a United States Court of Appeals. Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Your task is to determine the specific issue in the case within the broad category of "criminal - federal offense". UNITED STATES v. THOMSON. SAME v. CRAIG. Nos. 7227, 7230. Circuit Court of Appeals, Seventh Circuit. July 5, 1940. Rehearing Denied July 17, 1940. Harold Lindley, of Danville, 111.^ and Harry I. Hannah and Thomas R. Pigenbaum, both of Mattoon, 111., for appellants, Arthur Roe, U. S. Atty., and Ray M. Foreman, Asst. U. S. Atty., both of Dan-ville, 111., and Carl W. Feickert, of East St. Louis, 111., for appellee, Before EVANS, MAJOR, and KERNER, Circuit Judges . EVANS, Circuit Judge. Defendants were charged with, and convlcted of> crime of devising a scheme t0 defraud and using the mails m further-ance th«rcof and als°TCT°nSp'^Cy t0 vlolate Se^°“ 338Title 18 United States Code, 18 U.S.C.A. § 338. They were tried together, and imprisonment sentences pro-nounced on both. Each appealed separately, The questions presented on both appeals are in some respects alike and one opinion will dispose of both appeals. Defendants ask us to review and reverse the ruling of the District Court made on their motion to suppress evidence secured through an allegedly illegal search of their property and possessions. The issue is a narrow one. Were two searches made by post office inspectors reasonable ? Post office inspectors without search warrants made two searches, one August 3, 1938, and one August 16, 1938. The Government’s answer to the asserted illegality of the first search is that defendants consented-thereto. Its justification of the August 16th search was that it was made on the occasion of the arrest of the defendants pursuant to warrants issued on the indictment returned in this case. No search warrant was necessary. On this second search, seventeen mail bags of books, papers and documents were taken in the course of a two hour search made by the post office inspectors while the marshal stood by and the defendants were making arrangements for bail. The District Court heard oral evidence and ruled against the defendants’ motion. Defendants were in the business of merchandising cosmetics and did so by means of hundreds of solicitors with whom agency contracts were executed. The alleged fraud set forth in each of the many counts of the indictment arose out of these agency contracts. Deposits taken from the solicitors were not repaid, or only rarely. Salaries earned, due to impossible requirements as to hours of service, daily reports, etc., of the agency contract, could not be, or at least were not, collected. Defendant Thomson had successfully promoted several cosmetic companies, either alone or in partnership. Complaints about him and his ways reached the post office inspectors, who, on August 3, without warrant, called at defendants’ place of business to investigate the facts and obtain the names and addresses of the agents so that they might correspond with them. One inspector testified he asked for the names of various agents. He testified that defendant went through his files and gave them to him voluntarily. Thomson, -on the other hand, denied granting permission to the inspector to withdraw such records. The District Court heard oral evidence on the fact issues arising out of defendants’ motion to suppress the evidence obtained-from this and the other search and reached the conclusion, which we think is well supported by the evidence, that Thomson not only waived his right to object to the use of this evidence, but invited the post office inspector to examine the same and “get any information he desired.” This disposes of defendants’ objections to the first — the August 3d search. The testimony respecting the search on the 16th of August is not free from dispute. The investigation of the post office inspector, following the August 3d visit, resulted in the presentation of evidence to the Grand Jury and .the return of an indictment against the defendants. On August 16th the marshal and his deputy arrived at the defendants’ place of business with a warrant for their arrest. At the same time two post office inspectors appeared, and, after the arrest was made, the inspectors proceeded to search the premises. They went through defendants’ files and records and removed a great many documents. Thomson stated he protested against the removal of his papers and asked leave to telephone his attorney. The inspectors told him they had the legal right to search and seize whenever the Government was making an arrest. They advised him to arrange for his bail. While the marshal ■ was not active in making the search, he was present and the accused was also there during the entire period of the search. Statements of the law of search and seizure in somewhat analogous cases have been announced by the Supreme Court in the following cases: Gouled v. United States, 255 U.S. 298, 41 S.Ct. 261, 65 L.Ed. 647; Agnello v. United States, 269 U.S. 20, 46 S.Ct. 4, 70 L.Ed. 145, 51 A.L.R. 409; Marron v. United States, 275 U.S. 192, 48 S.Ct. 74, 72 L.Ed. 231; Go-Bart Co. v. United States, 282 U.S. 344, 51 S.Ct. 153, 75 L.Ed. 374; United States v. Lefkowitz, 285 U.S. 452, 52 S.Ct. 420, 76 L.Ed. 877, 82 A.L.R. 775. In the face of these decisions it is hardly helpful to cite decisions of inferior' courts, which are out of harmony with the holdings of these cases. Differences of opinion may well exist over the weight of the reasons upon which the conclusions expressed in, these opinions rest, but our duty is clear. It is to apply these decisions to the facts of each case. So doing, we must reverse the judgment in this case. In thus disposing of this case we assume: (a) That neither the length of the search at the time of the arrest, nor the volume of the evidence seized has anything to do with the validity of the search. One single bit of evidence, no larger than a half carat diamond, may be all that is seized in one case. Thirteen truck loads of liquor, still apparatus, etc., may be taken in another case. The smuggled diamond may be so skillfully concealed that much time is required for the searching officers to locate it, whereas the defendant may be sitting in his still house surrounded by vats of liquor, in the second search, and no time at all required to complete the search. In other words, the reasonableness of the search depends upon the facts in each case, and this applies to the length of the search and the quantity seized. (b) The right to search when defendant is arrested is no greater than when the search is made pursuant to a search warrant. There is an intimation in one of the opinions that the right is not quite as comprehensive in the case of search when arrest is made. In United States v. Lefkowitz, 285 U.S. 452, 52 S.Ct. 420, 423, 76 L.Ed. 877, 82 A.L.R. 775, the court said: “ * * The authority of officers to search one’s house or place of business contemporaneously with his lawful arrest therein upon a valid warrant of arrest certainly is not greater than that conferred by a search warrant issued upon adequate proof and sufficiently describing the premises and the things sought to be obtained.” (c) A valid search may result in the seizure of papers as well as other kinds of property. The test is not the nature of the property seized (papers or liquor for instance), but whether such property was by the accused used in perpetrating a crime. In Gouled v. United States, 255 U.S. 298, 41 S.Ct. 261, 265, 65 L.Ed. 647, the court said: “There is no special sanctity in papers, as distinguished from other forms of property, to render them immune from search and seizure, if only they fall within the scope of the principles of the cases in which other property may be seized, and if they be adequately described in the affidavit and warrant. Stolen or forged papers have been so seized, * * * and lottery tickets, * * * and we cannot doubt that contracts may be so used as instruments or agencies for perpetratinv frauds upon the government as to give the public an interest in them whiph would justify the search for and seizure of them, under a properly issued search warrant, for the purpose of preventing further frauds. * * * ” (d) Where the papers of the accused are seized upon a search solely for use as evidence of a crime of which respondents were accused or suspected, the search may be described as unreasonable. In the Lefkowitz ease the court said: “Respondents’ papers were wanted by the officers solely for use as evidence of crime of which respondents were accused or suspected. They could not lawfully be searched for and taken even under a search warrant issued upon ample evidence and precisely describing such things and disclosing exactly where they were. * * * ” Distinguishing the facts in the Marrón case, the court said: “ * -+- * There, prohibition officers lawfully on the premises searching for liquor described in a search warrant, arrested the bartender for crime openly being committed in their presence. * * * The ledger and bills being in plain view were picked up by the officers as an incident of the arrest. No search for them was made. The ledger was held to be part of the outfit actually used to commit the offense. The bills were deemed so closely related to the business that it was not unreasonable to consider them as employed to carry it on. While no use was being made of the book or paper at the moment of the arrest, they — like coiitainers [etc.] — were kept to be utilized when needed. The facts disclosed in the opinion were held to justify the inference that when the arrest was made the ledger and bill were in use to carry on the criminal enterprise. “Here, the searches were exploratory and general and made solely to find evidence of respondents’ guilt of the alleged conspiracy or some other crime. Though intended to be used to solicit orders for liquor in violation of the act, the papers and other articles found and taken were in themselves unoffending. The decisions of this court distinguish searches of one’s house, office, papers or effects merely to get evidence to convict him of crime from searches such as those made to find stolen goods for return to the owner, to take property that has been forfeited to the government, to discover property concealed to avoid payment of duties for which it is liable, and from searches such as those made for the seizure of counterfeit coins, burglars’ tools, gambling paraphernalia and illicit liquor in order to prevent the commission of crime. * * * “This case does not differ materially from the Go-Bart Case and is ruled by it. An arrest may not be used as a pretext to search for evidence. The searches and seizures here challenged must be held violative of respondents’ rights under the Fourth and Fifth Amendments.” It is apparent that this case governs the law applicable to the facts in the case before us. The papers seized in the instant case were in themselves not offending. They were taken for the sole purpose of getting evidence to convict the defendants of a crime with which they had been charged. It would be unjust and illogical to separate the two cases and uphold the judgment as to one defendant and reverse it as to the other. While the Constitutional Amendments upon which the defense of illegal search and seizure is based may have been available to only one defendant, nevertheless the trial of the two together, and the introduction of evidence against them both may well have worked to the prejudice of the other. The judgment is reversed with directions to grant a new trial. Question: What is the specific issue in the case within the general category of "criminal - federal offense"? A. murder B. rape C. arson D. aggravated assault E. robbery F. burglary G. auto theft H. larceny (over $50) I. other violent crimes J. narcotics K. alcohol related crimes, prohibition L. tax fraud M. firearm violations N. morals charges (e.g., gambling, prostitution, obscenity) O. criminal violations of government regulations of business P. other white collar crime (involving no force or threat of force; e.g., embezzlement, computer fraud,bribery) Q. other crimes R. federal offense, but specific crime not ascertained Answer:
songer_circuit	A	What follows is an opinion from a United States Court of Appeals. Your task is to identify the circuit of the court that decided the case. Benjamin W. COREY, Defendant, Appellant, v. UNITED STATES of America, Appellee (two cases). Nos. 6405, 6046. United States Court of Appeals First Circuit. Heard Dec. 8, 1964. Decided May 26, 1965. Russell Morton Brown, Washington, D. C., with whom Maurice C. Goodpasture, Washington, D. C., Norris R. Karp, Boston, Mass., and Brown, Goodpasture & Block, Washington, D. C., were on brief, for appellant. Thomas P. O’Connor, Asst. U. S. Atty., with whom W. Arthur Garrity, Jr., U. S. Atty., was on brief, for appellee. Before WOODBURY, Chief Judge, ALDRICH, Circuit Judge, and CAF-FREY, District Judge. WOODBURY, Senior Circuit Judge (by designation). Adam John Mariani of Maynard and Benjamin W. Corey of Cambridge, both in the District of Massachusetts, were jointly indicted in 75 counts identical in wording except as to dates for knowingly making and presenting false, fictitious and fraudulent claims to the Department of the Army at its Watertown Arsenal in violation of Title 18 U.S.C. § 287. Both pleaded not guilty but Mariani retracted his plea, pleaded guilty and testified for the Government at Corey’s trial by jury in the court below. Corey was found guilty on all counts, sentenced and took these appeals. One (No. 6046) is from the judgment of sentence, the other (No. 6405) is from the denial of his sworn motion for a new trial under Rule 33 of the Federal Rules of Criminal Procedure. We shall consider the appeals in the order enumerated. During the time involved, February through July, 1960, the appellant, Corey, was the president of Automotive Radio Company, Inc., a Massachusetts corporation doing business in Cambridge under the trade name of Hi-Fi Electronic Laboratories, or some similar name, the testimony is not specific, and Mariani was the supply and ordering officer for the Watertown Arsenal laboratories with authority to order items needed by that unit worth less than $100 from sources of his own selection. Mariani testified that early in 1960 he offered Corey a “cash proposition” which Corey accepted and suggested a 65-35 split of the proceeds, meaning 65% for Mariani and 35% for Corey, which Mariani accepted. Agreement to defraud reached, accomplishment followed soon. According to Mariani he would make out an order for merchandise and take it to Hi-Fi for Corey to sign, but instead of taking any merchandise he would return to the Arsenal, forge the signature of the receiving officer and put the voucher and Hi-Fi’s bill in process for payment. Then, on his next trip to Hi-Fi Laboratories Corey would give Mariani his share of the proceeds in cash. This, in basic substance, is the fraudulent scheme as testified to by Mariani but denied in toto by Corey, who took the stand to deny doing anything but legitimate business with the Watertown Arsenal by delivering merchandise in accordance with Mariani’s orders. The appellant does not question the adequacy of the evidence to support his conviction. His basic complaint is of the court’s charge to the jury. However, the able counsel who represented Corey at the trial did not object to the charge but, after offering minor suggestions said, when asked by the court to put his objections in the record: “I would request you to make a more full description of what was said with respect to — I think — I think I am satisfied.” This does not necessarily preclude consideration of errors in the charge although presented for the first time on appeal. While Criminal Rule 30 forbids assignment of any part of a charge as error unless distinct objection thereto is made before the jury retires, Criminal Rule 52(b) provides: “Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court.” We have accordingly examined the record but find no obvious error of sufficient magnitude to warrant an inference of a serious miscarriage of justice, to say nothing of any error seriously affecting the “fairness, integrity, or public reputation of judicial proceedings.” See Lash v. United States, 221 F.2d 237, 240 (C.A.l, 1955), cert. denied, 350 U.S. 826, 76 S.Ct. 55, 100 L.Ed. 738 (1955), and cases cited. In addition the appellant complains of the refusal of the court below to allow him to discredit Mariani’s testimony by the following device: Mariani having testified that he was to receive and did receive 65% of the proceeds of the fraudulent scheme from Corey, the latter was asked when he took the stand in his own defense if he had declared in his income tax return the entire amount (100%) of the money he received from the Watertown Arsenal on the orders signed by Mariani. He said that he had. At this point an objection to the line of inquiry was sustained on the ground that it was not pertinent. What the defense wanted to show was that if Corey had returned all of the proceeds of the claims against the Arsenal as income, as he said he had, and the claims were false, federal and state income taxes would have amounted to 35%, leaving no net profit for Corey out of the scheme described by Mariani and hence indicating that Mariani’s testimony was inherently implausible. We think the trial court was well within its discretionary powers in refusing to allow proof of Corey’s federal and state income tax liabilities for the year in question. The tendered evidence if true would not directly contradict any part of Mariani’s testimony. Nor could it in any way whatever indicate his bias, hostility or incompetence. It would as much suggest Corey’s lack of business acumen as Mariani’s lack of credibility. This being so, and able counsel for Corey at the trial having been given ample opportunity to discredit Mariani by extensive cross-examination, we think the trial court was well within its wide discretionary power to reject the proffered collateral evidence as insufficiently probative to warrant expenditure of the time and effort necessary for its production. A further assertion of error in the admission of certain testimony of an admitted handwriting expert called by the Government, which we think for good reason was not objected to at the trial, is more ingenious than substantial. No useful purpose would be served by giving it serious discussion. We do not find it necessary to indulge in detailed discussion of the appellant’s appeal from the denial of his motion for a new trial. It will be enough to say that the evidence sought to be adduced is not newly discovered but either was known or could readily have been discovered before trial. Furthermore, even if presented at another trial, we think it hardly likely that the evidence would produce a different result, for at the most it would only impeach Mariani’s testimony as to a minor collateral matter, i. e., the depository in which he said he put the cash he said he received from Corey. The further allegation in the motion that there is need to examine under oath a person who was not a witness but who worked under Mariani at the Arsenal because it is. said that she “participated in some way in the frauds perpetrated by Mariani,” presents no ground for a new trial. Without even a supporting affidavit indicating the specific testimony the witness might be able to give, it is only a request to be allowed to go on a fishing expedition.' Judgment will be entered affirming the judgment and order of the District Court. Question: What is the circuit of the court that decided the case? A. First Circuit B. Second Circuit C. Third Circuit D. Fourth Circuit E. Fifth Circuit F. Sixth Circuit G. Seventh Circuit H. Eighth Circuit I. Ninth Circuit J. Tenth Circuit K. Eleventh Circuit L. District of Columbia Circuit Answer:
sc_lcdispositiondirection	A	What follows is an opinion from the Supreme Court of the United States. Your task is to determine whether the decision of the court whose decision the Supreme Court reviewed was itself liberal or conservative. In the context of issues pertaining to criminal procedure, civil rights, First Amendment, due process, privacy, and attorneys, consider liberal to be pro-person accused or convicted of crime, or denied a jury trial, pro-civil liberties or civil rights claimant, especially those exercising less protected civil rights (e.g., homosexuality), pro-child or juvenile, pro-indigent pro-Indian, pro-affirmative action, pro-neutrality in establishment clause cases, pro-female in abortion, pro-underdog, anti-slavery, incorporation of foreign territories anti-government in the context of due process, except for takings clause cases where a pro-government, anti-owner vote is considered liberal except in criminal forfeiture cases or those where the taking is pro-business violation of due process by exercising jurisdiction over nonresident, pro-attorney or governmental official in non-liability cases, pro-accountability and/or anti-corruption in campaign spending pro-privacy vis-a-vis the 1st Amendment where the privacy invaded is that of mental incompetents, pro-disclosure in Freedom of Information Act issues except for employment and student records. In the context of issues pertaining to unions and economic activity, consider liberal to be pro-union except in union antitrust where liberal = pro-competition, pro-government, anti-business anti-employer, pro-competition, pro-injured person, pro-indigent, pro-small business vis-a-vis large business pro-state/anti-business in state tax cases, pro-debtor, pro-bankrupt, pro-Indian, pro-environmental protection, pro-economic underdog pro-consumer, pro-accountability in governmental corruption, pro-original grantee, purchaser, or occupant in state and territorial land claims anti-union member or employee vis-a-vis union, anti-union in union antitrust, anti-union in union or closed shop, pro-trial in arbitration. In the context of issues pertaining to judicial power, consider liberal to be pro-exercise of judicial power, pro-judicial "activism", pro-judicial review of administrative action. In the context of issues pertaining to federalism, consider liberal to be pro-federal power, pro-executive power in executive/congressional disputes, anti-state. In the context of issues pertaining to federal taxation, consider liberal to be pro-United States and conservative pro-taxpayer. In miscellaneous, consider conservative the incorporation of foreign territories and executive authority vis-a-vis congress or the states or judcial authority vis-a-vis state or federal legislative authority, and consider liberal legislative veto. The lower court's decision direction is unspecifiable if the manner in which the Supreme Court took jurisdiction is original or certification; or if the direction of the Supreme Court's decision is unspecifiable and the main issue pertains to private law or interstate relations CARTER v. UNITED STATES No. 99-5716. Argued April 19, 2000 — Decided June 12, 2000 Thomas, J., delivered the opinion of the Court, in which Rehnquist, C. J., and O’Connor, Scalia, and Kennedy, JJ., joined. Ginsburg, J., filed a dissenting opinion, in which STEVENS, SOUTER, and BREYER, JJ., joined, post, p. 275. Donald J. McCauley argued the cause for petitioner. With him on the briefs were Richard Coughlin, Jeffrey T Green, and Joseph S. Miller. David C. Frederick argued the cause for the United States. With him on the brief were Solicitor General Wax-man, Assistant Attorney General Robinson, Deputy Solicitor General Dreeben, and Thomas E. Booth. Joshua L. Dratel filed a brief for the National Association of Criminal Defense Lawyers et al. as amici curiae urging reversal. Justice Thomas delivered the opinion of the Court. In Schmuck v. United States, 489 U. S. 705 (1989), we held that a defendant who requests a jury instruction on a lesser offense under Rule 81(e) of the Federal Rules of Criminal Procedure must demonstrate that “the elements of the lesser offense are a subset of the elements of the charged offense.” Id., at 716. This ease requires us to apply this elements test to the offenses described by 18 U. S. C. §§ 2113(a) and (b) (1994 ed. and Supp. IV). The former punishes “[wjhoever, by force and violence, or by intimidation, takes ... from the person or presence of another . . . any . . . thing of value belonging to, or in the . . . possession of, any bank . . . .” The latter, which entails less severe penalties, punishes, inter alia, “[wjhoever takes and carries away, with intent to steal or purloin, any . .. thing of value exceeding $1,000 belonging to, or in the . . . possession of, any bank . . . .” We hold that § 2113(b) requires an element not required by § 2113(a) — three in fact — and therefore is not a lesser included offense of § 2113(a). Petitioner is accordingly prohibited as a matter of law from obtaining a lesser included offense instruction on the offense described by § 2113(b). f — I On September 9, 1997, petitioner Floyd J. Carter donned a ski mask and entered the Collective Federal Savings Bank in Hamilton Township, New Jersey. Carter confronted a customer who was exiting the bank and pushed her back inside. She screamed, startling others in the bank. Undeterred, Carter ran into the bank and leaped over the customer service counter and through one of the teller windows. One of the tellers rushed into the manager’s office. Meanwhile, Carter opened several teller drawers and emptied the money into a bag. After having removed almost $16,000 in currency, Carter jumped back over the counter and fled from the scene. Later that day, the police apprehended him. A grand jury indicted Carter, charging him with violating § 2113(a). While not contesting the basic facts of the episode, Carter pleaded not guilty on the theory that he had not taken the bank’s money “by force and violence, or by intimidation,” as § 2113(a) requires. Before trial, Carter moved that the court instruct the jury on the offense described by § 2113(b) as a lesser included offense of the offense described by § 2113(a). The District Court, relying on United States v. Mosley, 126 F. 3d 200 (CA3 1997), denied the motion in a preliminary ruling. At the close of the Government’s ease, the District Court denied Carter’s motion for a judgment of acquittal and indicated that the preliminary ruling denying the lesser included offense instruction would stand. The jury, instructed on § 2113(a) alone, returned a guilty verdiet, and the District Court entered judgment pursuant to that verdiet. The Court of Appeals for the Third Circuit affirmed in an unpublished opinion, relying on its earlier decision in Mosley. Judgment order reported at 185 F. 3d 863 (1999). While the Ninth Circuit agrees with the Third that a lesser offense instruction is precluded in this context, see United States v. Gregory, 891 F. 2d 732, 734 (CA9 1989), other Circuits have held to the contrary, see United States v. Walker, 75 F. 3d 178, 180 (CA4 1996); United States v. Brittain, 41 F. 3d 1409, 1410 (CA10 1994). We granted certiorari to resolve the conflict, 528 U. S. 1060 (1999), and now affirm. II In Schmuck, supra, we were called upon to interpret Federal Rule of Criminal Procedure 31(e)’s provision that “[t]he defendant may be found guilty of an offense necessarily included in the offense charged.” We held that this provision requires application of an elements test, under which “one offense is not ‘necessarily included’ in another unless the elements of the lesser offense are a subset of the elements of the charged offense.” 489 U. S., at 716. The elements test requires “a textual comparison of criminal statutes,” an approach that, we explained, lends itself to “certain and predictable” outcomes. Id., at 720. Applying the test, we held that the offense of tampering with an odometer, 15 U. S. C. §§ 1984 and 1990e(a) (1982 ed.), is not a lesser included offense of mail fraud, 18 U. S. C. §1341. We explained that mail fraud requires two elements — (1) having devised or intending to devise a scheme to defraud (or to perform specified fraudulent acts), and (2) use of the mail for the purpose of executing, or attempting to execute, the scheme (or specified fraudulent acts). The lesser offense of odometer tampering, however, requires the element of knowingly and willfully causing an odometer to be altered, an element that is absent from the offense of mail fraud. Accordingly, the elements of odometer tampering are not a subset of the elements of mail fraud, and a defendant charged with the latter is not entitled to an instruction on the former under Rule 31(e). Schmuck, supra, at 721-722. Turning to the instant ease, the Government contends that three elements required by §2113(b)’s first paragraph are not required by § 2113(a): (1) specific intent to steal; (2) asportation; and (3) valuation exceeding $1,000. The statute provides: “§2113. Bank robbery and incidental crimes “(a) Whoever, by force and violence, or by intimidation, takes, or attempts to take, from the person or presence of another, or obtains or attempts to obtain by extortion any property or money or any other thing of value belonging to, or in the care, custody, control, management, or possession of, any bank, credit union, or any savings and loan association ... “Shall be fined under this title or imprisoned not more than twenty years, or both. “(b) Whoever takes and carries away, with intent to steal or purloin, any property or money or any other thing of value exceeding $1,000 belonging to, or in the care, custody, control, management, or possession of any bank, credit union, or any savings and loan association, shall be fined under this title or imprisoned not more than ten years, or both; or ‘Whoever takes and carries away, with intent to steal or purloin, any property or money or any other thing of value not exceeding $1,000 belonging to, or in the care, custody, control, management, or possession of any bank, credit union, or any savings and loan association, shall be fined not more than $1,000 or imprisoned not more than one year, or both.” A “textual comparison” of the elements of these offenses suggests that the Government is correct. First, whereas subsection (b) requires that the defendant act “with intent to steal or purloin,” subsection (a) contains no similar requirement. Second, whereas subsection (b) requires that the defendant “tak[e] and carr[y] away” the property, subsection (a) only requires that the defendant “tak[e]” the property. Third, whereas the first paragraph of subsection (b) requires that the property have a “value exceeding $1,000,” subsection (a) contains no valuation requirement. These extra clauses in subsection (b) “cannot be regarded as mere surplusage; [they] mea[n] something.” Potter v. United States, 155 U. S. 438, 446 (1894). Carter urges that the foregoing application of Schmuck’s elements test is too rigid and submits that ordinary principles of statutory interpretation are relevant to the Schmuck inquiry. We do not dispute the latter proposition. The Schmuck test, after all, requires an exercise in statutory interpretation before the comparison of elements may be made, and it is only sensible that normal principles of statutory construction apply. We disagree, however, with petitioner’s conclusion that such principles counsel a departure in this ease from what is indicated by a straightforward reading of the text. Ill We begin with the arguments pertinent to the general relationship between §§ 2118(a) and (b). Carter first contends that the structure of §2113 supports the view that subsection (b) is a lesser included offense of subsection (a). He points to subsection (c) of §2118, which imposes criminal liability on a person who knowingly “receives, possesses, conceals, stores, barters, sells, or disposes of, any property or money or other thing of value which has been taken or stolen from a bank... in violation of subsection (b).” (Emphasis added.) It would be anomalous, posits Carter, for subsection (e) to apply — as its text plainly provides — only to the fence who receives property from a violator of subsection (b) but not to the fence who receives property from a violator of subsection (a). The anomaly disappears, he concludes, only if subsection (b) is always violated when subsection (a) is violated — i. e., only if subsection (b) is a lesser included offense of subsection (a). But Carter’s anomaly — even if it truly exists — is only an anomaly. Petitioner does not claim, and we tend to doubt, that it rises to the level of absurdity. Cf. Green v. Bock Laundry Machine Co., 490 U. S. 504, 509-511 (1989); id., at 527 (Scalia, J., concurring in judgment). For example, it may be that violators of subsection (a) generally act alone, while violators of subsection (b) are commonly assisted by fences. In such a state of affairs, a sensible Congress may have thought it necessary to punish only the fences of property taken in violation of subsection (b). Or Congress may have thought that a defendant who violates subsection (a) usually — if not inevitably — also violates subsection (b), so that the fence may be punished by reference to that latter violation. In any event, nothing in subsection (c) purports to redefine the elements required by the text of subsections (a) and (b). Carter’s second argument is more substantial. He submits that, insofar as subsections (a) and (b) are similar to the common-law crimes of robbery and larceny, we must assume that subsections (a) and (b) require the same elements as their common-law predecessors, at least absent Congress’ affirmative indication (whether in text or legislative history) of an intent to displace the common-law scheme. While we (and the Government) agree that the statutory crimes at issue here bear a close resemblance to the common-law crimes of robbery and larceny, see Brief for United States 29 (citing 4 W. Blackstone, Commentaries 229, 232); accord, post, at 278-279, that observation is beside the point. The canon on imputing common-law meaning applies only when Congress makes use of a statutory term with established meaning at common law, and Carter does not point to any such term in the text of the statute. This limited scope of the canon on imputing common-law meaning has long been understood. In Morissette v. United States, 342 U. S. 246 (1952), for example, we articulated the canon in this way: “[W]here Congress borrows terms of art in which are accumulated the legal tradition and meaning of centuries of practice, it presumably knows and adopts the cluster of ideas that were attached to each borrowed word in the body of learning from which it was taken and the meaning its use will convey to the judicial mind unless otherwise instructed. In such case, absence of contrary direction may be taken as satisfaction with widely accepted definitions, not as a departure from them.” Id., at 263 (emphasis added). In other words, a “duster of ideas” from the common law should be imported into statutory text only when Congress employs a common-law term, and not when, as here, Congress simply describes an offense analogous to a common-law crime without using common-law terms. We made this clear in United States v. Wells, 519 U. S. 482 (1997). At issue was whether 18 U. S. C. § 1014 — which punishes a person who “knowingly makes any false statement or report . . . for the purpose of influencing in any way the action” of a Federal Deposit Insurance Corporation insured bank “upon any application, advance, . . . commitment, or loan” — requires proof of the materiality of the “false statement.” The defendants contended that since materiality was a required element of “false statement”-type offenses at common law, it must also be required by § 1014. Although Justice Stevens in dissent thought the argument to be meritorious, we rejected it: ‘‘[Fjundamentally, we disagree with our colleague’s apparent view that any term that is an element of a common-law crime carries with it every other aspect of that common-law crime when the term is used in a statute. Justice Stevens seems to assume that because ‘false statement’ is an element of perjury, and perjury criminalizes only material statements, a statute criminalizing ‘false statements’ covers only material statements. By a parity of reasoning, because common-law perjury involved statements under oath, a statute criminalizing a false statement would reach only statements under oath. It is impossible to believe that Congress intended to impose such restrictions sub silentio, however, and so our rule on imputing common-law meaning to statutory terms does not sweep so broadly.” 519 U. S., at 492, n. 10 (emphasis added; citation omitted). Similarly, in United States v. Turley, 352 U. S. 407 (1957), we declined to look to the analogous common-law crime because the statutory term at issue — “stolen”—had no meaning at common law. See id., at 411-412 (“[WJhile ‘stolen’ is constantly identified with larceny, the term was never at common law equated or exclusively dedicated to larceny” (internal quotation marks omitted)). By contrast, we have not hesitated to turn to the common law for guidance when the relevant statutory text does contain a term with an established meaning at common law. In Neder v. United States, 527 U. S. 1 (1999), for example, we addressed whether materiality is required by federal statutes punishing a “scheme or artifice to defraud.” Id., at 20, and 20-21, nn. 3-4 (citing 18 U.S.C. §§1341, 1343, 1344). Unlike the statute in Wells, which contained no common-law term, these statutes did include a common-law term— “defraud.” 527 U. S., at 22. Because common-law fraud required proof of materiality, we applied the canon to hold that these federal statutes implicitly contain a materiality requirement as well. Id., at 23. Similarly, in Evans v. United States, 504 U. S. 255, 261-264 (1992), we observed that “extortion” in 18 U. S. C. § 1951 was a common-law term, and proceeded to interpret this term by reference to its meaning at common law. Here, it is undisputed that “robbery” and “larceny” are terms with established meanings at common law. But neither term appears in the text of § 2113(a) or § 2113(b). While the term “robbery” does appear in §2113’s title, the title of a statute “ ‘[is] of use only when [it] shed[s] light on some ambiguous word or phrase’” in the statute itself. Pennsylvania Dept. of Corrections v. Yeskey, 524 U. S. 206, 212 (1998) (quoting Trainmen v. Baltimore & Ohio R. Co., 331 U. S. 519, 528-529 (1947) (modifications in original)). And Carter does not claim that this title illuminates any such ambiguous language. Accordingly, the canon on imputing common-law meaning has no bearing on this ease. < We turn now to Carter’s more specific arguments concerning the “extra” elements of § 2113(b). While conceding the absence of three of §2113(b)’s requirements from the text of § 2113(a) — (1) “intent to steal or purloin”; (2) “takes and carries away,” i. e., asportation; and (3) “value exceeding $1,000” (first paragraph) — Carter claims that the first two should be deemed implicit in § 2113(a), and that the third is not an element at all. A As to “intent to steal or purloin,” it will be recalled that the text of subsection (b) requires a specific “intent to steal or purloin,” whereas subsection (a) contains no explicit mens rea requirement of any kind. Carter nevertheless argues that such a specific intent requirement must be deemed implicitly present in § 2113(a) by virtue of “our cases interpreting criminal statutes to include broadly applicable scienter requirements, even where the statute by its tei’ms does not contain them.” United States v. X-Citement Video, Inc., 513 U.S. 64, 70 (1994). Properly applied to §2113, however, the presumption in favor of scienter demands only that we read subsection (a) as requiring proof of general intent — that is, that the defendant possessed knowledge with respect to the actus reus of the crime (here, the taking of property of another by force and violence or intimidation). Before explaining why this is so under our cases, an example, United States v. Lewis, 628 F. 2d 1276, 1279 (CA10 1980), cert, denied, 450 U. S. 924 (1981), will help to make the distinction between “general” and “specific” intent less esoteric. In Lewis, a person entered a bank and took money from a teller at gunpoint, but deliberately failed to make a quick getaway from the bank in the hope of being arrested so that he would be returned to prison and treated for alcoholism. Though this defendant knowingly engaged in the acts of using force and taking money (satisfying “general intent”), he did not intend permanently to deprive the bank of its possession of the money (failing to satisfy “specific intent”). See generally 1W. LaPave & A. Scott, Substantive Criminal Law § 3.5, p. 315 (1986) (distinguishing general from specific intent). The presumption in favor of scienter requires a court to read into a statute only that mens rea which is necessary to separate wrongful conduct from “otherwise innocent conduct.” X-Citement Video, supra, at 72. In Staples v. United States, 511 U. S. 600 (1994), for example, to avoid criminalizing the innocent activity of gun ownership, we interpreted a federal firearms statute to require proof that the defendant knew that the weapon he possessed had the characteristics bringing it within the scope of the statute. Id., at 611-612. See also, e. g., Liparota v. United States, 471 U. S. 419, 426 (1985); Morissette, 342 U. S., at 270-271. By contrast, some situations may call for implying a specific intent requirement into statutory text. Suppose, for example, a statute identical to § 2113(b) but without the words “intent to steal or purloin.” Such a statute would run the risk of punishing seemingly innocent conduct in the case of a defendant who peaceably takes money believing it to be his. Reading the statute to require that the defendant possess general intent with respect to the actus reus — i. e., that he know that he is physically taking the money — would fail to protect the innocent actor. The statute therefore would need to be read to require not only general intent, but also specific intent — i. e., that the defendant take the money with “intent to steal or purloin.” In this case, as in Staples, a general intent requirement suffices to separate wrongful from “otherwise innocent” conduct. Section 2113(a) certainly should not be interpreted to apply to the hypothetical person who engages in forceful taking of money while sleepwalking (innocent, if aberrant activity), but this result is accomplished simply by requiring, as Staples did, general intent — i. e., proof of knowledge with respect to the actus reus of the crime. And once this mental state and actus reus are shown, the concerns underlying the presumption in favor of scienter are fully satisfied, for a forceful taking — even by a defendant who takes under a good-faith claim of right — falls outside the realm of the “otherwise innocent.” Thus, the presumption in favor of scienter does not justify reading a specific intent requirement — “intent to steal or purloin” — into § 2113(a). Independent of his reliance upon the presumption in favor of scienter, Carter argues that the legislative history of § 2113 supports the notion that an “intent to steal” requirement should be read into § 2113(a). Carter points out that, in 1934, Congress enacted what is now § 2113(a), but with the adverb “feloniously” (which all agree is equivalent to “intent to steal”) modifying the verb “takes.” Act of May 18, 1934, ch. 304, §2(a), 48 Stat. 783. In 1937, Congress added what is now § 2113(b). Act of Aug. 24, 1937, ch. 747, 50 Stat. 749. Finally, in 1948, Congress made two changes to §2113, deleting “feloniously” from what is now § 2113(a) and dividing the “robbery” and “larceny” offenses into their own separate subsections. 62 Stat. 796. Carter concludes that the 1948 deletion of “feloniously” was merely a stylistic change, and that Congress had no intention, in deleting that word, to drop the requirement that the defendant “feloniously” take the property — that is, with intent to steal. Such reasoning, however, misunderstands our approach to statutory interpretation. In analyzing a statute, we begin by examining the text, see, e. g., Estate of Cowart v. Nicklos Drilling Co., 505 U. S. 469, 475 (1992), not by "psychoanalyzing those who enacted it,” Bank One Chicago, N. A. v. Midwest Bank & Trust Co., 516 U. S. 264, 279 (1996) (Scalia, J., concurring in part and concurring in judgment). While “feloniously” no doubt would be sufficient to convey a specific intent requirement akin to the one spelled out in subsection (b), the word simply does not appear in subsection (a). Contrary to the dissent’s suggestion, post, at 283-284, this reading is not a fanciful one. The absence of a specific intent requirement from subsection (a), for example, permits the statute to reach eases like Lewis, see supra, at 268, where an ex-convict robs a bank because he wants to be apprehended and returned to prison. (The Government represents that indictments on this same fact pattern (which invariably plead out and hence do not result in reported decisions) are brought “as often as every year,” Brief for United States 22, n. 13.) It can hardly be said, therefore, that it would have been absurd to delete “feloniously” in order to reach such defendants. And once we have made that determination, our inquiry into legislative motivation is at an end. Cf. Bock Laundry Machine Co., 490 U. S., at 510-511. B Turning to the second element in dispute, it will be recalled that, whereas subsection (b) requires that the defendant “tak[e] and earr[y) away the property,” subsection (a) requires only that the defendant “tak[e]” the property. Carter contends that the “takes” in subsection (a) is equivalent to “takes and carries away” in subsection (b). While Carter seems to acknowledge that the argument is at war with the text of the statute, he urges that text should not be dispositive here because nothing in the evolution of § 2113(a) suggests that Congress sought to discard the asportation requirement from that subsection. But, again, our inquiry focuses on an analysis of the textual product of Congress’ efforts, not on speculation as to the internal thought processes of its Members. Congress is certainly free to outlaw bank theft that does not involve aspor-tation, and it hardly would have been absurd for Congress to do so, since the taking-without-asportation scenario is no imagined hypothetical. See, e. g., State v. Boyle, 970 S. W. 2d 835, 836, 838-839 (Mo. Ct. App. 1998) (construing state statutory codification of common-law robbery to apply to defendant who, after taking money by threat of force, dropped the money on the spot). Indeed, a leading treatise applauds the deletion of the asportation requirement from the elements of robbery. See 2 LaFave & Scott, Substantive Criminal Law § 8.11, at 439. No doubt the common law’s decision to require asportation also has its virtues. But Congress adopted a different view in § 2113(a), and it is not for us to question that choice. C There remains the requirement in §2113(b)’s first paragraph that the property taken have a “value exceeding $1,000” — a requirement notably absent from § 2113(a). Carter, shifting gears from his previous arguments, concedes the textual point but claims that the valuation requirement does not affect the Schmuck elements analysis because it is a sentencing factor, not an element. We disagree. The structure of subsection (b) strongly suggests that its two paragraphs — the first of which requires that the property taken have “value exceeding $1,000,” the second of which refers to property of “value not exceeding $1,000” — describe distinct offenses. Each begins with the word “[w]hoever,” proceeds to describe identically (apart from- the differing valuation requirements) the elements of the offense, and concludes by stating the prescribed punishment. That these provisions “stand on their own grammatical feet” strongly suggests that Congress intended the valuation requirement to be an element of each paragraph’s offense, rather than a sentencing factor of some base § 2113(b) offense. Jones v. United States, 526 U. S. 227, 234 (1999). Even aside from the statute’s structure, the “steeply higher penalties” — an enhancement from a 1-year to a 10-year maximum penalty on proof of valuation exceeding $1,000 — leads us to conclude that the valuation requirement is an element of the first paragraph of subsection (b). See Castillo v. United States, ante, at 127; Jones, 526 U. S., at 233. Finally, the constitutional questions that would be raised by interpreting the valuation requirement to be a sentencing factor persuade us to adopt the view that the valuation requirement is an element. See id., at 239-252. The dissent agrees that the valuation requirement of subsection (b)’s first paragraph is an element, but nonetheless would hold that subsection (b) is a lesser included offense of subsection (a). Post, at 287-289. The dissent reasons that the “value not exceeding $1,000” component of §2113(b)’s second paragraph is not an element of the offense described in that paragraph. Hence, the matter of value does not prevent §2113(b)’s second paragraph from being a lesser included offense of § 2113(a). And if a defendant wishes to receive an instruction on the first paragraph of § 2113(b) — which entails more severe penalties than the second paragraph, but is a more realistic option from the jury’s standpoint in a case such as this one where the value of the property clearly exceeds $1,000 — the dissent sees no reason to bar him from making that election, even though the “value exceeding $1,000” element of §2113(b)’s first paragraph is clearly absent from § 2118(a). This novel maneuver creates a problem, however. Since subsection (a) contains no valuation requirement, a defendant indicted for violating that subsection who requests an instruction under subsection (b)’s first paragraph would effectively “waive ... his [Fifth Amendment] right to notice by indictment of the ‘value exceeding $1,000’ element.” Post, at 289. But this same course would not be available to the prosecutor who seeks the insurance policy of a lesser included offense instruction under that same paragraph after determining that his case may have fallen short of proving the elements of subsection (a). For, whatever authority defense counsel may possess to waive a defendant’s constitutional rights, see generally New York v. Hill, 528 U. S. 110 (2000), a prosecutor has no such power. Thus, the prosecutor would be disabled from obtaining a lesser included offense instruction under Rule 31(c), a result plainly contrary to Schmuck, in which we explicitly rejected an interpretive approach to the Rule that would have permitted “the defendant, by in effect waiving his right to notice,... [to] obtain a lesser [included] offense instruction in circumstances where the constitutional restraint of notice to the defendant would prevent the prosecutor from seeking an identical instruction,” 489 U. S., at 718. * * * We hold that § 2113(b) is not a lesser included offense of § 2113(a), and therefore that petitioner is not entitled to a jury instruction on § 2113(b). The judgment of the Third Circuit is affirmed. It is so ordered. We granted certiorari in Mosley to address the issue that we resolve today, Mosley v. United States, 523 U. S. 1019 (1997), but dismissed the petition in that case upon the death of the petitioner, 525 U. S. 120 (1998) (per curiam). By “lesser offense,” Schmuck meant lesser in terms of magnitude of punishment. When the elements of such a “lesser offense” are a subset of the elements of the charged offense, the “lesser offense” attains the status of a “lesser included offense.” A defendant must also satisfy the “independent prerequisite ... that the evidence at trial ... be such that a jury could rationally find the defendant guilty of the lesser offense, yet acquit him of the greater.” Schmuck, 489 U. S., at 716, n. 8 (citing Keeble v. United States, 412 U. S. 205, 208 (1973)). In light of our holding that petitioner fails to satisfy the elements test, we need not address the latter requirement in this case. The dissent claims that our decision in United States v. Wells, 519 U. S. 482 (1997), is not in point because we went on in Wells to discuss the evolution of the statute (specifically, a recodification of numerous sections), which revealed Congress’ apparent eare in retaining a materiality requirement in certain sections while omitting it in others, such as the one before Question: What is the ideological direction of the decision reviewed by the Supreme Court? A. Conservative B. Liberal C. Unspeciﬁable Answer:
songer_bank_app1	A	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. Your task is to determine whether or not the first listed appellant is bankrupt. If there is no indication of whether or not the appellant is bankrupt, the appellant is presumed to be not bankrupt. In re CHICAGO & N. W. RY. CO. (eighteen cases). Nos. 7561-7569, 7724, 7767-7772, 7740, 7741. Circuit Court of Appeals, Seventh Circuit. Feb. 9, 1942. Affirming decree 35 F.Supp. 230. Luther M. Walter and Helen W. Munsert, both of Chicago, Ill., Robert K. Stuart, of Evanston, Ill., Ferris E. Hurd, of Chicago, Ill., Edward K. Hanlon, of New York City, Meyer Abrams, Norman Asher, Edward C. Kohlsaat, and Harry N. Wyatt, all of Chicago, Ill., John M. MacGregor, of New York City, R. C. Stevenson, of Chicago, Ill., John B. Marsh and Edward E. Watts, Jr., both of New York City, Walter H. Jacobs and Anthony L. Michel, both of Chicago, Ill., S. Pierce Browning, Jr., and Robert E. Houston, Jr., both of New York City, Anan Raymond, Robert Z. Hickman, Cyrus H. Adams, and James P. Dillie, all of Chicago, Ill., and Orrin G. Judd, of New York City, for appellants. Kenneth F. Burgess, Douglas F. Smith, and Geo. Ragland, Jr., all of Chicago, Ill., McCready Sykes and Wm. A. Stewart, both of New York City, Wm. B. Hale, of Chicago, Ill., Fred N. Oliver and Willard P. Scott, both of New York City, Chas. M. Thomson, of Chicago, Ill., Edwin S. S. Sunderland, Thos. O’G. FitzGibbon, and Geo. John Miller, all of New York City, Henry F. Tenney, Roger R. Leech, and Lee Walker, all of Chicago, Ill., Russell L. Snodgrass, Cassius M. Clay, A. Marvin Braverman, and James W. Close, all of Washington, D. C., Herbert Friedlich, of Chicago, Ill., Leonard D. Adkins and Alfred H. Phillips, both of New York City, and Wm. D. Kerr, of Chicago, Ill., for appellees. Before EVANS and KERNER, Circuit Judges, and LINDLEY, District Judge. EVANS, Circuit Judge. These eighteen appeals arise out of the reorganization proceedings of the Chicago & North Western Railway Company, instituted pursuant to Section 77 of the Bankruptcy Act, 11 U.S.C.A. § 205. The Interstate Commerce Commission’s plan of reorganization has been accepted, with one exception, by more than two-thirds of the creditors, of each of the groups, who voted on the reorganization plan, and it has been confirmed by the District Court, after full hearing. We have the benefit of the District Court’s findings and opinion, In re Chicago & N. W. Ry. Co., D.C., 35 F.Supp. 230, and an elaborate and informative report by the Examiner of the I. C. C., as well as a complete discussion and ultimate findings by the Commission. The appeals are chiefly from the trial court’s orders of approval and confirmation of the plan of reorganization. The Debtor operates in nine states, over 8,290.533 miles first main track and 13,047.-127 of all tracks. A subsidiary of the Debtor, the Chicago, St. Paul, Minneapolis & Omaha Railway Company, owns 1,577.171 miles of first main track and 2,438.047 miles of all tracks. It is operated and renders reports separately from Debtor but its lines complement those of Debtor. The Debtor’s obligations, generally, comprehended seven divisional mortgages, two system mortgages, R. F. C., R. C. C., and bank loans, equipment trust obligations, and other miscellaneous indebtedness. To give a succinct idea of the basic facts of this reorganization and the Debtor’s financial structure, this chart is appended: The following is a brief description of the securities involved in this reorganization: Milwaukee & State Line bonds, 3%% bonds of 1941, $2,500,000, a lien on 51 miles of double track main freight line between Chicago and Milwaukee, original cost of which was $3,870,817, and reproduction value of $3,574,820. Manitowoc, Green Bay & North Western Ry., first mortgage, 3%% bonds of 1941, amounting to $3,750,000, a first lien on 113.5 miles of railroad in Wisconsin; original cost, $4,673,102, reproduction cost $4,-278,949. St. Paul Eastern Grand Trunk Railway first mortgage, 4%% bonds of 1947, amounting to $1,120,000, first lien on 56.1 miles of track in Wisconsin, original cost, $1,212,352, reproduction cost, $1,161,111. Milwaukee, Sparta & North Western first mortgage, 4% bonds of 1947, amounting to $15,000,000, are a first lien on 177.3 miles of track in Wisconsin; original cost of $15,405,431, and cost of reproduction new, $15,348,864. DesPlaines Valley Railway first mortgage, 4%% bonds of 1947, amounting to $2,500,000, are a first lien on 19.7 miles of double track, and some equipment; the original cost was $2,921,237, and the cost of reproduction new, $2,884,955. St. Louis, Peoria & North Western Ry. first mortgage, 5% bonds of 1945, amounting to $10,000,000, a first lien on 112 miles of track and equipment; the original cost was $10,787,269, and reproduction cost, $9,-803,745. Sioux City & Pacific Rd. first mortgage, bonds matured 1936, amounting to $4,000,000, are a first lien on 118.2 miles of road, costing $4,932,716, and reproduction cost of $5,960,031. The general mortgage bonds (varying from 3% to 5%), amounting to $132,-011,500 outstanding, and $23,896,000 pledged (total of $155,907,500) a first lien on 4,-876.1 miles of road and equipment. The original cost was $326,335,801, and the cost of reproduction, $359,264,801. The First and Refunding Mortgage (4%-5%, 2037) amounting to $47,822,000 outstanding, and $65,615,000 pledged (total of $113,437,000) a first lien on 2,749.8 miles of road, and some equipment. The original cost was $103,806,572, and the cost of reproduction was $100,935,498. Equipment obligations of $14,973,000 are outstanding, and an additional $117,000 pledged, and are first liens on equipment costing $63,414,791. Serial Collateral Notes, 4%, to Public Works Administration, amounting to $1,-360,000, secured by $1,350,000 first mortgage bonds, and $50,000 capital stock of the Escanaba Co. The 15-yr., 6%% bonds, matured in 1936, amounting to $14,775,000, secured by pledge of $17,730,000 of general mortgage 5% series E bonds of 1987. The R. F. C. notes, maturing in 1936, amounting to $14,947,200, are secured by $101,813,800 principal amount of various debtor and other securities. Other notes to the R. F. C. which matured in 1935 and 1936 amounted to $27,302,933. Bank Notes, 5%, matured in 1936, amounting to $4,439,690, were secured by $18,193,000 of principal amount of Debtor’s securities. Railroad Credit Corporation notes, maturing in 1935 and 1936, amounting to $653,-681, were secured by $7,021,000 principal amount of Debtor’s securities. Twenty-Year convertible 4%% Series A, bonds of 1949, amounting to $72,335,000, issued in 1929. The preferred stock of Debtor, amounting to $22,395,000, and the common stock, amounting to $158,440,300. The financial structure of Debtor is vexatiously involved. Its obligations, including interest, total $615,742,758. (Unpaid interest to January 1, 1939, amounted to $59,156,409 — of which $1,160,916 has since been paid.)- Its cost of reproduction new, less depreciation, plus land values, is $676,793,588. A valuation, based on earnings (including earnings of the Chicago, St. Paul, Minneapolis & Omaha Ry. Co.) capitalized at five percent, for the period 1926-1930, is $508,969,360; for the period 1931-1935, it is $159,324,640. The I. C. C. believed (and so found) the earnings for the normal prospective year to be $14,625,-000. The confirmed plan of reorganization provided for a $450,000,000 capital structure comprehending: $117,000,000 fixed interest debt 105.000. 000 contingent interest debt 107.000. 000 preferred stock 121.000. 000 common stock. This would result in $3,382,079 fixed interest charges and $9,046,324 contingent interest charges — an annual total of $12,-428,403. The I. C. C. held there was no equity for the present common and preferred stockholders. In brief, the confirmed plan of capital structure provides for: (1) undisturbed status of P. W. A. and Equipment obligations ; (2) new divisional mortgages for the “Des Plaines” and “Sioux City” lines, at 100% and accrued interest, but the interest rate of the former to be decreased from 4% to 4% and of the latter to be increased from 3y2 to 4%; (3) issuance of new First and General Mortgage 4% bonds on the system with 2%% fixed and 1%% contingent commutated interest, and the issuance of a Second Mortgage Convertible 4y2% income bonds; (4) issuance of new preferred and common stock. These securities — the new general mortgage, the second mortgage, the preferred and common stock, were apportioned in varying percentages to the respective security holders. There are three vital, determinative questions (and numerous less important questions) presented by this appeal. (a) The finding, and' the sufficiency of the evidence to support it, that the common and preferred stock of the old company are without value. (b) The sufficiency of the evidence to support the finding that the estimated future normal income of the Debtor will not exceed $14,625,000 and will not support a capitalization, on reorganization, in excess of $450,000,000. (c) Tlie effect of the favorable vote of the creditors upon the objections advanced by mortgage trustees and others to the plan, and the alleged failure of the Commission to make necessary specific findings of values, which are required by the opinion in the case of Consolidated Rock Products Co. v. Du Bois, 312 U.S. 510, 61 S.Ct. 675, 85 L.Ed. 982. Other questions, but not so sharply pronounced in this case, as in the recent case of Chicago, Milwaukee & St. Paul Ry. reorganization, In re Chicago, M., St. P. & P. R. Co., 7 Cir., 124 F.2d 754, decided December 4, 1941, are: (a) The attacks on the fairness of the allocation of the securities among the various groups of lien holders. (b) The alleged preference shown the R. F. C. in the plan of reorganization, (c) The position of the so-called State Line Bonds, and the finding of the District Court as to the fairness of the plan as to these bondholders, (d) A consideration of the wisdom of selling the assets back of this mortgage. In our approach to the approval (or rejection) of the plan which the I. C, C. has submitted, and which bears evidence of much study and thoughtful consideration of a mass of facts and figures, by this body, which is peculiarly well qualified to analyze and digest said statistics, we have assumed to occupy the role of guardian and umpire. We act as umpire or arbitrator so far as the sharply conflicting claims of different groups of bondholders are concerned. And we assume to act as guardians or trustees for the thousands of small security holders who, because their claims are small, could not be expected or required to go to Washington to present their claims, and protect them before the I. C. C., against the urge of groups which, before the I. C. C. and now before this Court, have insistently advanced and pressed their arguments in favor of larger allowances to their group members and smaller and less desired allocations to others. It is unfortunate that this court may not have the benefit of advice of counsel appointed by it and representing all the interested parties, — the secured and unsecured creditors, the stockholders, and the public. As the law stands, counsel are limited in the scope of their employment. True, we have had the advantage of helpful briefs by attorneys representing a large group of holders of bonds of different kinds, who have taken a broader view than could be expected from one who was employed to press the claims of a single group only. We are duly appreciative of this assistance. For, in a case where the assets are fixed in amount and not sufficient to pay all the secured creditors in full, the urge for a greater allowance to one must, necessarily, be at the expense of the allowance to another. In other words the sum of all claims — a, b, c, d, e, and f, etc., is X. Inasmuch as X is a fixed and unchangeable quantity, we cannot increase the amount represented by “a” without reducing the amount 'represented by one or more of the other elements, b, c, d, e or f. It thus becomes apparent that before beginning our study of the details of the plan, we must ascertain and fix the amount represented by X. Dispute over it is at the bottom of all other conflicts. Common and Preferred Stock. In as much as the outstanding obligations exceed $450,000,000, it follows that there is no equity for the holders of the old stock. Unless the $450,000,000 figure can be raised, the common and preferred stockholders must be eliminated. Vulnerability of the Commission’s figures must be limited to its finding that the probable income for the future normal year is $14,625,000. The importance of this link in the Commission’s finding seems to be fully appreciated by that body, for we have been benefited with compilations of charts and earnings which run the gamut of possibilities. The following statement is made, of the earnings of the company for 1930-1940— 1930 ............... $22,837,630 1931 ....... 7,614,983 1932 ............... 2,384,574 1933 ............... 9,412,771 1934 ............... 8,356,854 1935 ............... 5,524,417 1936 ............... 9,060,616 1937 ............... 153,007 (deficit) 1938 ............... 1,053,247 1939 ............... 7,701,603 1940 ............... 11,675,027 Likewise, we have the earnings from 1913 to 1923, which are: 1913 ............... $20,382,666 1914 ............... 19,108,281 1915 ............... 19,393,742 1916 ............... 27,714,458 1917 ............... 23,762,324 1918 ............... 12,441,437 1919 ............... 12,678,750 (deficit) 1920 ............... 1,609,231 1921 ............... 6,651,136 1922 ............... 17,036,306 1923 ............... 15,843,375 Likewise, there are many facts and statistics showing the change from 1920 to 1930 and more particularly from 1930 to 1940. To illustrate, the following tables are submitted : Debt Outstanding Inclusive Short Term Notes But Not The Collateral Pledged Thereunder. December 31, 1919.......... $223,150,000 December 31, 1929.......... 351,646,400 July 1, 1935................. 384,963,420 December 31, 1938.......... 431,390,104 December 31, 1941.......... 469,518,043 Increase in Debt — $246,368,043, or 110.40% Freight Traffic, Ton Miles. (Thousands) 1920 ......................... 9,582,620 1929 ......................... 8,902,865 1935 ......................... 4,994,324 1938 ......................... 5,200,389 1939 ......................... 5,793,766 Decrease in Freight Traffic — 3,788,854 or 39.62% Passenger Traffic (Passengers Carried One Mile). (Thousands) 1920 ......................... 1,444,559 1929 ......................... 953,462 1935 ......................... 554,209 1938 ......................... 684,877 1939 ......................... 696,071' Decrease in Passenger Traffic — 748,488, or 51.81% The Commission found that the earnings of the normal prospective year are $14,-625,000. The approved plan provided for fixed interest obligations of $3,382,079, as follows: The tables and charts which have been submitted in abundance, to show the income, estimated and required, the revenue trends, etc., are informative, but need not all be set forth. A study of them justifies the following conclusions: The indebtedness of the debtor increased more than 110% in twenty-two years, 1919 to 1941. The freight traffic decreased 39% in twenty years, 1920 to 1940. The passenger traffic declined 51% during the same period. There have been large annual deficiencies for more than a decade. Had the debtor’s income available for interest (without payment of any Federal income tax) equaled $14,625,000, the sum which the Commission has estimated to be the income of the normal year of the future, it would have been insufficient to meet the interest charges during the last ten years. Deficits would have accumulated at a rate in excess of eight million dollars per year. Fixed Fixed interest obligations Principal Interest Undisturbed obligations ..,............. ..$ 12,698,000 $ 470,095 10-yr. serial note to R. C. C............ 663,000 26,520 .15-yr. serial note to banks............. .. 3,296,000(a) 82,400 15-yr. secured notes to R. F. C.......... .. 25,000,000 (a) 625,000 Sioux City divisional bonds............ .. 4,000,000 160,000 Des Plaines divisional bonds........... .. 2,500,000 100,000 First and Gen. mtge. bonds A......... .. 55,762,556(a) 1,394,064 First and Gen. mtge. bonds B @ 4% ... .. 12,100,000 524,000 $117,019,556 $ 3,382,079 Charges or Other Requirements (contingent) Principal Dividends Sinking fund (divisional bonds)........ 32,500 Additions & Betterments fund (minimum) 2,500,000 15-yr. serial notes to banks ........... .. (a) 49,440 15-yr. secured notes to R. F. C.......... .. (a) 375,000 First and gen. mtge. bonds, A......... .. (a) 836,438 Second mtge. income bonds, A........ .. 105,058,904 4,727,651 Sinking fund (income bonds) .......... 525,295 9,046,324 Total fixed and contingent......... . .$222,078,460 $12,428,403 Preferred stock ...................... .. 106,996,076 5,349,804 Common stock ....................... .. 120,899,773 Total capitalization............... .. $449,974,309 Total charges ahead of dividends on common stock.................. $17,778,207 Ratio of debt to total capitalization. 49.35% 49.35% With outstanding securities limited to $450,000,000, and with interest reduced to and in part made dependent upon income, a revenue of $14,625,000 will leave little for preferred stockholders under the new plan. Nothing could have been paid to either common or preferred stockholders under the existing set up. Prior to 1929 the spread between the operating revenues and costs and the proportion of net operating income to total operating revenues had been reduced more than 50%. In other words, the percentage of net operating income to total operating revenues was, in 1900, 32.4%. In 1929, it was 19.9%. in 1936 it had dropped to 9.6%. It rose in 1937 to 14.1%. The conclusion is unavoidable and also most important that the debtor can not continue to operate with an evergrowing indebtedness and a decrease in revenues, unless there is a radical change for the better in gross and net income. First, and foremost in a plan of reorganization, is the ascertainment of a maximum of securities which may be issued. The amount for all securities, to-wit, $450,-000,000, is the I. C. C.’s answer to this inquiry. It meets our approval, not only because it is supported by evidence and is the finding of the I. C. C., but our independent study of the reports convinces us that a larger sum could not be sustained by the company’s future business. The I. C. C. said: “Competing forms of transportation, loss of export trade, and shifts in sources of traffic appear to have brought about a continuing change for the worse, as regards any reasonable expectation of the ability of this property to produce earnings sufficient to support a capitalization in which the present stockholders might be recognized as possessing equities of any value. Definitely a short-haul carrier, and one looking to passenger traffic for a large part of its business, results show that the debtor has proved particularly vulnerable to high-way competition. Capture of traffic by pipe lines has also been a serious factor, and the pipe line system is expanding.” In reaching our conclusion we must admit that we have been compelled to depend upon the I. C. C.’s estimated income of the debtor in the future. We have not and can not give much weight to original or reproduction cost of the company’s properties, although we have not ignored those factors. There is more certainty that the fair value of all assets does not exceed $450,000,000 on an estimated net revenue of $14,625,000 than there is of the correctness of the estimated annual net income figure of $14,-625,000. At best the latter figure must have the uncertainty common to all prophecy. While the urge to raise this item, in order to give the old stockholders something for their stock, is strong, the necessity of certainty of interest and dividend payments upon the new securities is quite as important. Moreover, good faith and honesty to all concerned demand a plan which may be reasonably expected to measure up to the expectations of its sponsors. Failure so to do and a return of the debtor to the court for another major operation by the I. C. C. may well witness the demise of the patient. A valuation is necessary for two purposes. Not only is it necessary to ascertain the presence of value in the old common and preferred stock, but for the purpose of an accurate and wise allocation of new securities. An ascertainment of the productive qualities of the road as a whole, and of the individual branches is quite essential to a fair allocation of new, to holders of old, securities. It is seriously, and we think legitimately argued, that the Commission should consider reproduction cost in determining value. Section 77 sub. e. While accepting this urge, it must be remembered that reproduction value is but one of many factors which must be considered in determining value. In one case, it may be a material factor; in another it could be rather inconsequential. To illustrate, — an investor’s estimate of the value of a timber or mining tract, not in use, but held as reserve, might well be taken at a large percentage of original cost. Where, however, a property is being used to its full extent as a revenue producer, its original cost, and the cost of reproduction, must surrender their claim of importance to the dominance of earnings. In re Chicago, Milwaukee, St. Paul & P. Railway Co., supra; Consolidated Rock Products Co. v. Du Bois, supra. Mr. Justice Holmes, speaking for the Court, said, in Galveston, H. & S. A. Ry. Co. v. Texas, 210 U.S. 217, 226, 28 S.Ct. 638, 639, 52 L. Ed. 1031, “the commercial value of property consists in the expectation of income from it.” Consolidated Rock Products Co. v. Du Bois, supra, 312 U.S. at page 526, 61 S.Ct. 675, 85 L.Ed. 982. While we are not only permitted, but required, to exercise'our judgment upon the soundness of these estimated revenues in a normal year, we must concede the superior ability and opportunity of the I. C. C. to pass judgment on such a factual question. It is unfortunate that the soundness of estimates must be incapable of demonstration to a mathematical certainty. But prophecy is ever subject to such criticism. Nevertheless, the difficulty and the uncertainty as to correctness of estimates, do not relieve the I. C. C. (or us) from meeting the obligation. Consolidated Rock Products Co. v. Du Bois, supra. The unusual and extraordinary increases in revenue of carriers during the last year have made the Commission’s estimate the subject of determined and vigorous attack by the stockholders. This has caused us no end of anxiety and concern. This radical change (for the better) in the past year can not and should not be ignored. Nor can we dismiss it as undisclosed by the record which deals with a more distant past. It is something we can, and should, and do, take judicial notice of. It is, we believe, temporary, and like a crop failure year, in the Northwest — which this Debtor serves — not to be taken too seriously when viewing the long future of this railroad. In making this statement we are aided by the experiences of railroads during and after the last war. It must, however, be a fact of vital importance that a substantial increase in revenue and a corresponding increase in value of assets would still leave nothing upon which the old stockholders could predicate a value for their stock. Were it not for the provision of the statute which requires the I. C. C. to consider the reproduction cost in determining value, we would look for even greater guidance, to the earning power of the company, than was done by the I. C. C. The finding which determined the absence of value in the common and preferred stock must be, and is, approved as fair to the creditors, to the stockholders, and to the public. Relying on our holding in In re Chicago, Milwaukee, St. Paul & P. Railway, Debtor, supra, that the I. C. C. failed to make findings of values, sufficiently detailed to permit us to pass intelligently on the fairness of the plan and the reasonableness of the allocation of new securities among holders of old securities, the various appellants ask us to reverse and remand the case for further evidence and more detailed findings by said I. C. C. This case differs from the Milwaukee case in this respect. Here, the creditors have received the plan and voted, almost unanimously, their approval of it. Our question then is not restricted to the sufficiency of findings to support the plan, but it is a review of a plan which has the approval of the various groups of creditors. The stockholders are eliminated. The creditors alone are entitled to the assets of the debtor. They are also entitled to a fair allocation of new securities in view of the value of their old bonds, having due regard to the value of the liened property and the future earnings of the road. While fairness is a somewhat relative term and is not measurable, in its practical application, with mathematical certainty, courts will not go beyond the expressed assent and approval of the bondholders to ascertain whether fairness in distribution attained the goal of perfection. If the creditors „who are to share an insolvent estate understandingly agree on a division thereof, the problem of the court has been solved. The creditors are divided into 21 groups, 14 of which passed upon the plan. They and the percentage of acceptance of their vote, are herewith set forth. Table on Vote of Various Class of Creditors on Plan: % of vote Total in favor Class Name of Security Outstanding Amt. Voted* of plan (5) Preferred claims ................ 25,823.49 $ 25,823.49 100. (6) General mortgage bonds.......... 132,019,000 100,610,500 96.06 (7) Sioux City & Pac. bonds.......... .. 4,000,000 3,464,000 100.00 (8) Mil. & State Line bonds.......... .. 2,500,000 2,150,000 50.37 (9) Manitowoc, Green Bay bonds..... ,. 3,750,000 3,169,000 • 100. (10) St. Paul Eastern bonds........... .. 1,120,000 796,000 83.79 (11) Mil., Sparta & N. W. bonds...... .. 15,000,000 9,794,000 98.28 (12) Des Plaines Valley bonds......... .. 2,500,000 1,872,000 98.66 (13) St. Louis, Peoria & N. W. bonds., .. 10,000,000 7,223,000 99.56 (14) 1st and refunding bonds.......... .. 47,822,000 24,642,000 97.75 m 15-year 6%% bonds.............. .. '14,775,000 8,641,000 98.43 (16) Convertible 4%% bonds.......i.. .. 72,335,000 , 21,358,000 87.10 (18) Collateral promissory notes....... .. 47,313,882 47,049,192.55 100. (21) General claims ..........'........ .. 1,017,375 203,941.47 . 98.66 Total ..................... $230,998,457.51 96.2 *Additional defective ballots: Class (6), $2,760,500; Class (7), $10,000; Class (9), $27,000; Class (10), $7,000; Class (11), $457,000; Class (12), $3 Question: Is the first listed appellant bankrupt? A. Yes B. No Answer:
sc_casesourcestate	01	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the state or territory of the court whose decision the Supreme Court reviewed. BEECHER v. ALABAMA No. 71-6497. Decided June 26, 1972 Per Curiam. In 1964 the petitioner was tried and convicted in an Alabama state court for first-degree murder. He was sentenced to death. The conviction was based in large part on written confessions that he had signed five days after his arrest. The petitioner objected to the introduction at trial of these confessions. But the trial court and the Alabama Supreme Court held that the confessions were made voluntarily and were properly received into evidence. In 1967 this Court summarily reversed that judgment of the Alabama Supreme Court. Beecher v. Alabama, 389 U. S. 35. We said: “The uncontradicted facts of record are these. Tennessee police officers saw the petitioner as he fled into an open field and fired a bullet into his right leg. He fell, and the local Chief of Police pressed a loaded gun to his face while another officer pointed a rifle against the side of his head. The Police Chief asked him whether he had raped and killed a white woman. When he said that he had not, the Chief called him a liar and said, 'If you don’t tell the truth I am going to kill you.’ The other officer then fired his rifle next to the petitioner’s ear, and the petitioner immediately confessed. Later the same day he received an injection to ease the pain in his leg. He signed something the Chief of Police described as ‘extradition papers’ after the officers told him that ‘it would be best. . . to sign the papers before the gang of people came there and killed’ him. He was then taken by ambulance from Tennessee to Kilby Prison in Montgomery, Alabama. By June 22, the petitioner’s right leg, which was later amputated, had become so swollen and his wound so painful that he required an injection of morphine every four hours. Less than an hour after one of these injections, two Alabama investigators visited him in the prison hospital. The medical assistant in charge told the petitioner to ‘cooperate’ and, in the petitioner’s presence, he asked the investigators to inform him if the petitioner did not ‘tell them what they wanted to know.’ The medical assistant then left the petitioner alone with the State’s investigators. In the course of a 90-minute ‘conversation,’ the investigators prepared two detailed statements similar to the confession the petitioner had given five days earlier at gunpoint in Tennessee. Still in a ‘kind of slumber’ from his last morphine injection, feverish, and in intense pain, the petitioner signed the written confessions thus prepared for him.” Id., at 36-37. We were led to “the inescapable conclusion that the petitioner’s confessions were involuntary.” Id., at 38. For “[t]he petitioner, already wounded by the police, was ordered at gunpoint to speak his guilt or be killed. From that time until he was directed five days later to tell Alabama investigators 'what they wanted to know,’ there was 'no break in the stream of events,’ Clewis v. Texas, 386 U. S. 707, 710. For he was then still in pain, under the influence of drugs, and at the complete mercy of the prison hospital authorities.” Ibid. Because the confessions ''were the product of gross coercion,” we held that their use at the petitioner’s trial violated the Due Process Clause of the Fourteenth Amendment. Ibid. Only three months after this Court’s decision, the petitioner was reindicted and retried for the same crime. Again, a confession was introduced in evidence. Again, it was a confession made by the petitioner shortly after he had been shot and arrested and shortly after he had been given a large dose of morphine. Again, the petitioner was convicted and sentenced to death. The confession used at the second trial was not exactly the same as the ones that had been used against the petitioner at his first trial. It was not one of the written confessions made by the petitioner in an Alabama hospital five days after his arrest. Instead, it was an oral confession that the petitioner had made in a Tennessee hospital only one hour after his arrest. One hour after the arrest, in extreme pain from the gunshot that had blown most of the bone out of one leg, the petitioner was brought by police to a Tennessee hospital. There, a doctor gave him two large injections of morphine. The petitioner testified that the morphine “kinda made me feel like I wanted to love somebody; took the pain away; made me feel relaxed.” From then on, the petitioner said, he could remember nothing. But the doctor testified at trial that he had asked the petitioner “why he did it [the crime].” According to the doctor, the petitioner then made an oral confession. Although police were in the area guarding the petitioner, the confession was made only to the doctor. The Alabama Supreme Court held that this oral confession was made voluntarily and was admissible in evidence against the petitioner.. Beecher v. State, 288 Ala. 1, 256 So. 2d 154. We do not agree. We held five years ago that the confession elicited from the petitioner at the scene of his arrest was plainly involuntary. We also held that his written confessions five days later, while in custody and under the influence of morphine, were part of the “stream of events” beginning with the arrest and were infected with “gross coercion.” 389 U. S., at 38. The oral confession, made only an hour after the arrest and upon which the State now relies, was surely a part of the same “stream of events.” We hold now — as we held before — that a “realistic appraisal of the circumstances of this case compels the conclusion that this petitioner’s [confession was] the product of gross coercion. Under the Due Process Clause of the Fourteenth Amendment, no conviction tainted by a confession so obtained can stand.” Ibid. Accordingly, the motion for leave to proceed in forma pauperis and the petition for certiorari are granted. The judgment is Reversed. Although at the second trial the Chief of Police who arrested the petitioner denied having made an explicit threat to kill him if he did not confess at that time, the fact that the petitioner was surrounded by a very angry mob and that police were holding guns on him and even fired one shot by his head is enough to support our original conclusion as to the grossly coercive nature of the police questioning at the scene of the arrest. Question: What is the state of the court whose decision the Supreme Court reviewed? 01. Alabama 02. Alaska 03. American Samoa 04. Arizona 05. Arkansas 06. California 07. Colorado 08. Connecticut 09. Delaware 10. District of Columbia 11. Federated States of Micronesia 12. Florida 13. Georgia 14. Guam 15. Hawaii 16. Idaho 17. Illinois 18. Indiana 19. Iowa 20. Kansas 21. Kentucky 22. Louisiana 23. Maine 24. Marshall Islands 25. Maryland 26. Massachusetts 27. Michigan 28. Minnesota 29. Mississippi 30. Missouri 31. Montana 32. Nebraska 33. Nevada 34. New Hampshire 35. New Jersey 36. New Mexico 37. New York 38. North Carolina 39. North Dakota 40. Northern Mariana Islands 41. Ohio 42. Oklahoma 43. Oregon 44. Palau 45. Pennsylvania 46. Puerto Rico 47. Rhode Island 48. South Carolina 49. South Dakota 50. Tennessee 51. Texas 52. Utah 53. Vermont 54. Virgin Islands 55. Virginia 56. Washington 57. West Virginia 58. Wisconsin 59. Wyoming 60. United States 61. Interstate Compact 62. Philippines 63. Indian 64. Dakota Answer:
songer_respond1_1_3	D	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to determine what category of business best describes the area of activity of this litigant which is involved in this case. NATIONAL LABOR RELATIONS BOARD v. VAN DEUSEN. No. 23. Circuit Court of Appeals, Second Circuit. Nov. 4, 1943. Winthrop Johns, Atty., National Labor Relations Board, of Washington, D. C. (Robert B. Watts, Gen. Counsel, Ernest A. Gross, Associate Gen. Counsel, and Howard Lichtenstein, Asst. Gen. Counsel, all of Washington, D. C., Richard A. Perkins, of Los Angeles, Cal., and Leslie J. Capek, of Washington, D. C., on the brief), for petitioner. Henry Wise, of Boston, Mass. (A. H. Barenboim, of Boston, Mass., on the brief), for respondent. Elias Lieberman, of New York City (Morris Isserman, of Newark, N. J., of counsel), for International Ladies’ Garment Workers’ Union, intervenor. Before L. HAND, CHASE, and CLARK, Circuit Judges. CLARK, Circuit Judge. This case comes before us on petition of the National Labor Relations Board to enforce its decision and order of November 20, 1942, 45 N. L. R. B. 679, issued pursuant to § 10(c) of the National Labor Relations Act, 29 U.S.C.A. § 160(c), requiring respondent to reinstate two discharged employees with back pay, to make whole two others, to cease and desist from unfair labor practices, and to post the usual notices. The International Ladies’ Garment Workers’ Union, as intervenor, urges enforcement of the order. Respondent is a manufacturer of children’s garments at Cobleskill, New York, where he operates what is known as a “contract shop,” processing certain materials furnished by another manufacturer, Tiny Town Togs, Inc., of Troy, New York, into garments which are then delivered to the latter company and, after further processing by it, are distributed to its customers. Respondent works only on a portion of the garments produced by Tiny Town; but the parties have stipulated that eighty per cent of all the cloth used by Tiny Town in 1941, the year in question, was purchased outside the State of New York, and that ninety per cent of its total sales represented goods sold and delivered outside the State of New York. -The first and major objection raised by the respondent is that he was not engaged in interstate commerce within the meaning of the Act, and hence that the Board was without jurisdiction to enter its order. He urges that, in view of the small proportion of the total Tiny Town work done by him, it is quite possible for all of the raw materials used by him to have come from within the state and for all the garments processed by him to have been sold within the state. But the stipulation of the parties cannot properly be thus construed. Its reasonable interpretation, as well as the natural assumption from the circumstances — no attempt at separation of the interstate and intrastate elements by Tiny Town being suggested — is that the materials received and garments delivered by respondent, however small a part of Tiny Town’s total business, represented the same division of materials received from or delivered without the state as did that total business. On this view of the facts, and although no exactly analogous case has been cited, we are clear that the Board had jurisdiction. It is well settled that the Act is applicable to a processor where the materials processed are moved to and from the processor by their out-of-state owner. N. L. R. B. v. Bradford Dyeing Ass’n, 310 U.S. 318, 60 S.Ct. 918, 84 L.Ed. 1226; N. L. R. B. v. Fainblatt, 306 U.S. 601, 59 S.Ct. 668, 83 L.Ed. 1014. While Tiny Town here was also located in New York, the facts that the raw materials emanated from and the finished products were shipped into other states and that the work done was part of a continuing process of a single manufacturer present a sufficiently analogous situation to justify the conclusion that respondent was engaged in interstate commerce within the meaning of the Act. But even if we should accept respondent’s contention that none of the raw materials or finished garments of his plant ever entered interstate commerce, we think the same result would follow. A labor dispute limiting' production in respondent’s plant would necessarily tend to curtail and disrupt Tiny Town’s interstate shipments by compelling Tiny Town to divert dresses from its interstate to its intrastate business. Such an impact of a labor controversy upon interstate commerce is within the remedial control of the Board. As was said in N. L. R. B. v. Cleveland-Cliffs Iron Co., 6 Cir., 133 F.2d 295, 300: “Curtailment of or interference with interstate commerce is a realistic and not an academic concept.” Here we find the necessary ingredients according to current conceptions of interstate commerce and of national power. Respondent also objects to the Board’s findings of unfair labor practices in violation of § 8(1) and (3) of the Act, 29 U.S.C.A. § 158(1, 3), based upon attempts by him (which were quite successful) to use the occasion of a strike at Tiny Town to stop unionization in his own plant and upon his discriminatory discharges of four employees for union activities. On both points the findings are sustained by substantial evidence. Respondent’s speech to his employees to the effect that if the Tiny Town strike failed and his plant was unionized then Tiny Town would send no more work and the shop would close down, the later speech by the treasurer of Tiny Town reiterating these sentiments, respondent’s interest in the union meeting amounting to spying upon it, and the general hostility of respondent and his executive officers to the union — all support the finding that respondent interfered with, restrained, and coerced his employees, contrary to § 8(1). Discriminatory discharges, contrary to § 8(3), were shown as to a mother and her two daughters who were all active in the union organization and one other who, though less active, was one of the union recruits. Respondent claims to have laid these employees off because of lack of work; but when his busy season again commenced, he refused to rehire them and gave no reason for his actions, even upon request. Such circumstances, together with the evidence of his general anti-union attitude, justify the Board’s conclusion that the discharges were because of the employees’ union affiliations. Respondent objects to the reinstatement order, first, because the statement of his attorney at the beginning of the hearing, as he contends, fulfilled his obligation to offer re-employment to the discharged employees. The statement was “that their positions are open for them and there will be positions open for them at any time they are ready and willing to return to work.” Such a general' and vague announcement at trial was hardly a specific offer to the employees of their old jobs to make an order unnecessary under the circumstances or to discharge respondent’s duty to them. Secondly, respondent claims that reinstatement should not have been ordered, because the employees had obtained substantially equivalent employment and because the Board did not disclose how reinstatement would effectuate the policies of the Act. That substantially equivalent employment has been obtained does not bar a reinstatement order if the Board deems one necessary in order to effectuate the policies of the Act, Phelps Dodge Corp. v. N. L. R. B., 313 U.S. 177, 189-191, 61 S.Ct. 845, 85 L.Ed. 1271, 133 A.L.R. 1217; and here the Board has ample findings of facts upon which to justify its determination that reinstatement is thus necessary. As was said in the Phelps Dodge decision, supra, 313 U.S. at page 197, 61 S.Ct. at page 854, 85 L.Ed. 1271, 133 A. L.R. 1217, “All we ask of the Board is to give clear indication that it has exercised the discretion with which Congress has empowered it.” Respondent finally contends that under the authority of N. L. R. B. v. Express Pub. Co., 312 U.S. 426, 61 S.Ct. 693, 85 L.Ed. 930, no general cease and desist order should have been issued. Our views as to this issue have just been restated in N. L. R. B. v. Standard Oil Co., 2 Cir., 138 F.2d 885, decided November 1, 1943; we need only add that here direct violations of both § 8(1) and (3) of the Act were shown. The petition is granted. Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". What category of business best describes the area of activity of this litigant which is involved in this case? A. agriculture B. mining C. construction D. manufacturing E. transportation F. trade G. financial institution H. utilities I. other J. unclear Answer:
songer_fedlaw	B	What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal statute, and if so, whether the resolution of the issue by the court favored the appellant. UNITED STATES of America, Appellant, v. Joseph A. TRAVISANO, Defendant-Appellee. No. 138, Docket 83-1159. United States Court of Appeals, Second Circuit. Argued Sept. 1, 1983. Decided Dec. 22, 1983. Jeremiah F. Donovan, Asst. U.S. Atty., D. Conn., New Haven, Conn. (Alan H, Nevas, U.S. Atty., D. Conn., New Haven, Conn., of counsel), for appellant. Richard A. Reeve, Asst. Federal Public Defender, D. Conn., New Haven, Conn. (Thomas G. Dennis, Federal Public Defender, D. Conn., New Haven, Conn., of counsel), for defendant-appellee. Before KEARSE, CARDAMONE and WINTER, Circuit Judges. CARDAMONE, Circuit Judge: Upon application of the local police following a shooting and robbery in August 1982, a Superior Court Judge in Connecticut issued a search warrant for a West Haven residence. The ensuing search failed to unearth the instrumentalities of that crime, but did turn up an unregistered gun which later resulted in a federal indictment being lodged against defendant Joseph Travisano. The indictment charged Travisano with possession of an unregistered short barrelled Winchester shotgun in violation of 26 U.S.C. §§ 5861 and 5871 (Count One), and, as a previously convicted felon, with possession of a firearm that had affected commerce in violation of 18 U.S.C.App. § 1202(a) (Count Two). In granting defendant’s motion to dismiss both counts of the indictment, the district court set forth its reasons in an opinion, United States v. Travisano, 560 F.Supp. 627 (D.Conn.1983). While we agree with the trial court’s conclusion that Count Two should have been dismissed, since the issue raised by the government is one of first impression we set forth our reasons for affirming on that count in some detail later in this opinion. We reverse and remand for trial on Count One because in our view probable cause did exist for the issuance of the search warrant. I The facts in this kind of case are critical. Here, while concededly close, they are not in dispute. We recite them chronologically. At 2:13 on Monday afternoon August 9, 1982, two messengers employed by the AAA Motor Club in Hamden, Connecticut were robbed in the AAA parking lot. During the course of the robbery one of the messengers was shot in the face and seriously wounded. The robbers stole an AAA Motor Club flight bag which had three American National Bank bags containing over $35,000 in cash and $45,000 in checks payable to the AAA. Eyewitnesses saw two men flee from the scene of the shooting, run south to the vicinity of a Howard Johnson parking lot and jump into an older-make white Cadillac in which a third male was waiting. The Cadillac carried a vanity plate in front, identified by one witness as “Baby Joe,” and the first two letters of the Connecticut license plate mounted on the rear were noted as “YE.” The news media reported this incident and broadcast the fact that the police were searching for a white Cadillac bearing a vanity plate. The next morning — Tuesday, August 10 —the West Haven Police, responding to a Connecticut police teletype message sent to give notice of the robbery, advised that one of their officers had observed a vehicle, which matched the one described, on Elm Street in West Haven. At 10:30 a.m. the Hamden police' established surveillance of this vehicle which was parked in a driveway at 371 Elm Street and bore Connecticut license plate number YE1034. The police learned that this 1970 white Cadillac was registered to Marie Travisano, a resident at the Elm Street address. West Haven police told the Hamden officers that Marie Travisano’s son, Mark, frequently used the Cadillac and that in the past it had carried a vanity plate which the West Haven officers recollected as bearing the legend “Baby John.” On the morning of August 10, during the course of the Hamden police surveillance, the automobile was being operated by a white female. It was immediately observed that the identifying vanity plate had been removed. Randy Borruso, one of the eyewitnesses to the shooting, was shown the vehicle while it was parked on Elm Street that morning and he identified it as the white Cadillac he had seen the day before speeding from the scene of the shooting and robbery. The surveillance was terminated at noon. Within the next hour or so, two Hamden police detectives with combined experience of 39 years as police officers presented the above information in affidavit form to Judge Harrigan, a Superior Court Judge of the State of Connecticut. He signed the search warrant authorizing the Hamden officers to search the white Cadillac and the residence at 371 Elm Street for the AAA Motor Club flight bag, the three American National Bank bags, a .38 caliber handgun, a vanity plate with the legend “Baby John”, numerous checks payable to the AAA Motor Club and a large amount of paper currency. The warrant was executed at 2:30 p.m. that same afternoon at the Elm Street address. None of the enumerated items of evidence were discovered, but during the search the police found an unregistered sawed-off shotgun (that was the subject of the motion to suppress) in the front foyer closet of the Elm Street residence. In suppressing the gun, the illegal possession of which is the gravamen of Count One, the district court found “only a minimal connection between the instrumentalities of the robbery and the residence, namely, the fact that the car was located in front of the house and that the police somehow knew that the owner’s white male son was a frequent driver of the vehicle.” 560 F.Supp. at 629. We disagree. In our view of the law of probable cause, there were sufficient facts before the State Court Judge for him to sign the search warrant. II Countless are the cases that undertake to define probable cause. The recitation of what we believe are the applicable rules to apply in this case will be brief. Searches under the authority of an arbitrarily obtained warrant like the flagrant one in Wilkes v. Wood, 19 Howell’s State Trials 1153, 98 Eng.Rep. 489 (K.B.1763), are what prompted the concerns of the framers of the Bill of Rights. In Wilkes, the Secretary of State authorized a general warrant in a search for the author of a pamphlet critical of the King. The warrant did not name any person who could be searched or describe the items to be seized. Under its authority, 49 persons were quickly arrested on suspicion and from them it was learned that John Wilkes might be the author of the offending publication. Armed with that intelligence, the warrant which had been issued three days earlier was immediately executed at Wilkes’ home. All his private papers, including his will, were seized by the messengers dispatched for that purpose, after they had forced his cabinet drawers. The wrong done Wilkes was righted after a stirring trial by a jury award of a thousand pounds damages. But, a lesson had been learned from the use to which this general warrant had been put. If a public official could arbitrarily order the home of a member of Parliament searched and his papers and personal effects seized, what then of the rights of everyday citizens? Plainly, the answer was that to safeguard individual rights of privacy would require the imposition of restraints upon those officials granted the power to issue warrants. With the lesson grasped, the Fourth Amendment was drafted to provide that “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” U.S. Const. amend. IV. See Loewy, The Fourth Amendment as a Device for Protecting the Innocent, 81 Mich.L.Rev. 1229, 1237 (1983) (“Loewy”). In the American colonies prior to the Revolution, customs officers used writs of assistance to enter and search buildings for smuggled goods. It was against their issuance that James Otis, representing 63 Boston merchants, protested. His oratory on the occasion was such that one commentator ascribed to John Adams the belief that Otis’ speech marked the birth of American Independence. 1 W. LaFave, Search and Seizure, § 1.1, at p. 4 (1978) (“LaFave”). At any rate, the use of these infamous writs became so sharply etched in the minds of those who later attended the Constitutional Convention of 1787 as to make the need for a provision dealing with searches a focal point in the ratification debates. James Madison later undertook the drafting of a suitable clause in the Bill of Rights and, in substance, his words comprise the first phrase of the Fourth Amendment: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated .... ” U.S. Const, amend. IV. See W. LaFave, supra § 1.1, at 5. The qualifying language of the Fourth Amendment which prohibits unreasonable searches and warrants issued without probable cause plainly implies that there is no constitutional prohibition against a reasonable search, nor one against a properly issued warrant. The reason is that the government’s interest in obtaining evidence of crime is so compelling that without the means to accomplish it, people would never be secure in their persons, houses or papers. See, e.g., Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967). The common thread that laces together the two phrases of the Fourth Amendment — one which reflects the history and experience that brought the Amendment into being — is the constraint it exerts on the exercise of arbitrary power in both the issuance of a warrant and-the conduct of a search or seizure. Thus, while the Amendment provides for the needs of the community in obtaining evidence of crime, its built-in restraints also safeguard the right of individual privacy — one of the bulwarks of liberty. Boyd v. United States, 116 U.S. 616, 630, 6 S.Ct. 524, 532, 29 L.Ed. 746 (1886). Ill In order to assure that neither one of these policies is emphasized at the expense of the other, a neutral and detached magistrate is inserted between the government’s agents and the object of the search. It is the magistrate’s duty to hold the balance steady between the protection of individual privacy on the one hand and the public need to recover evidence of wrongdoing on the other. The magistrate should first satisfy himself as to the adequacy and reliability of the facts set forth in the application before him. See United States v. Beltempo, 675 F.2d 472, 477 (2d Cir.), cert. denied, 457 U.S. 1135, 102 S.Ct. 2963, 73 L.Ed.2d 1353 (1982). It is from these facts and any reasonable inferences to be derived from them that he determines whether probable cause to issue a warrant is or is not present. To establish probable cause to search a residence, two factual showings are necessary — first, that a crime was committed, and second, that there is probable cause to believe that evidence of such crime is located at the residence. See United States v. Harris, 403 U.S. 573, 584, 91 S.Ct. 2075, 2082, 29 L.Ed.2d 723 (1971). Cf. Brinegar v. United States, 338 U.S. 160, 173, 69 S.Ct. 1302, 1309, 93 L.Ed. 1879 (1949). In this case it is conceded that a crime was committed, so our focus will turn shortly to the second required showing. Once a magistrate has made a determination on the issue of probable cause, our analysis shifts to the function of the reviewing court. Its after-the-fact examination of the papers is not to be de novo review. Illinois v. Gates, - U.S. -, -, 103 S.Ct. 2317, 2330, 76 L.Ed.2d 527 (1983). It should start with the proposition that the magistrate’s finding of probable cause is entitled to substantial deference. United States v. Ventresca, 380 U.S. 102, 109, 85 S.Ct. 741, 746, 13 L.Ed.2d 684 (1965); Aguilar v. Texas, 378 U.S. 108, 111, 84 S.Ct. 1509, 1512, 12 L.Ed.2d 723 (1964); Jones v. United States, 362 U.S. 257, 270, 80 S.Ct. 725, 735, 4 L.Ed.2d 697 (1960); United States v. Zucco, 694 F.2d 44, 46 (2d Cir.1982). In fact, a search based upon a magistrate’s determination will be upheld by a reviewing court on less persuasive evidence than would have justified a police officer acting on his own. Aguilar v. Texas, 378 U.S. at 111, 84 S.Ct. at 1512. Further, the magistrate’s finding of probable cause is itself a substantial factor tending to uphold the validity of this warrant. United States v. Jackstadt, 617 F.2d 12, 13 (2d Cir.) (per curiam), cert. denied, 445 U.S. 966, 100 S.Ct. 1656, 64 L.Ed.2d 242 (1980); United States v. Follette, 379 F.2d 846, 848 (2d Cir.1967); United States v. Freeman, 358 F.2d 459, 462 (2d Cir.), cert. denied, 385 U.S. 882, 87 S.Ct. 168, 17 L.Ed.2d 109 (1966); United States v. Ramirez, 279 F.2d 712, 716 (2d Cir.), cert. denied, 364 U.S. 850, 81 S.Ct. 95, 5 L.Ed.2d 74 (1960). This is particularly true in close cases where doubts should be resolved in favor of upholding the warrant. United States v. Zucco, 694 F.2d at 46; United States v. Jackstadt, 617 F.2d at 14; Accord United States v. Lewis, 392 F.2d 377, 379 (2d Cir.), cert. denied, 393 U.S. 891, 89 S.Ct. 212, 21 L.Ed.2d 170 (1968). Having viewed the papers in light of these precepts and having accorded great deference to the magistrate’s finding of probable cause, it remains for the reviewing court to decide whether the magistrate performed his neutral and detached function on the facts before him, and did not merely serve as a rubber stamp for conclusions drawn by the police. Aguilar v. Texas, 378 U.S. at 111, 84 S.Ct. at 1512. In deciding whether the magistrate has done his part in a neutral manner, the reviewing court must have in mind that probable cause has been stated to be a “practical, nontechnical conception ... [and] in particular factual contexts — not readily, or even usefully, reduced to a neat set of legal rules.” Illinois v. Gates, - U.S. at -, 103 S.Ct. at 2328; see also Brinegar v. United States, 338 U.S. at 176, 69 S.Ct. at 1311; United States v. Fisher, 702 F.2d 372, 375 (2d Cir.1983). In considering the quantum of certainty required, it is only a probability, and not a prima facie showing of criminal activity, that is the standard of probable cause. Spinelli v. United States, 393 U.S. 410, 419, 89 S.Ct. 584, 590, 21 L.Ed.2d 637 (1969); Beck v. Ohio, 379 U.S. 89, 96, 85 S.Ct. 223, 228, 13 L.Ed.2d 142 (1964). Plainly, the standard of probable cause cannot imply “more probable than not” under circumstances such as those here where many locations were available to the guilty parties to secrete the stolen goods. See 1 W. LaFave, supra § 3.2, at pp. 486-93. Nor must the standard used by a reviewing court be so stringent, technical or grudging as to discourage the use of search warrants. United States v. Ventresca, 380 U.S. at 108, 85 S.Ct. at 745; United States v. Freeman, 358 F.2d at 461. Because the application for a search warrant, as this case illustrates, is often drafted by the police “in the midst and haste of a criminal investigation,” the papers should be read practically and in a commonsense fashion. United States v. Ventresca, 380 U.S. at 108, 85 S.Ct. at 745. In sum, the applicable standard to be derived from these principles is that there be a fair probability that the premises will yield the objects specified in the search warrant. See Illinois v. Gates,-U.S. at -, 103 S.Ct. at 2336. IV We turn now to the application of these standards to the second required showing, i.e., that there was probable cause to believe that evidence of the robbery and shooting, and the missing vanity plate was to be found at the Elm Street residence. The robbery occurred on the afternoon of August 9, and by the morning of August 10, the police had pinpointed their surveillance to the residence at 371 Elm. They knew that the owner of the vehicle parked in front of the house lived there, and that the vehicle was known to carry a white vanity plate reading “Baby John.” Considering the value of the items which were stolen and the short time involved, the magistrate could reasonably infer that the robbers had time to remove and secrete the items and desired to secure these items in a safe area such as a residence. In view of the fact that the media reported that the police were searching for a white Cadillac with a vanity plate, its removal — like flight from the scene of the crime — is some indication of a guilty person’s concern at being identified. It is hardly a coincidence that someone connected with the previous day’s crime had removed the plate; rather, it is a strong inference. A reasonable conclusion would be that finding the plate would also lead to the gun and stolen goods. The fact that the getaway car was located in front of its owner’s house militates against any finding that it had been stolen, except in the highly unlikely event that the fleeing robbers courteously returned the car to its owner after their hurried departure from the Howard Johnson parking lot. It is much more probable that there was some nexus between the car and those residing in the house at 371 Elm Street. At the very least, the owner had either recently loaned the Cadillac or acquiesced in someone else’s use of it. In either event, there was an articulable connection between the residence and the Cadillac used in the robbery so as to remove the Elm Street house and its occupants from the category of innocent householders whose privacy the Fourth Amendment protects. Loewy, supra, at 1248 et seq. Under the applicable tests, we conclude that the state court magistrate had sufficient underlying facts before him so as to make it a fair probability that the items sought would be found in the Elm Street residence. Thus, the issuance of the search warrant did not violate the Fourth Amendment. The order of the district court, insofar as it suppresses the gun, is therefore reversed and the case remanded for trial on Count One of the indictment. V We turn finally to the district court’s dismissal of Count Two of the indictment that charged Travisano, as a previously convicted felon, with possession of a firearm which had affected commerce in violation of 18 U.S.C.App. § 1202(a). On appeal, as in the court below, the government has conceded that it cannot establish that the firearm travelled in interstate commerce after its manufacture. It argues instead that it should be permitted to satisfy the commerce requirement by showing that the process of manufacture of the gun affected commerce. Section 1202 subjects any convicted felon “who receives, possesses or transports in commerce or affecting commerce, ... any firearm” to a $10,000 fine or two years in prison or both. The commerce power has been broadly construed in other contexts since Chief Justice Marshall’s decision in Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 6 L.Ed. 23 (1824). The power of Congress to reach even local activities if they exert a substantial economic impact on interstate commerce has been held to be constitutionally within the proper scope of federal regulation, despite the fact that the effect on interstate commerce may be only indirect. See Wickard v. Filburn, 317 U.S. 111, 125, 63 S.Ct. 82, 89, 87 L.Ed. 122 (1942). The same rationale that sustains Congress’ power when it acts in the field of civil regulation has also been employed in analysis of the constitutionality of criminal statutes. Thus, when Congress passed a statute making “loan-sharking” activities a federal offense, the Supreme Court sustained a conviction under the statute and noted that extortionate credit transactions may be purely intrastate and still, in the judgment of Congress, affect interstate commerce. See Perez v. United States, 402 U.S. 146, 154, 91 S.Ct. 1357, 1361, 28 L.Ed.2d 686 (1971). The findings of Congress, the court continued, are quite adequate to show a “tie-in between local loan sharks and interstate crime.” Id. at 155, 91 S.Ct. at 1362. The present statute presents an entirely different picture. This statute, con-cededly not a model of clarity, also has raised such substantial questions about its constitutionality — were it to be read as proscribing mere possession of a firearm — that the Supreme Court was prompted to conclude “that Congress has not ‘plainly and unmistakably’, United States v. Gradwell, 243 U.S. 476, 485, 37 S.Ct. 407, 410, 61 L.Ed. 857 (1917), made it a federal crime for a convicted felon simply to possess a gun absent some demonstrated nexus with interstate commerce.” United States v. Bass, 404 U.S. 336, 348-49, 92 S.Ct. 515, 522, 30 L.Ed.2d 488 (1971). In interpreting this statute, it must be remembered that some nexus with commerce must be shown, although that need not be “any more than the minimal nexus that the firearm have been, at some time, in interstate commerce.” Scarborough v. United States, 431 U.S. 563, 575, 97 S.Ct. 1963, 1969, 52 L.Ed.2d 582 (1977). While conceding that it cannot prove that the shotgun travelled in interstate commerce, the government asks us to remand the case for a hearing for it to demonstrate a nexus between the crime and interstate commerce, i.e., for it to show that the process of the Winchester shotgun’s manufacture affected commerce. It contends that since no limit has been established for what constitutes the minimal nexus requirement, citing United States v. Montoya, 676 F.2d 428, 433-34 (10th Cir.), cert. denied, 459 U.S. 856, 103 S.Ct. 124, 74 L.Ed.2d 108 (1982) and United States v. Perkins, 633 F.2d 856, 859 (8th Cir.1981), we are free to rule that manufacture affecting commerce is a sufficient nexus. There is no doubt that Congress sought by § 1202 to punish broadly the possession of firearms by convicted felons. What is not so clear — and makes this issue one of first impression — is whether the minimal nexus set forth in Scarborough establishes a limit, so that any proof, short of evidence that the firearm in question itself travelled in interstate commerce, is insufficient. Plainly, the manufacture of any firearm has some impact on interstate commerce. Nothing in the legislative history suggests that the government could satisfy the terms of the statute and obtain convictions under it simply by showing that the manufacturing process affected commerce. This history, fully set forth in Scarborough, makes clear that the crime referred to involved possession of a “weapon” or “gun” which was equated with “firearm.” 431 U.S. at 572-74, 97 S.Ct. at 1967-69. Section 1202(c)(3) provides that: “firearm” means any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the action of an explosive; the frame or receiver of any such weapon; or any firearm muffler or firearm silencer; or any destructive device. Such term shall include any handgun, rifle, or shotgun. Arguably, under such definition, parts are considered a “firearm”, e.g., the use of the word “frame” and “receiver” in the definition suggests it. Nonetheless, the primary thrust of the definition of the word “firearm” appears to include weapons “designed to expel a projectile”, or an attachment to such weapon, like a silencer, or “any destructive device.” Moreover; if the definition has an ambiguity it simply emphasizes the Supreme Court’s finding that this statute is not a model of clarity. Scarborough v. United States, 431 U.S. at 567, 97 S.Ct. at 1965. There is not sufficient substance to the government’s argument to persuade us that the process of manufacture will satisfy the statute’s requirements and sustain a criminal conviction. Finally, were we to adopt the government’s view, the commerce requirement set forth in the statute would have no meaning since any convicted felon with a gun would be guilty of a federal crime without proof of nexus. We do not believe that this was Congress’ purpose. Accordingly, we affirm the dismissal by the district court of Count Two. Question: Did the interpretation of federal statute by the court favor the appellant? A. No B. Yes C. Mixed answer D. Issue not discussed Answer:
songer_constit	A	What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the constitutionality of a law or administrative action, and if so, whether the resolution of the issue by the court favored the appellant. Cornelius E. SARZEN, Plaintiff-Appellant, v. Charles W. GAUGHAN et al., Defendants, Appellees. No. 73-1223. United States Court of Appeals, First Circuit. Argued Sept. 10, 1973. Decided Dec. 10, 1973. Francis John Stolarz, Boston, Mass., for plaintiff-appellant. Charles E. Chase, Asst. Atty. Gen., with whom Robert H. Quinn, Atty. Gen., and John J. Irwin, Jr., Asst. Atty. Gen., Chief, Crim. Div., were on brief, for defendants-appellees. Before COFFIN, Chief Judge, Mc-ENTEE and CAMPBELL, Circuit Judges. LEVIN H. CAMPBELL, Circuit Judge. This appeal from denial of a petition for habeas corpus once again raises questions about procedures under the Massachusetts law providing for commitment of sexually dangerous persons, M.G.L. c. 123A. Sarzen complains that he was denied counsel and the right to a hearing prior to the 60-day observational commitment which preceded his final commitment hearing. These deficiencies are alleged to have rendered his later indeterminate life commitment for sexual dangerousness invalid as lacking in due process of law. The district court held that Sarzen’s contentions were foreclosed by our decision in Gomes v. Gaughan, 471 F.2d 794, 798-801 (1st Cir. 1973). But petitioner maintains, correctly we hold, that Gomes is not dispositive of the present facts. Sarzen, on January 10, 1961, pleaded guilty in the Hampden County Superior Court to indictments for rape and for assault and battery. Seven weeks earlier, he had raped a 17 year old female not known to him; and a month before that he had approached and put his hands on another female who fled. His juvenile record showed two 1959 “peeping Tom” offenses, one of which had been continued without sentence, and one of which had led to his commitment in a Youth Service Board facility, followed by six months parole. Seventeen years old when indicted for rape and assault, Sarzen had reached only fourth grade in a regular school. Upon acceptance of Sarzen’s guilty pleas the court filed the assault charge and sentenced him to four to seven years imprisonment for rape. The court did not at this time order Sarzen to be examined for possible commitment under M.G.L. c. 123A. He was instead confined to the Massachusetts Correctional Institution at Concord to serve the sentence for rape. Six months later, in July of 1961, Sarzen was examined by Dr. Cohen, a psychiatrist, after the Concord Superintendent had requested the Department of Mental Health to arrange for an examination. The request and examination are prescribed first steps to a determination of sexual dangerousness under § 6 of M.G.L. c. 123A. Unlike § 4, § 6 applies to persons convicted of any category of crime (non-sexual as well as sexual), and its procedures are available to the Commonwealth at any time until a sentenced prisoner is released. A single psychiatrist must first determine that the inmate “may” be sexually dangerous. Correctional authorities next file a motion with the court, which is accompanied by a copy of the psychiatrist’s letter, requesting an order for 60-days commitment for “examination and diagnosis.” § 6. If that motion is allowed, the inmate is transported to the Center where he is examined by at least two psychiatrists, § 6. If their report, which must be filed with the court within the 60-day period, “clearly indicates” sexual dangerousness, the district attorney “shall” file a petition for commitment, giving notice to the inmate or others on his behalf. Thereafter, an adversary court hearing is held at which the inmate is entitled to counsel and other safeguards. See §§ 5, 6. See Gomes v. Gaughan, supra. Sarzen testified that Dr. Cohen’s July, 1961, visit was unannounced, brief, and unexplained. A guard told him that “everybody who commits a sex crime” was so examined. But Dr. Cohen, he claimed, revealed nothing about the purpose of the interview. Dr. Cohen, on the other hand, testified that while he could not remember the interview, he “always” tells inmates his name, who he is, who sent him, “and why I am examining, to determine whether or not they are sexually dangerous, and whether in my opinion they should have a period of observation at the Bridgewater Treatment Center.” Whether or not Dr. Cohen advised Sarzen of the purpose of the interview, it is undisputed that Sarzen did not see nor learn of the letter thereafter sent by Dr. Cohen to the Superintendent of Concord recommending a • 60-day commitment for further observation and study. The letter also set forth purported facts about Sarzen, of which several are mistaken or are disputed by him. Dr. Cohen erroneously wrote that “[t]he records also reveal two arrests for drunkenness in 1959,” and that “[i]n addition, he was suspected of several attacks on girls in 1961.” [Emphasis supplied.] The county in which the superior court sat was misstated. Sarzen also now disputes Dr. Cohen’s characterization of the rape as “bizarre”, and denies ever admitting to Dr. Cohen that he had committed several assaults. Possibly the errors came in part from a hasty reading of a document entitled “Official Version of Present Offense” prepared by someone at Concord soon after Sarzen came to be confined there. It details, seemingly from police sources, the rape and assault, and also recounts that the police suspected Sarzen “as being the person who was committing assaults upon women which had plagued them for the previous few weeks.” The chronology, while vague, is apparently 1960 or earlier; possibly Dr. Cohen took “1961” from the date of the document itself. It is unclear from where the misinformation as to drunkenness convictions came. Prison records indicated that Sarzen was evicted from the family home by his father “while the father was experiencing one of his drunken rages.” Possibly the father’s own record was confused with petitioner’s. Dr. Cohen’s letter, together with a letter from the Superintendent of Concord containing an accurate, if less colorful, summary of Sarzen’s background and record, was sent in August, 1961, to the Superior Court. A motion for a 60-day commitment for examination and diagnosis accompanied these papers. The supporting papers did not indicate sexual misbehavior by Sarzen since his incarceration. Sarzen was not notified of the motion for commitment nor advised of the substance of any of the documents filed with the court. The motion was allowed without hearing on September 12, 1961. Sarzen was not offered, nor provided with, counsel. He was taken to the Treatment Center for observation, and remained there during September and October, 1961. He testified that he neither asked nor was advised by the staff why he was there, or what the consequences of his examination might be, but conceded that he did learn about such matters from inmates. Sarzen also admitted to receiving, while at Bridgewater, a letter from the public defender who had represented him in the criminal proceeding, which informed him that “because of the sex crime . . . [he] could be committed to Bridgewater.” Before Sarzen was returned to Concord, Dr. Cohen and Dr. Kozol, another Bridgewater psychiatrist, had filed with the court a report expressing the opinion that Sarzen was sexually dangerous.® Sarzen was not shown nor even notified of the report and, although he asked, was not told that he had been found to be sexually dangerous. He asserts that it was some ten months later that he first learned, from a Concord social worker, that he had been pronounced sexually dangerous. Seven months after the psychiatrists’ report was filed, the District Attorney petitioned the court, on May 13, 1962, to have Sarzen committed as a sexually dangerous person as defined by Chapter 123A. Nothing further happened until November of 1963, when, at the District Attorney’s request, Sarzen was reexamined (at Concord) by Dr. Cohen. Dr. Cohen then wrote another letter repeating that Sarzen was sexually dangerous, citing much the same history as that in his letter of August, 1961. Sarzen had been eligible for parole in April, 1962, and April, 1963, but was turned down on both occasions because of the outstanding petition to have him adjudged sexually dangerous. During this time Sarzen unavailingly wrote to state officials in an effort to get his case resolved. The final commitment hearing took place in the Superior Court on February 24, 1964, more than two years after the psychiatrists’ report had been filed with the court. An attorney for Sarzen was, for the first time, appointed on the day of the hearing. Two psychiatrists testified, a Dr. Weiss, who had examined Sarzen once at Concord two days before the hearing, and Dr. Cohen. Dr. Weiss gave an opinion of sexual dangerousness based on his examination of Sarzen’s pre-1961 record and history, which included Dr. Cohen’s letters, as well as his impressions from the single interview. Dr. Cohen’s opinion of sexual dangerousness was based on Sarzen’s pre-1961 history and a total of six interviews, four of them during the 60-day Bridge-water commitment in 1961. During a reasonably rigorous cross-examination, it was brought out that he likely erred in believing that Sarzen had two drunkenness convictions in his record. However, Dr. Cohen testified that the error would not affect his conclusion of sexual dangerousness. The two year delay, its affects on petitioner’s parole possibilities, and his attempts to expedite .the hearing were also mentioned. No witnesses were presented for Sarzen. He took no appeal from the Superior Court’s finding of sexual dangerousness. In 1972, during the pendency of the federal habeas corpus proceedings, Sar-zen petitioned the Superior Court for re-examination and release pursuant to M.G.L. c. 123A, § 9. Following a hearing held in July, 1972, he was found to be no longer a sexually dangerous person and released upon the following conditions: probation for five years during which time he must attend meetings of Alcoholics Anonymous, receive out-patient care at the Treatment Center, and report to his probation officer monthly. I The Commonwealth urges that Sarzen has not given its courts an opportunity to pass on his claim and, therefore, has failed to exhaust his state remedies. It reasons that Commonwealth v. Gomes, 355 Mass. 479, 245 N. E.2d 429 (1969) dealt merely with the facial validity of parts of M.G.L. c. 123A, and that the mere anticipation of an unfavorable disposition is not enough to show exhaustion. In Gomes the Supreme Judicial Court, stressing the civil nature of c. 123A proceedings, rejected a due process attack levelled on “the absence of notice and of counsel in connection with the temporary commitment of the defendant to the treatment center.” 355 Mass, at 483, 245 N.E.2d at 432. The court held: “The provision for a sixty-day examination of a prisoner under c. 123A, § 6, and a formal report, is a reasonable extension of society’s right to such custodial examination .... The statute and our rule [that there may be no punitive aspects to c. 123A confinement] reasonably protect the examined person inasmuch as no indefinite commitment can be made without notice and hearing and the opportunity for the aid of counsel. The preliminary examination, like all the other relevant recorded data, is available to aid the court at that hearing to determine if the defendant is a sexually dangerous person.” 355 Mass, at 485, 245 N.E.2d at 433. There was no intimation that the court, presented with a different set of facts, would be prepared to recognize constitutional infirmities in actions conforming to the statutory procedure. See also LaMorre v. Superintendent, 347 Mass. 534, 538-39, 199 N.E.2d 204, 206-207 (1964). When the highest state court has addressed itself to the issues raised, and there are no intervening Supreme Court decisions on point, nor any indication that the state court intends to depart from its former decisions, the exhaustion doctrine does not require a petitioner to present his claims in state court. See, e. g., Walsh v. Picard, 446 F.2d 1209, n. 2 (1st Cir. 1971); Perry v. Blackledge, 453 F.2d 856 (4th Cir. 1971); Lucas v. Michigan, 420 F.2d 259 (6th Cir. 1970); Pratt v. Maine, 408 F. 2d 311 (1st Cir. 1969). The Commonwealth contends that this well-accepted doctrine should not be applied to Sarzen because recourse to the state courts would not have been a futile or empty gesture even in 1971 when the petition was filed. It points to the change in the personnel of the Supreme Judicial Court since Gomes was decided in 1969, and to the likelihood that recent “striking developments” in the procedural due process area might further cause the state court to rethink the position taken in Gomes. We do not treat these contentions as wholly idle. The magistrate, indeed, although agreeing with petitioner on the merits, concluded that it would be wise to allow the state court to review the matter. He was persuaded by the change in the court’s composition and the likelihood that the Superior Court judge who committed Sarzen did not (and probably could not have been expected to) know what had transpired previously. While there is sense in both propositions, neither is compelling. When a state, or for that matter, federal court has spoken, stability and stare decisis require that litigants and other courts take its pronouncement at face value until formally altered. Even in as rapidly changing a field as constitutional law, two years is too brief a period to presume change. A federal court cannot require a petitioner to go to another court merely because it speculates that new judicial personnel may be persuaded to reach different results. A federal court should recognize, whenever possible, the often greater ability of strong state courts to deal effectively with state legislative schemes. But we agree with the district court that petitioner, whose grievances go back to proceedings occurring a decade ago, and who has been litigating before us since 1971, is entitled not to be sent to yet another tribunal, no matter how able and enlightened. II Sarzen contends that the Commonwealth denied him due process by committing him for 60-days observation without first affording, him a hearing, with counsel, to determine his probable sexual dangerousness. Stated thus narrowly, Sarzen’s claim might seem to be foreclosed by our decision in Gomes v. Gaughan, supra, 471 F.2d at 798, in which we held that a sex conviction gave the Commonwealth sufficient cause to commit an inmate for 60-days psychiatric observation within the term of his sentence. However, it was made clear in Gomes, citing Specht v. Patterson, 386 U.S. 605, 87 S.Ct. 1209, 18 L.Ed.2d 326 (1967), that c. 123A proceedings must afford due process. Id. 471 F.2d at 800. As one aspect of due process, we mentioned that counsel appointed prior to the 60-day diagnostic commitment might be useful “in identifying false data in an inmate’s file.” Id. 800. Only the peculiarities of Gomes’ case led us to conclude that such a role (or some substitute procedure for verifying the data) was “inapposite”. As it happened, Gomes and previous counsel had had a chance to review the relevant data, and Gomes’ present counsel, having been appointed well before the final commitment hearing, would have enabled Gom-es to use available pre-trial discovery procedures if needed. For these two reasons, we concluded that Gomes received ample opportunity to review and question “the adequacy of the history upon which the diagnosis was made.” Id. 801. Sarzen’s case is altogether different. Sarzen did not have the assistance of counsel until the very day of his final hearing and, therefore, the pre-trial discovery procedures which we catalogued in Gomes, Id. 800, might as well not have existed. Moreover, there were factual errors in the history relied upon by the psychiatrists in making their initial and later diagnosis. Sarzen, never advised of the data being used, had no opportunity, formal or informal, to question it before the day of final commitment ; he was not even notified of many of the statutorily-prescribed steps being taken to have him committed. Sarzen was walled off from effective participation in his own case until the last day, when, in all probability, anything he might have done was too late. Nothing in Gomes sanctioned c. 123A procedures falling so short of the fairness and respect for elementary rights which is at the heart of due process. See Mr. Justice Frankfurter concurring in Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 161, 170, 71 S.Ct. 624, 95 L.Ed. 817 (1951). We merely recognized in Gomes, as did the Supreme Court recently in Gagnon v. Searpelli, 411 U.S. 778, 788, 93 S.Ct. 1756, 1763, 36 L.Ed.2d 656 (1973), that due process is "not so rigid as to require that the significant interests in informality, flexibility, and economy must always be sacrificed.” Indeed, we reject Sarzen’s contention that due process necessarily required a counselled hearing prior to the 60-day commitment. Since the rape conviction provided sufficient basis for the Commonwealth’s decision to examine him, procedures other than a counselled preliminary hearing might have served adequately to permit examination and correction of the historical data upon which so much of the 60-day psychiatric evaluation was to hinge. Due process in this setting calls for a fair balancing of the state’s interest in utilizing responsible diagnostic procedures to deal with “highly disturbed persons having manifestly dangerous propensities,” Gomes, supra, 471 F.2d at 800, against the inmate’s right to avoid a grievous loss of liberty and lifetime stigma except under the most rigorous safeguards. Without pretend-íng to deal with every possible situation, we think due process requires at least the following: 1. An inmate is entitled to be notified promptly whenever each of the critical steps imposed by M.G.L. c. 123A, § 6, as a prerequisite to an adjudication of sexual dangerousness, is taken. He may not be kept in the dark concerning actions so vital to his future. The prison superintendent’s request that an inmate be examined to determine if he “may” be sexually dangerous is the first such critical step. Therefore, before the involuntary psychiatric interview, the inmate must be ■ informed at least of its purpose and possible legal consequences. Dr. Cohen insisted that it was his usual practice to do so; and we would assume, as a matter of ethics, that a psychiatrist would feel bound to advise an inmate whether he was appearing in the role of personal counsellor or potential prosecutor. The inmate is also entitled to know if, after examination, the single psychiatrist has recommended that he may be sexually dangerous. He is entitled to be notified when the superintendent or other authority moves for a 60-day commitment and of the disposition of the motion. He is entitled to be informed (as apparently Bridgewater now recognizes) of the outcome of his examination there, Timely notice of allegations and charges is an elemental aspect of due process. See, e. g., Mullane v. Central Hanover Bank, 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950); In re Gault, 387 U.S. 1, 33, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967); In re Ruffalo, 390 U.S. 544, 88 S.Ct. 1222, 20 L.Ed.2d 117 (1968). Concealed proceedings, in or out of court, cannot satisfy the requirements of due process. When a prisoner knows what is happening he can take steps, even before the appointment of counsel becomes constitutionally mandated, to protest obvious errors and to secure the assistance of private counsel, family or friends. 2. Prior to the 60-day observational commitment, opportunity must be afforded to the inmate to review and object to the record, history and other assembled facts of his life which psychiatrists may use in evaluating whether he is sexually dangerous. Cf. Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972); Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed. 2d 656 (1973); United States v. Picard, 464 F.2d 215 (1st Cir. 1972). It is obvious from the statutory definition of sexual dangerousness and from the privileged status (see § 5) of psychiatric reports in these proceedings, that an inmate’s history — the background facts found in his prior criminal record and in writeups of social workers and probation officers — are factors crucial to the, psychiatric “diagnosis.” See Tippett v. Maryland, 436 F.2d 1153, 1164 (4th Cir. 1971) (Sobeloff, J. concurring in part, dissenting in part), cert. granted sub nom., Murel v. Baltimore City Criminal Court, 404 U.S. 999, 92 S.Ct. 567, 30 L.Ed.2d 552 (1971), cert. dismissed as improvidently granted, 407 U.S. 355, 92 S.Ct. 2091, 32 L.Ed.2d 791 (1972). If the present case is typical, a determination of sexual dangerousness may be principally a projection of future conduct from past behavior. Postponing the opportunity to point out purported errors until the day of the final commitment hearing is a mockery of justice. The state psychiatrists will long ago have rendered a written diagnosis based upon the questioned facts; their opinion will have crystallized. Gagnon v. Searpelli, supra, 411 U.S. at 785, 93 S.Ct. 1756. Of course, the inmate’s claims of error need not be accepted if themselves incorrect. But he is entitled to make them known at a time when they can still be effective. What procedures are best for this fact-verification process we do not attempt to suggest. “The primary responsibility for articulating standards of due process lies with those who have the most intimate knowledge of both the interests of prisoners and the administrative burdens entailed with providing due process . . . .” Palmigiano v. Baxter, 487 F.2d 1280, 1286-1287 (1st Cir. 1973). We do not preclude the possibility that social workers or others in the state’s employ might objectively and fairly review records with the inmate and note in writing his objections and corrections. While counsel might be helpful, especially in the case of disturbed or badly educated inmates, we cannot say that counsel is constitutionally mandated for this purpose prior to the observational commitment of one serving sentence for a sex crime, provided there is a careful and conscientious effort to check out the historical data with the inmate and to see that it is accurate and complete. Alternatively, a preliminary administrative or judicial hearing might be held. We hold simply that the inmate must be afforded a reasonable opportunity to see, examine, and correct, where justified, the historical data which is to be used in reaching the critical opinions on his sexual dangerousness made during the 60-day commitment. In so stating, we do not attempt to consider the Commonwealth’s responsibilities to those who may not be legally competent, nor do we consider the case of an inmate whose sentence is not for a sex crime. 3. The assistance of counsel should be offered to indigent inmates soon after the filing with the court, during the 60-day commitment, of a report of sexual dangerousness by the examining psychiatrists. In Gagnon v. Scarpelli, supra, 411 U.S. at 785, 93 S.Ct. 1756, the Supreme Court described how a parole or probation officer’s role as benevolent counsellor is “compromised” when the officer has decided to recommend revocation of parole or probation. Thereafter, the officer’s view of the probationer’s or parolee’s conduct differs “in this fundamental way” from the latter’s own view. Id, 785, 93 S.Ct. 1756 requiring that the difference be resolved. At that point, both the state and probationer/parolee have interests in accurate fact finding and the informed use of discretion. Closely analogous is the psychiatrists’ role-change when, incident to the 60-day commitment, they declare an inmate to be sexually dangerous. Until then, the psychiatrists may be expected to be relatively open and professionally detached. Indeed, we understand that three-quarters of the persons sent for 60-day observation to Bridgewater are found by the staff not to be sexually dangerous. Before the psychiatrists have rendered an adverse report, we are not persuaded that their role is so greatly at variance with the interests of the inmate as to require the state to assume the burden of appointing counsel for each person being examined or about to be examined. But once an adverse report is issued, the psychiatrists’ role has changed. They have, in effect, become prosecutors ; their “benevolence” has been “compromised,” Id. 785, 93 S.Ct. 1756, the inmate needs independent assistance, including that of counsel. By then the state is no longer merely engaged in investigation and diagnosis, see Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972). The filing of a petition for final commitment by the district attorney has become a purely ministerial act. § 6. The inmate faces the certainty of proceedings which can lead to commitment for life. Cf. Lessard v. Schmidt, 349 Supp. 1078, 1099 (E.D.Wis.1972) (three-judge court). Only if counsel is made available well before the day of the final commitment hearing will an inmate be assured of the effective assistance, and not mere presence, of counsel. Representation at the final hearing may otherwise be a “formality ... a grudging gesture to a ritualistic requirement.” Kent v. United States, 383 U.S. 541, 561, 86 S.Ct. 1045, 1057, 16 L.Ed.2d 84 (1966). Counsel may help, in c. 123A, as in juvenile proceedings, “to make skilled inquiry into the fact, . . . and to ascertain whether he has a defense and to prepare and submit it.” In re Gault, 387 U.S. 1, 36, 87 S.Ct. 1428, 1448, 18 L.Ed. 2d 527 (1966). An attorney needs time, in advance of “trial,” to collect and examine records and reports, to talk to his client and to psychiatrists to decide whether a further psychiatric examination or consultation should be sought, and to formulate cross-examination of the state’s experts. Moreover, competent representation before trial in Sarzen’s case would doubtless have gained Sarzen a prompt hearing instead of the altogether unnecessary delay from October 1961, to February 1964. Had the court been made aware of the delay, there can be little doubt that it would have acted promptly. A danger with procedures of this unique nature is that people assume, because the prisoner is a “patient” and his guardians are “doctors,” that whatever is done will be done in the inmate’s best interest. But, of course, much, perhaps most, of M.G.L. c. 123A is for society’s own protection. Cf. In re Ballay, 482 F.2d 648, 657-658 (D.C.Cir.1973). Rehabilitation and physical removal are goals common to civil and criminal commitment. When, to the person acted upon by the state, the consequences of commitment rather than incarceration appear to be identical, limits must be applied to what is done in the role of parens patriae. In re Gault, supra; In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). Not all psychiatrists, no more than all juvenile authorities, can be presumed to be competent or well disposed. Moreover, the inherently speculative nature of psychiatric predictions, resulting in confinement not for what one has done but for what one will do, demands more than minimal procedures, particularly when such confinement is accomplished outside the traditional criminal process, with its right to jury trial and other ancient safeguards. See Murel v. Baltimore City Criminal Court, 407 U.S. 355, 364-365, n. 2, 92 S.Ct. 2091, 32 L.Ed.2d 791 (Douglas, J., dissenting); Note, Civil Commitment of the Mentally 111: Theories and Procedures, 79 Harv.L.Rev. 1288 (1966). Any one faced with indefinite incarceration, whatever his past history, is entitled to formal notice of the steps being taken against him, to know about and challenge the historical data which will accompany him to the Treatment Center for the 60-day observational commitment, and to have the assistance of counsel well before the last day of the proceedings. We hold, therefore, Sarzen was denied the fundamentals of due process guaranteed by the Fourteenth Amendment. III We remand the question of relief to the district court. To our knowledge the question of relief was not argued in the district court, and it was not argued before us; and, of course, the parties had no way of anticipating the grounds of our decision. The district court should decide whether the deficiencies in procedural due process do or do not constitute harmless error. Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). But the court may also need to consider to what extent, if any, other statutory provisions and the later § 9 proceedings ameliorate the effect of constitutional infirmities on the original § 6 commitment. As petitioner was released in 1972, the Commonwealth and the petitioner may also wish an opportunity to consider a possible consent disposition serving maximally both petitioner's needs and those of the public. Remanded for proceedings consistent herewith. . An evidentiary hearing was earlier held before the federal magistrate, who concluded that Sarzen’s claims, though meritorious, should first be presented to the Massachusetts Supreme Judicial Court. The district court disagreed. Citing Commonwealth v. Gomes, 355 Mass. 479, 245 N.E.2d 429 (1969), infra, it found that recourse to the state court would be futile. . It might have done so since, under § 4, if one is found guilty of described sex crimes, including rape, the court, prior to sentencing, may, on its own motion, commit the defendant for 60-days observation to the “Center,” i. e. the Treatment Center established by the Department of Mental Health within the Massachusetts Correctional Institution at Bridgewater. See §§ 1, 2. Of course, the defendant at this stage would already be represented by counsel. At the Center the defendant would be examined for sexual dangerousness by at least two psychiatrists who report their findings to the court. If the defendant is reported to be sexually dangerous, the court then conducts a hearing on this issue, following which, in lieu of imposing sentence, it may order him committed to the Treatment Center for an indeterminate period ranging from one day to life. . The Magistrate appears to have believed Sarzen. He found that, “At the time of the interview, Sarzen was unaware of its purpose.” . “This man, age 18, was sentenced in the Worcester Superior Court on 1/10/60 to a term of 4-7 years for rape. This crime was of a rather bizarre nature and was accompanied by force, violence and threats of bodily harm. This crime which occurred 10/17/60 had been preceded by a crime similar in nature and with the same pattern. However, in this case subject panicked and ran when the victim screamed. The records also reveal two arrests for drunkenness in 1959. There were two instances of peeping tom activities 8/30/59 and 12/31/58. In addition, he was suspected of several attacks on girls in 1961. When interviewed, the subject admitted the crimes of assaults and his peeping Tom activities with all the details described in the police reports.” . The Administrative Assistant to the Head of the Treatment Center testified that at the time Sarzen was committed for observation, it was the practice “to inform him orally of the procedures he would be going through.” Nothing written would, however, have been presented. Today a three page information sheet is given to each inmate, describing the sexually dangerous statute, and advising the inmate of the possible consequences of the examination. The sheet indicates that the inmate may, if he wishes, appear at one staff meeting where his case is discussed, and may see any member of the observation staff upon request. A decision, once reached by the psychiatrists, will be reported to him. The inmate is told that “A letter has gone out to your next of lcin informing them of your observation commitment here and giving them the name and telephone number” of the responsible staff member. . The report repeated the misinformation of “1959 drunkenness (2).” It referred to the 9/28/60 assault and battery as a “similar offense” to the rape. The basis of the diagnosis was that his “offenses have shown a progression in severity and seriousness Admits rape and violence in the process. A repeater. A danger in terms of his uncontrollable aggressive impulses.” . Section 6 provides that when the district attorney files -a petition for final commitment, “[H]e shall give notice to the prisoner or to his parents, spouse, issue, next of kin, guardian, or next friend, if it appears to the district attorney that such prisoner is incapable of conducting his contest to the report. The court may require such further notice as it deems necessary to protect the interest of the prisoner, may continue the hearing pending such notice and may appoint a guardian ad litem, if necessary.” We assume that this statutory notice requirement was complied with, although there is no evidence on the point in the record. The petition itself consists of two sentences, reciting that two named psychiatrists have certified subject to be sexually dangerous and requesting his commitment. . Question: Did the court's conclusion about the constitutionality of a law or administrative action favor the appellant? A. Issue not discussed B. The issue was discussed in the opinion and the resolution of the issue by the court favored the respondent C. The issue was discussed in the opinion and the resolution of the issue by the court favored the appellant D. The resolution of the issue had mixed results for the appellant and respondent Answer:
songer_counsel2	E	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. Your task is to determine the nature of the counsel for the respondent. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party UNITED STATES of America, Plaintiff-Appellee, v. Eduardo IGNANCIO MUNIO, Defendant-Appellant. No. 89-5453. United States Court of Appeals, Eleventh Circuit. Aug. 15, 1990. Russell Rosenthal, Anthony Musto, Coral Gables, Fla., for defendant-appellant. William F. Jung and Sonia O’Donnell, Asst. U.S. Attys., Miami, Fla., for plaintiff-appellee. Before CLARK, Circuit Judge and MORGAN and RONEY , Senior Circuit Judges. See Rule 34 — 2(b), Rules of the U.S. Court of Appeals for the Eleventh Circuit. PER CURIAM: This sentencing guidelines case involves first, whether a district court may rely on offense conduct not charged in an indictment to enhance a defendant’s sentence under the relevant conduct provision, U.S. S.G. § 1B1.3, and second, whether it is appropriate for a district court to apply the preponderance of the evidence standard to offense conduct used to enhance defendant’s sentence. Because we agree with the district court’s disposition of this case, we affirm. FACTS In mid November, 1988, appellant gave an informant employed by the Secret Service four counterfeit “sample” notes. On November 19, 1988, appellant transferred to the informant $10,840 in counterfeit federal reserve notes and received in exchange $500 in genuine currency. Appellant was arrested on December 5, 1988 and subsequently indicted on three counts. Count I charged a conspiracy to possess counterfeit currency in violation of 18 U.S.C. § 371. Count II charged possession in violation of 18 U.S.C. § 472. Count III charged delivery or transfer of counterfeit notes in violation of 18 U.S.C. § 473. Each count of the indictment specifically referred to the $10,-840 in counterfeit currency appellant delivered to the informant. A total of six persons were arrested in connection with this counterfeiting scheme. The Secret Service seized approximately $1.1 million in counterfeit notes at a co-defendant’s house. At the sentencing hearing, the government offered three bases for connecting appellant to the $1.1 million. First, three of the co-defendants made confessions implicating appellant as the mastermind behind the whole scheme. Second, the agents also seized some blank 24 lb. Crane stock (paper) from appellant’s home. The evidence failed to show conclusively that the paper from appellant’s home was used in making the $1.1 million in counterfeit notes. Apparently, however, this paper is a very high quality typing paper which is often used to make counterfeit notes. Appellant did not own a typewriter and the district court found appellant’s proffered explanation of why he had the Crane paper, “simply unbelievable.” Finally, secret service agents observed appellant riding in a particular vehicle with one of the co-defendants shortly before agents seized the $10,840. The co-defendant and the same car were present when secret service seized the $1.1 million approximately two weeks later. Appellant pled guilty to Count III. The government agreed to dismiss the remaining two counts and to recommend a two-point reduction in appellant’s offense level for acceptance of responsibility. That recommendation was conditioned on the defendant’s cooperation with the Probation Department in their preparation of the presen-tencing report (PSR). The written agreement contained no prediction of sentence and made clear that the court could give any sentence, up to the statutory maximum, authorized by law. The agreement also reserved to each party their right of allocution and stated that the court was not bound by any recommendation. In the PSR, the probation officer recommended an offense level increase based on appellant’s involvement with the $1.1 million in counterfeit notes. Appellant filed a written objection to this allegation to which the probation officer responded. The objection and response were part of the record available at sentencing to the parties and the sentencing court. During the sentencing hearing, the district court heard evidence on the defendant’s connection to the $1.1 million in counterfeit currency. The defendant adamantly denied any such involvement. Defendant was sentenced under U.S.S.G. §§ 2B5.1(a) and 2B5.1(b)(l), which provide a base offense level of 9 and increases in offense level if the face value of the counterfeit items exceeds $2,000. Applying this guideline, the probation officer and the court arrived at an adjusted offense level of 18 based on the dollar value of both the counterfeit currency included in the indictment and that seized at the co-defendant’s house. The government refused to recommend a two-level reduction for acceptance of responsibility and instead recommended a two level increase for obstruction of justice. Defendant argued that he should receive the two-level reduction for his cooperation. The court declined both invitations and sentenced defendant using offense level 18. DISCUSSION A. Relevant Conduct. Appellant contends that United States v. Scroggins, 880 F.2d 1204 (11th Cir.1989), stands for the proposition that only conduct charged in the indictment may be used to enhance a sentence for a conviction. Specifically, appellant asserts that since the indictment did not charge an amount of counterfeit currency greater than $10,840, the district court erred in considering the evidence of defendant’s connection with the counterfeit $1.1 million. Appellant’s argument evidences a misunderstanding of “relevant conduct.” This case is distinguishable from Scroggins where the conduct used to adjust the sentence was contained in the indictment and the defendant confessed to committing the acts charged in all counts of the indictment. Scroggins simply recognizes that it is appropriate to adjust a sentence under those circumstances; however, the case does not define the outer limits of relevant conduct. An important factor present in both this ease and Scroggins is that the appellant had notice that the government considered certain conduct relevant to appellant’s sentencing calculus. Adequate notice gives each of the parties an opportunity to file objections and to prepare opposing arguments which the court will resolve at the sentencing hearing. United States v. Castellanos, 882 F.2d 474, 477 (11th Cir.1989). See generally Fed.R.Crim.P. 32. See also United States v. Jordan, 890 F.2d 968, 975-76 (7th Cir.1989) (provided the defendant has “been informed of the probation officer’s recommendations,” and is “not unfairly surprised with new evidence or information, the court is free to announce its sentence in compliance with the Guidelines and other applicable law”). There is no question that appellant had adequate notice of the government’s intention to present evidence of his involvement with the $1.1 million in counterfeit currency. In Scroggins, the court distinguished between the terms “offense conduct” and “offense of conviction.” The court defined “offense of conviction” as “referring only to the conduct charged in the indictment for which the defendant was convicted.” Appellant contends that reading this definition into U.S.S.G. § 1B1.3 compels the conclusion that only conduct charged in the indictment may be considered as relevant conduct. Appellant misreads Scroggins in this regard. Offense conduct is the product of applying the relevant conduct provision to the offense of conviction. The sentencing process “yields a numeric ‘total offense level’ that consists of three elements.” Id. at 1209. One of these elements concerns specific offense characteristics “which increase or decrease the base offense level in light of various factors considered relevant to the defendant’s offense conduct.” Id. The court defined “offense conduct” as referring “to the totality of the criminal transaction in which the defendant participated and which gave rise to his indictment, without regard to the particular crimes charged in the indictment.” Id. at 1209 n. 12 (emphasis added). This is the step in sentencing where a court takes the general offense level determined from the offense of conviction and tailors it to the particular defendant based upon the defendant’s offense conduct. This expansive view of what conduct may be considered as relevant conduct is mirrored in the guidelines’ approach to sen-tenting for the quantity of drugs involved in a drug negotiation, even though the transaction is never consummated. See, e.g., United States v. Alston, 895 F.2d 1362, 1369-72 (11th Cir.1990) (upholding sentence where “the district court determined the base offense level for the amount of cocaine involved in the scheme and not merely the four ounces charged in the count to which [defendant] had entered his plea”). Alston does not entirely refute appellant’s argument as it appears that the indictments there may have included the larger amount. However, nothing in Alston, in the other circuit opinions cited by appellant, or in the guidelines indicates offense conduct is limited to that alleged in the indictment. In Alston, the court noted that Scroggins “implied that even if the defendant claimed he was innocent of the uncharged conduct, such evidence could have been considered in determining the base offense level for the charge of conviction if there was sufficient evidence to support a finding that defendant did in fact commit such offenses.” Alston, 895 F.2d at 1371 n. 11 (emphasis added). In United States v. Wilson, 884 F.2d 1355, 1355-56 (11th Cir.1989), the defendant was convicted on both counts of the indictment which charged drug crimes involving fifty grams of crack cocaine. In establishing that Wilson’s offense level should reflect his involvement with over 500 grams of cocaine base, the district court relied on testimony of Wilson’s co-defendants. This court affirmed the sentence and concluded that the co-defendants’ testimony was sufficiently reliable to provide a basis for increasing the offense level. Our decision today is in accord with other courts which have expressly concluded that conduct not contained in the indictment may be considered at sentencing. United States v. Allen, 886 F.2d 143, 145-46 (8th Cir.1989); United States v. Sarasti, 869 F.2d 805, 806 (5th Cir.1989) (“The guidelines make plain that the district court is not bound by the quantity of drugs mentioned by the indictment.”); United States v. Bennett, 716 F.Supp. 1137, 1144 (N.D.Ind.1989). B. Standard of Proof. In Alston, this court held that due process does not require the government to prove disputed facts at sentencing beyond a reasonable doubt. Alston, 895 F.2d at 1372-73. The court noted that several other circuits have ádopted.the preponderance of the evidence standard. The guidelines specifically address the standard of proof in U.S.S.G. § 6A1.3 which states in part: “In resolving any reasonable dispute concerning a factor important to the sentencing determination, the court may consider relevant information without regard to its admissibility under the rules of evidence applicable at trial, provided that the information has sufficient indicia of reliability to support its probable accuracy.” In this circuit, preponderance of the evidence is clearly sufficient. C. Acceptance of Responsibility. Application Note 1 to § 3E1.1 lists several factors which a court may consider in determining whether an adjustment under this guideline is appropriate, among them is “voluntary and truthful admission to authorities of involvement in the offense and related conduct.” Elsewhere, the Commission recognizes that “[t]he sentencing judge is in a unique position to evaluate a defendant’s acceptance of responsibility,” and for that reason, “the determination of the sentencing judge is entitled to great deference on review and should not be disturbed unless it is without foundation.” U.S.S.G. § 3E1.1, comment, (n. 5). In United States v. Spraggins, 868 F.2d 1541, 1543 (11th Cir.1989), the court emphasized the importance of defendant’s acceptance of responsibility for “related conduct.” The court also noted that § 3E1.1 provides for the adjustment, “[i]f the defendant clearly demonstrates a recognition and affirmative acceptance of personal responsibility for his criminal conduct.” 868 F.2d at 1542 (quoting § 3E1.1(a)) (emphasis in Spraggins). The trial court did not err by refusing to reduce appellant’s offense for acceptance of responsibility. D. Breach of the Plea Agreement. The government conditioned its recommendation on defendant’s cooperating in the preparation of the Pre-sentencing Report. Given the fact that defendant contested his connection with the “related conduct,” he did not cooperate and thus did not earn the recommendation. Accordingly, the decision of the district court is AFFIRMED. . U.S.S.G. § lB1.3(a)(l), defines relevant conduct as: “all acts and omissions committed or aided and abetted by the defendant, or for which the defendant would be otherwise accountable, that occurred during the commission of the offense of conviction." The Commentary to that section describes the "otherwise accountable” clause as including “conduct that the defendant counseled, commanded, induced, procured, or willfully caused." . When referring to an offense, the guidelines use two similar terms: “offense conduct” and "offense of conviction." The term "offense conduct" refers to the totality of the criminal transaction in which the defendant participated and which gave rise to his indictment, without regard to the particular crimes charged in the indictment. The term "offense of conviction” is narrower in scope, referring only to the conduct charged in the indictment for which the defendant was convicted. Scroggins, 880 F.2d at 1209 n. 12. . That a court may consider a wide range of information at sentencing is not new; this practice was part of the pre-guidelines sentencing scheme. Scroggins, 880 F.2d at 1212-13. . Appellant contends that he should not have to incriminate himself to receive the benefit of the two-level reduction for acceptance of responsibility. In United States v. Henry, 883 F.2d 1010, 1011-12 (11th Cir.1989), this court rejected the contention that § 3E1.1 violates a defendant’s fifth amendment rights because it requires him to further incriminate himself, with information that the district court may use to increase the sentence, to qualify for the two level reduction. The case cited by appellant — United States v. Perez-Franco, 873 F.2d 455 (1st Cir.1989) — -is not precedent for this court and is inconsistent with Spraggins and Henry. . This court through another panel is issuing an opinion in United States v. Jefferies, 908 F.2d 1520 (1990), which holds the government to its plea agreement which provided that the "quantity involved ... is approximately 13 grams of cocaine.” The district court considered a larger quantity of cocaine when sentencing. We reversed. The Jefferies case involved a Fed.R.Crim.P. 11(e)(3) agreement. See United States v. Tobon-Hernandez, 845 F.2d 277 (11th Cir.1988). In the instant case the plea agreement is controlled by Fed.R.Crim.P. 11(e)(1)(B), which covers an agreement wherein the government agrees to "make a recommendation,” but such an agreement is not binding on the court. Further, in this case, the government established that the defendant failed to cooperate with the Probation Department. In any event, the district court was not bound by the agreement as was the case in Jefferies. Question: What is the nature of the counsel for the respondent? A. none (pro se) B. court appointed C. legal aid or public defender D. private E. government - US F. government - state or local G. interest group, union, professional group H. other or not ascertained Answer:
songer_origin	A	What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of court which made the original decision. Code cases removed from a state court as originating in federal district court. For "State court", include habeas corpus petitions after conviction in state court and petitions from courts of territories other than the U.S. District Courts. For "Special DC court", include courts other than the US District Court for DC. For "Other", include courts such as the Tax Court and a court martial. CONNER et al. v. CORNELL et al. Circuit Court of Appeals, Eighth Circuit. April 19, 1929. No. 8166. William Neff, of Tulsa, Okl. (L. E. Neff, of Tulsa, Okl., on the brief), for appellants. John Rogers, of Tulsa, Okl., and B. B. Blakeney, of Oklahoma City, Okl. (Blakeney & Ambrister, of Oklahoma City, Okl., and L. O. Lytle, of Sapulpa, Qkl., on the brief), for appellees. Before KENYON, Circuit Judge, and FARIS and SANBORN, District Judges. Rehearing denied July 8, 1929. KENYON, Circuit Judge. This is an appeal from a decree and judgment of the United States District Court for the Northern District of Oklahoma, granting a permanent injunction restraining appellants from proceeding further in a certain ease pending in the district court of Creek county, Okl., brought by Abbie (also spelled Abby) Conner and Nettie Conner v. H. U. Bartlett et al. The facts are these: Thomas Conner was a full-blood citizen of the Creek Nation and had received as his allotment the east one-half of the southeast quarter of section 4, and the east one-half of the northeast quarter of section 8, all in township 18 north, range 7 east, Creek county, Okl. He died intestate, leaving'surviving him Abbie Conner (bis widow), and Nettie Conner, Willie Conner, John Conner, and Thomas Conner, Jr., his children, all of whom were enrolled as full-blood citizens of the Creek Nation. In September, 1911, Abbie Conner and Nettie Conner made and executed a warranty deed, which was duly approved by the county judge of McIntosh county, Okl., to H. U. Bartlett, of their interest in the real estate hereinbefore described, viz., the allotment of Thomas Conner. In 1924 the United States instituted an equity suit in the United States District Court for the Eastern District of Oklahoma at the request of the Secretary of the Interior, and at the request of and in behalf of Nettie Conner, Willie Conner, John Conner, Thomas Conner, Jr., and Abbie Conner, against H. Ü. Bartlett et al., to set aside the deed made to said Bartlett of their interest in the allotment of Thomas Conner, deceased. The United States claimed in said action that the lands described therein as allotted to Thomas Conner were not subject to alienation and incumbrance, except by approval of the Secretary of the Interior after removal .of restrictions therefrom or as otherwise provided by law; that the restrictions upon alienation on said land had never been removed by the Secretary of the Interior, and it asked that the deed executed by Abbie Conner and Nettie Conner et al. to H. U. Bartlett be adjudged void and that the same be canceled. This suit was transferred to the United States District Court for the Northern District of Oklahoma and was numbered cause No. 8 equity, and will so hereinafter be referred to. Pleas, answers, and cross-petitions were filed and issues joined. Subsequently the United States Attorney for the northern district of Oklahoma, acting under the authority 'and direction of the Attorney General of the United States, filed a written motion asking that the court dismiss said case, No. 8, with prejudice. On February 20, 1926, the United States District Court for the Northern District of Oklahoma dismissed the same with prejudice, its order reading as follows; “Decree Dismissing Bill With Prejudice. “Now, on this 20th day of February, 1926, at this term, this cause came on for hearing, upon the motion of the United States Attorney for the Northern District of Oklahoma to dismiss with prejudice the above entitled suit, and the court being fully advised that said attorney for this District is duly authorized in the premises. “It is, therefore, ordered, adjudged and decreed that the bill of complaint of the above named plaintiff, heretofore filed herein and as amended, be and it is hereby dismissed, with prejudice to a future action. “[Signed] F. E. Kennamer, Judge.” March 16, 1927, Abbie Conner and Nettie Conner instituted suit in the district court of Creek county, OH., against H. U. Bartlett and the other appellees to set aside the deed made by them to Bartlett, and to recover their alleged interest in the allotment, hereinbefore described, of Thomas Conner, deceased, alleging that Abbie Conner inherited a dower interest, and Nettie Conner an undivided one-fourth interest in said property. This aetion related to the identical property at issue in the aetion brought by the United States in the United States District Court. Both of the actions set forth the same grounds as a basis for the cancellation of the deed executed by Abbie Conner, Nettie Conner et al. to H. U. Bartlett. The defendants in the action in the United States Court for the Northern District of Oklahoma were the same as the defendants in the action in the district court of Creek county, with the exception of certain defendants in the later action who obtained their interest by virtue of conveyances from defendant Rogers subsequent to the institution of said cause in the United States District Court for the Northern District of Oklahoma. April 17, 1927, Robert Oglesby, H. U. Bartlett, and the other appellees herein, all of whom were defendants in the suit pending in the district court of Creek county, Okl., commenced this action against Abbie Conner, Nettie Connor, and their attorneys, William Neff and L. E. Neff, asking that the United States Court for the Northern District of Oklahoma enjoin these parties from further proceeding with said cause in the district court of Creek county, Okl., on the ground that all the questions, facts, and things alleged by complainants in that court had been fully adjudicated in the action in the United States District Court, and had become res judicata. Appellants filed answers in said cause denying the authority of the Department of Justice to cause the former case to be dismissed with prejudice to future action, and claiming they were not barred from the prosecution of the ease in the district court of Creek county. Very little evidence was introduced, and on the 3d day of February, 1928, the court entered its decree making permanent a temporary injunction which it had theretofore issued as against appellants, Abbie Conner, Nettie Conner, William Neff, and L. E. Neff. By this decree appellants were enjoined and debarred from prosecuting said cause in the district court of Creek county, Okl., or from relitigating the questions involved in equity cause No. 8 in the United States District Court. Robert Oglesby, one of the appellees, is now deceased, and Herman D. Cornell, executor of the estate, has been substituted in his place. It is apparent that the real question here is the effect of the dismissal with prejudice to a future action in. cause No. 8 equity in the United States District Court for the Northern District of Oklahoma. That the United States, in its general supervision of its Indian wards and to protect them and their properties in pursuance of a national duty, has the right to invoke the equity jurisdiction of the federal courts and to bring an action to set aside conveyances claimed to he violative of restrictions upon alienation of Indian allotments is not a debatable proposition. In Sunderland v. United States, 266 U. S. 226, 233, 45 S. Ct. 64, 65 (69 L. Ed. 259), it is said: “we do not doubt the power of the United States to impose such a restraint upon the sale of the lands of its Indian wards, whether acquired by private purchase and generally subject to state control or not. Such power rests upon the dependent character of the Indians, their recognized inability to safely conduct business affairs, and the peculiar duty of the Federal Government to safeguard their interests and protect them against the greed of others and their own improvidence.” Heckman v. United States, 224 U. S. 413, 32 S. Ct. 424, 56 L. Ed. 820; Bowling v. United States, 233 U. S. 528, 34 S. Ct. 659, 58 L. Ed. 1080; LaMotte v. United States, 254 U. S. 570, 41 S. Ct. 204, 65 L. Ed. 410; Privett v. United States, 256 U. S. 201, 41 S. Ct. 455, 65 L. Ed. 889. Section 9 of the Act of May 27, 1908 (35 Stat. 315) is in part, as follows: “That the death of any allottee * * * shall operate to remove all restrictions upon the alienation of said allottee’s land: Provided, that no conveyance of any interest of any full-blood Indian heir of such land shall be valid unless approved by the court having jurisdiction of the settlement of the estate of said deceased allottee.” This proviso' restricts the allotment of the full-blood Indian heir to the extent that his conveyance must be approved by the court having jurisdiction of the settlement of the estate of the deceased allottee, and the Supreme Court of the United States has held in the case of Parker v. Richard, 250 U. S. 235, 39 S. Ct. 442, 63 L. Ed. 954, that this agency, namely, the proper state court, in exercising the authority conferred by this act, is acting as a federal agency. See, also, Marcy v. Board of Comm’rs, 45 Okl. 1, 144 P. 611. The conveyance to H. U. Bartlett had been approved by the county court of McIntosh county, Okl., and the United States in its action claimed that fraud had been practiced upon that court. It is apparent that these heirs of Thomas Conner were under governmental restrictions in disposing of their land, namely, that the conveyance must •be approved by the state, court having jurisdiction of the estate of Thomas Conner. It is argued that Abbie Conner and Nettie Conner were not parties to the action brought by the United States in the federal court, and hence are not bound by its action. This is unavailing, and, in referring to the claim that the Indian wards had not been made parties in Heckman v. United States, 224 U. S. 413, 444, 32 S. Ct. 424, 434 (56 L. Ed. 820), the Supreme Court said: “This position is wholly untenable. There can be no more complete representation than that on the part of the United States in acting on behalf of these dependents — whom Congress, with respect to the restricted lands, has not yet released from tutelage. Its efficacy does not depend upon the Indian’s acquiescence. It does not rest upon convention, nor is it circumscribed by rules whieh govern private relations. It is a representation which traces its source to the plenary control of Congress in legislating for the protection of the Indians under its care, and it recognizes no limitations that are inconsistent with the discharge of the national duty. When the United States instituted this suit, it undertook to represent, and did represent, the Indian grantors whose conveyances it sought to cancel. It was not necessary to make these grantors parties, for the Government was in court on their behalf. Their presence as parties could not add to, or detract from, the effect of the proceedings to determine the violation of the restrictions and the consequent invalidity of the conveyances. * * * And it could not, consistently with any principle, be tolerated that, after the United States on behalf of its wards had invoked the jurisdiction of its courts to cancel conveyances in violation of the re- • strietions prescribed by Congress, these wards should themselves be permitted to relitigate the question.” Was the dismissal in equity cause No. 8 with prejudice to a future action a bar to the suit in the district court of Creek county, Okl? This court in Hickey v. Johnson, 9 F.(2d) 498, 501, quoted with approval Fowler v. Osgood (C. C. A.) 141 F. 20, 24 (4 L. R. A. [N. S.] 824), as follows: “A general judgment or decree of dismissal, without more, renders all the issues in the ease res adjudicata, and constitutes a bar to any subsequent suit for the same cause of action. Hence, when a court dismisses a suit upon some ground which does not go to the merits of the cause of action, but leaves them open to consideration in another court, or at another time, or in another way, the decree of dismissal must expressly adjudge that it is rendered for the specific reason upon which it is based, or must expressly provide that it is made without prejudice,” and held that a decree sustaining a demurrer and entering a judgment dismissing the bill of complaint is presumed to be a judgment on the merits. Again in Ledbetter v. Wesley, 23 F.(2d) 81, this court held that a general decree of dismissal in an equity cause was a decision on the merits. In Durant v. Essex Co., 7 Wall. 107, 109 (19 L. Ed. 154), the court said: “The decree dismissing the bill in the former suit in the Circuit Court of the United States being absolute in its terms, was an adjudication of the merits of the controversy, and constitutes a bar to any further litigation of the same subject between the same parties. A decree of that Hnd, unless made because of some defect in the pleadings, or for want of jurisdiction, or because the complainant has an adequate remedy at law, or upon some other ground wMeh does not go to the merits, is a final determination. Where words of qualification, such as ‘without prejudice,’ or other terms indicating a right or privilege to take further legal proceedings on the subject, do not accompany the decree, it is presumed to be rendered on the merits.” The court was careful in the present case to provide that the action was dismissed with prejudice to future action. These words certainly have a meaning and show that the court was passing on the merits of the ease, and felt that the United States had no ground for any relief in behalf of said Indian wards. It did not dismiss on the ground of want of parties or want of jurisdiction. The dismissal was evidently on the merits, for it cannot be presumed that the United States was not acting for the best interests- of its wards. The statutes of Oklahoma make provision with reference to dismissals with and without prejudice to future action, sections 664 and 665, Okl. Comp. Stat. of 1921. Those provisions are taken from the statutes of Kansas. Section 665, referring to dismissal without order of court, contains the following: “Provided, such dismissal shall be held to be without prejudice, unless the words ‘with prejudice’ be expressed therein.” In Hargis v. Robinson, 70 Kan. 589, 594, 79 P. 119, 121, where the trial court had dismissed a ease with prejudice, the Supreme Court said: “A dismissal under our practice differs from some of those suggested by plaintiffs in error in this: that it is a judicial act, rather than the act of the party. Whether ‘with prejudice’ or ‘without prejudice,’ it" is in the nature óf a judgment; and a judgment 'with prejudice,’ not set aside or reversed, is a final disposition of the controversy.” Hence, under the Oklahoma law a dismissal with prejudice would he a determination on the merits and a final disposition of the controversy. In view of the holdings of the Supreme Court of the United States and of this court, there can be no controversy over the proposition that the judgment of dismissal of equity cause No. 8 in the federal court with prejudice was a determination of the merits of the case, and would operate as a bar to relitigation between the same parties of the questions involved in that case. Counsel for appellants suggests that there was no authority in the District Attorney to move for a dismissal. The following letter was the basis of his action: , “Department of Justice “Washington, D. C. FKF-MDB “February 13, 1926. “John M. Goldesberry, Esq. United States Attorney, Tulsa, Oklahoma. “Re: U. S. v. H. U. Bartlett et al. “Sir: You are hereby authorized and instructed to dismiss, with prejudice, the above entitled ease. Kindly advise me when you have taken this action, and enclose for our files two copies of order of dismissal. “Respectfully, “For the Attorney General, “B. M. Parmenter, “Assistant Attorney General.” The court found that the District Attorney was duly authorized to dismiss the case. No fraud was claimed as to said dismissal. The court’s finding as to the authority of the District Attorney to ask for dismissal on the part of the government certainly would raise a presumption of authority, and there is nothing in the record to overthrow such presumption. Regardless of this, however, we are satisfied the Attorney General of the United States, acting for and on behalf of the government of the United States, as the head of its legal department, and having charge of the legal business of the government, had the right to request a dismissal of the case. The litigation of the government, unless otherwise provided by the Congress, is under his control. It is his duty to supervise the conduct of suits brought by the United States, and this covers suits brought to protect the Indian wards of the government. It is not necessary whenever a ease brought by the government should be dismissed to have an act of Congress therefor. Some power must exist somewhere to advise a court that the government desires to terminate a ease brought by it if it becomes satisfied that it should not be further pursued. We are satisfied the Attorney General had the authority to request dismissal of the case on behalf of the government, and the court had the right to enter judgment of dismissal. In Kern River Co. v. United States, 257 U. S. 147, 155, 42 S. Ct. 60, 63 (66 L. Ed. 175), the court said: “In the absence of some legislative direction to the contrary, and there is none, the general authority of the Attorney General in respect to the pleas of the United States and the litigation which is necessary to establish and safeguard its rights affords ample warrant for the institution and prosecution by him of a suit such as this.” Mullan v. United States, 118 U. S. 271, 6 S. Ct. 1041, 30 L. Ed. 170; United States v. San Jacinto Tin Co., 125 U. S. 273, 8 S. Ct. 850, 31 L. Ed. 747; United States v. Beebe, 127 U. S. 338, 8 S. Ct. 1083, 32 L. Ed. 121. In United States v. Parker, 120 U. S. 89, 7 S. Ct. 454, 30 L. Ed. 601, the court held that the decree of dismissal in the prior action constituted a bar to a second action by way of estoppel. The court upon motion of defendant’s attorneys, which was agreed to by the United States Attorney, had dismissed the first action on the ground that the subject-matter of the suit had been adjusted and settled by the parties, and the court said that was equivalent “to a judgment that the plaintiff had no cause of action, because the defense of the defendant was found to be sufficient in law and true in fact.” It is suggested also that the Secretary of the Interior had not requested the dismissal of the ease. Without determining whether or not that was necessary, we may say that the record does not show that he did not request the suit to be dismissed, nor does the record show that Abbie Conner and Nettie Conner did not request the suit to be dismissed. It is interesting in this connection to note the language in the Supreme Court in Heckman v. United States, supra, referring to the Indian wards, viz.: “The cause could not be dismissed upon their consent; they could not compromise it; nor could they assume any attitude with respect to their interest which would derogate from its complete representation by the United States. This is involved necessarily in the conclusion that the United States is entitled to sue, and in the nature and purpose of the suit.” The burden was on appellants to show want of authority on the part of the District Attorney to request dismissal and on the part of the court to enter such, dismissal. They have failed to carry the burden. The evidence of one of the counsel for appellants shows that he .was not advised'that the ease was to be dismissed, nor was he consulted about it. While it would seem- a matter of courteous custom to have advised counsel that such a proceeding was contemplated, it is of course not absolutely essential. If the authority existed in the Attorney General of the United States to direct the United States District Attorney for the Northern District of Oklahoma to move for dismissal, and if the court was satisfied as to-the authority of the United States Attorney, it was justified in entering the judgment of dismissal. • We are satisfied- that under this record the decree- and judgment of dismissal in equity • suit No. 8 brought by the United States in the federal court was-a bar to the litigation of the matters set forth in the suit brought by appellants, Abbie Conner and Nettie Conner in the district court of Creek •county, Okl. 1 The decree and judgment of the trial court enjoining appellants from proceeding with that ease was correct, and the same is affirmed.- Question: What type of court made the original decision? A. Federal district court (single judge) B. 3 judge district court C. State court D. Bankruptcy court, referee in bankruptcy, special master E. Federal magistrate F. Federal administrative agency G. Special DC court H. Other I. Not ascertained Answer:
songer_appnatpr	0	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of appellants in the case that fall into the category "natural persons". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. In the Matter of the WOODMAR REALTY COMPANY, a Corporation, Debtor, WOODMAR REALTY COMPANY, a Corporation, Appellant, v. Walter A. McLEAN, Trustee and Herschel B. Davis, Trustee’s Attorney, Appellees. No. 13215. United States Court of Appeals Seventh. Circuit. June 23, 1961. As Amended on Denial of Rehearing Oct. 2, 1961. Benjamin Wham, Chicago, 111., Owen W. Crumpacker, Hammond, Ind., for appellant. Gilbert Gruenberg, Gary, Ind., for appellees. Before ENOCH and CASTLE, Circuit Judges, and MERCER, District Judge. MERCER, District Judge. The only issue before us for decision upon this appeal by the bankrupt, Wood-mar Realty Company, is whether the court below properly dismissed Wood-mar’s amended petition for the removal of the appellees, Walter A. McLean and Herschel B. Davis, as trustee in bankruptcy and attorney for the trustee, respectively. For convenience, the parties are hereinafter sometimes referred to as appellant and appellees. Appellant’s amended petition, filed January 7, 1959, charged that appellees had perpetrated, and were perpetrating, a fraud upon the court and Woodmar and requested that appellees be removed by the court as trustee in bankruptcy and as counsel, respectively. Appellees moved to dismiss. After a hearing, the court granted that motion upon its conclusion that “the amended petition is so wanting in merit and so contemptuously violative of the rules of pleading, particularly Rules 8 and 9 of the Federal Rules of Civil Procedure” that it might be summarily dismissed and upon his finding that the amended petition was not filed in good faith. We have reviewed the record and the amended petition carefully and are convinced that the petition is so wanting in sufficient allegations of fact as to present not even token compliance with the provisions of Rule 9(b) which require a pleader averring fraud to state “with particularity” the circumstances alleged to constitute fraud. F.R.C.P. 9(b), 28 U.S.C.A. This opinion might rest there and the judgment be affirmed without further discussion, were it not for the pervading impression gathered from this record that the removal petition constitutes an attempt by appellant’s attorney, Mr. Crumpacker, to harass appellees in the continued performance of their official functions and a near-contemptuous abuse of the processes of a federal court. For the above reason we think it necessary to analyze the amended petition at some length in the light of the record as it has come to our knowledge. In that endeavor, we rely upon the procedural history of this case as summarized in the opinions upon prior appeals. In re Woodmar Realty Co., 7 Cir., 284 F.2d 815; In re Woodmar Realty Co., 7 Cir., 241 F.2d 768, 64 A.L.R.2d 883. Basically, we hereinafter supplement those summaries, but we have not hesitated to resort to repetition thereof to the extent deemed necessary to demonstrate the propriety of our conclusions which are hereinabove and hereinafter expressed. The inception of this cause lies in the depression which struck the nation with tomadic force in 1929. In the 1920’s, appellant, a corporation, was engaged in the business of subdividing and selling real estate in the City of Hammond, Indiana. Substantial improvements touching the various parcels of appellant’s lands were made by the City of Hammond and financed by special assessment bonds issued and sold pursuant to the so-called Barrett Law. By separate lot and parcel, appellant’s real estate was impressed with the liens of Barrett Bonds issued on some sixty separate bond rolls. In each instance, appellant in consideration of the privilege of paying the assessment obligation in installments spread over a period of years, executed a statutory waiver of the right to question the legality of assessment and agreement to pay installments as the same became due. It appears that appellant had been a completely inactive corporation for many years prior to January, 1941, when this cause was commenced. No payments had been made by it on account of the principal and interest of Barrett bond obligations after 1929. Suits had then been commenced in state courts for the foreclosure of Barrett bonds issued upon some fifty rolls affecting appellant’s real estate and, as the court below has found, sale of much of the land in foreclosure was imminent. Against that background, this proceeding was commenced on January 13, 1941, when an involuntary petition was filed on behalf of three bondholders for reorganization of appellant under Chapter X of the Bankruptcy Act. 11 U.S. C.A. § 501 et seq. Appellant’s only assets were substantial real estate located in Hammond, which was then encumbered by a lien for state taxes in the sum of $161,000.00, by the lien of mortgage bonds in an aggregate sum in excess of $290,000.00, and by the defaulted Barrett bonds which were, respectively, liens upon separate lots, tracts and parcels of the total real estate holdings. In addition, appellant was then indebted to general creditors in the aggregate sum of approximately $14,000.00. A proposed plan of reorganization was approved by Judge Slick. Barrett bond claims were classified as class 2 claims. With court approval, the tax claim and mortgage claims were compromised and .settled for a nominal percentage of the respective amounts thereof. Appellant’s real estate was sold free of all liens under court orders providing that all liens would attach to the proceeds of the sales in the hands of the trustee. Such sales continued until early 1951, and were approved by the court upon some fifty separate petitions reporting sales as they were made from time to time. Also, when the reorganization petition was approved on January 25, 1941, an injunction was issued by the court enjoining creditors and all other persons from enforcing liens against appellant’s property, and from prosecuting, or continuing the prosecution of, any suit against appellant in any court for the foreclosure of liens against its property. Pursuant to that injunction, the pending foreclosure suits were dismissed insofar as they related to appellant’s real estate. On December 22, 1952, appellee McLean was appointed successor trustee as a result of circumstances hereinafter related and appellee Davis was retained as attorney for the trustee. Thereafter, on February 16, 1953, after notice and a hearing, Judge Swygert entered an order converting the proceedings into a straight bankruptcy, and ordered that bankruptcy be proceeded with pursuant to Section 236(2) of the Bankruptcy Act. 11 U.S.C.A. § 636(2). On September 7,1955, appellee McLean filed his final report as trustee and petitions recommending the allowance of more than 300 class 2 lien claims. By that report, he proposed that substantially all of the funds in his hands be allocated to the payment of those claims. Thereafter, appellant and some of its stockholders filed objections to a substantial number of the class 2 claims. On March 5, 1956, after a hearing upon motions filed by the trustee and a number of the class 2 claimants, Judge Swygert entered an order striking appellant’s objections. An appeal was taken and we reversed that judgment, holding that appellant, though adjudicated a bankrupt, had standing to object to claims because of the circumstance that disallowance of class 2 claims might result in a surplus of assets for refund to appellant. In re Woodmar Realty Co., 7 Cir., 241 F.2d 768, 64 A.L.R.2d 883. Before our mandate was filed, Judge Swygert disqualified himself to preside further in the cause because of circumstances which are hereinafter related and the cause was assigned to Judge Parkinson. Upon the return of our mandate, Judge Parkinson scheduled a pre-trial conference upon all claims and objections thereto. On the day preceding that conference, June 27, 1957, appellant filed a petition for removal of appellees as trustee and as counsel for the trustee. At the pre-trial conference on June 28, Judge Parkinson determined that he would schedule a trial of a representative claim to establish the law of the case with respect to all of appellant’s objections. Claim No. 441 was selected for that purpose. At the same time, an order, which we believe to be patently erroneous, was entered directing the trustee and his attorney not to participate in the trial of objections to that claim. Other class 2 claimants were, however, invited to participate. On the same date, a hearing upon appellant’s petition for removal of appellees was set for July 17, 1957. A trial of objections upon claim 441 was held on July 15, 1957, and briefs were ordered. On July 17, the date set for a hearing upon the removal petition, that petition was withdrawn by appellant. Thereafter, while the issues presented upon the trial of objections were still under advisement, Judge Parkinson was elevated to this court and the case was assigned to his successor, Judge Grant. Judge Grant disqualified himself for personal reasons, and the case was reassigned by Judge Duffy, then Chief Judge of the Seventh Circuit, to Judge Tehan. By stipulation of interested parties, the issues upon the trial of objections were taken by Judge Tehan for decision upon the record made before Judge Parkinson. In the meantime, on May 19, 1958, counsel for appellant filed a petition for removal of appellees which was almost an exact duplicate of the petition which had been withdrawn by him on July 17, 1957. The petition was answered and set for a hearing. On the date set for that hearing, Judge Tehan, on his own motion, ordered appellant to replead to comply with the requirements of Rule 9(b). Appellant’s amended petition was then filed on January 7, 1959. The amended petition is characterized by a gross lack of any sufficient allegation of fraud as we have hereinabove concluded. In fact, counsel can give arguable credence to this appeal and arguable merit to the amended petition only by asserting supposed legal principles which are so grossly absurd that we cannot believe they are here honestly asserted. In the interest of smooth rhetorical transition all of such contentions are not here particularized, but they are subsequently discussed briefly in proper context. Counsel first contends that we must pretend that the record facts laboriously compiled in the records and files of the court below in more than twenty years of proceedings do not exist and that we may not on this appeal take judicial notice of such facts. It is elementary that the court below was duty bound to take judicial notice of its records and files in this cause and that it is our duty to take notice of facts which have come to our knowledge through the records presented to us on the several appeals in this same case. Paridy v. Caterpillar Tractor Co., 7 Cir., 48 F.2d 166, 168; Littleton v. DeLashmutt, 4 Cir., 188 F.2d 973; Fletcher v. Bryan, 4 Cir., 175 F.2d 716; In re Davis Mfg. Co., D.C. D.Kan., 95 F.Supp. 200, 203. However absurd the above contention, it is yet only the minor premise employed to support a hypothesis that appellee’s motion to dismiss appellant’s amended petition must be construed as admitting all facts alleged, even though such alleged facts are shown by the record of the case to be untrue. That hypothesis is too tenuous to require any comment. See E. g., Interstate Natural Gas Co. v. Southern California Gas Co., 9 Cir., 209 F.2d 380, 384; Fletcher v. Jones, 70 App.D.C. 179, 105 F.2d 58, 61. Since we must take judicial notice of the fact, whenever it be the fact, that the allegations of appellant’s amended petition are refuted by the record, we accordingly determine the sufficiency of the allegations of the amended petition in the light of the record of the case as it is known to us. Both the original petition and the amended petition are summarized in some detail in Judge Tehan’s opinion filed October 21, 1960. We adopt that summary as our own, and here employ only such narrative description of the charges of the amended petition as is consistent with an intelligible discussion of the allegations thereof in the light of the record. If the amended petition has any factual basis whatsoever, it tends to state a charge not against appellees, but only a renewal of charges made at least as early as November, 1952, against the prior trustee, Charles L. Suprise, and other persons. Thus it is alleged that Suprise, and others, conspired to perpetrate a fraud upon the court and appellant in order to obtain the initial finding of appellant’s insolvency, to have themselves appointed as fiduciaries having control of appellant’s property and thereafter to dispose of and distribute appellant’s property to class 2 claimants to their own benefit and profit. The amended petition contains not a single allegation connecting either of the appellees with the alleged conspiracy and fraudulent conduct of those persons, except for the record fact that appellee Davis was appointed by the court as co-counsel for Suprise in May, 1950, and served Suprise in that capacity until hearings were commenced in 1951, which ultimately led to the removal of Suprise as trustee. Upon that record fact hangs the tenuous allegation that Mr. Davis became tainted by the alleged fraud of Suprise through that representation and that appellee McLean became likewise tainted through his association with Mr. Davis after Mr. McLean was appointed successor trustee. In his opinion dismissing the amended petition, Judge Tehan correctly and accurately concluded that such allegations were an “obvious attempt to establish guilt by association”, and that the allegations were refuted by facts found and adjudicated in this case. We approve those conclusions without reservation, and resort to the résumé of the procedural history of the case which follows only because we think it necessary to document the evident fact of gross bad faith which characterizes these allegations. When Judge Slick granted the involuntary petition for reorganization of appellant, Suprise was appointed trustee in the reorganization and Carl A. Huebner was appointed as attorney for the trustee. Thereafter, a plan of reorganization was approved by the court and a bondholders committee consisting of owners of special improvement bonds and attorneys for such owners was appointed. The record made during the first ten years of this proceeding discloses no participation by appellant in the cause after January 25, 1941, when the involuntary petition for reorganization was approved. Appellant’s participation on the latter date consisted of the filing of an answer, in which all allegations of the reorganization petition were admitted, including the allegation of appellant’s insolvency. During that ten year period, as previously related, the foreclosure suits affecting appellant’s property were dismissed pursuant to the injunction issued by Judge Slick, the tax liens and mortgage liens were compromised and settled and appellant’s real estate was sold with court approval, free of the liens of the Barrett Law bonds. The record discloses no objection by appellants at any stage of those proceedings, including the real estate sales. In the meantime, in 1950, Carl Huebner was convicted in an Indiana court of criminal conduct in conjunction with the foreclosure of Barrett Law bonds. Judge Swygert, who was then presiding in the case, effected Huebner’s removal as attorney for Suprise and on May 23, 1950, appointed the appellee and Arnold Huebner, Carl’s brother, as co-counsel for the trustee. An amendment to the plan of reorganization was filed in the early part of 1951, and set for hearing at a meeting of interested persons to be held on April 16, 1951. Also pending at that time were petitions filed by Suprise, Carl Huebner, Arnold Huebner, Mr. Davis, members of the bondholders committee and attorneys for the bondholders committee for the allowance of fees. On the latter date, appellant filed a petition for the removal of Suprise as trustee, alleging that neither he nor the Huebners were disinterested persons for the reason that Suprise and Carl Huebner were principal owners of Lake Assessment Bonds Service, Inc., a holder and collection agent for a number of the special improvement bonds which were a lien upon appellant’s real estate. It was also alleged that S. C. Ennis & Company, selected by Suprise as agent for sale of the real estate, had sold a large part of appellant’s real estate to a corporation owned by itself. At the same time, appellant filed objections to the fee petitions of Suprise and both Huebners upon the ground that each owned, or represented, interests which were adverse to those of both the creditors and stockholders of appellant. Objection was made to the fee petitions of members of the bondholders committee and their attorneys upon the ground that they had employed their positions to effect the purchase of outstanding bonds which were a lien upon appellant’s real estate during their tenure as court-appointed fiduciaries. Appellant’s objection to Mr. Davis’ petition for fees was predicated upon the alleged fact that Mr. Davis had represented a disqualified trustee and had, in that representation, worked in collaboration with a disqualified co-counsel, Arnold Huebner, and a disqualified bondholders committee. It was also alleged that Mr. Davis had been remiss in his failure to discover and report to the court the activities and conflicting relationships of Suprise and other fiduciaries. One other petition by appellant, namely a petition requesting the court to find that appellant was not insolvent, was before the court with the petition for removal of Suprise and appellant’s objections to the fee petitions. After extensive hearings had been held in 1951 and 1952, Judge Swygert entered a memorandum order on October 29, 1952, disposing of the above pending petitions and objections. The court found that Suprise and Carl Huebner, as substantial owners of Lake Assessment, held an interest which was materially adverse to the creditors and stockholders of appellant, and concluded that those persons would not have been appointed as trustee and trustee’s attorney had that adverse interest been known to the court. The court found, further, that certain sales of real estate by Ennis had not been made at arm’s length and that several of the persons acting in a fiduciary capacity in the estate had used their appointment to profit from speculation in Barrett bonds which were liens upon appellant’s property. The court concluded, however, that no prejudice to creditors or the stockholders of appellant was revealed by the evidence. An order was then entered removing Suprise as trustee, disbanding the bondholders committee, denying the fee petitions of Suprise, the Huebners and certain other of the fiduciaries and directing that statutory notice' be given of a hearing to convert the cause to a straight bankruptcy pursuant to Section 236(2). The fee petition of Mr. Davis and those of certain of the members of the bondholders committee were allowed. In allowing the Davis fee petition, the court found that there was no evidence that Mr. Davis had knowledge of the improper interest and conduct of Suprise and the other fiduciaries or that appellant’s attorney had ever called those facts to his attention prior to the hearing upon the petition to remove Suprise. Finally, by the same opinion, Judge Swygert rejected appellant’s petition for a decree of its solvency, holding that appellant was bound by the admission of insolvency made in its answer filed in 1941. On November 7, 1952, appellant and some of its stockholders filed a motion for a new trial and for amendment of the findings of fact entered October 29, 1952, alleging, in part, as follows: a. That the court had erred in allowing compensation to certain members of the bondholders committee in view of the alleged proof that they had conspired with Suprise and his attorneys to perpetrate a fraud upon the court and upon appellant; and b. That the court had erred in failing to find that the original reorganization petition had been a part of a conspiracy to perpetrate a fraud upon the court and appellant to obtain a decree of insolvency and to gain control of appellant’s assets. No error was alleged with respect to the allowance of fees to Mr. Davis. That motion was denied on February 10, 1953, and no appeal was taken. In the meantime, on December 3, 1952, one Samuel H. Cohn was appointed successor trustee. Mr. Cohn died within two weeks thereafter and the appellee, McLean, was appointed successor trustee on December 22, 1952. Appellee, Davis, was retained by the court as attorney for the trustee. On February 16,1953, after notice and a hearing, appellant was adjudicated a bankrupt. From the findings of the court entered at that time, it appears that counsel for appellant consented to that adjudication. Pursuant to authority granted by the court, appellees employed auditors to audit the records of Barrett bonds affecting appellant’s property as shown by the books and records of the Treasurer of the City of Hammond. An audit was made, and on the basis thereof appellee McLean filed his final report and petition for allowance of certain class 2 claims on September 7, 1955. By that report he proposed that claims upon special assessment bonds be allowed, and that funds be allocated therefor as follows: a. The sum of $382,989.63 to 310 claims on which the bonds had been produced and cheeked; b. The sum of $17,705.48 to 43 claims on which the bonds had not been produced and checked; and, c. The sum of $43,436.47 to remaining outstanding bonds and coupons upon the fifty assessment rolls upon which no claims had been filed. It was proposed that the latter two aggregate sums be paid to the Clerk of the Court for the use of bondholders ultimately entitled thereto. At this point in the case, appellant and some of its stockholders filed their objections to class 2 claims, which led to the order of March 5, 1956, and the first appeal as hereinabove related. In re Woodmar Realty Co., 7 Cir., 241 F.2d 768. On March 20, 1956, appellant filed a motion to vacate the order of November 22, 1941, and the findings of fact and conclusions of law entered October 29, 1952, insofar as it was there adjudicated that appellant was insolvent. That motion alleged that such orders had been procured by fraud; that appellees had been and were suppressing defenses and objections to class 2 claims; and that the motion was timely “because this is the first time that Woodmar and its stockholders have been prejudiced by” the orders of November 22, 1941, and October 29, 1952. The latter motion was stricken ' on March 20, 1956, and though the appeal was taken from the order of March 5, 1956, it appears from our opinion in In re Woodmar Realty Company, 7 Cir., 241 F.2d 768, 64 A.L.R.2d 883, that the March 20th order striking appellant’s motion to vacate the 1941 order and the 1952 findings and conclusions was not then presented to this Court for review. The history of events following the issuance of our mandate in the first appeal as hereinabove related, i. e., the selection of claim 441 for trial and the filing and withdrawal of the 1957 removal petition follow in sequence at this point and are pertinent. Finally, the amended petition under review followed. From the foregoing summary of some pertinent parts of the record facts in this cause emerges a pattern of conduct which has characterized the actions of counsel for appellant in this case for some ten years. Whatever may be said of the conduct of Suprise, Huebner and others prior to the hearings in 1951 and 1952, an able trial judge rectified the situation by the 1952 opinion and order. Though appellant expressly requested the court to find that this case had its inception in fraud and that a fraud had been perpetrated upon the court by Suprise and others, no finding of fraud was entered. On the contrary, the court expressed the opinion that the evidence failed to show that any prejudice resulted from the misconduct then disclosed. The record indicates that appellant and its counsel were then in accord with that conclusion, inasmuch as no appeal was taken from the 1952 decision, and thereafter, appellant, through its counsel, consented to the adjudication of appellant’s bankruptcy and to continuation of the cause in bankruptcy pursuant to Section 236 (2). Notwithstanding that apparent accord, counsel has advanced the same charges of fraud in 1956 and 1957. Thereafter, on May 19, 1958, counsel for appellant stated in a pre-trial conference that there were no prior orders of court which he felt should be vacated because of elements of fraud alleged to affect the cause. Contemporaneously with that statement, the fraud charges were renewed by the 1958 petition which, as amended in 1959, is now before the court for review. If nothing were here involved except the time element, there is a limit to the period of years over which the same dead horse may be beaten. The Suprise era of this case became final when no appeal was taken from the orders entered in 1952 and 1953 rejecting the contention that the adjudication of insolvency was obtained through fraud. The same contention was advanced and rejected in 1956, and no appeal was taken. There is, however, more involved here than the time element, namely, a vituperous tendency of counsel to read some heinous motive into the acts of anyone who dares to oppose him and of every judge who rules adversely to him. The record certainly supports the inference drawn in appellee’s brief that the 1957' petition, which was withdrawn, was a warning to appellees to not interfere in the plans of appellant’s counsel, and that the 1958 petition followed when that warning was not heeded. In that respect, we note that the 1957 petition was filed, on the eve of the commencement of litigation upon appellant’s objections to class-2 claims, that it was withdrawn shortly after the order of court which neutralized the trustee and his counsel insofar as. the trial of the test case was concerned and within two days after the trial of the test case had been completed and that the 1958 petition was filed a mere matter of days prior to appellant’s filing of settlement agreements which were the subject of the second appeal. In re Woodmar Realty Co., 7 Cir., 284 F.2d 815. We think that fact of timing is significant, and it is certainly consistent with the pattern which the record reveals of charging both the dead and the living with fraud whenever an adverse ruling is contemplated or becomes a reality. Although formal charges are confined to the trustee and his counsel, appellant’s brief reveals that the trial judges are not immune from similar attack. We abhor the insinuations that every trial judge, except the late Judge Parkinson, who has been burdened by this case since 1951, is either a blundering idiot, or, impliedly, a tool of some heinous, scheme. Those insinuations cannot be justified by anything which appears of record. Moreover, they are apparently motivated by the same lack of honesty which is apparent in the circumstances, surrounding Judge Swygert’s order disqualifying himself. Before leaving this phase of the case, we remark the ridiculous assertion that the fact that appellees propose to distribute substantial sums to class 2 claimants reveals a purpose to carry out a scheme devised by Suprise who proposed a similar distribution of assets in 1951. More must be said of this later, but the fact remains that Mr. McLean, as trustee, represents the creditors of appellant and his recommendations, though yet neither rejected nor approved by the ■court below, appear on the surface to be •a conscientious effort to recommend the allowance of claims which he believes to •be valid. The guilt by association allegations are followed by general allegations that appellees did not file objections to all of the class 2 claims, that they sought to .suppress defenses to those claims by filing the trustee’s final report in 1955 proposing the distribution of a substantial part of the funds in the hands of the trustee in satisfaction thereof and that •appellees sought to prevent appellant from protecting the estate against those lien claims by moving to strike appellant’s objections thereto. It is contend■ed that each of those allegations supports appellant’s conclusions that appellees are continuing a fraudulent scheme which began with Suprise, et al. At the outset we reject the frivolous assertion of supposed legal principle -that it is the duty of a trustee in bankxuptcy to object to every claim filed ■against the estate which he represents, The Act enjoins a trustee in bankruptcy to examine all claims and “object to the allowance of such claims as may be improper.” 11 U.S.C.A. § 75, sub. a(8). Actually, counsel apparently concedes that the duty to object, generally, attaches only with respect to claims which the trustee deems invalid, but he argues that objections must be made here because the claims are based upon liens of special improvement bonds which are said to be the obligations of the City of Hammond, not of appellant, That asserted exception is a complete misconception in at least two respects. The obligation of these bonds became the personal obligations of appellant upon its execution of the installment-payment waiver and agreement, Feder v. Gary State Bank, 98 Ind.App. 513, 186 N.E. 379; Central Bldg. & Loan Ass’n v. Gary State Bank, Ind.App., 186 N.E. 382; Larimer v. Gary State Bank, Ind.App., 186 N.E. 384; La Plante v. Englehart’s Estate, Ind.App., 186 N.E. 385. Qf greater significance, a trustee in bankruptcy represents every class of creditors of the bankrupt. He takes the same property rights which the bankrupt owned and he is charged with a duty to discover and honor recorded liens upon the property in his hands, In re Wakey, 7 Cir., 50 F.2d 869, 75 A.L.R. 1521; New York-Brooklyn Fuel Corp. v. Fuller, 2 Cir., 11 F.2d 802, and he may be held personally liable for his negligence if he disposes of property in his hands without discovering the record,fact of the existence of a valid lien upon that property, In re Prather, D.C.S.D.Ill., 138 F.Supp. 433; Grodsky v. Sipe, D.C.E.D.Ill., 36 F.Supp. 244. Filing of objections without legal basis therefor is never required, The general allegation, actually an insinuation, that appellees did not file objections to class 2 claims is simply partly untrue in the light of record facts. Of the some 340 claims filed in the reorganization and the some 202 claims filed in bankruptcy after February, 1953, appellees obtained the disallowance of 142 class 2 claims as barred by the statute of limitations, or as duplicated claims, and the partial disallowance of 24 additional claims filed by former fiduciaries, Appellees recommended the allowance of the balance of the class 2 claims upon their reported determination that each was a valid and subsisting lien upon the funds in the hands of the trustee and not subject to any legal defense. We express no opinion as to the merit of the trustee's final report from which the latter recitals of fact are taken since that report has not been acted upon by the court below. Appellant, however, does not contradict the recited fact that a number of class 2 claims were resisted and disallowed, and the report stands of record as a refutation of the allegation that appellees objected to no class 2 claims. What is said above applies with equal force to the general allegations that appellees sought to suppress defenses to class 2 claims by recommending their allowance and by resisting appellant’s efforts to object to such claims. The trustee’s final report, which is yet pending, recites appellee’s determination that no valid defenses could be made to the lien claims which he recommended for payment. The lower court’s indicated decision of the test case upon claim 441, which is now of record, suggests that Judge Tehan agrees with appellees that the objections to those claims which appellant asserts are without merit. We express no opinion upon that point, since that decision is not before us on review. We note the indicated decision only for its tendency to illustrate the gross absurdity of the contention that the machinations of some nefarious plot led to the trustee’s recommendation that certain of the class 2 claims be Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number. Answer:
songer_opinstat	B	What follows is an opinion from a United States Court of Appeals. Your task is to identify whether the opinion writter is identified in the opinion or whether the opinion was per curiam. Michael W. HURLEY, Plaintiff-Appellant, v. PATAPSCO & BACK RIVERS RAILROAD COMPANY, a body corporate, Defendant-Appellee. No. 89-2909. United States Court of Appeals, Fourth Circuit. Argued June 8, 1989. Decided Nov. 1, 1989. Gerald Francis Gay (Herbert J. Arnold, Arnold, Beauchemin & Tingle, P.A., Baltimore, Md., on brief), for plaintiff-appellant. Rudolph Lee Rose (Robert T. Franklin, P. Matthew Darby, Semmes, Bowen & Semmes, Baltimore, Md., on brief), for defendant-appellee. Before POWELL, Associate Justice (Retired), United States Supreme Court, sitting by designation; WIDENER and CHAPMAN, Circuit Judges. PER CURIAM: The questions presented are whether the district court erred in granting appellee’s motion for a directed verdict at the end of appellant’s case and in granting appellee’s motion in limine to exclude certain evidence. We find no error, and accordingly affirm. I. Appellant Michael W. Hurley has been employed by appellee railroad company since July 7,1974, as an expert machinist in the Locomotive Repair Shop. Prior to this employment, he completed a four year apprenticeship program involving 8,000 hours of training. Appellant is the only employee in the shop who is qualified to operate the Reed-Prentice lathe. As such, appellant manages his own schedule and determines how each lathe job will be set up. He conducts his own inspections of the lathe and is responsible for ensuring that it is safe to operate. On October 21, 1985, appellant began using the lathe to file down a sheave, a piece of equipment designed to hold multiple fan belts. As was his standard practice, appellant secured the sheave in the lathe with a C-clamp. Because he was cold, he wore a loose-fitting sweater he had brought from home. At approximately 8:50 a.m., he “leaned in to file the burrs off the sheave.” Testimony of Michael W. Hurley, Joint Appendix (“J.A.”) at 67. His sweater was caught on the C-clamp, and appellant was pulled into the lathe. He suffered a collapsed right lung, left rib fractures, and a fractured left scapula. Appellant brought this action in the District of Maryland pursuant to the Federal Employers’ Liability Act (“FELA”), 45 U.S.C. § 51. Prior to trial, the district court granted appellee’s motion in limine and excluded all evidence concerning alternative designs for the lathe, including alternative guarding procedures. Thus, appellant was precluded from presenting evidence that other lathes on appellee’s premises were equipped with guards over the clamp. The case was tried to a jury on November 30 and December 1, 1988. Appellant’s primary contention at trial was that appel-lee provided inadequate lighting and that this negligence caused appellant’s injuries. The Reed-Prentice lathe receives light from two sources: a series of overhead lucalux lights and daylight through a large bank of windows eight to ten feet from the lathe. Unlike some of the other machines in the shop, the Reed-Prentice lathe did not have an individual fluorescent light. Appellant testified that the windows were dirty and had not been cleaned for years. Appellant also testified that, as a result of the poor lighting, his body cast a shadow over the lower part of the lathe and that there was no direct illumination at the point where his sweater was pulled into the lathe. He further testified that he had requested individual lighting for the Reed-Prentice lathe four or five years before the accident. He never repeated this request. At the close of appellant’s case, appellee moved for a directed verdict pursuant to Fed.R.Civ.P. 50(a). During argument on this motion, the district court judge repeatedly asked appellant’s counsel to indicate what evidence there was of negligence by appellee. See J.A. at 133-135, 152, 164. After argument, the court granted appel-lee’s motion. The court emphasized appellant’s status as a highly trained employee with exclusive responsibility for the safe operation of the Reed-Prentice lathe. The court also found that a four or five year old request for direct lighting was not legally sufficient evidence to support an inadequate lighting claim. The court concluded that the evidence left no doubt that appel-lee was not negligent and that appellant was solely responsible for the accident. II. An FELA claim must survive a motion for a directed verdict and proceed to the jury if “the proofs justify with reason the conclusion that employer negligence played any part, even the slightest, in producing the injury or death for which damages are sought.” Rogers v. Missouri Pacific R.R. Co., 352 U.S. 500, 506, 77 S.Ct. 443, 448, 1 L.Ed.2d 493 (1957). But the plaintiff still has the burden of proving some act of negligence by the railroad. See Inman v. Baltimore & Ohio R.R. Co., 361 U.S. 138, 140, 80 S.Ct. 242, 243, 4 L.Ed.2d 198 (1959); Ambold v. Seaboard Air Line R.R. Co., 345 F.2d 30, 33 (4th Cir.), cert. denied, 382 U.S. 831, 86 S.Ct. 70, 15 L.Ed.2d 75 (1965). Even viewing the facts in the light most favorable to appellant, we cannot find any legally sufficient evidence of appellee’s alleged negligence. Appellant operated the Reed-Prentice lathe under these lighting conditions without incident for many years before the accident. Although he once requested direct lighting, he did not consider the request important enough to mention again. Appellant was the only employee qualified to operate the Reed-Prentice lathe. Without notice from appellant as to possibly dangerous conditions not evident to a layperson, appellee had no opportunity to correct these conditions and cannot be found negligent. Cf. Inman, supra, 361 U.S. at 140, 80 S.Ct. at 243 (considering the absence of similar accidents in the past and the absence of complaints about the allegedly dangerous conditions probative of an absence of negligence by the railroad). The only evidence appellant presented in support of his inadequate lighting claim was his own testimony and three photographs taken in the repair shop on October 21, 1985. The district court found that the jury could not discern from the photographs the amount of light in the repair shop generally or at the Reed-Prentice lathe. See J.A. at 165. Even if the amount of light were discernible from the photographs, appellant presented no evidence that the light was inadequate for safe operation of the lathe. He did not, for example, present the testimony of an expert witness regarding the proper lighting conditions for safe operation of a Reed-Prentice lathe. His own conclusory assertions that the lighting was inadequate are not sufficient to survive a motion for a directed verdict. Appellant’s evidence in this case was such that the jury could have reached a verdict in his favor only by speculating. As such, the district court’s granting of appellee’s motion for a directed verdict was proper and must be affirmed. See Kuberski v. New York Central R.R. Co., 359 F.2d 90, 92 (2d Cir.1966), cert. denied, 386 U.S. 1036, 87 S.Ct. 1475, 18 L.Ed.2d 600 (1967). Furthermore, appellant never provided an evidentiary link between the allegedly inadequate lighting and his accident. He presented no evidence as to why the lighting in the repair shop made operation of the lathe dangerous or how direct lighting could have prevented this accident. Indeed, appellant testified that he had worked the 3:00 p.m. to 11:00 p.m. shift and had never had a similar accident, in spite of the lack of any natural illumination from the windows after sundown. Given the evidence presented, the district court properly concluded that plaintiffs negligence was the sole proximate cause of the accident. Appellant was injured because he wore a loose-fitting sweater and “leaned in” too close to the lathe. Absent speculation, no act or omission of appellee can be said to have played any role in causing appellant’s injuries. When an employee’s own negligence is the sole proximate cause of his injuries, the employer cannot be found liable pursuant to FELA. See Tennant v. Peoria & Pekin Union Ry. Co., 321 U.S. 29, 32, 64 S.Ct. 409, 411, 88 L.Ed. 520 (1944); Barnett v. Terminal R.R. Assoc. of St. Louis, 228 F.2d 756 (8th Cir.), cert. denied, 351 U.S. 953, 76 S.Ct. 850, 100 L.Ed. 1476 (1956). Thus, the district court properly granted appellee’s motion for a directed verdict. III. Appellant contends that the district court erred in excluding testimony by appellant that he observed guards covering the rotating machine chuck on another lathe in another machine shop on appellee’s premises. In support of this contention, appellant notes Eggert v. Norfolk & Western Ry. Co., 538 F.2d 509 (2d Cir.1976). In Eggert, the plaintiff fell and struck his knee on a brake valve lever. The court held that “evidence of the practices of other railroads with respect to brake valve guards is highly relevant since the existence of alternatives would be significant on the issue of whether defendants acted reasonably in the present case.” Id. at 512. The significance of such evidence, however, is directly related to the similarity between the two situations being compared. In this case, plaintiff was the only employee qualified to operate the Reed-Prentice lathe. That lathe was unlike any other lathe operated on appellee’s premises. Absent some evidence of similarity between the lathe observed with a guard and the Reed-Prentice lathe, evidence with respect to the guarded lathe is irrelevant to the issue of appellee’s negligence. Without additional evidence, appellant would be asking the jury to speculate that, because a different lathe had a guard, appellee should have provided a guard for the Reed-Prentice lathe. The district court properly excluded this unsupported and speculative testimony. IV. We think the district court correctly granted appellee’s motion to exclude evidence of guards on other lathes and appel-lee’s motion for a directed verdict at the end of appellant’s case. The judgment of the district court is therefore AFFIRMED. Question: Is the opinion writer identified in the opinion, or was the opinion per curiam? A. Signed, with reasons B. Per curiam, with reasons C. Not ascertained Answer:
sc_petitionerstate	27	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the state associated with the petitioner. If the petitioner is a federal court or federal judge, note the "state" as the United States. The same holds for other federal employees or officials. WYGANT et al. v. JACKSON BOARD OF EDUCATION et al. No. 84-1340. Argued November 6, 1985 Decided May 19, 1986 Powell, J., announced the judgment of the Court and delivered an opinion, in which Burger, C. J., and Rehnquist, J., joined, and in all but Part IV of which O’Connor, J., joined. O’Connor, J., filed an opinion concurring in part and concurring in the judgment, post, p. 284. White, J., filed an opinion concurring in the judgment, post, p. 294. Marshall, J., filed a dissenting opinion, in which Brennan and Black-mun, JJ., joined, post, p. 295. Stevens, J., filed a dissenting opinion, .post, p. 313. K. Preston Oade, Jr., argued the cause for petitioners. With him on the briefs were Constance E. Brooks and Thomas Rasmussen. Jerome A. Susskind argued the cause and filed a brief for respondents. Briefs of amici curiae urging reversal were filed for the United States by Acting Solicitor General Fried, Assistant Attorney General Reynolds, Deputy Assistant Attorney General Cooper, Samuel A. Alito, Jr., Walter W. Barnett, and David K. Flynn; for the American Federation of Teachers, AFL-CIO, by Bruce A. Miller and Stuart M. Israel; for the Anti-Defamation League of B’nai B’rith by Robert A. Helman, Michele Odorizzi, Daniel M. Harris, Justin J. Finger, Meyer Eisenberg, and Jeffrey P. Sinensky; for Local 36, International Association of Firefighters, AFL-CIO, et al. by George H. Cohen; for the Mid-America Legal Foundation by John M. Cannon, Susan W. Wanat, and Ann Plunkett Sheldon; and for the Pacific Legal Foundation.by Ronald A. Zumbrum and John H. Findley. Briefs of amici curiae urging affirmance were filed for the State of Minnesota et al. by Hubert H. Humphrey III, Attorney General of Minnesota, John R. Tunheim, Assistant Attorney General, and Peter M. Ackerberg and Jean Boler, Special Assistant Attorneys General, John K. Van de Karnp, Attorney General of California, William J. Guste, Jr., Attorney General of Louisiana, Robert M. Spire, Attorney General of Nebraska, Paul Bardacke, Attorney General of New Mexico, and Bronson C. La Follette, Attorney General of Wisconsin; for the Affirmative Action Coordinating Center et al. by Jeanny Mirer, Jules Lobel, Frank E. Deale, and Anne Simon; for the Congressional Coalition by Morgan D. Hodgson, Richard Ruda, and Linda C. Kauskay; for the Greater Boston Civil Rights Coalition by John Reinstein, Marjorie Heins, and Mark A. Michelson; for the Jackson Education Association by James A. White; for the Lawyers’ Committee for Civil Rights Under Law et al. by Walter A. Smith, Jr., R. Claire Guthrie, James Robertson, Harold R. Tyler, Jr., Norman Redlich, Thomas D. Barr, William L. Robinson, Richard T. Seymour, Norman J. Chachkin, Robert Allen Sedler, and Burt Neubome; for the Mexican American Legal Defense and Educational Fund by Allen M. Katz, Antonia Hernandez, and John E. Huerta; for the Michigan Civil Rights Commission et al. by Frank J. Kelley, Attorney General of Michigan, Louis J. Caruso, Solicitor General, and Felix E. League, Howard E. Golberg, and Dianne Rubin, Assistant Attorneys General; for the National Association for the Advancement of Colored People by Grover G. Hankins; for the NAACP Legal Defense and Educational Fund, Inc., by Julius LeVonne Chambers, Ronald L. Ellis, and Eric Schnapper; for the National Education Association et al. by Robert H. Chanin; and for the National School Boards Association by Gwendolyn H. Gregory, August W. Steinhilber, and Thomas A. Shannon. Briefs of amici curiae were filed for the city of Detroit by Daniel B. Edelman; for the Equal Employment Advisory Council by Robert E. Williams, Douglas S. McDowell, and Thomas R. Bagby; for the Michigan State Police Troopers Association, Inc., by Donald L. Reisig and Lawrence P. Schneider; and for the National Board, YMCA of the USA, et al. by Judith Lichtman. Justice Powell announced the judgment of the Court and delivered an opinion in which The Chief Justice and Justice Rehnquist join, and in all but Part IV of which Justice O’Connor joins. This case presents the question whether a school board, consistent with the Equal Protection Clause, may extend preferential protection against layoffs to some of its employees because of their race or national origin. I In 1972 the Jackson Board of Education, because of racial tension in the community that extended to its schools, considered adding a layoff provision to the Collective Bargaining Agreement (CBA) between the Board and the Jackson Education Association (Union) that would protect employees who were members of certain minority groups against layoffs. The Board and the Union eventually approved a new provision, Article XII of the CBA, covering layoffs. It stated: “In the event that it becomes necessary to reduce the number of teachers through layoff from employment by the Board, teachers with the most seniority in the district shall be retained, except that at no time will there be a greater percentage of minority personnel laid off than the current percentage of minority personnel employed at the time of the layoff. In no event will the number given notice of possible layoff be greater than the number of positions to be eliminated. Each teacher so affected will be called back in reverse order for positions for which he is certificated maintaining the above minority balance.” App. 13. When layoffs became necessary in 1974, it was evident that adherence to the CBA would result in the layoff of tenured nonminority teachers while minority teachers on probationary status were retained. Rather than complying with Article XII, the Board retained the tenured teachers and laid off probationary minority teachers, thus failing to maintain the percentage of minority personnel that existed at the time of the layoff. The Union, together with two minority teachers who had been laid off, brought suit in federal court, id., at 30 (Jackson Education Assn. v. Board of Education (Jackson I) (mem. op.)), claiming that the Board’s failure to adhere to the layoff provision violated the Equal Protection Clause of the Fourteenth Amendment and Title VII of the Civil Rights Act of 1964. They also urged the District Court to take pendent jurisdiction over state-law contract claims., In its answer the Board denied any prior employment discrimination and argued that the layoff provision conflicted with the Michigan Teacher Tenure Act. App. 33. Following trial, the District Court sua sponte concluded that it lacked jurisdiction over the case, in part because there was insufficient evidence to support the plaintiffs’ claim that the Board had engaged in discriminatory hiring practices prior to 1972, id., at 35-37, and in part because the plaintiffs had not fulfilled the jurisdictional prerequisite to a Title VII claim by filing discrimination charges with the Equal Employment Opportunity Commission. After dismissing the federal claims, the District Court declined to exercise pendent jurisdiction over the state-law contract claims. Rather than taking an appeal, the plaintiffs instituted a suit in state court, Jackson Education Assn. v. Board of Education, No. 77-011484CZ (Jackson Cty. Cir. Ct. 1979) (Jackson II), raising in essence the same claims that had been raised in Jackson I. In entering judgment for the plaintiffs, the state court found that the Board had breached its contract with the plaintiffs, and that Article XII did not violate the Michigan Teacher Tenure Act. In rejecting the Board’s argument that the layoff provision violated the Civil Rights Act of 1964, the state court found that it “ha[d] not been established that the board had discriminated against minorities in its hiring practices. The minority representation on the faculty was the result of societal racial discrimination.” App. 43. The state court also found that “[tjhere is no history of overt past discrimination by the parties to this contract.” Id., at 49. Nevertheless, the court held that Article XII was permissible, despite its discriminatory effect on non-minority teachers, as an attempt to remedy the effects of societal discrimination. After Jackson II, the Board adhered to Article XII. As a result, during the 1976-1977 and 1981-1982 school years, nonminority teachers were laid off, while minority teachers with less seniority were retained. The displaced nonminority teachers, petitioners here, brought suit in Federal District Court, alleging violations of the Equal Protection Clause, Title VII, 42 U. S. C. § 1983, and other federal and state statutes. On cross-motions for summary judgment, the District Court dismissed all of petitioners’ claims. 546 F. Supp. 1195 (ED Mich. 1982). With respect to the equal protection claim, the District Court held that the racial preferences granted by the Board need not be grounded on a finding of prior discrimination. Instead, the court decided that the racial preferences were permissible under the Equal Protection Clause as an attempt to remedy societal discrimination by providing “role models” for minority schoolchildren, and upheld the constitutionality of the layoff provision. The Court of Appeals for the Sixth Circuit affirmed, largely adopting the reasoning and language of the District Court. 746 F. 2d 1152 (1984). We granted certiorari, 471 U. S. 1014 (1985), to resolve the important issue of the constitutionality of race-based layoffs by public employers. We now reverse. II Petitioners’ central claim is that they were laid off because of their race in violation of the Equal Protection Clause of the Fourteenth Amendment. Decisions by faculties and administrators of public schools based on race or ethnic origin are reviewable under the Fourteenth Amendment. This Court has “consistently repudiated ‘[distinctions between citizens solely because of their ancestry’ as being ‘odious to a free people whose institutions are founded upon the doctrine of equality,’” Loving v. Virginia, 388 U. S. 1, 11 (1967), quoting Hirabayashi v. United States, 320 U. S. 81, 100 (1943). “Racial and ethnic distinctions of any sort are inherently suspect and thus call for the most exacting judicial examination.” University of California Regents v. Bakke, 438 U. S. 265, 291 (1978) (opinion of Powell, J., joined by White, J.). The Court has recognized that the level of scrutiny does not change merely because the challenged classification operates against a group that historically has not been subject to governmental discrimination. Mississippi University for Women v. Hogan, 458 U. S. 718, 724, n. 9 (1982); Bakke, supra, at 291-299; see Shelley v. Kraemer, 334 U. S. 1, 22 (1948); see also A. Bickel, The Morality of Consent 133 (1975). In this case, Article XII of the CBA operates against whites and in favor of certain minorities, and therefore constitutes a classification based on race. “Any preference based on racial or ethnic criteria must necessarily receive a most searching examination to make sure that it does not conflict with constitutional guarantees.” Fullilove v. Klutznick, 448 U. S. 448, 491 (1980) (opinion of Burger, C. J.). There are two prongs to this examination. First, any racial classification “must be justified by a compelling governmental interest.” Palmore v. Sidoti, 466 U. S. 429, 432 (1984); see Loving v. Virginia, supra, at 11; cf. Graham v. Richardson, 403 U. S. 365, 375 (1971) (alienage). Second, the means chosen by the State to effectuate its purpose must be “narrowly tailored to the achievement of that goal.” Fullilove, supra, at 480. We must decide whether the layoff provision is supported by a compelling state purpose and whether the means chosen to accomplish that purpose are narrowly tailored. Ill A The Court of Appeals, relying on the reasoning and language of the District Court’s opinion, held that the Board’s interest in providing minority role models for its minority students, as an attempt to alleviate the effects of societal discrimination, was sufficiently important to justify the racial classification embodied in the layoff provision. 746 F. 2d, at 1156-1157. The court discerned a need for more minority faculty role models by finding that the percentage of minority teachers was less than the percentage of minority students. Id., at 1156. This Court never has held that societal discrimination alone is sufficient to justify a racial classification. Rather, the Court has insisted upon some showing of prior discrimination by the governmental unit involved before allowing limited use of racial classifications in order to remedy such discrimination. This Court’s reasoning in Hazelwood School District v. United States, 433 U. S. 299 (1977), illustrates that the relevant analysis in cases involving proof of discrimination by statistical disparity focuses on those disparities that demonstrate such prior governmental discrimination. In Hazelwood the Court concluded that, absent employment discrimination by the school board, “ ‘nondiscriminatory hiring practices will in time result in a work force more or less representative of the racial and ethnic composition of the population in the community from which employees are hired.’” Id., at 307, quoting Teamsters v. United States, 431 U. S. 324, 340, n. 20 (1977). See also 746 F. 2d, at 1160 (Wellford, J., concurring) (“Had the plaintiffs in this case presented data as to the percentage of qualified minority teachers in the relevant labor market to show that defendant Board’s hiring of black teachers over a number of years had equalled that figure, I believe this court may well have been required to reverse . . .”). Based on that reasoning, the Court in Hazelwood held that the proper comparison for determining the existence of actual discrimination by the school board was “between the racial composition of [the school’s] teaching staff and the racial composition of the qualified public school teacher population in the relevant labor market.” 433 U. S., at 308. Hazelwood demonstrates this Court’s focus on prior discrimination as the justification for, and the limitation on, a State’s adoption of race-based remedies. See also Swann v. Charlotte-Mecklenburg Board of Education, 402 U. S. 1 (1971). Unlike the analysis in Hazelwood, the role model theory employed by the District Court has no logical stopping point. The role model theory allows the Board to engage in discriminatory hiring and layoff practices long past the point required by any legitimate remedial purpose. Indeed, by tying the required percentage of minority teachers to the percentage of minority students, it requires just the sort of year-to-year calibration the Court stated was unnecessary in Swann, 402 U. S., at 31-32: “At some point these school authorities and others like them should have achieved full compliance with this Court’s decision in Brown I. . . . Neither school authorities nor district courts are constitutionally required to make year-by-year adjustments of the racial composition of student bodies once the affirmative duty to desegregate has been accomplished and racial discrimination through official action is eliminated from the system.” See also id., at 24. Moreover, because the role model theory does not necessarily bear a relationship to the harm caused by prior discriminatory hiring practices, it actually could be used to escape the obligation to remedy such practices by justifying the small percentage of black teachers by reference to the small percentage of black students. See United States v. Hazelwood School District, 392 F. Supp. 1276, 1286-1287 (ED Mo. 1975), rev’d, 534 F. 2d 805 (CA8 1976), rev’d and remanded, 433 U. S. 299 (1977). Carried to its logical extreme, the idea that black students are better off with black teachers could lead to the very system the Court rejected in Brown v. Board of Education, 347 U. S. 483 (1954) (Brown I). Societal discrimination, without more, is too amorphous a basis for imposing a racially classified remedy. The role model theory announced by the District Court and the resultant holding typify this indefiniteness. There are numerous explanations for a disparity between the percentage of minority students and the percentage of minority faculty, many of them completely unrelated to discrimination of any kind. In fact, there is no apparent connection between the two groups. Nevertheless, the District Court combined irrelevant comparisons between these two groups with an indisputable statement that there has been societal discrimination, and upheld state action predicated upon racial classifications. No one doubts that there has been serious racial discrimination in this country. But as the basis for imposing discriminatory legal remedies that work against innocent people, societal discrimination is insufficient and over-expansive. In the absence of particularized findings, a court could uphold remedies that are ageless in their reach into the past, and timeless in their ability to affect the future. B Respondents also now argue that their purpose in adopting the layoff provision was to remedy prior discrimination against minorities by the Jackson School District in hiring teachers. Public schools, like other public employers, operate under two interrelated constitutional duties. They are under a clear command from this Court, starting with Brown v. Board of Education, 349 U. S. 294 (1955), to eliminate every vestige of racial segregation and discrimination in the schools. Pursuant to that goal, race-conscious remedial action may be necessary. North Carolina State Board of Education v. Swann, 402 U. S. 43, 46 (1971). On the other hand, public employers, including public schools, also must act in accordance with a “core purpose of the Fourteenth Amendment” which is to “do away with all govemmentally imposed discriminations based on race.” Palmore v. Sidoti, 466 U. S., at 432. These related constitutional duties are not always harmonious; reconciling them requires public employers to act with extraordinary care. In particular, a public employer like the Board must ensure that, before it embarks on an affirmative-action program, it has convincing evidence that remedial action is warranted. That is, it must have sufficient evidence to justify the conclusion that there has been prior discrimination. Evidentiary support for the conclusion that remedial action is warranted becomes crucial when the remedial program is challenged in court by nonminority employees. In this case, for example, petitioners contended at trial that the remedial program — Article XII — had the purpose and effect of instituting a racial classification that was not justified by a remedial purpose. 546 F. Supp., at 1199. In such a case, the trial court must make a factual determination that the employer had a strong basis in evidence for its conclusion that remedial action was necessary. The ultimate burden remains with the employees to demonstrate the unconstitutionality of an affirmative-action program. But unless such a determination is made, an appellate court reviewing a challenge by nonminority employees to remedial action cannot determine whether the race-based action is justified as a remedy for prior discrimination. Despite the fact that Article XII has spawned years of litigation and three separate lawsuits, no such determination ever has been made. Although its litigation position was different, the Board in Jackson I and Jackson II denied the existence of prior discriminatory hiring practices. App. 33. This precise issue was litigated in both those suits. Both courts concluded that any statistical disparities were the result of general societal discrimination, not of prior discrimination by the Board. The Board now contends that, given another opportunity, it could establish the existence of prior discrimination. Although this argument seems belated at this point in the proceedings, we need not consider the question since we conclude below that the layoff provision was not a legally appropriate means of achieving even a compelling purpose. IV The Court of Appeals examined the means chosen to accomplish the Board’s race-conscious purposes under a test of “reasonableness.” That standard has no support in the decisions of this Court. As demonstrated in Part II above, our decisions always have employed a more stringent standard — however articulated — to test the validity of the means chosen by a State to accomplish its race-conscious purposes. See, e. g., Palmore, supra, at 432 (“[T]o pass constitutional muster, [racial classifications] must be ‘necessary ... to the accomplishment’ of their legitimate purpose”) (quoting McLaughlin v. Florida, 379 U. S. 184, 196 (1964)); Fullilove, 448 U. S., at 480 (opinion of Burger, C. J.) (“We recognize the need for careful judicial evaluation to assure that any . . . program that employs racial or ethnic criteria to accomplish the objective of remedying the present effects of past discrimination is narrowly tailored to the achievement of that goal”)- Under strict scrutiny the means chosen to accomplish the State’s asserted purpose must be specifically and narrowly framed to accomplish that purpose. Fullilove, 448 U. S., at 480 (opinion of Burger, C. J.). “Racial classifications are simply too pernicious to permit any but the most exact connection between justification and classification.” Id., at 537 (Stevens, J., dissenting). We have recognized, however, that in order to remedy the effects of prior discrimination, it may be necessary to take race into account. As part of this Nation’s dedication to eradicating racial discrimination, innocent persons may be called upon to bear some of the burden of the remedy. “When effectuating a limited and properly tailored remedy to cure the effects of prior discrimination, such a ‘sharing of the burden’ by innocent parties is not impermissible.” Id., at 484, quoting Franks v. Bowman Transportation Co., 424 U. S. 747, 777 (1976). In Fullilove, the challenged statute required at least 10 percent of federal public works funds to be used in contracts with minority-owned business enterprises. This requirement was found to be within the remedial powers of Congress in part because the “actual ‘burden’ shouldered by nonminority firms is relatively light.” 448 U. S., at 484. Significantly, none of the cases discussed above involved layoffs. Here, by contrast, the means chosen to achieve the Board’s asserted purposes is that of laying off nonminority teachers with greater seniority in order to retain minority teachers with less seniority. We have previously expressed concern over the burden that a preferential-layoffs scheme imposes on innocent parties. See Firefighters v. Stotts, 467 U. S. 561, 574-576, 578-579 (1984); see also Steelworkers v. Weber, 443 U. S. 193, 208 (1979) (“The plan does not require the discharge of white workers and their replacement with new black hirees”). In cases involving valid hiring goals, the burden to be borne by innocent individuals is diffused to a considerable extent among society generally. Though hiring goals may burden some innocent individuals, they simply do not impose the same kind of injury that layoffs impose. Denial of a future employment opportunity is not as intrusive as loss of an existing job. Many of our cases involve union seniority plans with employees who are typically heavily dependent on wages for their day-to-day living. Even a temporary layoff may have adverse financial as well as psychological effects. A worker may invest many productive years in one job and one city with the expectation of earning the stability and security of seniority. “At that point,' the rights and expectations surrounding seniority make up what is probably the most valuable capital asset that the worker ‘owns,’ worth even more than the current equity in his home.” Fallon & Weiler, Conflicting Models of Racial Justice, 1984 S. Ct. Rev. 1, 58. Layoffs disrupt these settled expectations in a way that general hiring goals do not. While hiring goals impose a diffuse burden, often foreclosing only one of several opportunities, layoffs impose the entire burden of achieving racial equality on particular individuals, often resulting in serious disruption of their lives. That burden is too intrusive. We therefore hold that, as a means of accomplishing purposes that otherwise may be legitimate, the Board’s layoff plan is not sufficiently narrowly tailored. Other, less intrusive means of accomplishing similar purposes — such as the adoption of hiring goals — are available. For these reasons, the Board’s selection of layoffs as the means to accomplish even a valid purpose cannot satisfy the demands of the Equal Protection Clause. V We accordingly reverse the judgment of the Court of Appeals for the Sixth Circuit. It is so ordered. Prior to bargaining on this subject, the Minority Affairs Office of the Jackson Public Schools sent a questionnaire to all teachers, soliciting their views as to a layoff policy. The questionnaire proposed two alternatives: continuation of the existing straight seniority system, or a freeze of minority layoffs to ensure retention of minority teachers in exact proportion to the minority student population. Ninety-six percent of the teachers who responded to the questionnaire expressed a preference for the straight seniority system. Article VII of the CBA defined “minority group personnel” as “those employees who are Black, American Indian, Oriental, or of Spanish descendancy.” App. 15. Petitioners have sought review in this Court only of their claim based on the Equal Protection Clause. School district collective-bargaining agreements constitute state action for purposes of the Fourteenth Amendment. Abood v. Detroit Board of Ed., 431 U. S. 209, 218, and n. 12 (1977). Justice Marshall contends that “the plurality has too quickly assumed the absence of a legitimate factual predicate ... for affirmative action in the Jackson schools,” post, at 297. In support of that assertion, he engages in an unprecedented reliance on nonrecord documents that respondent has “lodged” with this Court. This selective citation to factual materials not considered by the District Court or the Court of Appeals below is unusual enough by itself. My disagreement with Justice Marshall, however, is more fundamental than any disagreement over the heretofore unquestioned rule that this Court decides eases based on the record before it. Justice Marshall does not define what he means by “legitimate factual predicate,” nor does he demonstrate the relationship of these nonrecord materials to his undefined predicate. If, for example, his dissent assumes that general societal discrimination is a sufficient factual predicate, then there is no need to refer to respondents’ lodgings as to its own employment history. No one disputes that there has been race discrimination in this country. If that fact alone can justify race-conscious action by the State, despite the Equal Protection Clause, then the dissent need not rely on nonrecord materials to show a “legitimate factual predicate.” If, on the other hand, Justice Marshall is assuming that the necessary factual predicate is prior discrimination by the Board, there is no escaping the need for a factual determination below — a determination that does not exist. The real dispute, then, is not over the state of the record. It is disagreement as to what constitutes a “legitimate factual predicate.” If the necessary factual predicate is prior discrimination — that is, that race-based state action is taken to remedy prior discrimination by the governmental unit involved — then the very nature of appellate review requires that a factfinder determine whether the employer was justified in instituting a remedial plan. Nor can respondents unilaterally insulate themselves from this key constitutional question by conceding that they have discriminated in the past, now that it is in their interest to make such a concession. Contrary to the dissent’s assertion, the requirement of such a determination by the trial court is not some arbitrary barrier set up by today’s opinion. Rather, it is a necessary result of the requirement that race-based state action be remedial. At any rate, much of the material relied on by Justice Marshall has been the subject of the previous lawsuit in Jackson II, where the court concluded that it “had not been established that the board had discriminated against minorities in its hiring practices.” App. 43. Moreover, as noted supra, at 271, in Jackson I the Board expressly denied that it had engaged in employment discrimination. The term “narrowly tailored,” so frequently used in our cases, has acquired a secondary meaning. More specifically, as commentators have indicated, the term may be used to require consideration of whether lawful alternative and less restrictive means could have been used. Or, as Professor Ely has noted, the classification at issue must “fit” with greater precision than any alternative means. Ely, The Constitutionality of Reverse Racial Discrimination, 41 U. Chi. L. Rev. 723, 727, n. 26 (1974). “[Courts] should give particularly intense scrutiny to whether a nonracial approach or a more narrowly-tailored racial classification could promote the substantial interest about as well and at tolerable administrative expense.” Greenawalt, Judicial Scrutiny of “Benign” Racial Preference in Law School Admissions, 75 Colum. L. Rev. 559, 578-579 (1975). Several commentators have emphasized that, no matter what the weight of the asserted governmental purpose, the means chosen to accomplish the purpose should be narrowly tailored. In arguing for a form of intermediate scrutiny, Professor Greenawalt contends that, “while benign racial classifications call for some weighing of the importance of ends they call for even more intense scrutiny of means, especially of the administrability of less onerous alternative classifications.” Greenawalt, supra, at 565. Professor Ely has suggested that “special scrutiny in the suspect classification context has in fact consisted not in weighing ends but rather in insisting that the classification in issue fit a constitutionally permissible state goal with greater precision than any available alternative.” Ely, supra, at 727, n. 26. Professor Gunther argues that judicial scrutiny of legislative means is more appropriate than judicial weighing of the importance of the legislative purpose. Gunther, The Supreme Court, 1971 Term — Foreword: In Search of Evolving Doctrine on a Changing Court: A Model For a Newer Equal Protection, 86 Harv. L. Rev. 1, 20-21 (1972). Of course, when a State implements a race-based plan that requires such a sharing of the burden, it cannot justify the discriminatory effect on some individuals because other individuals had approved the plan. Any “waiver” of the right not to be dealt with by the government on the basis of one’s race must be made by those affected. Yet Justice Marshall repeatedly contends that the fact that Article XII was approved by a majority vote of the Union somehow validates this plan. He sees this ease not in terms of individual constitutional rights, but as an allocation of burdens “between two racial groups.” Post, at 309. Thus, Article XII becomes a political compromise that “avoided placing the entire burden of layoffs on either the white teachers as a group or the minority teachers as a group.” Post, at 299. But the petitioners before us today are not “the white teachers as a group.” They are Wendy Wygant and other individuals who claim that they were fired from their jobs because of their race. That claim cannot be waived by petitioners’ more senior colleagues. In view of the way union seniority works, it is not surprising that while a straight freeze on minority layoffs was overwhelmingly rejected, a “compromise” eventually was reached that placed the entire burden of the compromise on the most junior union members. The more senior union members simply had nothing to lose from such a compromise. See ibid. (“To petitioners, at the bottom of the seniority scale among white teachers, fell the lot of bearing the white group’s proportionate share of layoffs that became necessary in 1982.”) The fact that such a painless accommodation was approved by the more senior union members six times since 1972 is irrelevant. The Constitution does not allocate constitutional rights to be distributed like bloc grants within discrete racial groups; and until it does, petitioners’ more senior union colleagues cannot vote away petitioners’ rights. Justice Marshall also attempts to portray the layoff plan as one that has no real invidious effect, stating that “within the confines of constant minority proportions, it preserves the hierarchy of seniority in the selection of individuals for layoff.” Post, at 309. That phrase merely expresses the tautology that layoffs are based on seniority except as to those nonminority teachers who are displaced by minority teachers with less seniority. This is really nothing more than group-based analysis: “[E]ach group would shoulder a portion of [the layoff] burden equal to its portion of the faculty.” Post, at 299. The constitutional problem remains: the decision that petitioners would be laid off was based on their race. Similarly, the Court approved the hiring program in Steelworkers v. Weber, 443 U. S. 193, 208 (1979), in part because the plan did not “unnecessarily trammel the interests of the white employees.” Since Weber involved a private company, its reasoning concerning the validity of the hiring plan at issue there is not directly relevant to this case, which involves a state-imposed plan. No equal protection claim was presented in Weber. There are cases involving alteration of strict seniority layoffs, see, e. g., Ford Motor Co. v. Huffman, 345 U. S. 330 (1953); Aeronautical Industrial District Lodge 727 v. Campbell, 337 U. S. 521 (1949), but they do not involve the critical element here — layoffs based on race. The Constitution does not require layoffs to be based on strict seniority. But it does require the State to meet a heavy burden of justification when it implements a layoff plan based on race. The “school admission” cases, which involve the same basic concepts as cases involving hiring goals, illustrate this principle. For example, in DeFunis v. Odegaard, 416 U. S. 312 (1974), while petitioner’s complaint alleged that he had been denied admission to the University of Washington Law School because of his race, he also had been accepted at the Oregon, Idaho, Gonzaga, and Willamette Law Schools. DeFunis v. Odegaard, 82 Wash. 2d 11, 30, n. 11, 507 P. 2d 1169, 1181, n. 11 (1973). The injury to DeFunis was not of the same kind or degree as the injury that he would have suffered had he been removed from law school in his third year. Even this analogy may not rise to the level of harm suffered by a union member who is laid off. We have recognized, however, that in order to provide make-whole relief to the actual, identified victims of individual discrimination, a court may in an appropriate ease award competitive seniority. See Franks v. Bowman Transportation Co., 424 U. S. 747 (1976). The Board’s definition of minority to include blacks, Orientals, American Indians, and persons of Spanish descent Question: What state is associated with the petitioner? 01. Alabama 02. Alaska 03. American Samoa 04. Arizona 05. Arkansas 06. California 07. Colorado 08. Connecticut 09. Delaware 10. District of Columbia 11. Federated States of Micronesia 12. Florida 13. Georgia 14. Guam 15. Hawaii 16. Idaho 17. Illinois 18. Indiana 19. Iowa 20. Kansas 21. Kentucky 22. Louisiana 23. Maine 24. Marshall Islands 25. Maryland 26. Massachusetts 27. Michigan 28. Minnesota 29. Mississippi 30. Missouri 31. Montana 32. Nebraska 33. Nevada 34. New Hampshire 35. New Jersey 36. New Mexico 37. New York 38. North Carolina 39. North Dakota 40. Northern Mariana Islands 41. Ohio 42. Oklahoma 43. Oregon 44. Palau 45. Pennsylvania 46. Puerto Rico 47. Rhode Island 48. South Carolina 49. South Dakota 50. Tennessee 51. Texas 52. Utah 53. Vermont 54. Virgin Islands 55. Virginia 56. Washington 57. West Virginia 58. Wisconsin 59. Wyoming 60. United States 61. Interstate Compact 62. Philippines 63. Indian 64. Dakota Answer:
sc_jurisdiction	A	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the manner in which the Court took jurisdiction. The Court uses a variety of means whereby it undertakes to consider cases that it has been petitioned to review. The most important ones are the writ of certiorari, the writ of appeal, and for legacy cases the writ of error, appeal, and certification. For cases that fall into more than one category, identify the manner in which the court takes jurisdiction on the basis of the writ. For example, Marbury v. Madison, 5 U.S. 137 (1803), an original jurisdiction and a mandamus case, should be coded as mandamus rather than original jurisdiction due to the nature of the writ. Some legacy cases are "original" motions or requests for the Court to take jurisdiction but were heard or filed in another court. For example, Ex parte Matthew Addy S.S. & Commerce Corp., 256 U.S. 417 (1921) asked the Court to issue a writ of mandamus to a federal judge. Do not code these cases as "original" jurisdiction cases but rather on the basis of the writ. MOBIL OIL CORP. v. HIGGINBOTHAM, ADMINISTRATRIX, et al. No. 76-1726. Argued January 10, 11, 1978 Decided June 5, 1978 SteveNS, J., delivered the opinion of the Court, in which Burger, C. J., and Stewart, White, Powell, and Rehnquist, JJ., joined. Marshall, J., filed a dissenting opinion, in which BlackmuN, J., joined, post, p. 626. BreNNAN, J., took no part in the consideration or decision of the case. Carl J. Schumacher, Jr., argued the cause for petitioner. With him on the brief were E. D. Vickery and Charles C. Gray. Jack C. Benjamin argued the cause for respondents. With him on the brief for respondent Shinn was Arthur A. Crais, Jr. Charles M. Thompson, Jr., filed a brief for respondents Higginbotham et al. I. P. Saal, Jr., filed a brief for respondent Nation. Mr. Justice Stevens delivered the opinion of the Court. This case involves death on the high seas. The question is whether, in addition to the damages authorized by federal statute, a decedent’s survivors may also recover damages under general maritime law. The United States Court of Appeals for the Fifth Circuit, disagreeing with the First Circuit, held that survivors may recover for their “loss of society,” as well as for their pecuniary loss. We reverse. Petitioner used a helicopter in connection with its oil drilling operations in the Gulf of Mexico about 100 miles from the Louisiana shore. On August 15, 1967, the helicopter crashed outside Louisiana’s territorial waters, killing the pilot and three passengers. In a suit brought by the passengers’ widows, in their representative capacities, the District Court accepted admiralty jurisdiction and found that the deaths were caused by petitioner’s negligence. The court awarded damages equal to the pecuniary losses suffered by the families of two passengers. Although the court valued the two families’ loss of society at $100,000 and $155,000, it held that the law did not authorize recovery for this loss. The Court of Appeals reversed, holding that the plaintiffs were entitled to claim damages for loss of society. We granted certiorari limited to this issue. 434 U. S. 816. I In 1877, the steamer Harrisburg collided with a schooner in Massachusetts coastal waters. The schooner sank, and its first officer drowned. Some five years later, his widow brought a wrongful-death action against the Harrisburg. This Court held that admiralty afforded no remedy for wrongful death in the absence of an applicable state or federal statute. The Harrisburg, 119 U. S. 199. Thereafter, suits arising out of maritime fatalities were founded by necessity on state wrongful-death statutes. See, e. g., The Hamilton, 207 U. S. 398. In 1920, Congress repudiated the rule of The Harrisburg for maritime deaths occurring beyond the territorial waters of any State. It passed the Death on the High Seas Act (hereinafter sometimes DOHSA), creating a remedy in admiralty for wrongful deaths more than three miles from shore. This Act limits the class of beneficiaries to the decedent’s “wife, husband, parent, child, or dependent relative,” establishes a two-year period of limitations, allows suits filed by the victim to continue as wrongful-death actions if the victim dies of his injuries while suit is pending, and provides that contributory negligence will not bar recovery. With respect to damages, the statute declares: “The recovery . . . shall be a fair and just compensation for the pecuniary loss sustained by the persons for whose benefit the suit is brought . . . .” In the half century between 1920 and 1970, deaths on the high seas gave rise to federal suits under DOHSA, while those in territorial waters were largely governed by state wrongful-death statutes. DOHSA brought a measure of uniformity and predictability to the law on the high seas, but in territorial waters, where The Harrisburg made state law the only source of a wrongful-death remedy, the continuing impact of that decision produced uncertainty and incongruity. The reasoning of The Harrisburg, which was dubious at best in 1886, became less and less satisfactory as the years passed. In 1970, therefore, the Court overruled The Harrisburg. In Moragne v. States Marine Lines, Inc., 398 U. S. 375, the Court held that a federal remedy for wrongful death does exist under general maritime law. The case concerned a death in Florida’s territorial waters. The defendant argued that Congress, by limiting DOHSA to the high seas, had evidenced an intent to preclude federal judicial remedies in territorial waters. The Court concluded, however, that the reason Congress confined DOHSA to the high seas was to prevent the Act from abrogating, by its own force, the state remedies then available in state waters. Id., at 400. In Moragne the Court left various subsidiary questions concerning the nonstatutory death remedy — such as the schedule of beneficiaries and the limitations period — for “further sifting through the lower courts in future litigation.” Id., at 408. A few years later, in Sea-Land Services, Inc. v. Gaudet, 414 U. S. 573, the Court confronted some of these questions. Among the issues addressed in Gaudet was the measure of survivors' damages. The Court held that awards could include compensation for loss of support and services, for funeral expenses, and for loss of society, but not for mental anguish or grief. Id., at 583-591. The Court recognized that DOHSA, which compensates only for pecuniary losses, did not allow awards for loss of society. But the accident in Gaudet, like that in Moragne, took place in territorial waters, where DOHSA does not apply. The Court chose not to adopt DOHSA’s pecuniary-loss standard; instead it followed the “clear majority of States” and “the humanitarian policy of the maritime law,” both of which favored recovery for loss of society. 414 U. S., at 587-588. In sum, the Court made a policy determination in.Gaudet which differed from the choice made by Congress when it enacted the Death on the High Seas Act. II The Gaudet opinion was broadly written. It did not state that the place where death occurred had an influence on its analysis. Gaudet may be read, as it has been, to replace entirely the Death on the High Seas Act. Its holding, however, applies only to coastal waters. We therefore must now decide which measure of damages to apply in a death action arising on the high seas — the rule chosen by Congress in 1920 or the rule chosen by this Court in Gaudet. As the divergence of views among the States discloses, there are valid arguments both for and against allowing recovery for loss of society. Courts denying recovery cite two reasons; (1) that the loss is “not capable of measurement by any material or pecuniary standard,” and (2) that an award for the loss “would obviously include elements of passion, sympathy and similar matters of improper character.” 1 S. Speiser, Recovery for Wrongful Death § 3:49 (2d ed. 1974). Courts allowing the award counter: (1) that the loss is real, however intangible it may be, and (2) that problems of measurement should not justify denying all relief. See generally Sea-Land Services, Inc. v. Gaudet, supra, at 588-590. In this case, however, we need not pause to evaluate the opposing policy arguments. Congress has struck the balance for us. It has limited survivors to recovery of their pecuniary losses. Respondents argue that Congress does not have the last word on this issue — that admiralty courts have traditionally undertaken to supplement maritime statutes and that such a step is necessary iii this case to preserve the uniformity of maritime law. Neither argument is decisive. We recognize today, as we did in Moragne, the value of uniformity, but a ruling that DOHSA governs wrongful-death recoveries on the high seas poses only a minor threat to the uniformity of maritime law. Damages aside, none of the issues on which DOHSA is explicit have been settled to the contrary by this Court in either Moragne or Gaudet. Nor are other disparities likely to develop. As Moragne itself implied, DOHSA should be the courts’ primary guide as they refine the nonstatutory death remedy, both because of the interest in uniformity and because Congress’ considered judgment has great force in its own right. It is true that the measure of damages in coastal waters will differ from that on the high seas, but even if this difference proves significant, a desire for uniformity cannot override the statute. We realize that, because Congress has never enacted a comprehensive maritime code, admiralty courts have often been called upon to supplement maritime statutes. The Death on the High Seas Act, however, announces Congress’ considered judgment on such issues as .the beneficiaries, the limitations period, contributory negligence, survival, and damages. See nn. 6-10, supra. The Act does not address every issue of wrongful-death law, see, e. g., n. 15, supra, but when it does speak directly to a question, the courts are not free to “supplement” Congress’ answer so thoroughly that the Act becomes meaningless. In Moragne, the Court recognized a wrongful-death remedy that supplements federal statutory remedies. But that holding depended on our conclusion that Congress withheld a statutory remedy in coastal waters in order to encourage and preserve supplemental remedies. 398 U. S., at 397-398. Congress did not limit DOHSA beneficiaries to recovery of their pecuniary losses in order to encourage the creation of non-pecuniary supplements. See generally Barbe v. Drummond, 507 F. 2d 794, 801 n. 10 (CA1 1974); Wilson v. Transocean Airlines, 121 F. Supp. 85 (ND Cal. 1954). There is a basic difference between filling a gap left by Congress’ silence and rewriting rules that Congress has affirmatively and specificallly enacted. In the area covered by the statute, it would be no more appropriate to prescribe a different measure of damages than to prescribe a different statute of limitations, or a different class of beneficiaries. Perhaps the wisdom we possess today would enable us to do a better job of repudiating The Harrisburg than Congress did in 1920, but even if that be true, we have no authority to substitute our views for those expressed by Congress in a duly enacted statute. Accordingly, the judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Me. Justice BreNNAN took no part in the consideration or decision of this case. Compare Barbe v. Drummond, 507 F. 2d 794, 800-802 (CA1 1974), with Higginbotham v. Mobil Oil Corp., 545 F. 2d 422 (CA5 1977). The members of the Higginbotham panel expressed their agreement with Barbe, swpra, but considered the issue foreclosed in their Circuit by Law v. Sea Drilling Corp., 510 F. 2d 242, on rehearing, 523 F. 2d 793 (CA5 1975). In that case, another Fifth Circuit panel stated that the statutory remedy provided by the Death on the High Seas Act was no longer needed. Id., at 798. See also n. 16, infra. 357 F. Supp. 1164, 1167 (WD La. 1973). The District Court bottomed admiralty jurisdiction on a finding that the helicopter was the functional equivalent of a erewboat. The ruling has not been challenged in this Court. Cf. Executive Jet Aviation, Inc. v. Cleveland, 409 U. S. 249, 271-272. 360 F. Supp. 1140 (WD La. 1973). One family received $362,297, the other $163,400. The District Court held that the third passenger’s family could claim benefits only under the Longshoremen’s and Harbor Workers’ Compensation Act. 33 U. S. C. § 901 et seq. The Court of Appeals reversed this ruling. 545 F. 2d, at 431-433. The former figure included $50,000 for one widow and $50,000 for her only daughter. The latter figure included $25,000 for the second widow and for each of two minor children, as well as $20,000 for each of four older children. 360 F. Supp., at 114A-1148. 41 Stat. 537, 46 U. S. C. § 761 et seq. § 761. § 763. § 765. § 766. In addition, the statute preserved the applicability of local law on the Great Lakes, in the Panama Canal Zone, and within the States’ territorial waters. § 767. Rights under foreign wrongful-death laws were also preserved. § 764. § 762. The death of a seaman was an exception to this rule. The Jones Act gives a remedy to the dependents of a seaman killed in the course of employment by his employer’s negligence, no matter where the wrong takes place. § 688. In The Tungus v. Skovgaard, 358 U. S. 588, for example, the Court could not definitively determine whether New Jersey law allowed recovery for unseaworthiness or required proof of negligence. Three anomalies were identified in Moragne v. States Marine Lines, Inc., 398 U. S. 375. In States with limited wrongful-death remedies, shipowners were liable if their breach of a maritime duty caused injury but not if the breach caused death. Furthermore, deaths due to unseaworthiness had a remedy on the high seas, but often w>ent unremedied inside the three-mile limit. Finally, “true” seamen were denied the benefit of state wrongful-death laws while longshoremen doing seamen’s work could assert claims under state law. Id., at 395-396. The Court in The Harrisburg arrived at its conclusion after rejecting arguments founded on nothing more than “good reason,” “natural equity,” and the experience of nations like France and Scotland. 119 U. S., at 212-213. The primary issue in Gaudet was whether a decedent’s survivors could bring a Moragne action even though the decedent himself had sued and recovered damages before dying. DOHSA offered no guidance on this issue. 414 U. S., at 683 n. 10. In the course of providing its own answer, the Court addressed the contention that the survivors’ recovery would simply duplicate the decedent’s. The Court outlined the elements of damages under the new maritime-death remedy and noted that several were distinct from those available to the decedent himself. As Chief Judge Brown put it in Law v. Sea Drilling Corp., 523 F. 2d 793 (CA5 1975): “It is time that the dead hand of The Harrisburg•— whether in the courts or on the elbow of the congressional draftsmen of DOHSA — follow the rest of the hulk to an honorable rest in the briney deep. ... No longer does one need . . . DOHSA as a remedy. There is a federal maritime cause of action for death on navigable waters — any navigable waters — and it can be enforced in any court.” Id., at 798. The award contemplated by Gaudet is especially difficult to compute, for the jury must calculate the value of the lost love and affection without awarding damages for the survivors’ grief and mental anguish, even though that grief is probably the most tangible expression of the survivors’ emotional loss. See Sea-Land Services, Inc. v. Gaudet, 414 U. S., at 585-586, n. 17. See also G. Gilmore & C. Black, Law of Admiralty 372 (2d ed. 1975). Moragne proclaimed the need for uniformity in a far more compelling context. When Moragne was decided, fatal accidents on the high seas had an adequate federal remedy, while the same accidents nearer shore might yield more generous awards, or none at all, depending on the law of the nearest State. The only disparity that concerns us today is the difference between applying one national rule to fatalities in territorial waters and a slightly narrower national rule to accidents farther from land. Moragne recognized that the courts would need to devise a limitations period and a schedule of beneficiaries for the new death remedy. The Court considered several alternative solutions to these problems. Only DOHSA, however, figured prominently in the discussion of both issues. 398 U. S., at 405-408. It remains to be seen whether the difference between awarding loss-of-society damages under Oaudet and denying them under DOHSA has a great practical significance. It may be argued that the competing views on awards for loss of society, see supra, at 623, can best be reconciled by allowing an award that is primarily symbolic, rather than a substantial portion of the survivors’ recovery. We have not been asked to rule on the propriety of the large sums that the District Court would have awarded for loss of society in this case. See n. 4, supra. Similarly, there may be no great disparity between DOHSA and Gaudet on the issue of funeral expenses. Gaudet awards damages to dependents who have paid, or will pay, for the decedent’s funeral, evidently on the theory that, but for the wrongful death, the decedent would have accumulated an estate large enough to pay for his own funeral. 414 U. S., at 591. On that theory, the cost of the funeral could also be considered a pecuniary loss suffered by the dependent as a result of the death. Question: What is the manner in which the Court took jurisdiction? A. cert B. appeal C. bail D. certification E. docketing fee F. rehearing or restored to calendar for reargument G. injunction H. mandamus I. original J. prohibition K. stay L. writ of error M. writ of habeas corpus N. unspecified, other Answer:
sc_casedisposition	D	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the disposition of the case, that is, the treatment the Supreme Court accorded the court whose decision it reviewed. The information relevant to this variable may be found near the end of the summary that begins on the title page of each case, or preferably at the very end of the opinion of the Court. For cases in which the Court granted a motion to dismiss, consider "petition denied or appeal dismissed". There is "no disposition" if the Court denied a motion to dismiss. WHORTON, DIRECTOR, NEVADA DEPARTMENT OF CORRECTIONS v. BOCKTING No. 05-595. Argued November 1, 2006 Decided February 28, 2007 Alito, J., delivered the opinion for a unanimous Court. George J. Chanos, Attorney General of Nevada, argued the cause for petitioner. With him on the briefs were Gerald Gardner, Chief Deputy Attorney General, and Victor-Hugo Schulze II and Rene L. Hulse, Senior Deputy Attorneys General. Irving L. Gornstein argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Clement, Assistant Attorney General Fisher, Deputy Solicitor General Dreeben, and Kathleen A. Felton. Frances A. Forsman argued the cause for respondent. With her on the brief was Michael Pescetta. Briefs of amici curiae urging reversal were filed for the State of Texas et al. by Greg Abbott, Attorney General of Texas, R. Ted Cruz, Solicitor General, Kristofer S. Monson, Assistant Solicitor General, and Fredericka Sargent, Assistant Attorney General, by Bill Lockyer, Attorney General of California, and Brian Means, Supervising Deputy Attorney General, and by the Attorneys General for their respective States as follows: Troy King of Alabama, David W. Marquez of Alaska, Terry Goddard of Arizona, John W. Suthers of Colorado, Richard Blumenthal of Connecticut, Carl C. Danberg of Delaware, Thurbert E. Baker of Georgia, Mark Bennett of Hawaii, Lawrence Wasden of Idaho, Lisa Madigan of Illinois, Steve Carter of Indiana, Tom Miller of Iowa, Phill Kline of Kansas, Gregory D. Stumbo of Kentucky, Charles C. Foti, Jr., of Louisiana, J. Joseph Curran, Jr., of Maryland, Tom Reilly of Massachusetts, Mike Cox of Michigan, Jim Hood of Mississippi, Mike McGrath of Montana, Jon Bruning of Nebraska, Kelly A Ayotte of New Hampshire, Patricia A. Madrid of New Mexico, Jim Petro of Ohio, W. A Drew Edmondson of Oklahoma, Hardy Myers of Oregon, Tom Corbett of Pennsylvania, Patrick C. Lynch of Rhode Island, Larry Long of South Dakota, Paul G. Summers of Tennessee, Mark Shurtleff of Utah, Bob McDonnell of Virginia, Rob McKenna of Washington, Darrell V. McGraw, Jr., of West Virginia, Peggy A Lautenschlager of Wisconsin, and Patrick J. Crank of Wyoming; and for the Criminal Justice Legal Foundation by Kent S. Scheidegger. A brief of amicus curiae urging affirmance was filed for the National Association of Criminal Defense Lawyers by Jeffrey T. Green and Marianne T. Caulfield. A brief of amici curiae was filed for former District Judge Edward N. Cahn et al. by Timothy P. O’Toole, Catharine F. Easterly, and former Judges John J. Gibbons, Timothy K. Lewis, H. Curtis Meaner, Stephen M. Orlofsky, and Patricia M. Wald, all pro se. Justice Alito delivered the opinion of the Court. This case presents the question whether, under the rules set out in Teague v. Lane, 489 U. S. 288 (1989), our decision in Crawford v. Washington, 541 U. S. 36 (2004), is retroactive to cases already final on direct review. We hold that it is not. I A Respondent Marvin Bockting lived in Las Vegas, Nevada, with his wife, Laura Bockting, their 3-year-old daughter Honesty, and Laura’s 6-year-old daughter from a previous relationship, Autumn. One night, while respondent was at work, Autumn awoke from a dream crying, but she refused to tell her mother what was wrong, explaining: “ ‘[D]addy said you would make him leave and that he would beat my butt if I told you.’ ” App. 119. After her mother reassured her, Autumn said that respondent had frequently forced her to engage in numerous and varied sexual acts with him. Ibid. The next day, Laura Bockting confronted respondent and asked him to leave the house. He did so but denied any wrongdoing. Two days later, Laura called a rape crisis hotline and brought Autumn to the hospital for an examination. At the hospital, Detective Charles Zinovitch from the Las Vegas Metropolitan Police Department Sexual Assault Unit attempted to interview Autumn but found her too distressed to discuss the assaults. Detective Zinovitch then ordered a rape examination, which revealed strong physical evidence of sexual assaults. See Findings of Fact and Conclusions of Law and Order in Nevada v. Bockting, Case No. C-83110 (D. Nev., Sept. 5,1994), App. 47, 119. Two days later, Detective Zinovitch interviewed Autumn in the presence of her mother, and at that time, Autumn provided a detailed description of acts of sexual assault carried out by respondent; Autumn also demonstrated those acts using anatomically correct dolls. Id., at 47-48; 119. Respondent was then arrested, and a state grand jury indicted him on four counts of sexual assault on a minor under 14 years of age. At respondent’s preliminary hearing, Autumn testified that she understood the difference between a truth and a lie, but she became upset when asked about the assaults. Although she initially agreed that respondent had touched her in a way that “[she] didn’t think he was supposed to touch [her],” id., at 14, she later stated that she could not remember how respondent had touched her or what she had told her mother or the detective, id., at 19-21. The trial court, however, found the testimony of Laura Bockting and Detective Zinovitch to be sufficient to hold respondent for trial. At trial, the court held a hearing outside the presence of the jury to determine whether Autumn could testify. After it became apparent that Autumn was too distressed to be sworn in, id., at 25-26, the State moved under Nev. Rev. Stat. § 51.385 (2003) to allow Laura Bockting and Detective Zinovitch to recount Autumn’s statements regarding the sexual assaults. App. 25-27. Under the Nevada statute, out-of-court statements made by a child under 10 years of age describing acts of sexual assault or physical abuse of the child may be admitted if the court finds that the child is unavailable or unable to testify and that “the time, content and circumstances of the statement provide sufficient circumstantial guarantees of trustworthiness.” §51.385(l)(a). Over defense counsel’s objection that admission of this testimony would violate the Confrontation Clause, id., at 27-28, the trial court found sufficient evidence of reliability to satisfy §51.385. As a result of this ruling, Laura Bockting and Detective Zinovitch were permitted at trial to recount Autumn’s out-of-court statements about the assaults. Laura Bockting also testified that respondent was the only male who had had the opportunity to assault Autumn. In addition, the prosecution introduced evidence regarding Autumn’s medical exam. Respondent testified in his own defense and denied the assaults, and the defense brought out the fact that Autumn, unlike many children her age, had acquired some knowledge about sexual acts, since she had seen respondent and her mother engaging in sexual intercourse and had become familiar with sexual terms. Id., at 118. The jury found respondent guilty of three counts of sexual assault on a minor under the age of 14, and the trial court imposed two consecutive life sentences and another concurrent life sentence. B Respondent took an appeal to the Nevada Supreme Court, which handed down its final decision in 1993, more than a decade before Crawford. In analyzing respondent’s contention that the admission of Autumn’s out-of-court statements had violated his Confrontation Clause rights, the Nevada Supreme Court looked to Ohio v. Roberts, 448 U. S. 56 (1980), which was then the governing precedent of this Court. See Bockting v. State, 109 Nev. 103, 847 P. 2d 1364 (1993) (per curiam). Roberts had held that the Confrontation Clause permitted the admission of a hearsay statement made by a declarant who was unavailable to testify if the statement bore sufficient indicia of reliability, either because the statement fell within a firmly rooted hearsay exception or because there were “particularized guarantees of trustworthiness” relating to the statement in question. 448 U. S., at 66. Applying Roberts, the Nevada Supreme Court held that the admission of Autumn’s statements was constitutional because the circumstances surrounding the making of the statements provided particularized guarantees of trustworthiness. The court cited the “natural spontaneity” of Autumn’s initial statements to her mother, her reiteration of the same account to Detective Zinovitch several days later, her use of anatomically correct dolls to demonstrate the assaults, and her detailed descriptions of sexual acts with which a 6-year-old would generally not be familiar. Bock-ting, supra, at 109-112, 847 P. 2d, at 1368-1370. C Respondent then filed a petition for a writ of habeas corpus with the United States District Court for the District of Nevada, arguing that the Nevada Supreme Court’s decision violated his Confrontation Clause rights. The District Court denied the petition, holding that respondent was not entitled to relief under the habeas statute, 28 U. S. C. § 2254(d), because the Nevada Supreme Court’s decision was not “ ‘contrary to’ ” and did not “ ‘involv[e] an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.’” Order in Bockting v. Bayer, No. CV-N-98-0764-ECR (Mar. 19, 2002), App. 69-70. Respondent then appealed to the United States Court of Appeals for the Ninth Circuit. While this appeal was pending, we issued our opinion in Crawford, in which we overruled Roberts and held that “[t]estimonial statements of witnesses absent from trial” are admissible “only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine [the witness].” 541 U. S., at 59. See also Davis v. Washington, 547 U. S. 813 (2006). We noted that the outcome in Roberts — as well as the outcome in all similar cases decided by this Court — was consistent with the rule announced in Crawford, but we concluded that the interpretation of the Confrontation Clause set out in Roberts was unsound in several respects. See Crawford, supra, at 60 (“Although the results of our decisions have generally been faithful to the original meaning of the Confrontation Clause, the same cannot be said of our rationales”). First, we observed that Roberts potentially excluded too much testimony because it imposed Confrontation Clause restrictions on non-testimonial hearsay not governed by that Clause. 541 U. S., at 60. At the same time, we noted, the Roberts test was too “malleable” in permitting the admission of ex parte testimonial statements. 541 U. S., at 60. We concluded: “Where testimonial statements are involved, we do not think the Framers meant to leave the Sixth Amendment’s protection to the vagaries of the rules of evidence, much less to amorphous notions of ‘reliability.’... Admitting statements deemed reliable by a judge is fundamentally at odds with the right to confrontation. To be sure, the Clause’s ultimate goal is to ensure reliability of evidence, but it is a procedural rather than a substantive guarantee. It commands not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination. The Clause thus reflects a judgment, not only about the desirability of reliable evidence (a point on which there could be little dissent), but about how reliability can best be determined.” Id., at 61. D On appeal from the denial of his petition for writ of habeas corpus, respondent contended that if the rule in Crawford had been applied to his case, Autumn’s out-of-court statements could not have been admitted into evidence and the jury would not have convicted him. Respondent further argued that Crawford should have been applied to his case because the Crawford rule was either (1) an old rule in existence at the time of his conviction or (2) a “ ‘watershed’ ” rule that implicated “the fundamental fairness and accuracy of the criminal proceeding.” Saffle v. Parks, 494 U. S. 484, 495 (1990) (quoting Teague, 489 U. S., at 311 (plurality opinion)). A divided panel of the Ninth Circuit reversed the District Court, holding that Crawford applies retroactively to cases on collateral review. Bockting v. Bayer, 399 F. 3d 1010, as amended, 408 F. 3d 1127 (2005). In the panel’s lead opinion, Judge McKeown concluded that Crawford announced a new rule of criminal procedure, 399 F. 3d, at 1014-1016, but that the decision was nevertheless retroactive on collateral review because it announced a watershed rule that “rework[ed] our understanding of bedrock criminal procedure,” id., at 1016 Judge Noonan concurred, but his preferred analysis differed from Judge McKeown’s. Judge Noonan believed that Crawford did not announce a new rule, 399 F. 3d, at 1022-1024, but “[a]s an alternative to [this] analysis and in order to provide a precedent for [the] court,” he “also concurred] in' Judge McKeown’s analysis and opinion,” id., at 1024. Judge Wallace, concurring and dissenting, agreed with Judge McKeown that Crawford announced a new procedural rule but argued that Crawford did not rise to the level of a watershed rule under this Court’s jurisprudence. The Ninth Circuit denied rehearing en banc, with nine judges dissenting. 418 F. 3d 1055 (2005). The panel’s decision that Crawford is retroactive to cases on collateral review conflicts with the decision of every other Court of Appeals and State Supreme Court that has addressed this issue. We granted certiorari to resolve this conflict. 547 II S. 1127 (2006). II A In Teague and subsequent cases, we have laid out the framework to be used in determining whether a rule announced in one of our opinions should be applied retroactively to judgments in criminal cases that are already final on direct review. Under the Teague framework, an old rule applies both on direct and collateral review, but a new rule is generally applicable only to cases that are still on direct review. See Griffith v. Kentucky, 479 U. S. 314 (1987). A new rule applies retroactively in a collateral proceeding only if (1) the rule is substantive or (2) the rule is a “ ‘watershed rul[e] of criminal procedure’ implicating the fundamental fairness and accuracy of the criminal proceeding.” Saffle, supra, at 495 (quoting Teague, supra, at 311 (plurality opinion)). B In this case, it is undisputed that respondent’s conviction became final on direct appeal well before Crawford was decided. We therefore turn to the question whether Crawford applied an old rule or announced a new one. A new rule is defined as “a rule that . . . was not ‘dictated by precedent existing at the time the defendant’s conviction became final.’” Saffle, supra, at 488 (quoting Teague, supra, at 301 (plurality opinion); emphasis in original). Applying this definition, it is clear that Crawford announced a new rule. The Crawford rule was not “dictated” by prior precedent. Quite the opposite is true: The Crawford rule is flatly inconsistent with the prior governing precedent, Roberts, which Crawford overruled. See Davis, 547 U. S., at 825, n. 4, 834. “The explicit overruling of an earlier holding no doubt creates a new rule.” Saffle, supra, at 488. In concluding that Crawford merely applied an old rule, Judge Noonan relied on our observation in Crawford that the holdings in our prior decisions, including those that applied the Roberts rule, had been generally consistent with the rule announced in Crawford (and with the Framers’ understanding of the meaning of the Confrontation Clause, which provided the basis for the Crawford decision). See 541 U. S., at 57-59. But the Crawford Court was quick to note that the “rationales” of our prior decisions had been inconsistent with the Crawford rule. Id., at 60. “ ‘The “new rule” principle ... validates reasonable, good-faith interpretations of existing precedents made by state courts even though they are shown to be contrary to later decisions.’” Lockhart v. Fretwell, 506 U. S. 364, 372-373 (1993) (quoting Butler v. McKellar, 494 U. S. 407, 414 (1990)). And it is stating the obvious to say that, prior to Crawford, “reasonable jurists,” Graham v. Collins, 506 U. S. 461, 467 (1993), could have reached the conclusion that the Roberts rule was the rule that governed the admission of hearsay statements made by an unavailable declarant. Because the Crawford rule was not dictated by the governing precedent existing at the time when respondent’s conviction became final, the Crawford rule is a new rule. III A Because Crawford announced a “new rule” and because it is clear and undisputed that the rule is procedural and not substantive, that rule cannot be applied in this collateral attack on respondent’s conviction unless it is a “‘watershed rul[e] of criminal procedure’ implicating the fundamental fairness and accuracy of the criminal proceeding.” Saffle, 494 U. S., at 495 (quoting Teague, 489 U. S., at 311 (plurality opinion)). This exception is “extremely narrow,” Schriro v. Summerlin, 542 U. S. 348, 352 (2004). We have observed that it is “‘unlikely’” that any such rules “‘ha[ve] yet to emerge,’ ” ibid, (quoting Tyler v. Cain, 533 U. S. 656, 667, n. 7 (2001); internal quotation marks omitted); see also O’Dell v. Netherland, 521 U. S. 151, 157 (1997); Graham, supra, at 478; Teague, supra, at 313 (plurality opinion). And in the years since Teague, we have rejected every claim that a new rule satisfied the requirements for watershed status. See, e. g., Summerlin, supra (rejecting retroactivity for Ring v. Arizona, 536 U. S. 584 (2002)); Beard v. Banks, 542 U. S. 406 (2004) (rejecting retroactivity for Mills v. Maryland, 486 U. S. 367 (1988)); O’Dell, supra (rejecting retroactivity for Simmons v. South Carolina, 512 U. S. 154 (1994)); Gilmore v. Taylor, 508 U. S. 333 (1993) (rejecting retroactivity for a new rule relating to jury instructions on homicide); Sawyer v. Smith, 497 U. S. 227 (1990) (rejecting retroactivity for Caldwell v. Mississippi, 472 U. S. 320 (1985)). In order to qualify as watershed, a new rule must meet two requirements. First, the rule must be necessary to prevent “an ‘ “impermissibly large risk” ’ ” of an inaccurate conviction. Summerlin, supra, at 356; see also Tyler, 533 U. S., at 665. Second, the rule must “alter our understanding of the bedrock procedural elements essential to the fairness of a proceeding.” Ibid, (internal quotation marks omitted; emphasis deleted). We consider each of these requirements in turn. B The Crawford rule does not satisfy the first requirement relating to an impermissibly large risk of an inaccurate conviction. To be sure, the Crawford rule reflects the Framers’ preferred mechanism (cross-examination) for ensuring that inaccurate out-of-court testimonial statements are not used to convict an accused. But in order for a new rule to meet the accuracy requirement at issue here, “[i]t is . . . not enough ... to say that [the] rule is aimed at improving the accuracy of trial,” Sawyer, 497 U. S., at 242, or that the rule “is directed toward the enhancement of reliability and accuracy in some sense,” id., at 243. Instead, the question is whether the new rule remedied “an ‘“impermissibly large risk”’” of an inaccurate conviction. Summerlin, supra, at 356. Guidance in answering this question is provided by Gideon v. Wainwright, 372 U. S. 335 (1963), to which we have repeatedly referred in discussing the meaning of the Teague exception at issue here. See, e. g., Beard, supra, at 417; Saffle, supra, at 495; Gilmore, supra, at 364 (Blackmun, J., dissenting). In Gideon, the only case that we have identified as qualifying under this exception, the Court held that counsel must be appointed for any indigent defendant charged with a felony. When a defendant who wishes to be represented by counsel is denied representation, Gideon held, the risk of an unreliable verdict is intolerably high. See Mickens v. Taylor, 535 U. S. 162, 166 (2002); United States v. Cronic, 466 U. S. 648, 658-659 (1984); Gideon, supra, at 344-345. The new rule announced in Gideon eliminated this risk. The Crawford rule is in no way comparable to the Gideon rule. The Crawford rule is much more limited in scope, and the relationship of that rule to the accuracy of the factfinding process is far less direct and profound. Crawford overruled Roberts because Roberts was inconsistent with the original understanding of the meaning of the Confrontation Clause, not because the Court reached the conclusion that the overall effect of the Crawford rule would be to improve the accuracy of factfinding in criminal trials. Indeed, in Crawford we recognized that even under the Roberts rule, this Court had never specifically approved the introduction of testimonial hearsay statements. 541 U. S., at 57-60. Accordingly, it is not surprising that the overall effect of Crawford with regard to the accuracy of factfinding in criminal cases is not easy to assess. With respect to testimonial out-of-court statements, Crawford is more restrictive than was Roberts, and this may improve the accuracy, of factfinding in some criminal cases. Specifically, under Roberts, there may have been cases in which courts erroneously determined that testimonial statements were reliable. But see 418 F. 3d, at 1058 (O’Scannlain, J., dissenting from denial of rehearing en banc) (observing that it is unlikely that this occurred “in anything but the exceptional case”). But whatever improvement in reliability Crawford produced in this respect must be considered together with Crawford’s elimination of Confrontation Clause protection against the admission of unreliable out-of-court nontestimonial statements. Under Roberts, an out-of-court nontestimonial statement not subject to prior cross-examination could not be admitted without a judicial determination regarding reliability. Under Crawford, on the other hand, the Confrontation Clause has no application to such statements and therefore permits their admission even if they lack indicia of reliability. It is thus unclear whether Crawford, on the whole, decreased or increased the number of unreliable out-of-court statements that may be admitted in criminal trials. But the question here is not whether Crawford resulted in some net improvement in the accuracy of factfinding in criminal cases. Rather, “the question is whether testimony admissible under Roberts is so much more unreliable than that admissible under Crawford that the Crawford rule is ‘one without which the likelihood of an accurate conviction is seriously diminished.’ ” 399 F. 3d, at 1028 (Wallace, J., concurring and dissenting) (quoting Summerlin, 542 U. S., at 352; internal quotation marks omitted; emphasis in original). Crawford did not effect a change of this magnitude. C The Crawford rule also did not “alter our understanding of the bedrock procedural elements essential to the fairness of a proceeding.” Sawyer, supra, at 242 (internal quotation marks omitted; emphasis in original). Contrary to the suggestion of the Court of Appeals, see 399 F. 3d, at 1019 (relying on the conclusion that “the right of cross-examination as an adjunct to the constitutional right of confrontation” is a “bedrock procedural rul[e]”), this requirement cannot be met simply by showing that a new procedural rule is based on a “bedrock” right. We have frequently held that the Teague bar to retroactivity applies to new rules that are based on “bedrock” constitutional rights. See, e. g., Beard, 542 U. S., at 418. Similarly, “[t]hat a new procedural rule is ‘fundamental’ in some abstract sense is not enough.” Summerlin, swpra, at 352. Instead, in order to meet this requirement, a new, rule must itself constitute a previously unrecognized bedrock procedural element that is essential to the fairness of a proceeding. In applying this requirement, we again have looked to the example of Gideon, and “we have not hesitated to hold that less sweeping and fundamental rules” do not qualify. Beard, supra, at 418. In this case, it is apparent that the rule announced in Crawford, while certainly important, is not in the same category with Gideon. Gideon effected a profound and “ ‘sweeping’” change. Beard, supra, at 418 (quoting O’Dell, 521 U. S., at 167). The Crawford rule simply lacks the “primacy” and “centrality” of the Gideon rule, Saffle, 494 U. S., at 495, and does not qualify as a rule that “alter[ed] our understanding of the bedrock procedural elements essential to the fairness of a proceeding,” Sawyer, 497 U. S., at 242 (internal quotation marks omitted; emphasis deleted). IV In sum, we hold that Crawford announced a “new rule” of criminal procedure and that this rule does not fall within the Teague exception for watershed rules. We therefore reverse the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion. It is so ordered. Section 51.385 provides, in relevant part: “1. [A] statement made by a child under the age of 10 years describing any act of sexual conduct performed with or on the child or any act of physical abuse of the child is admissible in a criminal proceeding regarding that act of sexual conduct or physical abuse if: “(a) The court finds, in a hearing out of the presence of the jury, that the time, content and circumstances of the statement provide sufficient circumstantial guarantees of trustworthiness; and “(b) The child testifies at the proceeding or is unavailable or unable to testify. “2. In determining the trustworthiness of a statement, the court shall consider, without limitation, whether: “(a) The statement was spontaneous; “(b) The child was subjected to repetitive questioning; “(c) The child had a motive to fabricate; “(d) The child used terminology unexpected of a child of similar age; and “(e) The child was in a stable mental state.” The State Supreme Court initially dismissed respondent’s appeal in 1989, Bockting v. State, 105 Nev. 1023, 810 P. 2d 317 (unpublished table opinion), but we granted respondent’s petition for a writ of certiorari and vacated and remanded the case for reconsideration in light of Idaho v. Wright, 497 U. S. 805 (1990), see Bockting v. Nevada, 497 U. S. 1021 (1990). Judge McKeown then held respondent merited habeas corpus relief under the Antiterrorism and Effective Death Penalty Act of 1996 because that statute incorporates our Teague v. Lane, 489 U. S. 288 (1989), retroactivity analysis. 399 F. 3d, at 1021-1022. See, e. g., Lave v. Dretke, 444 F. 3d 333 (CA5 2006); Espy v. Massac, 443 F. 3d .1362 (CA11 2006); Murillo v. Frank, 402 F. 3d 786 (CA7 2005); Dorchy v. Jones, 398 F. 3d 783 (CA6 2005); Brown v. Uphoff, 381 F. 3d 1219 (CA10 2004); Mungo v. Duncan, 393 F. 3d 327 (CA2 2004); Edwards v. People, 129 P. 3d 977 (Colo. 2006) (en banc); Ennis v. State, 122 Nev. 694, 137 P. 3d 1095 (2006); Danforth v. State, 718 N. W. 2d 451 (Minn. 2006); State v. Williams, 695 N. W. 2d 23 (Iowa 2005); Chandler v. Crosby, 916 So. 2d 728 (Fla. 2005); In re Markel, 154 Wash. 2d 262, 111 P. 3d 249 (2005). Question: What is the disposition of the case, that is, the treatment the Supreme Court accorded the court whose decision it reviewed? A. stay, petition, or motion granted B. affirmed (includes modified) C. reversed D. reversed and remanded E. vacated and remanded F. affirmed and reversed (or vacated) in part G. affirmed and reversed (or vacated) in part and remanded H. vacated I. petition denied or appeal dismissed J. certification to or from a lower court K. no disposition Answer:
sc_respondent	066	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the respondent of the case. The respondent is the party being sued or tried and is also known as the appellee. Characterize the respondent as the Court's opinion identifies them. Identify the respondent by the label given to the party in the opinion or judgment of the Court except where the Reports title a party as the "United States" or as a named state. Textual identification of parties is typically provided prior to Part I of the Court's opinion. The official syllabus, the summary that appears on the title page of the case, may be consulted as well. In describing the parties, the Court employs terminology that places them in the context of the specific lawsuit in which they are involved. For example, "employer" rather than "business" in a suit by an employee; as a "minority," "female," or "minority female" employee rather than "employee" in a suit alleging discrimination by an employer. Also note that the Court's characterization of the parties applies whether the respondent is actually single entitiy or whether many other persons or legal entities have associated themselves with the lawsuit. That is, the presence of the phrase, et al., following the name of a party does not preclude the Court from characterizing that party as though it were a single entity. Thus, identify a single respondent, regardless of how many legal entities were actually involved. If a state (or one of its subdivisions) is a party, note only that a state is a party, not the state's name. ARIZONA v. GANT No. 07-542. Argued October 7, 2008 Decided April 21, 2009 Joseph T Maziarz, Assistant Attorney General of Arizona, argued the cause for petitioner. With him on the briefs were Terry Goddard, Attorney General, Mary R. O’Grady, Solicitor General, Kent E. Cattani, Chief Counsel, Randall M. Howe, Former Chief Counsel, and Nicholas D. Acedo, Assistant Attorney General. Anthony A. Yang argued the cause for the United States as amicus curiae urging reversal. With him on the brief were former Solicitor General Clement, former Assistant Attorney General Fisher, and Deputy Solicitor General Dreeben. Thomas F. Jacobs argued the cause for respondent. With him on the brief was Jeffrey T Green Briefs of amici curiae urging reversal were filed for the State of Florida et al. by Bill McCollum, Attorney General of Florida, Scott D. Makar, Solicitor General, and Craig D. Feiser and Courtney Brewer, Deputy Solicitors General, and by the Attorneys General for their respective States as follows: Troy King of Alabama, Talis J. Colberg of Alaska, Edmund G. Brown, Jr., of California, John W. Suthers of Colorado, Mark J. Bennett of Hawaii, Lawrence G. Wasden of Idaho, Lisa Madigan of Illinois, Steve Carter of Indiana, Steven N. Six of Kansas, Douglas F. Gansler of Maryland, Michael A Cox of Michigan, Lori Swanson of Minnesota, Jeremiah W. (Jay) Nixon of Missouri, Kelly A Ayotte of New Hampshire, Gary K. King of New Mexico, Wayne Stenehjem of North Dakota, W. A Drew Edmondson of Oklahoma, Hardy Myers of Oregon, Thomas W. Corbett, Jr., of Pennsylvania, Lawrence E. Long of South Dakota, Robert E. Cooper, Jr., of Tennessee, Robert M. McKenna of Washington, J. B. Van Hallen of Wisconsin, and Bruce A Salzburg of Wyoming; for Americans for Effective Law Enforcement, Inc., et al. by Wayne W. Schmidt, James P. Manak, Richard Weintraub, Michael E. McNeff, Eric B. Edwards, and Bernard J. Farber; for the National Association of Police Organizations, Inc., by William J. Johnson and Devallis Rutledge; and for Los Angeles County District Attorney Steve Cooley et al. by Mr. Cooley, pro se, Lael R. Rubin, Brentford J. Ferreira, and Phyllis C. Asayama. Briefs of amici curiae urging affirmance were filed for the American Civil Liberties Union et al. by James J. Tomkovicz, Steven R. Shapiro, and Graham A Boyd; for the National Association of Criminal Defense Lawyers by Jeffrey L. Fisher, Pamela S. Karlan, Amy Howe, Kevin K. Russell, and Thomas C. Goldstein; and for the National Association of Federal Defenders by Beth S. Brinkmann, Seth M. Galanter, Ketanji Brown Jackson, Lila M. Bateman, Frances H. Pratt, Philip J. Lynch, Judith H. Mizner, and Stephen C. Moss. Justice Stevens delivered the opinion of the Court. After Rodney Gant was arrested for driving with a suspended license, handcuffed, and locked in the back of a patrol car, police officers searched his car and discovered cocaine in the pocket of a jacket on the backseat. Because Gant could not have accessed his ear to retrieve weapons or evidence at the time of the search, the Arizona Supreme Court held that the search-incident-to-arrest exception to the Fourth Amendment’s warrant requirement, as defined in Chimel v. California, 395 U. S. 752 (1969), and applied to vehicle searches in New York v. Belton, 453 U. S. 454 (1981), did not justify the search in this case. We agree with that conclusion. Under Chimel, police may search incident to arrest only the space within an arrestee’s “ ‘immediate control,’ ” meaning “the area from within which he might gain possession of a weapon or destructible evidence.” 395 U. S., at 763. The safety and evidentiary justifications underlying Chimel's reaching-distance rule determine Belton's scope. Accordingly, we hold that Belton does not authorize a vehicle search incident to a recent occupant’s arrest after the arrestee has been secured and cannot access the interior of the vehicle. Consistent with the holding in Thornton v. United States, 541 U. S. 615 (2004), and following the suggestion in Justice Scalia’s opinion concurring in the judgment in that case, id., at 632, we also conclude that circumstances unique to the automobile context justify a search incident to arrest when it is reasonable to believe that evidence of the offense of arrest might be found in the vehicle. I On August 25, 1999, acting on an anonymous tip that the residence at 2524 North Walnut Avenue was being used to sell drugs, Tucson police officers Griffith and Reed knocked on the front door and asked to speak to the owner. Gant answered the door and, after identifying himself, stated that he expected the owner to return later. The officers left the residence and conducted a records check, which revealed that Gant’s driver’s license had been suspended and there was an outstanding warrant for his arrest for driving with a suspended license. When the officers returned to the house that evening, they found a man near the back of the house and a woman in a car parked in front of it. After a third officer arrived, they arrested the man for providing a false name and the woman for possessing drug paraphernalia. Both arrestees were handcuffed and secured in separate patrol cars when Gant arrived. The officers recognized his car as it entered the driveway, and Officer Griffith confirmed that Gant was the driver by shining a flashlight into the car as it drove by him. Gant parked at the end of the driveway, got out of his car, and shut the door. Griffith, who was about 30 feet away, called to Gant, and they approached each other, meeting 10-to-12 feet from Gant’s car. Griffith immediately arrested Gant and handcuffed him. Because the other arrestees were secured in the only patrol cars at the scene, Griffith called for backup. When two more officers arrived, they locked Gant in the backseat of their vehicle. After Gant had been handcuffed and placed in the back of a patrol car, two officers searched his car: One of them found a gun, and the other discovered a bag of cocaine in the pocket of a jacket on the backseat. Gant was charged with two offenses — possession of a narcotic drug for sale and possession of drug paraphernalia (1 e., the plastic bag in which the cocaine was found). He moved to suppress the evidence seized from his car on the ground that the warrantless search violated the Fourth Amendment. Among other things, Gant argued that Belton did not authorize the search of his vehicle because he posed no threat to the officers after he was handcuffed in the patrol car and because he was arrested for a traffic offense for which no evidence could be found in his vehicle. When asked at the suppression hearing why the search was conducted, Officer Griffith responded: “Because the law says we can do it.” App. 75. The trial court rejected the State’s contention that the officers had probable cause to search Gant’s car for contraband when the search began, id., at 18, 30, but it denied the motion to suppress. Relying on the fact that the police saw Gant commit the crime of driving without a license and apprehended him only shortly after he exited his ear, the court held that the search was permissible as a search incident to arrest. Id., at 37. A jury found Gant guilty on both drug counts, and he was sentenced to a 3-year term of imprisonment. After protracted state-court proceedings, the Arizona Supreme Court concluded that the search of Gant’s car was unreasonable within the meaning of the Fourth Amendment. The court’s opinion discussed at length our decision in Belton, which held that police may search the passenger compartment of a vehicle and any containers therein as a contemporaneous incident of an arrest of the vehicle’s recent occupant. 216 Ariz. 1, 3-4, 162 R 3d 640, 642-643 (2007) (citing 453 U. S., at 460). The court distinguished Belton as a case concerning the permissible scope of a vehicle search incident to arrest and concluded that it did not answer “the threshold question whether the police may conduct a search incident to arrest at all once the scene is secure.” 216 Ariz., at 4, 162 R 3d, at 643. Relying on our earlier decision in Chimel, the court observed that the search-ineident-toarrest exception to the warrant requirement is justified by interests in officer safety and evidence preservation. 216 Ariz., at 4,162 P. 3d, at 643. When “the justifications underlying Chimel no longer exist because the scene is secure and the arrestee is handcuffed, secured in the back of a patrol ear, and under the supervision of an officer,” the court concluded, a “warrantless search of the arrestee’s car cannot be justified as necessary to protect the officers at the scene or prevent the destruction of evidence.” Id., at 5,162 P. 3d, at 644. Accordingly, the court held that the search of Gant’s ear was unreasonable. The dissenting justices would have upheld the search of Gant's car based on their view that “the validity of a Belton search . . . clearly does not depend on the presence of the Chimel rationales in a particular case.” Id., at 8, 162 P. 3d, at 647. Although they disagreed with the majority’s view of Belton, the dissenting justices acknowledged that “[t]he bright-line rule embraced in Belton has long been criticized and probably merits reconsideration.” 216 Ariz., at 10, 162 P. 3d, at 649. They thus “add[ed their] voice[s] to the others that have urged the Supreme Court to revisit Belton.” Id., at 11, 162 P. 3d, at 650. The chorus that has called for us to revisit Belton includes courts, scholars, and Members of this Court who have questioned that decision’s clarity and its fidelity to Fourth Amendment principles. We therefore granted the State’s petition for certiorari. 552 U. S. 1230 (2008). II Consistent with our precedent, our analysis begins, as it should in every case addressing the reasonableness of a warrantless search, with the basic rule that “searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment — subject only to a few specifically established and well-delineated exceptions.” Katz v. United States, 389 U. S. 347, 357 (1967) (footnote omitted). Among the exceptions to the warrant requirement is a search incident to a lawful arrest. See Weeks v. United States, 232 U. S. 383, 392 (1914). The exception derives from interests in officer safety and evidence preservation that are typically implicated in arrest situations. See United States v. Robinson, 414 U. S. 218, 230-234 (1973); Chimel, 395 U. S., at 763. In Chimel, we held that a search incident to arrest may only include “the arrestee’s person and the area ‘within his immediate control’ — construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence.” Ibid. That limitation, which continues to define the boundaries of the exception, ensures that the scope of a search incident to arrest is commensurate with its purposes of protecting arresting officers and safeguarding any evidence of the offense of arrest that an arrestee might conceal or destroy. See ibid, (noting that searches incident to arrest are reasonable “in order to remove any weapons [the arrestee] might seek to use” and “in order to prevent [the] concealment or destruction” of evidence (emphasis added)). If there is no possibility that an arrestee could reach into the area that law enforcement officers seek to search, both justifications for the search-incident-to-arrest exception are absent and the rule does not apply. E. g., Preston v. United States, 376 U. S. 364, 367-368 (1964). In Belton, we considered ChimeVs application to the automobile context. A lone police officer in that case stopped a speeding car in which Belton was one of four occupants. While asking for the driver’s license and registration, the officer smelled burnt marijuana and observed an envelope on the car floor marked “Supergold” — a name he associated with marijuana. Thus having probable cause to believe the occupants had committed a drug offense, the officer ordered them out of the vehicle, placed them under arrest, and patted them down. Without handcuffing the arrestees, the officer “ ‘split them up into four separate areas of the Thruway ... so they would not be in physical touching area of each other’ ” and searched the vehicle, including the pocket of a jacket on the backseat, in which he found cocaine. 453 U. S., at 456. The New York Court of Appeals found the search unconstitutional, concluding that after the occupants were arrested the vehicle and its contents were “safely within the exclusive custody and control of the police.” State v. Belton, 50 N. Y. 2d 447, 452, 407 N. E. 2d 420, 423 (1980). The State asked this Court to consider whether the exception recognized in Chimel permits an officer to search “a jacket found inside an automobile while the automobile’s four occupants, all under arrest, are standing unsecured around the vehicle.” Brief in No. 80-328, p. i. We granted certiorari because “courts ha[d] found no workable definition of ‘the area within the immediate control of the arrestee’ when that area arguably includes the interior of an automobile.” 453 U. S., at 460. In its brief, the State argued that the Court of Appeals erred in concluding that the jacket was under the officer’s exclusive control. Focusing on the number of arrestees and their proximity to the vehicle, the State asserted that it was reasonable for the officer to believe the arrestees could have accessed the vehicle and its contents, making the search permissible under Chimel. Brief in No. 80-328, at 7-8. The United States, as amicus curiae in support of the State, argued for a more permissive standard, but it maintained that any search incident to arrest must be “ ‘substantially contemporaneous’ ” with the arrest — a requirement it deemed “satisfied if the search occurs during the period in which the arrest is being consummated and before the situation has so stabilized that it could be said that the arrest was completed.” Brief for United States as Amicus Curiae in New York v. Belton, O. T. 1980, No. 80-328, p. 14. There was no suggestion by the parties or amici that Chimel authorizes a vehicle search incident to arrest when there is no realistic possibility that an arrestee could access his vehicle. After considering these arguments, we held that when an officer lawfully arrests “the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of the automobile” and any containers therein. Belton, 453 U. S., at 460 (footnote omitted). That holding was based in large part on our assumption “that articles inside the relatively narrow compass of the passenger compartment of an automobile are in fact generally, even if not inevitably, within ‘the area into which an arrestee might reach.’ ” Ibid. The Arizona Supreme Court read our decision in Belton as merely delineating “the proper scope of a search of the interior of an automobile” incident to an arrest, id., at 459. That is, when the passenger compartment is within an arrestee’s reaching distance, Belton supplies the generalization that the entire compartment and any containers therein may be reached. On that view of Belton, the state court concluded that the search of Gant’s car was unreasonable because Gant clearly could not have accessed his car at the time of the search. It also found that no other exception to the warrant requirement applied in this case. Gant now urges us to adopt the reading of Belton followed by the Arizona Supreme Court. Ill Despite the textual and evidentiary support for the Arizona Supreme Court’s reading of Belton, our opinion has been widely understood to allow a vehicle search incident to the arrest of a recent occupant even if there is no possibility the arrestee could gain access to the vehicle at the time of the search. This reading may be attributable to Justice Brennan’s dissent in Belton, in which he characterized the Court’s holding as resting on the “fiction... that the interior of a car is always within the immediate control of an arrestee who has recently been in the car.” Id., at 466. Under the majority’s approach, he argued, “the result would presumably be the same even if [the officer] had handcuffed Belton and his companions in the patrol car” before conducting the search. Id., at 468. Since we decided Belton, Courts of Appeals have given different answers to the question whether a vehicle must be within an arrestee’s reach to justify a vehicle search incident to arrest, but Justice Brennan’s reading of the Court’s opinion has predominated. As Justice O’Connor observed, “lower court decisions seem now to treat the ability to search a vehicle incident to the arrest of a recent occupant as a police entitlement rather than as an exception justified by the twin rationales of Chimel.” Thornton, 541 U. S., at 624 (opinion concurring in part). Justice Scalia has similarly noted that, although it is improbable that an arrestee could gain access to weapons stored in his vehicle after he has been handcuffed and secured in the backseat of a patrol car, cases allowing a search in “this precise factual scenario . . . are legion.” Id., at 628 (opinion concurring in judgment) (collecting cases). Indeed, some courts have upheld searches under Belton “even when . . . the handcuffed arrestee has already left the scene.” 541 U. S., at 628 (same). Under this broad reading of Belton, a vehicle search would be authorized incident to every arrest of a recent occupant notwithstanding that in most cases the vehicle’s passenger compartment will not be within the arrestee’s reach at the time of the search. To read Belton as authorizing a vehicle search incident to every recent occupant’s arrest would thus untether the rule from the justifications underlying the Chimel exception — a result clearly incompatible with our statement in Belton that it “in no way alters the fundamental principles established in the Chimel case regarding the basic scope of searches incident to lawful custodial arrests.” 453 U. S., at 460, n. 3. Accordingly, we reject this reading of Belton and hold that the Chimel rationale authorizes police to search a vehicle incident to a recent occupant’s arrest only when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search. Although it does not follow from Chimel, we also conclude that circumstances unique to the vehicle context justify a search incident to a lawful arrest when it is “reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.” Thornton, 541 U. S., at Question: Who is the respondent of the case? 001. attorney general of the United States, or his office 002. specified state board or department of education 003. city, town, township, village, or borough government or governmental unit 004. state commission, board, committee, or authority 005. county government or county governmental unit, except school district 006. court or judicial district 007. state department or agency 008. governmental employee or job applicant 009. female governmental employee or job applicant 010. minority governmental employee or job applicant 011. minority female governmental employee or job applicant 012. not listed among agencies in the first Administrative Action variable 013. retired or former governmental employee 014. U.S. House of Representatives 015. interstate compact 016. judge 017. state legislature, house, or committee 018. local governmental unit other than a county, city, town, township, village, or borough 019. governmental official, or an official of an agency established under an interstate compact 020. state or U.S. supreme court 021. local school district or board of education 022. U.S. Senate 023. U.S. senator 024. foreign nation or instrumentality 025. state or local governmental taxpayer, or executor of the estate of 026. state college or university 027. United States 028. State 029. person accused, indicted, or suspected of crime 030. advertising business or agency 031. agent, fiduciary, trustee, or executor 032. airplane manufacturer, or manufacturer of parts of airplanes 033. airline 034. distributor, importer, or exporter of alcoholic beverages 035. alien, person subject to a denaturalization proceeding, or one whose citizenship is revoked 036. American Medical Association 037. National Railroad Passenger Corp. 038. amusement establishment, or recreational facility 039. arrested person, or pretrial detainee 040. attorney, or person acting as such;includes bar applicant or law student, or law firm or bar association 041. author, copyright holder 042. bank, savings and loan, credit union, investment company 043. bankrupt person or business, or business in reorganization 044. establishment serving liquor by the glass, or package liquor store 045. water transportation, stevedore 046. bookstore, newsstand, printer, bindery, purveyor or distributor of books or magazines 047. brewery, distillery 048. broker, stock exchange, investment or securities firm 049. construction industry 050. bus or motorized passenger transportation vehicle 051. business, corporation 052. buyer, purchaser 053. cable TV 054. car dealer 055. person convicted of crime 056. tangible property, other than real estate, including contraband 057. chemical company 058. child, children, including adopted or illegitimate 059. religious organization, institution, or person 060. private club or facility 061. coal company or coal mine operator 062. computer business or manufacturer, hardware or software 063. consumer, consumer organization 064. creditor, including institution appearing as such; e.g., a finance company 065. person allegedly criminally insane or mentally incompetent to stand trial 066. defendant 067. debtor 068. real estate developer 069. disabled person or disability benefit claimant 070. distributor 071. person subject to selective service, including conscientious objector 072. drug manufacturer 073. druggist, pharmacist, pharmacy 074. employee, or job applicant, including beneficiaries of 075. employer-employee trust agreement, employee health and welfare fund, or multi-employer pension plan 076. electric equipment manufacturer 077. electric or hydroelectric power utility, power cooperative, or gas and electric company 078. eleemosynary institution or person 079. environmental organization 080. employer. If employer's relations with employees are governed by the nature of the employer's business (e.g., railroad, boat), rather than labor law generally, the more specific designation is used in place of Employer. 081. farmer, farm worker, or farm organization 082. father 083. female employee or job applicant 084. female 085. movie, play, pictorial representation, theatrical production, actor, or exhibitor or distributor of 086. fisherman or fishing company 087. food, meat packing, or processing company, stockyard 088. foreign (non-American) nongovernmental entity 089. franchiser 090. franchisee 091. lesbian, gay, bisexual, transexual person or organization 092. person who guarantees another's obligations 093. handicapped individual, or organization of devoted to 094. health organization or person, nursing home, medical clinic or laboratory, chiropractor 095. heir, or beneficiary, or person so claiming to be 096. hospital, medical center 097. husband, or ex-husband 098. involuntarily committed mental patient 099. Indian, including Indian tribe or nation 100. insurance company, or surety 101. inventor, patent assigner, trademark owner or holder 102. investor 103. injured person or legal entity, nonphysically and non-employment related 104. juvenile 105. government contractor 106. holder of a license or permit, or applicant therefor 107. magazine 108. male 109. medical or Medicaid claimant 110. medical supply or manufacturing co. 111. racial or ethnic minority employee or job applicant 112. minority female employee or job applicant 113. manufacturer 114. management, executive officer, or director, of business entity 115. military personnel, or dependent of, including reservist 116. mining company or miner, excluding coal, oil, or pipeline company 117. mother 118. auto manufacturer 119. newspaper, newsletter, journal of opinion, news service 120. radio and television network, except cable tv 121. nonprofit organization or business 122. nonresident 123. nuclear power plant or facility 124. owner, landlord, or claimant to ownership, fee interest, or possession of land as well as chattels 125. shareholders to whom a tender offer is made 126. tender offer 127. oil company, or natural gas producer 128. elderly person, or organization dedicated to the elderly 129. out of state noncriminal defendant 130. political action committee 131. parent or parents 132. parking lot or service 133. patient of a health professional 134. telephone, telecommunications, or telegraph company 135. physician, MD or DO, dentist, or medical society 136. public interest organization 137. physically injured person, including wrongful death, who is not an employee 138. pipe line company 139. package, luggage, container 140. political candidate, activist, committee, party, party member, organization, or elected official 141. indigent, needy, welfare recipient 142. indigent defendant 143. private person 144. prisoner, inmate of penal institution 145. professional organization, business, or person 146. probationer, or parolee 147. protester, demonstrator, picketer or pamphleteer (non-employment related), or non-indigent loiterer 148. public utility 149. publisher, publishing company 150. radio station 151. racial or ethnic minority 152. person or organization protesting racial or ethnic segregation or discrimination 153. racial or ethnic minority student or applicant for admission to an educational institution 154. realtor 155. journalist, columnist, member of the news media 156. resident 157. restaurant, food vendor 158. retarded person, or mental incompetent 159. retired or former employee 160. railroad 161. private school, college, or university 162. seller or vendor 163. shipper, including importer and exporter 164. shopping center, mall 165. spouse, or former spouse 166. stockholder, shareholder, or bondholder 167. retail business or outlet 168. student, or applicant for admission to an educational institution 169. taxpayer or executor of taxpayer's estate, federal only 170. tenant or lessee 171. theater, studio 172. forest products, lumber, or logging company 173. person traveling or wishing to travel abroad, or overseas travel agent 174. trucking company, or motor carrier 175. television station 176. union member 177. unemployed person or unemployment compensation applicant or claimant 178. union, labor organization, or official of 179. veteran 180. voter, prospective voter, elector, or a nonelective official seeking reapportionment or redistricting of legislative districts (POL) 181. wholesale trade 182. wife, or ex-wife 183. witness, or person under subpoena 184. network 185. slave 186. slave-owner 187. bank of the united states 188. timber company 189. u.s. job applicants or employees 190. Army and Air Force Exchange Service 191. Atomic Energy Commission 192. Secretary or administrative unit or personnel of the U.S. Air Force 193. Department or Secretary of Agriculture 194. Alien Property Custodian 195. Secretary or administrative unit or personnel of the U.S. Army 196. Board of Immigration Appeals 197. Bureau of Indian Affairs 198. Bonneville Power Administration 199. Benefits Review Board 200. Civil Aeronautics Board 201. Bureau of the Census 202. Central Intelligence Agency 203. Commodity Futures Trading Commission 204. Department or Secretary of Commerce 205. Comptroller of Currency 206. Consumer Product Safety Commission 207. Civil Rights Commission 208. Civil Service Commission, U.S. 209. Customs Service or Commissioner of Customs 210. Defense Base Closure and REalignment Commission 211. Drug Enforcement Agency 212. Department or Secretary of Defense (and Department or Secretary of War) 213. Department or Secretary of Energy 214. Department or Secretary of the Interior 215. Department of Justice or Attorney General 216. Department or Secretary of State 217. Department or Secretary of Transportation 218. Department or Secretary of Education 219. U.S. Employees' Compensation Commission, or Commissioner 220. Equal Employment Opportunity Commission 221. Environmental Protection Agency or Administrator 222. Federal Aviation Agency or Administration 223. Federal Bureau of Investigation or Director 224. Federal Bureau of Prisons 225. Farm Credit Administration 226. Federal Communications Commission (including a predecessor, Federal Radio Commission) 227. Federal Credit Union Administration 228. Food and Drug Administration 229. Federal Deposit Insurance Corporation 230. Federal Energy Administration 231. Federal Election Commission 232. Federal Energy Regulatory Commission 233. Federal Housing Administration 234. Federal Home Loan Bank Board 235. Federal Labor Relations Authority 236. Federal Maritime Board 237. Federal Maritime Commission 238. Farmers Home Administration 239. Federal Parole Board 240. Federal Power Commission 241. Federal Railroad Administration 242. Federal Reserve Board of Governors 243. Federal Reserve System 244. Federal Savings and Loan Insurance Corporation 245. Federal Trade Commission 246. Federal Works Administration, or Administrator 247. General Accounting Office 248. Comptroller General 249. General Services Administration 250. Department or Secretary of Health, Education and Welfare 251. Department or Secretary of Health and Human Services 252. Department or Secretary of Housing and Urban Development 253. Interstate Commerce Commission 254. Indian Claims Commission 255. Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement 256. Internal Revenue Service, Collector, Commissioner, or District Director of 257. Information Security Oversight Office 258. Department or Secretary of Labor 259. Loyalty Review Board 260. Legal Services Corporation 261. Merit Systems Protection Board 262. Multistate Tax Commission 263. National Aeronautics and Space Administration 264. Secretary or administrative unit of the U.S. Navy 265. National Credit Union Administration 266. National Endowment for the Arts 267. National Enforcement Commission 268. National Highway Traffic Safety Administration 269. National Labor Relations Board, or regional office or officer 270. National Mediation Board 271. National Railroad Adjustment Board 272. Nuclear Regulatory Commission 273. National Security Agency 274. Office of Economic Opportunity 275. Office of Management and Budget 276. Office of Price Administration, or Price Administrator 277. Office of Personnel Management 278. Occupational Safety and Health Administration 279. Occupational Safety and Health Review Commission 280. Office of Workers' Compensation Programs 281. Patent Office, or Commissioner of, or Board of Appeals of 282. Pay Board (established under the Economic Stabilization Act of 1970) 283. Pension Benefit Guaranty Corporation 284. U.S. Public Health Service 285. Postal Rate Commission 286. Provider Reimbursement Review Board 287. Renegotiation Board 288. Railroad Adjustment Board 289. Railroad Retirement Board 290. Subversive Activities Control Board 291. Small Business Administration 292. Securities and Exchange Commission 293. Social Security Administration or Commissioner 294. Selective Service System 295. Department or Secretary of the Treasury 296. Tennessee Valley Authority 297. United States Forest Service 298. United States Parole Commission 299. Postal Service and Post Office, or Postmaster General, or Postmaster 300. United States Sentencing Commission 301. Veterans' Administration 302. War Production Board 303. Wage Stabilization Board 304. General Land Office of Commissioners 305. Transportation Security Administration 306. Surface Transportation Board 307. U.S. Shipping Board Emergency Fleet Corp. 308. Reconstruction Finance Corp. 309. Department or Secretary of Homeland Security 310. Unidentifiable 311. International Entity Answer:
songer_counsel2	D	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. Your task is to determine the nature of the counsel for the respondent. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party COMMISSIONER OF INTERNAL REVENUE v. STEWART. No. 11154. United States Court of Appeals Sixth Circuit. Jan. 23, 1951. Virginia H. Adams, Washington, D. C. (Theron Lamar Caudle, Ellis N. Slack, and Virginia H. Adams, Washington, D. C., on the brief), for petitioner. Roy F. Andes, Detroit, Mich. (Roy F. Andes, Detroit, Mich., on the brief), for respondent. Before MARTIN, McALLISTER and MILLER, Circuit Judges. MILLER, Circuit Judge. The Commissioner of Internal Revenue seeks a review of the ruling of the Tax Court which held that a notice of deficiency was invalid for failure to comply with the statutory provisions with respect to mailing. The notice of deficiency was in the usual form; its inside address was to “Dr. Kirk Stewart, 904 Stroh Bldg., Detroit, Mich.,” the taxpayer and respondent herein; it was dated March 10, 1948; it was enclosed in an envelope addressed to the taxpayer’s counsel, Mel W. Werden, 7310 Woodward Avenue, Detroit, Michigan. It was sent by registered mail. The letter stated— “You, are advised that the determination of your income tax liability for the taxable years 1944-1945-1946 discloses a deficiency of $9,112.41, as shown in the attached statement. “In accordance with the provisions of existing Internal Revenue Laws, notice is hereby given of the deficiency mentioned.” There were attached to the letter three copies of Form 870, a “Waiver of Restrictions on Assessment and Collection of Deficiency in Tax.” The form showed income tax deficiencies for the years 1944, 1945 and 1946 in the sums of $3,661.53, $3,121.54 and $2,329.34 respectively, or a total of $9,112.41. The letter referred to the right to file a petition with the Tax Court for a redetermination of the deficiency and to the execution 'of the forms if the taxpayer did not desire to file such a petition. The letter contained no other documents or enclosures. On February 4, 1948, prior to the mailing of the deficiency notice, and in response to a 10-day letter dated January 27, 1948 and received by the taxpayer, Werden conferred with Richard F. Okie, a member of the Audit Review Board of the office of the Collector of Internal Revenue of the District of Michigan, in which conference Okie requested that Werden file a copy of his power of attorney from the petitioner. A power of attorney from the taxpayer to Werden, executed on February 6, 1948, was duly filed. A 30-day letter dated February 9, 1948, was issued by the Collector and addressed to the taxpayer. No schedules or other basis for imposing additional taxes were enclosed with that letter. On February 19, 1948, the Collector addressed a letter to the taxpayer and mailed it to Werden. The letter stated — “Attached herewith is the technical report and Forms 872 which were erroneously omitted in the 30-Day letter dated February 9, 1948.” The report and form showed the basis of the deficiency. On June 7, 1948, the taxpayer filed his petition with the Tax Court for a rede-termination of the deficiency set forth by the Commissioner in his notice of deficiency dated March 10, 1948. The petition stated — “The Notice of Deficiency (a copy of which is attached and marked Exhibit “A”) was mailed to the Petitioner on March 10, 1948 as the Petitioner believes.” It set out the alleged deficiencies for each of the taxable years in controversy and stated in what respects the Commissioner erred in determining the qlaimed deficiency. In the verification attached thereto the taxpayer stated under oath “that he has read the foregoing petition and is familiar with statements contained therein * * The Commissioner filed his answer on July 19, 1948. The taxpayer filed his reply on September 7, 1948. On April 22, 1949, the case was set for hearing on June 14, 1949 at Detroit, Michigan. On June 14, 1949, the taxpayer, acting through another attorney who had entered his appearance in the case on September 9, 1948, moved to dismiss the appeal for the reason that the Commissioner had never m.ade a determination of any deficiency in income taxes against the taxpayer as required by law, in that the said notice of deficiency wa-s not mailed to the taxpayer, but was mailed to Werden, the taxpayer’s auditor. Thereafter, the proceeding was dismissed by the Tax Court for lack of jurisdiction, which ruling is the subject of this review. Section 272(a) of the Internal Revenue Code, 26 U.S.C.A. § 272(a) provides as follows : “If in the case of any taxpayer, fhe Commissioner determines that there is a deficiency in respect of the tax imposed by this chapter, the Commissioner is authorized to send notice of such deficiency to the taxpayer by registered mail. Within ninety days after such notice is mailed * * the taxpayer may file a petition with the Board of Tax Appeals for a redetermination of the deficiency. No assessment of a deficiency in respect of the tax imposed by this chapter and no distraint or proceeding in court for its collection shall be made, begun, or prosecuted until such notice has been mailed to the taxpayer, nor until the expiration of such ninety-day period, nor, if a petition has been filed with the Board, until the decision of the Board has become final. * * * ” The taxpayer contends that since the statute requires the notice of the deficiency assessment to be sent “to the taxpayer by registered mail,” the action of the Commissioner in sending it to the -taxpayer’s auditor and attorney, instead of to the taxpayer himself, was not a compliance with the provisions of the statute, and was therefore an invalid notice. The Tax Court ruled that since the statute limited the way in which the notice could be sent it negatived any other mode of action; that the Commissioner was required to send the notice of deficiency to the- taxpayer in strict accord with the statutory requirements; and since he did not do so, the petition must be dismissed for lack of jurisdiction. We are of the opinion that such a strict literal construction of the statute is not authorized in the present case. It is clear that the purpose of the deficiency notice is to give the taxpayer notice that the Commissioner means to assess a deficiency tax against him and to give him an opportunity to have such ruling reviewed by the Tax Court before it becomes effective. Commissioner v. New York Trust Co., 2 Cir., 54 F.2d 463, 465; Commissioner v. Forest Glen Creamery Co., 7 Cir., 98 F.2d 968, 971; Olsen v. Helvering, 2 Cir., 88 F.2d 650, 651. In addition to giving the taxpayer notice of the proposed deficiency assessment, the mailing of the deficiency notice limits the period of time thereafter to ninety days in which the taxpayer c,an have the question reviewed by the Tax Court. If the taxpayer receives notice of the proposed assessment, and during the ninety-day period thereafter files his petition for review with the Tax Court, the purposes of the Act have been accomplished. Although some courts have -said that strict compliance with the statutory notice provisions is necessary in order to validate the assessment and to give the Tax Court jurisdiction to review it, we do not think that such a view is the correct one. In Commissioner v. Forest Glen Creamery Co., supra, the Court said, 98 F.2d at page 971,. “ * * * there is no indication in the statute of an intention to require the notice to be the basis of jurisdiction of the Board in a technical sense.” As pointed out by Commissioner v. New York Trust Co., supra, 54 F.2d at page 465, it is the taxpayer who invokes the jurisdiction of the Bo,ard by filing his petition to review. This Court has previously ruled that a failure to strictly comply with the statutory notice provisions does not necessarily deprive the Tax Court gf its jurisdiction to act in the matter. Warner Collieries Co. v. United States, 6 Cir., 63 F.2d 34; Commissioner v. Nichols & Cox Lumber Co., 6 Cir., 65 F.2d 1009. See also Burnet v. San Joaquin Fruit & Investment Co., 9 Cir., 52 F.2d 123, 128. Under Section 272(d) Internal Revenue Code, the required mailing of the deficiency notice can be waived by the taxpayer without invalidating the validity of- the assessment. In the following cases it was held that defects or irregularities in giving the required statutory notice were waived by the taxpayer’s action in proceeding with a petition for review in the Tax 'Court, which thereupon acquired jurisdiction to determine the matter: Haag v. Commissioner, 7 Cir., 59 F.2d 516, 518; Commissioner v. New York Trust Co., supra, 54 F.2d at page 466. In the present case, the taxpayer received the full measure of protection guaranteed to him by Section 272(a) of the Code. Following the usual preliminary investigation and discussion of the taxpayer’s returns, the Commissioner made the tentative deficiency .assessment. Notice of the deficiency assessment was sent by registered mail to the taxpayer’s attorney, previously authorized under a power of attorney filed with the Commissioner “to represent him * * * in connection with the proposed deficiency for the calendar years 1943, 1944, 1945 and 1946, now pending before the department * * * ” and who was by the terms of the power of attorney “authorized to prosecute any * . ¡appeals or claims arising out of the aforesaid tax liability and in particular the proceedings necessary to defeat the proposed deficiency now pending before the department, and to do any and all acts in connection therewith as fully to all intents and purposes as the grantor itself might or could do.” Under the few of principal and agent, the Commissioner’s notice to the taxpayer’s attorney clothed with such authority was notice to the taxpayer himself. Keeping in mind that the final purpose of the deficiency notice is to afford the taxpayer an opportunity to appeal to the Tax Court, and that in the present case the taxpayer acting through his attorney promptly took such an appeal, we fail to see in what way the taxpayer has been prejudiced or harmed. No objection was made by the taxpayer ¡at the time of filing his petition for review of any defect or irregularities in the giving of the required notice. To hold the notice insufficient under such circumstances, would “allow the technical an undue triumph over the substantial.” Pittsburgh Terminal Coal Corp. v. Heiner, D.C.W.D.Pa., 56 F.2d 1072, 1075. See also Kohlhase v. Commissioner, 6 Cir., 181 F.2d 331. In our opinion, whatever technical defect existed in sending the notice to the taxpayer’s .attorney, duly authorized to act in the matter, instead of to the taxpayer himself, was clearly waived by the later action of the taxpayer in filing his petition for review with the Tax Court, seeking a redetermination in his favor of the deficiency asserted by the Commissioner. Warner Collieries Co. v. United States, supra, 6 Cir., 63 F.2d 34; Commissioner v. Nichols & Cox Lumber Co., supra, 6 Cir., 65 F.2d 1009; Commissioner v. New York Trust Co., supra, 2 Cir., 54 F.2d 463; Burnet v. San Joaquin Fruit & Investment Co., supra, 9 Cir., 52 F.2d 123; Haag v. Commissioner, supra, 7 Cir., 59 F.2d 516; American Auto Trimming Co. v. Lucas, 59 App.D.C. 171, 37 F.2d 801. In the present case, it is clear that the taxpayer personally either actually received the notice following its receipt by his attorney, or was completely advised by his attorney of its receipt by him and of its contents. A copy of the notice was attached to the petition filed by him in the Tax Court. He examined the petition before it was filed. In his affidavit attached to the petition, the taxpayer stated that he had read the petition and was familiar with the statements contained therein. Formal, immaterial defects in the giving of the required statutory notice have been disregarded when it appears that the notice actually reached the taxpayer. Wright v. Commissioner, 4 Cir., 101 F.2d 309; Haag v. Commissioner, supra, 7 Cir., 59 F.2d 516; Whitmer v. Lucas, 7 Cir., 53 F.2d 1006; Dilks v. Blair, 7 Cir., 23 F.2d 831. In the Whitmer case the Court said— “It is reasonable to conclude that, even though a slight error may be made in the street address, the taxpayer is not harmed if the letter is actually and promptly delivered to his proper address. The purpose of the statute has been fully accomplished when the taxpayer is notified of the deficiency or additional assessment proposed to be made by the Commissioner.” [53 F.2d 1007.] The taxpayer also contends that the deficiency notice was invalid because it contained no particulars or explanations of how the Collector arrived at the alleged deficiencies. No particular form of notice is required by Section 272(a) of the Code. We are of the opinion that the notice in the present case was sufficient where it fairly advised the taxpayer that the Commission has determined a deficiency, gave the taxpayer the amounts thereof and the years involved, and the taxpayer was fully advised, as shown by his petition filed with the Tax Court, of the reasons forming the basis for the Commissioner’s action. Commissioner v. Forest Glen Creamery Co., supra, 7 Cir., 98 F.2d 968, 971; Olsen v. Helvering, supra, 2 Cir., 88 F.2d 650, 651; Ventura Consolidated Oil Fields v. Rogan, 9 Cir., 86 F.2d 149, 153. In Olsen v. Helvering, supra, the Court said— “ * * * the notice is only to advise the person who is to p,ay the deficiency that the Commissioner means to assess him; anything that does this unequivocally is good enough.”. [88 F.2d 651.] The judgment of the Tax ‘Court is reversed and the action is remanded for further proceedings consistent with the views expressed herein. Question: What is the nature of the counsel for the respondent? A. none (pro se) B. court appointed C. legal aid or public defender D. private E. government - US F. government - state or local G. interest group, union, professional group H. other or not ascertained Answer:
songer_majvotes	2	What follows is an opinion from a United States Court of Appeals. Your task is to determine the number of judges who voted in favor of the disposition favored by the majority. Judges who concurred in the outcome but wrote a separate concurring opinion are counted as part of the majority. For most cases this variable takes the value "2" or "3." However, for cases decided en banc the value may be as high as 15. Note: in the typical case, a list of the judges who heard the case is printed immediately before the opinion. If there is no indication that any of the judges dissented and no indication that one or more of the judges did not participate in the final decision, then all of the judges listed as participating in the decision are assumed to have cast votes with the majority. The number of majority votes recorded includes district judges or other judges sitting by designation who participated on the appeals court panel. If there is an indication that a judge heard argument in the case but did not participate in the final opinion (e.g., the judge died before the decision was reached), that judge is not counted in the number of majority votes. FEDERAL LABOR RELATIONS AUTHORITY, Petitioner, v. U.S. DEPARTMENT OF the NAVY, NAVY RESALE & SERVICES SUPPORT OFFICE, FIELD SUPPORT OFFICE, AUBURN, WASHINGTON, Respondent. U.S. DEPARTMENT OF the NAVY, NAVY RESALE & SERVICES SUPPORT OFFICE, FIELD SUPPORT OFFICE, AUBURN, WASHINGTON, Petitioner, v. FEDERAL LABOR RELATIONS AUTHORITY, Respondent. FEDERAL LABOR RELATIONS AUTHORITY, Petitioner, v. U.S. DEPARTMENT OF the NAVY, NAVY PUBLICATIONS AND PRINTING SERVICE, DETACHMENT OFFICE, OAKLAND, CALIFORNIA, Respondent. U.S. DEPARTMENT OF the NAVY, NAVY PUBLICATIONS AND PRINTING SERVICE, DETACHMENT OFFICE, OAKLAND, CALIFORNIA, Petitioner, v. FEDERAL LABOR RELATIONS AUTHORITY, Respondent. FEDERAL LABOR RELATIONS AUTHORITY, Petitioner, v. U.S. DEPARTMENT OF the NAVY, NAVY POSTGRADUATE SCHOOL, MONTEREY, CALIFORNIA, Respondent. U.S. DEPARTMENT OF the NAVY, NAVY POSTGRADUATE SCHOOL, MONTEREY, CALIFORNIA, Petitioner, v. FEDERAL LABOR RELATIONS AUTHORITY, Respondent. FEDERAL LABOR RELATIONS AUTHORITY, Petitioner, v. U.S. DEPARTMENT OF the NAVY, NAVAL AIR STATION, ALAMEDA, CALIFORNIA, Respondent. U.S. DEPARTMENT OF the NAVY, NAVAL AIR STATION, ALAMEDA, CALIFORNIA, Petitioner, v. FEDERAL LABOR RELATIONS AUTHORITY, Respondent. FEDERAL LABOR RELATIONS AUTHORITY, Petitioner, v. U.S. DEPARTMENT OF the NAVY, NAVAL HOSPITAL, OAKLAND, CALIFORNIA, Respondent. U.S. DEPARTMENT OF the NAVY, NAVAL HOSPITAL, OAKLAND, CALIFORNIA, Petitioner, v. FEDERAL LABOR RELATIONS AUTHORITY, Respondent. FEDERAL LABOR RELATIONS AUTHORITY, Petitioner, v. UNITED STATES DEPARTMENT OF INTERIOR, Respondent. UNITED STATES DEPARTMENT OF INTERIOR, Petitioner, v. FEDERAL LABOR RELATIONS AUTHORITY, Respondent. FEDERAL LABOR RELATIONS AUTHORITY, Petitioner, v. UNITED STATES DEPARTMENT OF LABOR, OFFICE OF the ASSISTANT SECRETARY FOR ADMINISTRATION AND MANAGEMENT, SAN FRANCISCO, CALIFORNIA, Respondent. Nos. 90-70511, 90-70513 to 90-70517, 90-70535, 90-70538 to 90-70542 and 90-70679. United States Court of Appeals, Ninth Circuit. Argued and Submitted Feb. 13, 1992. Decided March 18, 1992. Pamela P. Johnson, Federal Labor Relations Authority, Washington, D.C., for petitioner-respondent. Lori M. Beranek, U.S. Dept, of Justice, Washington, D.C., for respondents-petitioners. Before FLETCHER, D.W. NELSON and FERNANDEZ, Circuit Judges. FLETCHER, Circuit Judge: These seven consolidated cases present a single question of law: Are federal agencies required to release the home addresses of their employees to the unions which are the exclusive representatives of the employees’ bargaining units? The Federal Service Labor-Management Relations Statute (the “Labor Statute”) requires disclosure of such information unless it is otherwise prohibited by law. 5 U.S.C. § 7114(b)(4). The Privacy Act prohibits disclosure as a general rule, but contains two exceptions: disclosures required by the Freedom of Information Act (“FOIA”) and disclosures for “routine use.” 5 U.S.C. § 552a. At one time, it was settled that disclosure of federal employees’ addresses to their exclusive representative was required by FOIA. Respondents argue that the Supreme Court's interpretation of FOIA in United States Department of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749, 109 S.Ct. 1468, 103 L.Ed.2d 774 (1989) {“Reporters Committee”) changed the law and therefore mandates a different result. The Federal Labor Relations Authority (“FLRA”) argues the opposite. BACKGROUND The cases arose on identical stipulated facts. Labor unions filed unfair labor practice charges against federal employers (“the agencies”) that refused to divulge the home addresses of the employees in each union’s bargaining unit. FLRA followed its ruling in U.S. Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New Hampshire, 37 FLRA No. 39 (1990) {“Portsmouth”) to hold that the failure to disclose the addresses was an unfair labor practice. FLRA now applies to this court for enforcement, and the agencies cross-petition for review of the orders. The legal background is more complicated. This question has been litigated many times before, and at one time the issue seemed settled. Farmer’s Home Administration Finance Office, St. Louis, Missouri, 23 FLRA No. 101 (1986) ("Farmers Home Administration”) held that disclosures of this, sort fell within both exceptions to the Privacy Act. First, Farmers Home Administration found that disclosure was required under FOIA, because the addresses were not protected by FOIA’s Exemption 6, which exempts disclosures “which would constitute a clearly unwarranted invasion of privacy.” 5 U.S.C. § 552(b)(6). Farmers Home Administration reasoned that the strong public interest in collective bargaining for federal employees outweighed the relatively small privacy interest in an employee’s home address. Id. at 792-93. Second, the Authority found that disclosure fell within the Privacy Act’s exception for “routine use,” 5 U.S.C. § 552a(b)(3). Id. at 793-94. Every court to examine the issue reached the same result as Farmers Home Administration. All concluded that FOIA required disclosure, so none reached the routine use exception. Most circuits cited the special responsibilities of unions under the Labor Statute and the public interest in collective bargaining. United States Department of the Navy and Philadelphia Naval Shipyard v. FLRA, 840 F.2d 1131 (3d Cir.), cert. dismissed, 488 U.S. 881, 109 S.Ct. 632, 102 L.Ed.2d 170 (1988); United States Department of Agriculture v. FLRA, 836 F.2d 1139 (8th Cir.1988), vacated on other grounds and remanded, 488 U.S. 1025, 109 S.Ct. 831, 102 L.Ed.2d 964 (1989); United States Department of Health & Human Services v. FLRA, 833 F.2d 1129 (4th Cir.1987), cert. dismissed, 488 U.S. 880, 109 S.Ct. 632, 102 L.Ed.2d 170 (1988), American Federation of Government Employees, Local 1760 v. FLRA, 786 F.2d 554 (2d Cir.1986) (decided before Farmers Home Administration). The Seventh Circuit without reference to the duties of unions under the Labor Statute found disclosure necessary under FOIA. United States Department of the Air Force v. FLRA, 838 F.2d 229 (7th Cir.), cert. dismissed, 488 U.S. 880, 109 S.Ct. 632, 102 L.Ed.2d 170 (1988). Although the precise question has never been squarely presented to this circuit, our pre-Reporters Committee cases suggest that we would have reached the same result. In Van Bourg, Allen, Weinberg & Roger v. NLRB, 728 F.2d 1270 (9th Cir.1984) (“Van Bourg”), we held that FOIA required the NLRB to release names and addresses of employees eligible to vote in a representation election to a rival union that suspected irregularities in the voting. We concluded that the strong public interest in assuring the integrity of the collective bargaining process outweighed employees’ interest in keeping their home addresses private. Id. at 1273-74. In Local 598 v. Dept. of Army Corps of Engineers, 841 F.2d 1459 (9th Cir.1988), we reviewed a district court’s order requiring the Army Corps of Engineers to release names and addresses to a union that suspected the Corps of violating labor standards. The issue appealed in Local 598 was the propriety of awarding attorney’s fees to the union. We held that fees were warranted, in part because disclosure created a public benefit. “A strong public interest is served where, as here, the underlying purpose of disclosure is the enforcement of federal laws embodying important congressional policies.” Id. at 1461. There things stood until the Supreme Court’s decision in Reporters Committee. In that case, news organizations asked to examine FBI “rap sheets” of various suspected organized crime figures. The Court held that FOIA did not require their disclosure. When balancing the public interest in disclosure against possible invasions of privacy, the Court said, the public interest that matters is the right of citizens “to know what their government is up to.” This basic policy of “full agency disclosure unless information is exempted under clearly delineated statutory language” indeed focuses on the citizens’ right to be informed about “what their government is up to.” Official information that sheds light on an agency’s performance of its statutory duties falls squarely within that statutory purpose. That purpose, however, is not fostered by disclosure of information about private citizens that is accumulated in various governmental files but that reveals little or nothing about an agency’s own conduct. Reporters Committee, 489 U.S. at 773, 109 S.Ct. at 1481 (citations omitted). Lower courts now faced the question whether Reporters Committee altered the FOIA analysis of Farmers Home Administration. In FLRA v. United States Department of the Treasury, Financial Management Service, 884 F.2d 1446 (D.C.Cir.1989) (“Treasury”), cert. denied, 493 U.S. 1055, 110 S.Ct. 864, 107 L.Ed.2d 948 (1990), the D.C. Circuit held that it did. Prior cases had considered the Labor Statute’s disclosure requirement to be a public interest weighing in the Exemption 6 balance. But because disclosure of addresses to the unions would not enlighten the public about “what the Government is up to,” Treasury declined to consider “the special public interest in advancing collective bargaining as an aspect of the disclosure value.” Id. at 1451. As a result, it held that Exemption 6 barred disclosure. It also held that disclosure was not required as a routine use. Id. at 1453-56. The First Circuit agreed with Treasury. FLRA v. Department of the Navy, 941 F.2d 49 (1st Cir.1991) (“First Circuit Navy”). The Third Circuit did the same in a 2-1 decision that has been vacated pending rehearing en banc. FLRA v. Department of the Navy, 944 F.2d 1088 (3d Cir.1991) (withdrawn). FLRA’s subsequent opinion in Portsmouth found Reporters Committee inapplicable, expressly rejected Treasury, and held that Farmers Home Administration was still the controlling law. (FLRA is permitted to test its interpretation of statutes in the various circuits, and is not required to adhere to Treasury in its litigation of other cases. United States v. Mendoza, 464 U.S. 154, 104 S.Ct. 568, 78 L.Ed.2d 379 (1984).) FLRA has relied on Portsmouth in all subsequent litigation on this issue, including the cases now on appeal before us. A 2-1 decision of the Fourth Circuit agreed with Portsmouth. FLRA v. Department of Commerce, 954 F.2d 994 (4th Cir.1992) (“Commerce”). JURISDICTION This court’s jurisdiction to enforce FLRA decisions arises from 5 U.S.C. § 7123(b). STANDARD OF REVIEW FLRA’s reasonable interpretations of the Labor Statute are entitled to judicial deference. However, FLRA has no special expertise in interpreting the Privacy Act or FOIA. Therefore, questions of law arising from those statutes are reviewed de novo. First Circuit Navy, 941 F.2d at 54-55; Treasury, 884 F.2d at 1449, 1451. DISCUSSION Under the Labor Statute, federal employers must furnish to unions such data as is “necessary for full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining.” 5 U.S.C. § 7114(b)(4)(B). A threshold question in this case is whether home addresses are “necessary,” given potential alternative means for the union to communicate with employees. FLRA has stated its view that addresses are necessary so that the union’s direct-mail literature can reach employees free of the mediation of the employer-controlled workplace. See Farmers Home Administration at 795-98; Portsmouth at 522-23. “[0]ther means of communication, such as desk drops, direct distributions, meetings, bulletin boards, and direct personal contacts” do not share this trait, and FLRA declines to examine their feasibility as alternative modes of communication on a case-by-case basis. Farmers Home Administration at 796. This is not an unreasonable interpretation of the Labor Statute, and this court is bound, like every circuit court that has considered the question, to defer to FLRA’s expertise in this area. Judge Sen-telle’s concurrence in Treasury was the only opinion to express any doubt about this point, but he, too, ultimately accepted the “weight of authority ... upholding the FLRA’s decision.” 884 F.2d at 1461 (Sen-telle, J., concurring). Because the addresses are necessary to the unions, disclosure is required under the Labor Statute unless it is otherwise “prohibited by law.” 5 U.S.C. § 7114(b). The Privacy Act is incorporated by the Labor Statute’s “prohibited by law” language. The Privacy Act prohibits disclosure of government information regarding any person without that person’s written consent. 5 U.S.C. § 552a(b). There is an exception, however, for disclosures required by FOIA. 5 U.S.C. § 552a(b)(2). FOIA’s structure is a mirror image of the Privacy Act. It requires disclosure as a general principle, 5 U.S.C. § 552(a), but allows agencies to retain documents that fall into enumerated exemptions, 5 U.S.C. § 552(b). The exemptions to FOIA are to be narrowly construed so as to favor full disclosure. Department of Justice v. Julian, 486 U.S. 1, 8, 108 S.Ct. 1606, 1611, 100 L.Ed.2d 1 (1988); Department of the Air Force v. Rose, 425 U.S. 352, 361, 96 S.Ct. 1592, 1599, 48 L.Ed.2d 11 (1976); EPA v. Mink, 410 U.S. 73, 79, 93 S.Ct. 827, 832, 35 L.Ed.2d 119 (1973). The burden is on the government to demonstrate that a given document falls within a statutory exemption. Bowen v. United States Food and Drug Administration, 925 F.2d 1225, 1226 (9th Cir.1991). The agencies argue that employees’ home addresses are shielded by Exemption 6, which protects “personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(6). Exemption 6 was designed to protect “ ‘individuals from the injury and embarrassment that can result from the unnecessary disclosure of personal information.’ ” Id. at 1228 (quoting U.S. Department of State v. Washington Post Co., 456 U.S. 595, 599, 102 S.Ct. 1957, 1960, 72 L.Ed.2d 358 (1982)). This is not a blanket exemption for personnel files; a balancing test determines what is a “clearly unwarranted invasion of personal privacy” under Exemption 6. The statute calls for “a balancing of interests between the protection of an individual’s private affairs from unnecessary public scrutiny, and the preservation of the public’s right to governmental information.” Rose, 425 U.S. at 372, 96 S.Ct. at 1604 (citation omitted). The Ninth Circuit balances four factors in Exemption 6 cases: (1) the plaintiff’s interest in disclosure; (2) the public’s interest in disclosure; (3) the degree of the invasion of personal privacy; and (4) the availability of any alternate means of obtaining the requested information. Multnomah County Medical Society v. Scott, 825 F.2d 1410, 1413 (9th Cir.1987); Minnis v. Department of Agriculture, 737 F.2d 784, 786 (9th Cir.1984), cert. denied, 471 U.S. 1053, 105 S.Ct. 2112, 85 L.Ed.2d 477 (1985); Van Bourg, 728 F.2d at 1273. 1. The plaintiffs interest in disclosure The unions want the addresses of federal employees so that they can freely communicate with unit employees through mailings that can be read in a setting free of employer supervision. Direct mailings place the content, timing and frequency of communications- within the unions’ exclusive control, and eliminate the possibility of employer interference. Farmers Home Administration at 796-97. Disclosure of home addresses would allow the unions to better execute their statutory responsibility “for representing the interests of all employees in the unit it represents without discrimination and without regard to labor organization membership.” 5 U.S.C. § 7114(a)(1). The unions’ interest in disclosure is strong. It is also non-commercial. We have previously held that “commercial interest should not weigh in favor of mandating disclosure of a name and address list.” Minnis, 737 F.2d at 787 (disclosure not required in part because plaintiff’s interest in disclosure of names and addresses of persons receiving permits to raft on scenic river was to advertise his nearby lodge). See also Multnomah, 825 F.2d at 1413-1415 (medical society desired list of Medicare recipients in order to mail solicitations, an “overwhelmingly commercial” interest “which does not weigh favorably in the balance toward disclosure”). There is no evidence suggesting that the unions plan to sell the lists, advertise, or otherwise seek commercial advantage through its- mailings. Rather, they intend to inform employees about union activities, the status of collective bargaining, and similar work-related issues. While the unions undoubtedly wish to improve the financial condition of their memberships, they do not act out of commercial self-interest. The agencies argue that because “the identity of the requesting party has no bearing on the merits of his or her FOIA request,” Reporters Committee, 489 U.S. at 771, 109 S.Ct. at 1480, requiring the agencies to disclose employee addresses to the unions would necessarily require that they be disclosed to all requesting merchandisers as well. This argument confuses the identity of the requester with the interest asserted by the requester. It would be improper, for example, for the government to disclose information to the New York Times but not to the National Enquirer on the grounds that one is the “better” newspaper, or because one was investigating the more “valuable” story. FOIA does not play favorites. See Reporters Committee, 489 U.S. at 775, 109 S.Ct. at 1482 (“If respondents are entitled to have the FBI tell them what it knows about Medico’s criminal history, any other member of the public is entitled to the same disclosure”). In this case, however, the direct-mail merchandiser cannot assert the same interest as the labor union. The merchandiser has no statutory duty to represent all employees within the bargaining unit and no mission to lead the fight for higher wages and improved working conditions. The interest it asserts is purely commercial, a fact that our precedents and the statute itself have always been willing to take into account. See Multnomah, 825 F.2d at 1413-15; Minnis, 737 F.2d at 787; 5 U.S.C. § 552(a)(4)(A)(iiMiii) (Supp.1991) (permitting higher document production fees “when records are requested for commercial use” compared to when disclosure “is not primarily in the commercial interest of the requester”). See also Treasury, 884 F.2d at 1453 (“the argument here is not that the identity of the requester should alter the disclosure interest, but rather that a congressional (non-FOIA) disclosure mandate might do so”). Because the union’s interest in access to the addresses is significant and non-commercial, we find that the plaintiffs’ interest weighs in favor of disclosure. 2. The public’s interest in disclosure In enacting the Labor Statute, Congress declared that collective bargaining for public employees “safeguards the public interest” and “contributes to the effective conduct of public business.” 5 U.S.C. § 7101(a)(1). These statements of the public interest militate strongly in favor of disclosure. However, the agencies argue that after Reporters Committee these express Congressional findings have no place in the Exemption 6 balance incorporated into the Labor Statute. We disagree. The agencies’ reading of Reporters Committee takes it beyond its intended and appropriate context. The plaintiffs in that case were reporters asking that the government release personal information about a particular person. Their request arose directly under FOIA. Reporters Committee explicitly acknowledged that it dealt with “the typical case in which one private citizen is seeking information about another.” 489 U.S. at 773, 109 S.Ct. at 1481. In such a case, the only public interest the Court could discern was “FOIA’s central purpose^] to ensure that the Government’s activities be opened to the sharp eye of public scrutiny.” Id. at 774. In this case, the unions predicate their disclosure request not directly under FOIA, but under section 7114(b)(4) of the Labor Statute. The Labor Statute has declared the public interest in favor of collective bargaining in unmistakable terms. We doubt that Congress intended that its statement of the public interest in section 7101(a)(1) be ignored when examining the public interest element incorporated into section 7114(b)(4) through FOIA. Nor does Reporters Committee compel such a result. “Nothing in [Reporters Committee ] suggests that the Court had considered and rejected the relevance of public interest objectives identified by Congress in other disclosure statutes.” Treasury, 884 F.2d at 1453. Our conclusion is in harmony with that of the Fourth Circuit. Commerce, at 997 (emphasis added). The public interest in fostering collective bargaining therefore weighs heavily in favor of disclosure. [In Reporters Committee ], the Supreme Court considered a request for information made solely under the FOIA. No other federal statute was directly involved. Here, the Union requested the information under § 7114(b)(4)(B) of the FS Labor Statute, which directs the litigants to the Privacy Act which, in turn, directs them to the FOIA. We find this distinction critical [.] 3. The degree of the invasion of personal privacy Other circuits have ascribed wildly different weights to the strength of the privacy interest in one’s home address. See cases collected in Treasury, 884 F.2d at 1459 (Ginsburg, J., concurring) (privacy interest in one’s home address variously described as “not particularly compelling”, “modest”, “minimal”, “minuscule”, “limited”, but also “strong”) and in First Circuit Navy, 941 F.2d at 55-56 (“not ... of crucial significance”, “significant”, “unquestionably ... some privacy”, “minuscule”, “cognizable privacy interest", “strong privacy interest”, “little privacy in one’s name and home address”). This circuit has described the interest both as “minimal,” Van Bourg, 728 F.2d at 1274, and “more than minimal,” Minnis, 737 F.2d at 787; Multnomah, 825 F.2d at 1415. These divergent estimates arose because one’s name and address on a list reveal not two pieces of information, but three: one’s name, one’s address, and the fact that one belongs on the list. Persons on the Minnis list were rafting enthusiasts. Persons on the Multnomah list were Medicare recipients. Those lists reveal more about their subjects’ lifestyles, ages or health than is revealed in a list of employees of a federal agency. While there is undoubtedly an interest in avoiding “an unwanted barrage of mailings and personal solicitations,” Minnis, 737 F.2d at 787, we agree with Van Bourg that the interest in keeping one’s home address from the union bargaining on one’s behalf is minimal. 4. Alternate means of obtaining the information The agencies argue that the unions could obtain home addresses of employees by approaching them in the workplace. This argument fails for the same reasons underlying FLRA’s conclusion that home addresses were “necessary” to unions under the Labor Statute. Those workers who are reluctant to engage in union activities at the workplace may also be reluctant to give their addresses to union representatives at the workplace. Since the union has a statutory duty to represent all employees “without discrimination and without regard to labor organization membership,” 5 U.S.C. § 7114(a)(1), it needs to be able to send its mailings to all employees, not just those who voluntarily sign up for them. Taking these four factors together, we conclude that the unions’ interest in carrying out their statutory duties, the public’s interest in fostering collective bargaining for federal employees, and the difficulty in obtaining the information in other ways outweigh the privacy interest of those employees who wish to keep their home addresses from the unions. The agencies have not met their burden of showing that disclosure would constitute “a clearly unwarranted invasion of privacy.” Our conclusion is consistent with FOIA’s “strong presumption in favor of disclosure,” United States Department of State v. Ray, — U.S. -, 112 S.Ct. 541, 547, 116 L.Ed.2d 526 (1991), the purposes of the Labor Statute, and with the Privacy Act’s FOIA exception. Because disclosure is required by FOIA, we decline to examine whether it would fall into the Privacy Act’s exception for routine use. CONCLUSION Reporters Committee did not alter the rule that disclosure of employees’ home addresses to the exclusive representative of their bargaining unit falls within the FOIA exception of the Privacy Act and is therefore required by the Labor Statute. FLRA’s order enjoining the agencies’ refusal to disclose the addresses as an unfair labor practice is ENFORCED. . “The Congress finds that ... labor organizations and collective bargaining in the civil service are in the public interest." 5 U.S.C. § 7101(a). . Strictly speaking, Reporters Committee was decided on the basis of FOIA’s Exemption 7(C) (disclosure not required for law enforcement records whose release “could reasonably be expected to constitute an unwarranted invasion of privacy"), and not on Exemption 6 (disclosure not required for personnel, medical or similar files whose release “would constitute a clearly unwarranted invasion of privacy”), which is implicated in this case. However, Reporters Committee relied on the leading Exemption 6 case, Department of Air Force v. Rose, 425 U.S. 352, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976). The court’s broad statements about FOIA cause us to consider its possible implications for other FOIA cases. . The same can be said about United States Department of State v. Ray, — U.S. -, 112 S.Ct. 541, 116 L.Ed.2d 526 (1991), also cited by the agencies. Ray involved a private citizen’s request for information directly under FOIA, and was primarily decided on the narrow factual ground that the release of unredacted versions of certain documents which were already disclosed in redacted form would be an invasion of privacy. . We are not presented here with the case of an employee who asks to be removed from the union’s mailing list. Such a case would raise unique issues that we need not reach here. Question: What is the number of judges who voted in favor of the disposition favored by the majority? Answer:
songer_respond1_1_2	A	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to classify the scope of this business into one of the following categories: "local" (individual or family owned business, scope limited to single community; generally proprietors, who are not incorporated); "neither local nor national" (e.g., an electrical power company whose operations cover one-third of the state); "national or multi-national" (assume that insurance companies and railroads are national in scope); and "not ascertained". Joseph Donald THORNBLAD, Appellant, v. Larry OLSON, M.D., Medical Director of Willmar Regional Treatment Center, Appellee. No. 91-1577. United States Court of Appeals, Eighth Circuit. Submitted Nov. 12, 1991. Decided Jan. 2, 1992. Heide H. Crissey, Stillwater, Minn., argued, for appellant. Kathy Meade Hebert, St. Paul, Minn., argued (Hubert H. Humphrey, III and Kathy Meade Hebert, St. Paul, Minn., on the brief), for appellee. Before LAY, Chief Judge, ARNOLD, Circuit Judge, and STUART, Senior District Judge. The Hon. William C. Stuart, Senior United States District Judge for the Southern District of Iowa, sitting by designation. ARNOLD, Circuit Judge. This is a petition for habeas corpus brought by Joseph D. Thornblad, who has been held by the State of Minnesota since November 21, 1989, under a series of involuntary commitment orders. Thornblad argues that he is being deprived of his liberty without due process in violation of the Fourteenth Amendment to the United States Constitution because the evidence of mental illness presented at the commitment hearings was not clear and convincing, as required by Addington v. Texas, 441 U.S. 418, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979). We disagree, and affirm the District Court’s judgment of dismissal. On August 26, 1988, Thornblad assaulted two Hennepin County District Court Judges. He pleaded guilty to third-degree assault and was sentenced to fifteen months’ imprisonment with an anticipated release date of November 25, 1989. While in prison, Thornblad began to show signs of mental illness, which centered around his delusions of power and control over both the legal system and state government. Because of these delusions, the State filed a petition for involuntary commitment. An evidentiary hearing was held, and the Washington County District Court concluded that the evidence was clear and convincing that Thornblad was mentally ill, and that no viable less restrictive alternatives to civil commitment existed. On November 21, 1989, the petitioner was transferred from prison to the Minnesota Security Hospital. Since that time, he has remained civilly committed by virtue of re-commitment orders entered for successive six-month periods. There is some doubt as to whether either the initial commitment or the first recom-mitment is properly before us. The District Court dismissed petitioner’s case for failure to present any constitutional claim to the state courts, failure to exhaust available state remedies, and because the case was moot. We decline to address those procedural issues, assume for purposes of this opinion that the petitioner is entitled to a review of his claims, and reject those claims on the merits. We take this course because the issues of procedural bar, exhaustion, and mootness are complicated and doubtful. The merits, on the other hand, are simple and plain. See Long v. Iowa, 920 F.2d 4, 6 n. 2 (8th Cir.1990). Our choosing to decide the merits makes our own work easier. By doing so, we intend no disrespect for the state courts as interpreters of federal law. The procedures and requirements to commit a person initially and to continue that commitment are almost identical. Both procedures require the committing court to find by clear and convincing evidence that the patient is “mentally ill.” Minnesota defines a “mentally ill person” as follows: Subd. 13. Mentally ill person. “Mentally ill person” means any person who has an organic disorder of the brain or a substantial psychiatric disorder of thought, mood, perception, orientation, or memory which grossly impairs judgment, behavior, capacity to recognize reality, or to reason or understand, which (a) is manifested by instances of grossly disturbed behavior or faulty perceptions; and (b) poses a substantial likelihood of physical harm to self or others as demonstrated by: (i) a failure to obtain necessary food, clothing, shelter, or medical care as a result of the impairment, or (ii) a recent attempt or threat to physically harm self or others. This impairment excludes (a) epilepsy, (b) mental retardation, (c) brief periods of intoxication caused by alcohol or drugs, or (d) dependence upon or addiction to any alcohol or drugs. Minn.Stat. § 253B.02. If the State seeks to continue the involuntary commitment at the end of the initial commitment period, in addition to showing that the patient continues to be mentally ill, the State must show by clear and convincing evidence that “involuntary commitment is necessary for the protection of the patient or others ... and ... there is no alternative to involuntary commitment.” Minn.Stat. § 253B.12, Subd. 4. In Jackson v. Virginia, 443 U.S. 307, 99 5.Ct. 2781, 61 L.Ed.2d 560 (1979), the Supreme Court held that a federal constitutional claim is stated if a criminal defendant alleges that no rational jury could have found him guilty beyond a reasonable doubt. Thornblad’s theory in the present case is analogous: the federal Constitution, see Addington v. Texas, supra, requires that the facts justifying a civil commitment be proved by clear and convincing evidence. It follows, he argues, that he is entitled to relief in federal habeas if he can show that no rational finder of fact could have found those facts by clear and convincing evidence. We assume without deciding that this theory is legally viable. The question that we must answer then is whether a rational person could have found by clear and convincing evidence that Thornblad was mentally ill and continued to be so, that his “commitment [was] necessary for the protection of [himself] or others,” Minn.Stat. § 253B.12, Subd. 4, and that “there [was] no alternative to involuntary commitment.” Id. Several psychiatrists and psychologists testified at each commitment hearing that Thornblad suffered from a delusional disorder, grandiose type, which substantially affected his thought, mood, perception, and orientation and grossly impaired his judgment, behavior, capacity to recognize reality, and ability to reason or understand. He also has an anti-social personality disorder. The basis for their opinions was the history of Thornblad’s behavior. For example, he asserted that he was in charge of the prison, that he either was or had the power of a judge, that he had the authority to remove the Governor and become Governor himself, and that he could change the law at will and might choose to abolish murder as a crime. He also threatened to kill the warden, various police officers, and an unidentified woman. He has since threatened the Governor as well as several judges with remarks like, “I’ll teach these dum [sic] Judge’s [sic] something they are not going to like and I dont [sic] care and dont [sic] mess with me or anyone ever again.” Washington County District Court Order for Recommitment, No. P2-89-3912, at 3 (June 15, 1990). He also explained to several judges who received letters from him that he is the “boss of the laws” and has authority to control the court system. Id. Certainly a rational person could find that the threatening letters to judges, the threats to the Governor and others, and the petitioner’s belief that he was either above the law or the “boss of the law” amounted to “grossly disturbed behavior or faulty perceptions” as required by Minnesota Statute § 253B.02, Subd. 13(a). Additionally, the petitioner has no understanding of his mental illness and has admitted that he would not obtain the medical care necessary to control his mental illness if released from the State’s custody. He feels that he has no mental illness to control. In the Matter of: Joseph Donald Thornblad, No. MI-04222, Transcript of Proceedings, at 52 (June 3, 1991). He has also recently assaulted a judge. Either of these facts is a sufficient basis for a rational person to conclude that Minnesota Statute § 253B.02, Subd. 13(b) (likelihood of harm to self or others) has been met. Having determined that it was reasonable for the initial committing court to find there was clear and convincing evidence that Thornblad was a “mentally ill person,” we next consider the requirements for his continued commitment. It was not unreasonable to conclude that Thornblad, if released, might injure one of the persons he has threatened. Nor was it unreasonable for the state district court judges to believe that the result of Thornblad’s refusal to take his medication if released might be harmful to him. Therefore, the State proved that “involuntary commitment [was] necessary for the protection of the patient or others” as required by Minnesota Statute § 253B.12, Subd. 4(2). Finally, we will not disturb the state district courts’ findings that there was no immediate alternative to involuntary commitment. They weighed the alternatives to involuntary commitment as well as the varying types of commitment. Several doctors who testified indicated that it would probably be possible at some point in the near future to move petitioner to a less restrictive, less structured environment. In fact, he was moved to Willmar Regional Treatment Center on August 1, 1991. Appellant’s Brief to the Minnesota Court of Appeals, In the Matter of: Joseph Donald Thornblad, No. C9-91-1501, at 4 (Sept. 14, 1991). At oral argument the State indicated that he might soon be released. But at the time of commitment and recommitment, there was sufficient evidence from which the judges could have concluded, as they did, that there was no immediate alternative to commitment. In sum, we hold that a rational person could have found by clear and convincing evidence that Thornblad was a “mentally ill person” when initially committed, and that he continued to suffer from a mental illness, as required by state law in order to commit or recommit a person involuntarily in Minnesota. Therefore, the judgment of the District Court dismissing the petition for habeas corpus is affirmed. . The Hon. David S. Doty, United States District Judge for the District of Minnesota. Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". What is the scope of this business? A. local B. neither local nor national C. national or multi-national D. not ascertained Answer:
sc_caseorigin	066	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the court in which the case originated. Focus on the court in which the case originated, not the administrative agency. For this reason, if appropiate note the origin court to be a state or federal appellate court rather than a court of first instance (trial court). If the case originated in the United States Supreme Court (arose under its original jurisdiction or no other court was involved), note the origin as "United States Supreme Court". If the case originated in a state court, note the origin as "State Court". Do not code the name of the state. The courts in the District of Columbia present a special case in part because of their complex history. Treat local trial (including today's superior court) and appellate courts (including today's DC Court of Appeals) as state courts. Consider cases that arise on a petition of habeas corpus and those removed to the federal courts from a state court as originating in the federal, rather than a state, court system. A petition for a writ of habeas corpus begins in the federal district court, not the state trial court. Identify courts based on the naming conventions of the day. Do not differentiate among districts in a state. For example, use "New York U.S. Circuit for (all) District(s) of New York" for all the districts in New York. WYANDOTTE TRANSPORTATION CO. et al. v. UNITED STATES. No. 31. Argued October 16-17, 1967. Decided December 4, 1967. Lucian Y. Ray argued the cause for petitioners. With him on the briefs were Benjamin W. Yancey, George B. Matthews, Tom F. Phillips and J. Barbee Winston. Alan S. Rosenthal argued the cause for the United States. With him on the brief were Acting Solicitor General Spritzer and Acting Assistant Attorney General Eardley. E. D. Vickery, Alexander B. Hawes and Scott H. Elder filed a brief for the American Waterways Operators, Inc., et al., as amici curiae, urging reversal. Mr. Justice Fortas delivered the opinion of the Court. Two cases, consolidated by the trial court and raising related issues, are here involved. In United States v. Cargill, Inc., the Government asked that parties responsible for the allegedly negligent sinking of a vessel in an inland waterway be declared responsible for removing the impediment to navigation thus created. In United States v. Wyandotte Transportation Co. the United States had itself removed a sunken vessel; claiming that the vessel had been negligently sunk, it sought reimbursement for the costs of removal. The question now before us for decision is whether the relief requested in these cases is available to the United States. The United States District Court for the Eastern District of Louisiana concluded that such relief is not available. After the cases were consolidated, that court granted summary judgment against the United States in each instance. The court decided that the Government has no in personam rights against those responsible for having- negligently sunk a vessel. In its view, the United States is limited to an in rem right against the cargo of the negligently sunk vessel and against the vessel itself. United States v. Cargill, Inc., 1964 A. M. C. 1742. The Court of Appeals for the Fifth Circuit reversed. It held that under the Rivers and Harbors Act of 1899, 30 Stat. 1151 et seg., as amended, 33 U. S. C. § 401 et seq., the United States may assert in personam rights — to in-junctive or declaratory relief or damages — against those responsible for the negligent sinking of a vessel. United States v. Cargill, Inc., 367 F. 2d 971 (1966). Because of a conflict among the circuits and because of the important question regarding interpretation of a statute of the United States, we granted certiorari. 386 U. S. 906 (1967). We affirm the judgment below. The crucial facts of both cases occurred in March 1961. The Cargill libel alleges that, at that time, a supertanker bound up the Mississippi for Baton Rouge, Louisiana, collided with two barges moored by a tug. The barges were owned by petitioner Cargo Carriers, Inc., and petitioner Jeffersonville Boat and Machine Co., respectively. The Government was notified immediately after the accident that the two barges had sunk. A few days later, it was served with notice that the barges were being abandoned. The United States refused, however, to accept abandonment or to assume responsibility for removing the wrecks. In December 1962, it brought suit against the owners, managers, charterers, and insurers of the two barges, seeking a decree that the respondents were responsible for removing the sunken vessels. The Government charged that negligence in the equipping, manning, and mooring of the barges had caused the sinking. To this date, the barges involved in this case remain in the Mississippi. The Wyandotte libel is founded on facts more dramatic. A barge loaded with 2,200,000 pounds of liquid chlorine sank while being pushed in the Mississippi near Yidalia, Louisiana. Wyandotte, the owner of the barge, at first made some attempts to locate and raise the wreck. But then, in November 1961, Wyandotte informed the Army Corps of Engineers that it believed further efforts to raise the barge would be unsuccessful. Wyandotte stated that it was abandoning the vessel. The Government began a study of the danger posed by such a substantial load of chlorine at the bottom of the Mississippi. It was feared that if any chlorine escaped it would be in the form of lethal chlorine, gas, which might cause a large number of casualties. The Government demanded that Wyandotte remove the barge. Wyandotte refused to do this. The United States then moved to avert a catastrophe by locating and raising the barge and its deadly cargo. In October 1962, the President proclaimed the presence of the barge to be a major disaster under the Disaster Relief Act, 64 Stat. 1109, 42 U. S. C. §§ 1855-1855g. Safety precautions on a grand scale were taken, and a team of experienced divers sought gingerly to raise Wy-andotte’s barge. These operations, costing the United States some $3,081,000, proved successful. The United States demanded that the owners and operators of the barge reimburse the Government for its expenses. This demand was rejected. In January 1963, the Government brought suit, in rem against the barge and her cargo, and in personam against the owner of the barge, the owner of the boat that had been pushing the barge when it sank, and the owner of the chlorine cargo. The libel charged these parties with negligence and fault in the design, towing, manning, mooring, and equipping of the barge. The Government sought a decree for the costs it incurred in removing the wreck. I. Although the Government has advanced several discrete grounds for affirmance, we do not pause to examine each of them. We agree that § 15 of the Rivers and Harbors Act of 1899, 33 U. S. C. § 409, read in light of our decision in United States v. Republic Steel Corp., 362 U. S. 482 (1960), controls the issues here presented. Section 15 reads in relevant part as follows: “It shall not be lawful ... to voluntarily or carelessly sink, or permit or cause to be sunk, vessels or other craft in navigable channels .... And whenever a vessel, raft or other craft is wrecked and sunk in a navigable channel, accidentally or otherwise, it shall be the duty of the owner of such sunken craft to immediately mark it with a buoy or beacon during the day and a lighted lantern at night, and to maintain such marks until the sunken craft is removed or abandoned, and the neglect or failure of the said owner so to do shall be unlawful; and it shall be the duty of the owner of such sunken craft to commence the immediate removal of the same, and prosecute such removal diligently, and failure to do so shall be considered as an abandonment of such craft, and subject the same to removal by the United States as provided for in sections 411-416, 418, and 502 of this title.” 33 U. S. C. §409. Petitioners do not dispute, as indeed they could not, that the negligent sinking of a vessel falls within the prohibition of the first above-quoted clause of § 15. They contend, however, that the Act contains specific remedies for such a violation of § 15, and that those remedies were meant by Congress to be exclusive of all others. Petitioners point to the § 16 duty of the owner to mark and remove a sunken craft. They note that failure to remove “shall be considered as an abandonment of such craft, and subject the same to removal by the United States.” And petitioners call our attention to §§ 19 and 20 of the Act, 33 U. S. C. §§ 414-415, which set forth the procedure whereby the United States may remove a sunken craft that “shall be considered as” abandoned under § 15. Section 19 provides that whenever a sunken vessel exists as an obstruction to any navigable waters of the United States for a period longer than 30 days, or whenever the abandonment of such obstruction can be legally established in a shorter time, the sunken vessel “shall be subject to be broken up, removed, sold, or otherwise disposed of by the Secretary of the Army at his discretion, without liability for any damage to the owners of the same.” That section further contemplates “[t]hat any money received from the sale of any such wreck . . . shall be covered into the Treasury of the United States.” 33 U. S. C. § 414. Section 20, an emergency provision applicable only when a sunken vessel obstructs a waterway “in such manner as to stop, seriously interfere with, or specially endanger navigation,” 33 U. S. C. § 415, is similar in structure to § 19. Finally, petitioners emphasize that § 16 of the Act provides criminal penalties for “[e]very person and every corporation that shall violate, or that shall knowingly aid, abet, authorize, or instigate a violation of the provisions [of § 15].” 33 U. S. C. § 411. They point out that § 12 of the Act, 33 U. S. C. § 406, which provides penalties for violations of § 10, 33 U. S. C. § 403, expressly authorizes the injunctive remedy. They argue that the lack of such an authorization in § 16 should be taken to mean that Congress did not intend the United States to be able to obtain what is, in effect, injunctive relief as a remedy for a violation of § 15. The position of petitioners is, therefore, that in the case of a negligently sunk vessel, the Government may require the owner to mark it; it may expect him to remove it or forfeit his interest in the vessel; and if the Government proceeds to remove the vessel, it possesses the right to sell vessel and cargo and retain the proceeds of these sales. Moreover, the Government may proceed criminally, under § 16, against those responsible for the negligent sinking. But, petitioners argue, the Government may do no more. Under their view, the very detail of the Rivers and Harbors Act negates the possibility that Congress intended the Government to be able to recover removal expenses exceeding the value of the vessel and its cargo. Petitioners would apply the same analysis to a government action for declaratory or injunctive relief. Indeed, petitioners believe that authorization of the injunction remedy in another, analogous, section of the Act indicates congressional intent to withhold declaratory or injunctive relief as a means of enforcing § 15. We do not agree. Petitioners’ interpretation of the Rivers and Harbors Act of 1899 would ascribe to Congress an intent at variance with the purpose of that statute. Petitioners’ proposal is, moreover, in disharmony with our own prior construction of the Act, with our decisions on analogous issues of statutory construction, and with a major maritime statute of the United States. If there were no other reasonable interpretation of the statute, or if petitioners could adduce some persuasive indication that their interpretation accords with the congressional intent, we might be more disposed to accept that interpretation. But our reading of the Act does not lead us to the conclusion that Congress must have intended the statutory remedies and procedures to be exclusive of all others. There is no indication anywhere else — in the legislative history of the Act, in the predecessor statutes, or in nonstatu-tory law — that Congress might have intended that a party who negligently sinks a vessel should be shielded from personal responsibility. We therefore hold that the remedies and procedures specified by the Act for the enforcement of § 15 were not intended to be exclusive. Applying the principles of our decision in Republic Steel, we conclude that other remedies, including those here sought, are available to the Government. II. Article I, § 8, of the Constitution grants to Congress the power to regulate commerce. For the exercise of this power, the navigable waters of the United States are to be deemed the “public property of the nation, and subject to all the requisite legislation by Congress.” Gilman v. Philadelphia, 3 Wall. 713, 725 (1866). The Federal Government is charged with ensuring that navigable waterways, like any other routes of commerce over which it has assumed control, remain free of obstruction. Cf. In re Debs, 158 U. S. 564, 586 (1895). The Rivers and Harbors Act of 1899, an assertion of the sovereign power of the United States, Sanitary District v. United States, 266 U. S. 405 (1925), was obviously intended to prevent obstructions in the Nation’s waterways. Despite some difficulties with the wording of the Act, we have consistently found its coverage to be broad. See, e. g., Sanitary District v. United States, supra; United States v. Republic Steel Corp., 362 U. S. 482 (1960). And we have found that a principal beneficiary of the Act, if not the principal beneficiary, is the Government itself. United States v. Republic Steel Corp., supra, at 492. Our decisions have established, too, the general rule that the United States may sue to protect its interests. Cotton v. United States, 11 How. 229 (1851); United States v. San Jacinto Tin Co., 125 U. S. 273 (1888); Sanitary District v. United States, supra. This rule is not necessarily inapplicable when the particular governmental interest sought to be protected is expressed in a statute carrying criminal penalties for its violation. United States v. Republic Steel Corp., supra. Our decisions in cases involving civil actions of private parties based on the violation of a penal statute so indicate. Texas & Pacific R. Co. v. Rigsby, 241 U. S. 33 (1916); J. I. Case Co. v. Borak, 377 U. S. 426 (1964). In those cases we concluded that criminal liability was inadequate to ensure the full effectiveness of the statute which Congress had intended. Because the interest of the plaintiffs in those cases fell within the class that the statute was intended to protect, and because the harm that had occurred was of the type that the statute was intended to forestall, we held that civil actions were proper. That conclusion was in accordance with a general rule of the law of torts. See Restatement (Second) of Torts § 286. We see no reason to distinguish the Government, and to deprive the United States of the benefit of that rule. The inadequacy of the criminal penalties explicitly provided by § 16 of the Rivers and Harbors Act is beyond dispute. That section contains only meager monetary penalties. In many cases, as here, the combination of these fines and the Government’s in rem rights would not serve to reimburse the United States for removal expenses. It is true that § 16 also provides for prison terms, but this punishment is hardly a satisfactory remedy for the pecuniary injury which the negligent shipowner may inflict upon the sovereign. Cf. United States v. Acme Process Equipment Co., 385 U. S. 138 (1966). It was a similar process of reasoning that underlay our decision in United States v. Republic Steel Corp., 362 U. S. 482 (1960). That case concerned the deposit of industrial solids which, we believed, created an “obstruction ... to the navigable capacity” of a waterway of the United States, within the meaning of § 10 of the Act. We decided that the Government might seek injunctive relief to compel removal of such an obstruction, even though such relief was nowhere specifically authorized in the Act. We concluded that the authorization of injunctive relief in § 12, which is applicable only to a limited category of § 10 obstructions (structures), should not be read to exclude injunctions to compel removal of other types of § 10 obstructions. In referring to the Act, we noted that “Congress has legislated and made its purpose clear; it has provided enough federal law in § 10 from which appropriate remedies may be fashioned even though they rest on inferences. Otherwise we impute to Congress a futility inconsistent with the great design of this legislation.” 362 U. S., at 492. Although we do not approach the instant cases in the context of § 10, we believe the principles of Republic Steel apply, by analogy, to the issues now before us. The Government may, in our view, seek an order that a negligent party is responsible for rectifying the wrong done to maritime commerce by a § 15 violation. Denial of such a remedy to the United States would permit the result, extraordinary in our jurisprudence, of a wrongdoer shifting responsibility for the consequences of his negligence onto his victim. It might in some cases permit the negligent party to benefit from commission of a criminal act. We do not believe that Congress intended to withhold from the Government a remedy that ensures the full effectiveness of the Act. We think we correctly divine the congressional intent in inferring the availability of that remedy from the prohibition of § 15. It is but a small step from declaratory relief to a civil action for the Government’s expenses incurred in removing a negligently sunk vessel. See United States v. Perma Paving Co., 332 F. 2d 754 (C. A. 2d Cir. 1964). Having properly chosen to remove such a vessel, the United States should not lose the right to place responsibility for removal upon those who negligently sank the vessel. See Restatement of Restitution § 115; United States v. Moran Towing & Transportation Co., 374 F. 2d 656, 667 (C. A. 4th Cir. 1967). No issue regarding the propriety of the Government’s removal of Wyandotte’s barge is now raised. Indeed, the facts surrounding that sinking constitute a classic case in which rapid removal by someone was essential. Wyandotte was unwilling to effectuate removal itself. It would be surprising if Congress intended that, in such a situation, the Government’s commendable performance of Wyandotte’s duty must be at Government expense. Indeed, in any case in which the Act provides a right of removal in the United States, the exercise of that right should not relieve negligent parties of the responsibility for removal. Otherwise, the Government would be subject to a financial penalty for the correct performance of its duty to prevent impediments in inland waterways. See United States v. Perma Paving Co., supra, at 758. We note, moreover, that under the Limitation of Shipowners’ Liability Act of 1851, 9 Stat. 635, as amended, 46 U. S. C. § 181 et seg., the liability of a shipowner “for any loss, damage, or injury by collision, or for any act, matter, or thing, loss, damage, or forfeiture” may be limited to “the interest of such owner in such vessel, and her freight then pending”; but this limitation is available only if the act or damage occurred “without the privity or knowledge of such owner.” 46 U. S. C. § 183. “For his own fault, neglect and contracts the owner remains liable.” American Car & Foundry Co. v. Brassert, 289 U. S. 261, 264 (1933). The reading that petitioners would place on the Rivers and Harbors Act of 1899 would create an additional right of limitation, applicable in the special case of a sinking even though the owner is himself negligent. Yet Congress gave no indication, in passing the Rivers and Harbors Act, that it intended to alter or qualify the 1851 Act. In the congressional failure to connect these two statutes, we find at least some evidence that petitioners’ discovery of a limitation of liability in the Rivers and Harbors Act is unwarranted. III. Petitioners contend that, despite our prior decisions and the silence of the Rivers and Harbors Act on this point, that statute authorizes them simply to abandon their negligently sunk vessels, without further responsibility for those vessels. We find in the Act no support for such an absolute right of abandonment. The provision upon which petitioners place most reliance, the final clause of § 16, creates a “duty of the owner of [a] sunken craft to commence the immediate removal of the same, and prosecute such removal diligently.”' Because “failure to do so shall be considered as an abandonment of such craft, and subject the same to removal by the United States as provided for in sections [19 and 20],” petitioners contend that such failure in no case has other consequences. But the duty imposed by and the remedy provided in the final clause of § 15 and §§19 and 20 are not prescribed only for owners of negligently sunk ves-seis. Those provisions apply “whenever a vessel ... is wrecked and sunk in a navigable channel, accidentally or otherwise . . . .” Unlike a negligent sinking, a non-negligent sinking is not declared by the Act to be unlawful. It seems highly unlikely that Congress, having specified that only a negligent or intentional sinking is a crime, would then employ such indirect language to grant the culpable owner a personal civil immunity from the consequences of that crime. We believe the sections noted by petitioners are intended to protect the United States against liability for removing a sunken vessel if it chooses to do so. See Zubik v. United States, 190 F. 2d 278 (C. A. 3d Cir. 1951); Gulf Coast Transp. Co. v. Ruddock-Orleans Cypress Co., 17 F. 2d 858 (D. C. E. D. La. 1927). Section 19 speaks explicitly of the discretion of the Secretary of the Army to break up, remove, sell, or otherwise dispose Question: What is the court in which the case originated? 001. U.S. Court of Customs and Patent Appeals 002. U.S. Court of International Trade 003. U.S. Court of Claims, Court of Federal Claims 004. U.S. Court of Military Appeals, renamed as Court of Appeals for the Armed Forces 005. 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sc_lcdispositiondirection	A	What follows is an opinion from the Supreme Court of the United States. Your task is to determine whether the decision of the court whose decision the Supreme Court reviewed was itself liberal or conservative. In the context of issues pertaining to criminal procedure, civil rights, First Amendment, due process, privacy, and attorneys, consider liberal to be pro-person accused or convicted of crime, or denied a jury trial, pro-civil liberties or civil rights claimant, especially those exercising less protected civil rights (e.g., homosexuality), pro-child or juvenile, pro-indigent pro-Indian, pro-affirmative action, pro-neutrality in establishment clause cases, pro-female in abortion, pro-underdog, anti-slavery, incorporation of foreign territories anti-government in the context of due process, except for takings clause cases where a pro-government, anti-owner vote is considered liberal except in criminal forfeiture cases or those where the taking is pro-business violation of due process by exercising jurisdiction over nonresident, pro-attorney or governmental official in non-liability cases, pro-accountability and/or anti-corruption in campaign spending pro-privacy vis-a-vis the 1st Amendment where the privacy invaded is that of mental incompetents, pro-disclosure in Freedom of Information Act issues except for employment and student records. In the context of issues pertaining to unions and economic activity, consider liberal to be pro-union except in union antitrust where liberal = pro-competition, pro-government, anti-business anti-employer, pro-competition, pro-injured person, pro-indigent, pro-small business vis-a-vis large business pro-state/anti-business in state tax cases, pro-debtor, pro-bankrupt, pro-Indian, pro-environmental protection, pro-economic underdog pro-consumer, pro-accountability in governmental corruption, pro-original grantee, purchaser, or occupant in state and territorial land claims anti-union member or employee vis-a-vis union, anti-union in union antitrust, anti-union in union or closed shop, pro-trial in arbitration. In the context of issues pertaining to judicial power, consider liberal to be pro-exercise of judicial power, pro-judicial "activism", pro-judicial review of administrative action. In the context of issues pertaining to federalism, consider liberal to be pro-federal power, pro-executive power in executive/congressional disputes, anti-state. In the context of issues pertaining to federal taxation, consider liberal to be pro-United States and conservative pro-taxpayer. In miscellaneous, consider conservative the incorporation of foreign territories and executive authority vis-a-vis congress or the states or judcial authority vis-a-vis state or federal legislative authority, and consider liberal legislative veto. The lower court's decision direction is unspecifiable if the manner in which the Supreme Court took jurisdiction is original or certification; or if the direction of the Supreme Court's decision is unspecifiable and the main issue pertains to private law or interstate relations WATTS et al. v. SEWARD SCHOOL BOARD et al. No. 923. Decided May 3, 1965. George Kaufmann for petitioners. George N. Hayes for respondent Seward School Board. Per Curiam. Petitioners Watts and Blue were dismissed from their positions as schoolteachers in Seward, Alaska, on grounds of “immorality,” which under Alaska Statutes 1962, § 14.20.170 was defined as “conduct of the person tending to bring the individual concerned or the teaching profession into public disgrace or disrespect.” Petitioners’ dismissals were upheld by the Alaska Superior Court (Third Judicial District), and on appeal the Alaska Supreme Court affirmed the Superior Court’s decision. 395 P. 2d 372. The Alaska Supreme Court noted that “[t]he immoral conduct complained of as to the appellant Watts was his holding of private conversations with various teachers in which he solicited their support in an attempt to oust the school superintendent from his job. The allegedly immoral conduct of the appellant Blue was his making of a speech to a labor union at Seward in which he stated, We have been unable to get rid of the [school] Superintendent, so we are going to get rid of the Board/ or words to that effect.” 395 P. 2d, at 374. The Alaska Supreme Court held that this conduct “had a tendency to bring the [petitioners] . . . and the teaching profession into public disgrace or disrespect,” within the terms of the statute, 395 P. 2d, at 375, and it therefore sustained their dismissals. Petitioners contend that their dismissals for engaging in the conduct here described unconstitutionally infringe their rights to political expression guaranteed by the First and Fourteenth Amendments to the United States Constitution. We need not consider petitioners’ contentions at this time, for since their petition for certiorari was filed Alaska has amended its statutes in this area. House Bill 27, adopted by the Alaska Legislature and signed by the Governor on March 31, 1965, now defines “immorality” as grounds for revocation of a teaching certificate, as “the commission of an act which, under the laws of the state, constitutes a crime involving moral turpitude.” Moreover, Alaska Statutes, Tit. 14, c. 20, have been amended by the addition of a new section which reads: “Sec. 14.20.095. Right to Comment and Criticize Not to be Restricted. No rule or regulation of the commissioner of education, a local school board, or local school administrator may restrict or modify the right of a teacher to engage in comment and criticism outside school hours, relative to school administrators, members of the governing body of any school or school district, any other public official, or any school employee, to the same extent that any private individual may exercise the right.” This Court has held that supervening changes in state law that may be relevant to the disposition of a case may require that the cause be remanded for appropriate action by the state court. See, e. g., Missouri ex rel. Wabash R. Co. v. Public Service Comm’n, 273 U. S. 126, 131. Cf. Trunkline Gas Co. v. Hardin County, 375 U. S. 8, Accordingly, it is appropriate to allow the Alaska court to consider the effect of the new Alaska statutes upon this case. To that end, the petition for certiorari is granted, the judgment of the Supreme Court of Alaska is vacated, and this case is remanded to that court for such further consideration as may be deemed appropriate by that court under Alaska law. Vacated and remanded. Question: What is the ideological direction of the decision reviewed by the Supreme Court? A. Conservative B. Liberal C. Unspeciﬁable Answer:
songer_r_bus	0	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of respondents in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. Samuel Obediah MILLER, Petitioner-Appellant, v. The UNITED STATES ARMY, Respondent-Appellee. No. 679-70. United States Court of Appeals, Tenth Circuit. March 27, 1972. Samuel Obediah Miller, pro se. Robert J. Roth, U. S. Atty., and Richard L. Meyer, Asst. U. S. Atty., submitted on brief, for respondent-appellee. Before BREITENSTEIN and McWILLIAMS, Circuit Judges, and KERR, District Judge. PER CURIAM. The opinion filed herein on August 27, 1971, was withdrawn on August 30, 1971, to avoid possible inconsistency with Polsky v. Wetherill, 10 Cir., 438 F.2d 132. Petitioner-appellant, who voluntarily enlisted in the armed forces, sought release therefrom as a conscientious objector. Release was denied and he brought habeas corpus. In reliance on Noyd v. McNamara, 10 Cir., 378 F.2d 538, cert. denied 389 U.S. 1022, 88 S.Ct. 593, 19 L.Ed.2d 667, the district court dismissed the petition because petitioner had not exhausted available military remedies, including the court martial process. In Polsky we reaffirmed the rule stated in Noyd v. McNamara. The Supreme Court vacated our judgment and remanded the case for further consideration, Polsky v. Wetherill, 403 U.S. 916, 91 S.Ct. 2232, 29 L.Ed.2d 693. Thereafter, the court of appeals en banc considered Polsky on its merits and directed that the writ issue. See opinion filed on March 2, 1972, in 10 Cir., 455 F.2d 960. Noyd v. McNamara no longer has any vitality. The appellant in the case at bar is entitled to consideration of his claim on the merits. Accordingly, the judgment is reversed and the case is remanded for trial on the merits. Question: What is the total number of respondents in the case that fall into the category "private business and its executives"? Answer with a number. Answer:
songer_r_fed	0	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of respondents in the case that fall into the category "the federal government, its agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. John Franklin GAGE et al., Appellants, v. The RIGGS NATIONAL BANK OF WASHINGTON, D. C., Administrator, Estate of Margaret Delano Gage, Deceased, Appellee. No. 17309. United States Court of Appeals District of Columbia Circuit. Argued May 3, 1963. Decided May 23, 1963. Mr. Andrew A. Lipscomb, Washington, D. C., with whom Mr. Donald M. Sullivan, Washington, D. C., was on the brief, for appellants. Mr. Harry Tyson Carter, Washington, D. C., with whom Mr. Jerome K. Kuy-kendall, Washington, D. C., was on the brief, for appellee. Before Bazelon, Chief Judge, and Fahy and McGowan, Circuit Judges. McGOWAN, Circuit Judge. The issues here relate to the discretionary power of the District Court, sitting as a Probate Court for the District of Columbia, to issue letters of administration. Since the scope of the power is the subject of detailed and explicit statutory specification, our concern is whether the particular appointment made lies within the range of authority granted. Since we cannot tell, on the record before us, whether it was or was not, we are remanding the case for further proceedings. I The intestate decedent, Mrs. Margaret Delano Gage, was survived by two classes of next of kin. One consisted of twelve paternal first cousins, comprised of both males and females. The other was comprised of two female maternal first cousins. There is no issue as to the authenticity of the relationship to decedent of the individuals in each class. On May 18, 1962, one of the male paternal first cousins, Harold Calvin Gage, filed a petition representing the existence of the twelve-member class of paternal first cousins and asking that The National Bank of Washington be appointed as administrator. Accompanying this petition were sworn consents by the other members of the class, concurring in the allegations of the petition and consenting to and requesting the appointment of the bank in question. On the following day a cross-petition was filed by Helen Durfee Palmer, one of the two female maternal first cousins making up the second class of next of kin. Mrs. Palmer asked that letters of administration be issued to herself, representing that a consent would shortly be supplied from the other member of her class, as it was. Four days after the filing of Mrs. Palmer’s petition, a new action was taken on behalf of the other class. This was the filing of a cross-petition by John Franklin Gage, one of the male paternal first cousins who had executed a consent to the earlier petition of Harold Calvin Gage. The petition of John Franklin Gage varied from that of Harold Calvin Gage principally in that it requested the appointment of The National Bank of Washington or, in the alternative, the appointment of petitioner, John Franklin Gage. Consents to, and requests for, this alternative approach were forthcoming from the other eleven members of the class. An answer was filed by Mrs. Palmer to both of the Gage petitions. In it, by way of affirmative defense, she made a number of allegations relating to an organization known as American Archives Association, which she represented as being a corporation engaged in the business of acquiring assignments of interests in intestate estates. She charged that this corporation was the undisclosed true party in interest behind each of the Gage petitions; that it had taken assignments of a two-fifths interest from each of the twelve paternal first cousins; that it had solicited such assignments from the two maternal first cousins, but had been refused them; that the Gage petitions would not have been filed but for this undisclosed interest; and that considerations of public policy and impartial administration dictated the rejection of the Gage petitions and the allowance of her own. Harold Calvin Gage filed a reply to Mrs. Palmer’s answer, alleging in substance that American Archives Association performed a useful service generally, and in this case in particular, in that “most or all of the fourteen first cousins of the decedent” would not, but for the activities of the Association, have known of the existence of the decedent’s estate. Admission was made of the assignment of a two-fifths interest, but the relevance of this to the relief requested was denied. These pleadings, together with the oral arguments of counsel, constitute the proceedings in the lower court. Thereafter, the District Judge filed a memorandum stating his purpose to name The Riggs National Bank as administrator. He observed only that “the deceased maintained an account in this bank and would probably have selected this institution over other financial institutions.” In the order subsequently entered, it was recited that it appeared to the court “that the best interest of the estate requires that a disinterested party be appointed.” Only John Franklin Gage, joined by the other paternal first cousins, has appealed this order. II This Court long ago recognized that values of substance inhere in the right to letters of administration, and that “those upon whom that right has been conferred by statute should not be deprived of it, except as the statute has provided.” Williams v. Williams, 24 App.D.C. 214, 217 (1904). Detailed statutory provision has been made for the issuance of such letters, and an explicit system of priorities as between next of kin has been established. Applied to the facts of this case, the male paternal first cousins are the immediately preferred class. This Court, however, has also said that, in an appropriate case and for sound reasons, discretion may be exercised to select an administrator from among lesser preferred classes of next of kin. See Randall v. Bockhorst, 98 U.S.App.D.C. 77, 232 F.2d 334 (1956), and Brooks v. De Lacy, 103 U.S.App.D.C. 223, 257 F.2d 227 (1958). But it was said in Randall and reiterated in Brooks that “ * * * if there is a next of kin who is not barred under a specific statutory disqualification and who applies for letters, a creditor or person not in any preferred classification may not be appointed.” This last conclusion rested upon the language contained in D.C.Code § 20-216: “If there be no relations, or those entitled decline or refuse to appear and apply for administration, on proper summons or notice, administration may be granted to the largest creditor applying for the same; and if creditors neglect to apply, it may be granted at the discretion of the court.” In appointing The Riggs National Bank, the District Court could only have been acting under the discretion vested in it under this particular provision of the statute. For the discretion to attach, however, the conditions of the statute must have been satisfied. Since there were relations in being in the persons of the two groups of cousins, the appointment of an outsider turned upon the question of whether there had been a declination within the purview of the statute. Neither in the pleadings nor in the oral argument was this question expressly brought to the attention of the District Judge. Neither in his memorandum nor in the order entered is there any finding by him on this matter, nor any other form of reference to it. Upon this appeal it is vigorously asserted on behalf of The Riggs National Bank that the District Court’s discretion to appoint it had attached under § 20-216 for the reason that the paternal first cousins had declined by filing written consents, first, to the appointment of The National Bank of Washington, and second, to the alternative appointment either of that bank or John Franklin Gage. But we cannot tell from what is before us whether the District Court addressed itself to this question, or what its conclusion would have been if it had. It may well be that, with the point squarely and explicitly before it for resolution, the District Court would have thought it either necessary or desirable to explore the issue in more detail through the taking of evidence relevant to it, instead of relying solely upon the allegations in the pleadings. When an exercise of judicial discretion derives solely from a statutory source, due deference to the legislative purposes suggests that the court to whom the grant is made in the first instance have the primary opportunity to elicit the facts and to draw the appropriate legal conclusions from them. Since the court’s action is to be measured against the statute, its articulation of the responsiveness of that action to the statute is of critical importance to meaningful appellate review. Thus, we regard it as consonant with sound principles of judicial administration for us to remand the matter to the District Court for further proceedings in the light of this opinion. It is so ordered. . D.C.Code §§ 20-201 to 20-218. . This was in form a cross-petition and answer to a petition theretofore filed by one Dorothy B. Marvin, whose interest was represented as being that of one who had personally guaranteed payment of decedent’s funeral expenses. The record indicates that, prior to the entry of the order below, these expenses were paid by counsel acting for Harold Calvin Gage. In any event, no appeal by Mrs. Marvin is before us. . D.C.Code § 20-208: “If there be neither widow or surviving husband, nor child, nor grandchild, nor father, nor mother, nor brother, nor sister, the next of kin shall be preferred.” § 20-209: “Males shall be preferred to females in equal degree.” § 20-214: “Relations on the part of the father shall be preferred to those on the part of the mother, in equal degree.” . On petition for rehearing, 98 U.S.App.D.C. at 80, 232 F.2d at 339. The statutory disqualification referred to relates to competency. See D.C.Code § 20-101, which enumerates the bases of incompetency and directs that all questions relating thereto shall be determined by the court after notice. The record on this appeal appears to present no claim of disqualification under § 20-101 as to any of the contending parties. Question: What is the total number of respondents in the case that fall into the category "the federal government, its agencies, and officialss"? Answer with a number. Answer:
songer_appfed	1	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of appellants in the case that fall into the category "the federal government, its agencies, and officials". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. Ray MARSHALL, Secretary of Labor, United States Department of Labor, Appellant, v. HAMBURG SHIRT CORPORATION, a corporation, Appellee. No. 77-1712. United States Court of Appeals, Eighth Circuit. Submitted March 16, 1978. Decided June 1, 1978. Tedrick A. Housh, Jr., Kansas City, Mo., Carin Ann Clauss, Donald S. Shire and Joseph Woodward (argued), and Jacob I. Kar-ro, Washington, D.C., on brief, for appellant. James W. Moore, Friday, Eldredge & Clark, Little Rock, Ark., for appellee. Before LAY and BRIGHT, Circuit Judges, and HANSON, Senior District Judge. William C. Hanson, Senior District Judge, Northern and Southern Districts of Iowa, sitting by designation. LAY, Circuit Judge. The Secretary of Labor brought this action under the Fair Labor Standards Act, 29 U.S.C. § 201 et seq., alleging that defendant Hamburg Shirt Corporation was in violation of § 7 of the Act, 29 U.S.C. § 207, for failing to properly compensate its employees for overtime work. The Secretary sought injunctive relief and recovery of back wages allegedly owed to affected employees. Those employees were paid under a contractual agreement entitled “Fixed Salary Agreement for Fluctuating Hours.” The district court, in rejecting the Secretary’s claim, held that the contract was valid under the Interpretive Bulletin set out at 29 C.F.R. § 778.114. Finding that the contract and methods of payment used by the defendant company are in violation of the Act, we reverse. Each employee’s contract provides a fixed weekly salary as straight time compensation for all hours worked and provides for extra compensation in the amount of one-half the regular rate for all overtime hours worked. The regular rate is to be determined by dividing the fixed salary by the total number of hours worked each week. In addition, each employee is guaranteed a specified number of hours per week, ranging from 45 to 50, depending on the nature of the employee’s work. The district court failed to see any prejudice to the employee, or any offense under the Act, in the agreement. As the court stated: The guaranteed overtime provision does not affect the basic agreement for determination of the base wage rate, the overtime wage rate, and provides expressly for payment of additional half time for all hours worked over 40. The guaranteed overtime provision merely assures the employee that he will be paid not less than the guaranteed number of hours, whether he works that many hours or not. A fundamental purpose of the Fair Labor Standards Act was to encourage employers to distribute work among a larger number of employees rather than to work employees overtime. See Overnight Motor Transportation Co. v. Missel, 316 U.S. 572, 577-78, 62 S.Ct. 1216, 86 L.Ed. 1682 (1942). The primary means of achieving this goal was the general requirement set out in § 7(a) of the Act, 29 U.S.C. § 207(a), that employees be compensated for overtime hours at a rate not less than one and one-half times their regular compensation. In 1949 an exception was enacted allowing employers to contract with employees for a guaranteed weekly compensation which included overtime pay. Section 7(f) of the Act, 29 U.S.C. § 207(f), now provides the exemption from § 7(a) as follows: No employer shall be deemed to have violated subsection (a) of this section by employing any employee for a workweek in excess of the maximum workweek applicable to such employee under subsection (a) of this section if such employee is employed pursuant to a bona fide individual contract, or pursuant to an agreement made as a result of collective bargaining by representatives of employees, if the duties of such employee necessitate irregular hours of work, and the contract or agreement (1) specifies a regular rate of pay of not less than the minimum hourly rate provided in subsection (a) or (b) of section 206 of this title (whichever may be applicable) and compensation at not less than one and one-half times such rate for all hours worked in excess of such maximum workweek, and (2) provides a weekly guaranty of pay for not more than sixty hours based on the rates so specified. This exemption gives employees the benefit of a guaranteed weekly salary, but also benefits employers since they can more accurately plan labor costs. As stated by the Secretary: A guaranteed wage plan also provides a means of limiting overtime computation costs so that wide leeway is provided for working employees overtime without increasing the cost to the employer, which he would otherwise incur under the Act for working employees in excess of the statutory maximum hours standard. 29 C.F.R. § 778.404. The Secretary’s Interpretative Bulletin, 29 C.F.R. § 778.403, clearly states that only by compliance with § 7(f) may an employer have part of an employee’s guaranteed weekly compensation credited toward overtime compensation. The bulletin reads as follows: Section 7(f) is the only provision of the Act which allows an employer to pay the same total compensation each week to an employee who works overtime and whose hours of work vary from week to week. . Unless the pay arrangements in a particular situation meet the requirements of section 7(f) as set forth, all the compensation received by the employee under a guaranteed pay plan is included in his regular rate and no part of such guaranteed pay may be credited toward overtime compensation due under the Act. Section 7(f) is an exemption from the overtime provisions of the Act. No employer will be exempt from the duty of computing overtime compensation for an employee under section 7(a) unless the employee is paid pursuant to a plan which actually meets all the requirements of the exemption. ... We find the plan implemented by the employer in this case to be within the scope of 29 C.F.R. § 778.403 because the practical effect of the guaranty is to allow the employer to pay the same compensation each week even though the employee works a varying number of overtime hours. The employer concedes that the contractual plan does not comply with § 7(f) of the statute. Indeed, the plan fails to meet the requirements of § 7(f) in a number of particulars. First, the duties of these employees do not necessitate irregular hours of work. Second, the guaranteed plan is intended to include overtime compensation but does not compensate hours in excess of 40 at one and one-half times a specified regular rate. Under a § 7(f) plan the regular rate is not a variable one, as it may be when the agreed plan does not compensate overtime, but otherwise contemplates a fixed wage for irregular hours. See Yadav v. Coleman Oldsmobile, Inc., 538 F.2d 1206 (5th Cir. 1976). Cf. Walling v. A. H. Belo Corp., 316 U.S. 624, 631-32, 62 S.Ct. 1223, 86 L.Ed. 1716 (1942). We are unable to agree with the district court’s conclusion that the compensation plan is valid under 29 C.F.R. § 778.114, as a fixed salary for fluctuating hours. It is apparent that § 778.114 is not intended to validate a plan implementing a fixed guaranteed income which includes overtime pay. By the express language of § 778.114 the fixed salary contemplated by that section does not include any overtime premium, as does the guaranteed compensation in this case. To hold otherwise would allow the strict terms of § 7(f), which afford only a limited exemption from the requirements of § 7(a), to be easily circumvented by contracts similar to the one proposed here. In the present case the employee’s guaranteed pay for 45, 48 or 50 hours, rather than the “weekly salary” specified in the contract but never actually paid because of the guaranty, should be considered his fixed wage. Because the employer has failed to comply with § 7(f) of the Act, all of the guaranteed salary must be included in the regular compensation for each employee and all overtime hours must be compensated at one and one-half times the regular rate. See 29 C.F.R. § 778.403. In accordance with § 7(a) of the Act, the regular rate is to be determined by dividing the regular weekly compensation by the number of hours actually worked in each week. See Overnight Motor Transportation Co. v. Mis-sel, supra, 316 U.S. at 580, 62 S.Ct. 1216; Mumbower v. Callicott, 526 F.2d 1183, 1187 (8th Cir. 1975). Additional compensation at one-half the regular rate should then be added to the weekly salary for all hours worked in excess of 40 each week. See Yadav v. Coleman Oldsmobile, Inc., supra, 538 F.2d at 1207 n. 2. The judgment of the district court is reversed and the cause is remanded for proceedings consistent with this opinion. . A typical agreement as set forth in the district court opinion appears as follows: FIXED SALARY AGREEMENT FOR FLUCTUATING HOURS DATE July 3, 1971 I. I, Ruben Ethridge, an employee of Hamburg Shirt Corporation have entered into an agreement with my employer (Hamburg Shirt Corporation) to be paid in accordance with the Fair Labor Standards Act of 1938, as amended and described in the Interpretative Bulletin of the Code of Federal Regulations, Title 29, part 778, section 778.114 entitled “Fixed Salary for Fluctuating Hours”. II. It is our understanding that my weekly salary of 118.40 per week is to cover what ever hours I work -in any one work week and that all hours over 40 in any one work week will be computed as extra half time and that I will be guaranteed no less than 45 hours in any one work week. III. Example of computing extra half time for overtime: Salary $100.00 Hours worked 50 50 hours 100.00 = hourly rate of $2.00 y2 of hourly rate of $2.00= $1.00 extra half time. Salary for 40 hours $100.00 10 extra half time hours at $1.00/hr. 10.00 Total gross wage $110.00 /S/ Ruben Ethridge /S/ J. McNeelv Employee For Hamburg Shirt Corporation 2.63 45/118.40 y2 of 2.63 = 1.32 118.40 _5 6.60 6.60 125.00 . The bulletin provides in part: (a) An employee employed on a salary basis may have hours of work which fluctuate from week to week and the salary may be paid him pursuant to an understanding with his employer that he will receive such fixed amount as straight time pay for whatever hours fie is called upon to work in a workweek, whether few or many. Where there is a clear mutual understanding of the parties that the fixed salary is compensation (apart from overtime premiums) for the hours worked each workweek, whatever their number, rather than for working 40 hours or some other fixed weekly work period, such a salary arrangement is permitted by the Act if the amount of the salary is sufficient to provide compensation to the employee at a rate not less than the applicable minimum wage rate for every hour worked in those workweeks in which the number of hours he works is greatest, and if he receives extra compensation, in addition to such salary, for all overtime hours worked at a rate not less than one-half his regular rate of pay. Since the salary in such a situation is intended to compensate the employee at straight time rates for whatever hours are worked in the workweek, the regular rate of the employee will vary from week to week and is determined by dividing the number of hours worked in the workweek into the amount of the salary to obtain the applicable hourly rate for the week. Páyment for overtime hours at one-half such rate in addition to the salary satisfies the overtime pay requirement because such hours have already been compensated at the straight time regular rate, under the salary arrangement. 29 C.F.R. § 778.114. Question: What is the total number of appellants in the case that fall into the category "the federal government, its agencies, and officialss"? Answer with a number. Answer:
sc_lcdisposition	B	What follows is an opinion from the Supreme Court of the United States. Your task is to determine the treatment the court whose decision the Supreme Court reviewed accorded the decision of the court it reviewed, that is, whether the court below the Supreme Court (typically a federal court of appeals or a state supreme court) affirmed, reversed, remanded, denied or dismissed the decision of the court it reviewed (typically a trial court). Adhere to the language used in the "holding" in the summary of the case on the title page or prior to Part I of the Court's opinion. Exceptions to the literal language are the following: where the Court overrules the lower court, treat this a petition or motion granted; where the court whose decision the Supreme Court is reviewing refuses to enforce or enjoins the decision of the court, tribunal, or agency which it reviewed, treat this as reversed; where the court whose decision the Supreme Court is reviewing enforces the decision of the court, tribunal, or agency which it reviewed, treat this as affirmed; where the court whose decision the Supreme Court is reviewing sets aside the decision of the court, tribunal, or agency which it reviewed, treat this as vacated; if the decision is set aside and remanded, treat it as vacated and remanded. BROWN v. TEXAS No. 77-6673. Argued February 21, 1979 Decided June 25, 1979 BurgeR, C. J., delivered the opinion for a unanimous Court. Raymond C. Caballero argued the cause and filed a brief for appellant. Renea Hicks, Assistant Attorney General of Texas, argued the cause for appellee pro hac vice. With him on the brief were Mark White, Attorney General, John W. Fainter, Jr., First Assistant Attorney General, and Ted L. Hartley, Executive Assistant Attorney General. Evelle J. Younger, Attorney General, Jack B. Winkler, Chief Assistant Attorney General, Daniel J. Kremer, Assistant Attorney General, and Karl Phaler, Deputy Attorney General, filed a brief for the State of California as amicus curiae. Mr. Chief Justice Burger delivered the opinion of the Court. This appeal presents the question whether appellant was validly convicted for refusing to comply with a policeman’s demand that he identify himself pursuant to a provision of the Texas Penal Code which makes it a crime to refuse such identification on request. I At 12:45 in the afternoon of December 9, 1977, Officers Venegas and Sotelo of the El Paso Police Department were cruising in a patrol car. They observed appellant and another man walking in opposite directions away from one another in an alley. Although the two men were a few feet apart when they first were seen, Officer Venegas later testified that both officers believed the two had been together or were about to meet until the patrol car appeared. The car entered the alley, and Officer Venegas got out and asked appellant to identify himself and explain what he was doing there. The other man was not questioned or detained. The officer testified that he stopped appellant because the situation “looked suspicious and we had never seen that subject in that area before.” The area of El Paso where appellant was stopped has a high incidence of drug traffic. However, the officers did not claim to suspect appellant of any specific misconduct, nor did they have any reason to believe that he was armed. Appellant refused to identify himself and angrily asserted that the officers had no right to stop him. Officer Venegas replied that he was in a “high drug problem area”; Officer Sotelo then “frisked” appellant, but found nothing. When appellant continued to refuse to identify himself, he was arrested for violation of Tex. Penal Code Ann., Tit. 8, § 38.02 (a) (1974), which makes it a criminal act for a person to refuse to give his name and address to an officer “who has lawfully stopped him and requested the information.” Following the arrest the officers searched appellant; nothing untoward was found. While being taken to the El Paso County Jail appellant identified himself. Nonetheless, he was held in custody and charged with violating § 38.02 (a). When he was booked he was routinely searched a third time. Appellant was convicted in the El Paso Municipal Court and fined $20 plus court costs for violation of § 38.02. He then exercised his right under Texas law to a trial de novo in the El Paso County Court. There, he moved to set aside the information on the ground that § 38.02 (a) of the Texas Penal Code violated the First, Fourth, and Fifth Amendments and was unconstitutionally vague in violation of the Fourteenth Amendment. The motion was denied. Appellant waived a jury, and the court convicted him and imposed a fine of $45 plus court costs. Under Texas law an appeal from an inferior court to a county court is subject to further review only if a fine exceeding $100 is imposed. Tex. Code Crim. Proc. Ann., Art. 4.03 (Vernon 1977). Accordingly, the County Courtis rejection of appellant's constitutional claims was a decision “by the highest court of a State in which a decision could be had.” 28 U. S. C. § 1257 (2). On appeal here we noted probable jurisdiction. 439 U. S. 909 (1978). We reverse. II When the officers detained appellant for the purpose of requiring him to identify himself, they performed a seizure of his person subject to the requirements of the Fourth Amendment. In convicting appellant, the County Court necessarily found as a matter of fact that the officers “lawfully stopped” appellant. See Tex. Penal Code Ann., Tit. 8, § 38.02 (1974). The Fourth Amendment, of course, “applies to all seizures of the person, including seizures that involve only a brief detention short of traditional arrest. Davis v. Mississippi, 394 U. S. 721 (1969); Terry v. Ohio, 392 U. S. 1, 16-19 (1968). ‘[W] hen ever a police officer accosts an individual and restrains his freedom to walk away, he has “seized” that person,’ id., at 16, and the Fourth Amendment requires that the seizure be ‘reasonable.’ ” United States v. Brignoni-Ponce, 422 U. S. 873, 878 (1975). The reasonableness of seizures that are less intrusive than a traditional arrest, see Dunaway v. New York, 442 U. S. 200, 209-210 (1979); Terry v. Ohio, 392 U. S. 1, 20 (1968), depends “on a balance between the public interest and the individual’s right to personal security free from arbitrary interference by law officers.” Pennsylvania v. Mimms, 434 U. S. 106, 109 (1977); United States v. Brignoni-Ponce, supra, at 878. Consideration of the constitutionality of such seizures involves a weighing of the gravity of the public concerns served by the seizure, the degree to which the seizure advances the public interest, and the severity of the interference with individual liberty. See, e. g., 422 U. S., at 878-883. A central concern in balancing these competing considerations in a variety of settings has been to assure that an individual’s reasonable expectation of privacy is not subject to arbitrary invasions solely at the unfettered discretion of officers in the field. See Delaware v. Prouse, 440 U. S. 648, 654-655 (1979); United States v. Brignoni-Ponce, supra, at 882. To this end, the Fourth Amendment requires that a seizure must be based on specific, objective facts indicating that society’s legitimate interests require the seizure of the particular individual, or that the seizure must be carried out pursuant to a plan embodying explicit, neutral limitations on the conduct of individual officers. Delaware v. Prouse, supra, at 663. See United States v. Martinez-Fuerte, 428 U. S. 543, 558-562 (1976). The State does not contend that appellant was stopped pursuant to a practice embodying neutral criteria, but rather maintains that the officers were justified in stopping appellant because they had a “reasonable, articulable suspicion that a crime had just been, was being, or was about to be committed.” We have recognized that in some circumstances an officer may detain a suspect briefly for questioning although he does not have “probable cause” to believe that the suspect is involved in criminal activity, as is required for a traditional arrest. United States v. Brignoni-Ponce, supra, at 880-881. See Terry v. Ohio, supra, at 25-26. However, we have required the officers to have a reasonable suspicion, based on objective facts, that the individual is involved in criminal activity. Delaware v. Prouse, supra, at 663; United States v. Brignoni-Ponce, supra, at 882-883; see also Lanzetta v. New Jersey, 306 U. S. 451 (1939), The flaw in the State’s case is that none of the circumstances preceding the officers’ detention of appellant justified a reasonable suspicion that he was involved in criminal conduct. Officer Yenegas testified at appellant’s trial that the situation in the alley “looked suspicious,” but he was unable to point to any facts supporting that conclusion. There is no indication in the record that it was unusual for people to be in the alley. The fact that appellant was in a neighborhood frequented by drug users, standing alone, is not a basis for concluding that appellant himself was engaged in criminal conduct. In short, the appellant’s activity was no different from the activity of other pedestrians in that neighborhood. When pressed, Officer Venegas acknowledged that the only reason he stopped appellant was to ascertain his identity. The record suggests an understandable desire to assert a police presence; however, that purpose does not negate Fourth Amendment guarantees. In the absence of any basis for suspecting appellant of misconduct, the balance between the public interest and appellant’s right to personal security and privacy tilts in favor of freedom from police interference. The Texas statute under which appellant was stopped and required to identify himself is designed to advance a weighty social objective in large metropolitan centers: prevention of crime. But even assuming that purpose is served to some degree by stopping and demanding identification from an individual without any specific basis for believing he is involved in criminal activity, the guarantees of the Fourth Amendment do not allow it. When such a stop is not based on objective criteria, the risk of arbitrary and abusive police practices exceeds tolerable limits. See Delaware v. Prouse, supra, at 661. The application of Tex. Penal Code Ann., Tit. 8, § 38.02 (1974), to detain appellant and require him to identify himself violated the Fourth Amendment because the officers lacked any reasonable suspicion to believe appellant was engaged or had engaged in criminal conduct. Accordingly, appellant may not be punished for refusing to identify himself, and the conviction is Reversed. APPENDIX TO OPINION OF THE COURT “THE COURT: . . . What do you think about if you stop a person lawfully, and then if he doesn’t want to talk to you, you put him in jail for committing a crime. “MR. PATTON [Prosecutor]: Well first of all, I would question the Defendant’s statement in his motion that the First Amendment gives an individual the right to silence. “THE COURT: . . . I’m asking you why should the State put you in jail because you don’t want to say anything. “MR. PATTON: Well, I think there’s certain interests that have to be viewed. “THE COURT: Okay, I’d like you to tell me what those are. “MR. PATTON: Well, the Governmental interest to maintain the safety and security of the society and the citizens to live in the society, and there are certainly strong Governmental interests in that direction and because of that, these interests outweigh the interests of an individual for a certain amount of intrusion upon his personal liberty. I think these Governmental interests outweigh the individual’s interests in this respect, as far as simply asking an individual for his name and address under the proper circumstances. “THE COURT: But why should it be a crime to not answer? “MR. PATTON: Again, I can only contend that if an answer is not given, it tends to disrupt. “THE COURT: What does it disrupt? “MR. PATTON: I think it tends to disrupt the goal of this society to maintain security over its citizens to make sure they are secure in their gains and their homes. “THE COURT: How does that secure anybody by forcing them, under penalty of being prosecuted, to giving their name and address, even though they are lawfully stopped? “MR. PATTON: Well I, you know, under the circumstances in which some individuals would be lawfully stopped, it’s presumed that perhaps this individual is up to something, and the officer is doing his duty simply to find out the individual’s name and address, and to determine what exactly is going on. “THE COURT: I’m not questioning, I’m not asking whether the officer shouldn’t ask questions. I’m sure they should ask everything they possibly could find out. What I’m asking is what’s the State’s interest in putting a man in jail because he doesn’t want to answer something. I realize lots of times an officer will give a defendant a Miranda warning which means a defendant doesn’t have to make a statement. Lots of defendants go ahead and confess, which is fine if they want to do that. But if they don’t confess, you can’t put them in jail, can you, for refusing to confess to a crime?” App. 15-17 (emphasis added). The entire section reads as follows: “§ 38.02. Failure to Identify as Witness “(a) A person commits an offense if he intentionally refuses to report or gives a false report of his name and residence address to a peace officer who has lawfully stopped him and requested the information.” This situation is to be distinguished from the observations of a trained, experienced police officer who is able to perceive and articulate meaning in given conduct which would be wholly innocent to the untrained observer. See United States v. Brignoni-Ponce, 422 U. S. 873, 884-885 (1975); Christensen v. United States, 104 U. S. App. D. C. 35, 36, 259 E. 2d 192, 193 (1958). We need not decide whether an individual may be punished for refusing to identify himself in the context of a lawful investigatory stop which satisfies Fourth Amendment requirements. See Dunaway v. New York, 442 U. S. 200, 210 n. 12 (1979); Terry v. Ohio, 392 U. S. 1, 34 (1968) (White, J., concurring). The County Court Judge who convicted appellant was troubled by this question, as shown by the colloquy set out in the Appendix to this opinion. Question: What treatment did the court whose decision the Supreme Court reviewed accorded the decision of the court it reviewed? A. stay, petition, or motion granted B. affirmed C. reversed D. reversed and remanded E. vacated and remanded F. affirmed and reversed (or vacated) in part G. affirmed and reversed (or vacated) in part and remanded H. vacated I. petition denied or appeal dismissed J. modify K. remand L. unusual disposition Answer:
songer_treat	F	What follows is an opinion from a United States Court of Appeals. Your task is to determine the disposition by the court of appeals of the decision of the court or agency below; i.e., how the decision below is "treated" by the appeals court. That is, the basic outcome of the case for the litigants, indicating whether the appellant or respondent "won" in the court of appeals. MORIN v. CITY OF STUART. No. 9048. Circuit Court of Appeals, Fifth Circuit. May 15, 1940. Rehearing Denied June 11, 1940. Carroll Dunscombe, of Stuart, Fla., for appellant. A. O. Kanner, of Stuart, Fla., for appel-lee. Before SIBLEY, HUTCHESON, and McCORD, Circuit Judges. HUTCHESON, Circuit Judge. The suit was for an injunction to restrain the defendant, “City of Stuart” from attempting to exercise authority over plaintiff’s lands and from levying, assessing and attempting to collect taxes thereon. The claim was that .plaintiff’s lands while located within the boundaries described in an Act of the Florida Legislature, were not legally a part of the City of Stuart, for that the Act was unconstitutional in submitting to the qualified voters, the determination of whether the city boundaries should be so fixed and because no action was taken by the voters pursuant to that authority. The defense was first that plaintiff’s suit constituted a collateral attack upon defendant’s corporate existence and that plaintiff’s remedy was not injunction but quo warranto and second, that plaintiff by delaying to bring suit for nearly thirteen years, was estopped by laches to now maintain it. ■ The District Judge of the opinion both that there was laches and that quo warranto was the exclusive remedy, dismissed the bill. ■ Plaintiff appealing, vigorously insisting that her petition showing, that she has paid no taxes and has from the beginning resisted the efforts of the city to collect taxes from or assert jurisdiction over her prop■erty, she cannot be charged with laches ; and that the Supreme Court of Florida has decided that upon claims like hers, that the inclusion of her property in the city is invalid because of an unconstitutional lack of municipal benefits, injunction is an appropriate remedy, urges us to reverse the decrees of dismissal and to remand the cause with directions to hear it on its merits. Appellee, citing caffes from Florida, holding that persons may be estopped by their laches from attacking, on the ground of a constitutional lack of municipal benefits, the inclusion of their property in municipal limits, insists that the plea of laches was rightly sustained. Further, conceding that the Supreme Court of Florida has in one or two extreme instances, of which Sarasota v. Skillen, supra, cited by appellant is typical, entertained an injunction proceeding, appellee insists that these are exceptions to the rule and that the rule rather than the exception applies here. In the Sarasota case, the court saying, “It is quite true that this court has approved a proceeding by quo warranto as the general method of seeking relief where a municipality undertakes to exercise control of territory over which it has no jurisdiction,” held that where unbenefited lands were included in a municipality and the owner has no adequate legal remedy and was not estopped, equity might enjoin the collection of municipal taxes thereon. But in that case, there was a dissent and in the later cases of State v. City of Pompano, supra, and Certain Lands v. City of Stuart, supra, the court reaffirmed the doctrine announced in State ex rel. Davis v. City of Stuart, 97 Fla. 69, 120 So. 335, 64 A.L.R. 1307, that the legal existence of a municipality can only be attacked by quo warranto, brought by the Attorney General in the name of the State. While in City of Winter Haven v. A. M. Klemm & Son, Fla., 192 So. 646, 651, the court undertook to reconcile the apparent conflict in the decisions by saying: “If incorporated areas of wild or rural lands are so excessive and unsuited for lawful municipal purposes as to violate the intend-ments of section 8, Article VIII, constitution, quo warranto may be invoked by the Attorney General. State ex rel. v. City of Stuart, 97 Fla. 69, 120 So. 335, 64 A.L.R. 1307. If particular lands cannot be taxed for municipal purposes without violating organic property rights and such rights have not been lost by acquiescence, waiver, estoppel or otherwise, injunction may be an appropriate remedy.” State v. City of Avon Park, 96 Fla. 494, 118 So. 223; City of Sarasota v. Skillin, supra, and cases cited. However clear this matter now may be to the courts of Florida, which have the right to exercise both injunctive and quo warranto jurisdiction, it is certainly not clear to the federal courts, which have not the right to exercise the quo warranto jurisdiction, and unless it is absolutely plain, under the state court decisions that thére is injunctive jurisdiction in a matter of this kind, it is the duty of the federal court to decline jurisdiction and to remit the matter to the state courts. United States ex rel. Horigan v. Heyward, 5 Cir., 98 F.2d 433. The obligation to do so here is further enforced by the consideration; that “under section 8 of article 8 of the Constitution, the Legislature has power to establish and to abolish municipalities, to provide for their government, to prescribe their jurisdiction and powers, and to alter or amend the same at any time. * * * It may, therefore, be said that the power of the Legislature, over municipalities in this state is supreme.” State v. City of Miami, 103 Fla. 54, 137 So. 261. 263; Cf. Gailey v. Robertson, 98 Fla. 176, 123 So. 692; State v. Clearwater, 106 Fla. 761, 139 So. 377, 146 So. 836; Nabb v. Andreu, 89 Fla. 414, 104 So. 591; and that the city in question, its boundaries and its powers have been the subject of many legislative acts besides Chapter 11214 of which appellant complains. By Chapter 16692, Acts of 1933, a new municipality of Stuart with the boundaries defined by the Act of 1931, was created in its entirety. By its provisions, the original corporation of Stuart under Chapter 11214 was abolished and the territory and inhabitants of the City of Stuart and its limits as established in 1931, were declared to be a body politic to be known as the City of Stuart. In 1937, Chapter 18867, ratified, confirmed, validated and legalized all assessments for the years 1931-1936. In 1939, Chapter 20139 validated all the assessments from 1931 to 1938 inclusive, and other chapters were enacted at that session, all relating to the City of Stuart. In view of this continuous and continued legislative recognition, we think it plain that appellant’s suit is an attack upon the existence of a municipality, the exclusive remedy for which is quo warranto; that it is not a mere suit to enjoin the collection of taxes; and that before such an injunction could be brought, the existence as to her of the municipality thus created and recognized over and over again by legislative act will have to be determined in a public suit. We agree therefore with the view of the District Judge that the bill constitutes a collateral attack upon the corporate existence of the defendant, and that not injunction but quo warranto in the state court, is the appropriate, indeed the exclusive, remedy. We do not agree that on the face of her bill appellant was es-topped by laches. So much of the order as purports to dismiss the bill for laches is therefore disapproved and vacated and the order of dismissal as thus modified, is affirmed. Affirmed. Chapter 11214, Special Acts 1925. City of Sarasota v. Skillin et al., 130 Fla. 724, 178 So. 837. State ex rel. Landis v. Haines City, 126 Fla. 561, 169 So. 383; State ex rel. Landis v. Coral Gables, 120 Fla. 492, 163 So. 308, 101 A.L.R. 578; Haines City Heights, Inc., v. Haines City, 127 Fla. 86, 172 So. 484; Town of Lake Maitland v. State ex rel. Landis, 127 Fla. 653, 173 So. 677; City of Auburndale v. State ex rel. Landis, 135 Fla. 172, 184 So. 787; City of Winter Haven v. State, 125 Fla. 392, 170 So. 100. Certain Lands v. City of Stuart, 137 Fla. 784, 188 So. 605; State ex rel. Davis v. City of Stuart, 97 Fla. 69, 120 So. 335, 338, 64 A.L.R. 1307; State ex rel. Johnson v. City of Sarasota, 92 Fla. 563, 109 So. 473; West v. Town of Lake Placid, 97 Fla. 127, 120 So. 361; Town of Enterprise v. State, 29 Fla. 128, 10 So. 740; City of Winter Haven v. State, 125 Fla. 392, 170 So. 100; State v. City of Pompano, 136 Fla. 730, 188 So. 610; City of Winter Haven v. A. M. Klemm & Son, Fla., 192 So. 646. Chapters 11750 and 11748, Acts of 1925, Ex.Sess.; Chapter 13429, Sp.Acts of 1927; Chapter 13430, Sp.Acts of 1927; Chapter 14408, Sp.Acts of 1929; Chapter 15492, Sp.Acts of 1931. Question: What is the disposition by the court of appeals of the decision of the court or agency below? A. stay, petition, or motion granted B. affirmed; or affirmed and petition denied C. reversed (include reversed & vacated) D. reversed and remanded (or just remanded) E. vacated and remanded (also set aside & remanded; modified and remanded) F. affirmed in part and reversed in part (or modified or affirmed and modified) G. affirmed in part, reversed in part, and remanded; affirmed in part, vacated in part, and remanded H. vacated I. petition denied or appeal dismissed J. certification to another court K. not ascertained Answer:
songer_respond1_3_3	F	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)", specifically "other agency, beginning with "F" thru "N"". Your task is to determine which specific federal government agency best describes this litigant. UNITED STATES of America, Plaintiff-Appellee, v. Dorothy R. GARBER, Defendant-Appellant. No. 78-5024. United States Court of Appeals, Fifth Circuit. Nov. 19, 1979. Samuel S. Forman, Hollywood, Fla., Lawrence R. Metsch, Stanley A. Beiley, Miami, Fla. (co-counsel), for defendant-appellant. Marsha L. Lyons, Asst. U. S. Atty., Miami, Fla., Charles E. Brookhart, Daniel F. Ross, Attys., Dept, of Justice, Tax Div., Washington, D.C., for plaintiff-appellee. Before BROWN, Chief Judge, and COLEMAN, GOLDBERG, AINSWORTH, GOD-BOLD, CHARLES CLARK, RONEY, GEE, TJOFLAT, HILL, FAY, RUBIN, VANCE and KRAVITCH, Circuit Judges. Judges Frank M. Johnson, Jr., Garza, Henderson, Reavley, Politz, Hatchett, Anderson, Randall, Tate, Sam D. Johnson and Thomas A. Clark, did not participate in the consideration of or decision in this case. The case was taken under submission by the court en banc on June 5, 1979. CHARLES CLARK, Circuit Judge: Dorothy Clark Garber was indicted for willfully and knowingly attempting to evade a portion of her income tax liability for the years 1970, 1971, and 1972 by filing a false and fraudulent income tax return on behalf of herself and her husband. A jury found her innocent of the charges for 1970 and 1971 but convicted her under 26 U.S.C.A. § 7201 for knowingly misstating her income on her 1972 tax return. She was sentenced to 18 months imprisonment — all but 60 days of which was suspended— placed on probation for 21 months, and fined $5,000 exclusive of any civil tax liability. The taxability of the money received by Garber presents a unique legal question. Because of trial errors which deprived defendant of her defense on the element of willfulness, we reverse the conviction. Some time in the late 1960’s after the birth of her third child, Dorothy Garber was told that her blood contained a rare antibody useful in the production of blood group typing serum. Dade Reagents, Inc. (Dade Reagents), a manufacturer of diagnostic reagents used in clinical laboratories and blood banks, had made the discovery and in 1967 induced her to enter into a contract for the sale of her blood plasma. By a technique called plasmapheresis, a pint of whole blood was extracted from her arm, plasma was centrifugally separated, and the red cells were returned to her body. The process was then repeated. The two bleeds produced one pint of plasma from two pints of blood, and took a total of from one and a half to two and a half hours. Plasmapheresis is often preceded by a stimulation of the donor whereby the titre or concentration of the desired antibody in the blood is artifically increased by an injection of an incompatible blood type. Both stimulation and plasmapheresis are accompanied by pain and discomfort and carry the risks of hepatitis and blood clotting. In exchange for Garber’s blood plasma, Dade Reagents agreed to pay her for each bleed on a sliding scale dependent on the titre or strength of the plasma obtained. Dade Reagents then marketed the substance for the production of blood group typing serum. Because Garber’s blood is so rare — she is one of only two or three known persons in the world with this antibody — she was approached by other laboratories which lured her away from Dade Reagents by offering an increasingly attractive price for her plasma. By 1970, 1971, and 1972, the three years covered in the indictment, she was receiving substantial sums of money in exchange for her plasma. For two of those years she was selling her blood under separate contract to Associated Biologicals, Inc. (Associated) and to Biomedical Industries, Inc. (Biomedical), in both cases receiving in exchange a sum of money dependent on the strength of the antibody in each unit sold. In addition, Biomedical offered a weekly salary of $200, provided a leased automobile, and in 1972 added a $25,000 bonus. In that last year Garber sold her plasma to Biomedical exclusively, producing the coveted body fluid as often as six times a month. For all three years involved, Biomedical had treated the regular $200 weekly payments as a salary subject to withholding taxes and provided Garber with a yearly W-2 form noting the taxes withheld. Every year, Garber attached those W-2 forms to her income tax return (which was filed jointly with her husband whom she has since divorced), declared the $200 per week as income, and paid the taxes due. All other payments, both from Biomedical and from Associated, had been paid directly to defendant by check. No income taxes were withheld by the companies; she received no W-2 forms, and paid no taxes on the money received. Biomedical did, however, file a Form 1099 Information Return with the IRS which showed a portion of Garber’s donor fees not subject to withholding. Garber was provided a copy of each 1099, which plainly states that it is for information only and is not to be attached to the income tax return. She had never before received Information Returns, and, while she was receiving checks from both Biomedical and Associated, only Biomedical provided this information. In this prosecution for the felony of willful evasion of income taxes the government had the burden of proving every element of the crime beyond a reasonable doubt. Holland v. United States, 348 U.S. 121, 75 S.Ct. 127, 99 L.Ed. 150 (1954); United States v. England, 347 F.2d 425 (7th Cir. 1965). This required proof of a tax deficiency, an affirmative act constituting evasion or attempted evasion of the tax due, and willfulness. Sansone v. United States, 380 U.S. 343, 85 S.Ct. 1004, 13 L.Ed.2d 882 (1965); United States v. Callahan, 588 F.2d 1078 (5th Cir. 1979); United States v. Buckley, 586 F.2d 498 (5th Cir. 1978). The element we find lacking here was willfulness. At trial, outside the presence of the jury, the government proffered the testimony of Jacquin Bierman, a professor of law and practicing attorney in the City of New York, who stated his opinion that Garber had made available her bodily functions or products for a consideration which constituted taxable gross income. His conclusion was based on section 61(a) of the Internal Revenue Code (Code) which defines gross income as all income from whatever source derived, including (but not limited to) the following items: (1) Compensation for services, including fees, commissions, and similar items; (3) Gains derived from dealings in property; 26 U.S.C.A. § 61(a). While admitting that this case is the first of its kind, Bierman opined that if the exchanges were considered the sale of a product, there would be no tax basis or original cost for the product sold, and the entire sales price would constitute gain subject to tax under section 61(a)(3). Alternatively, he considered categorizing the transactions as the rendition of a service, in which case he was of the opinion that the entire sales price similarly would be fully taxable under section 61(a)(1). The defense proffered to the court the testimony of Daniel Nall, a Certified Public Accountant and former revenue agent, who concluded that the money received by Garber was not within the legal definition of income in section 61(a) and that she had therefore participated in tax-free exchanges. He patterned his reasoning on early case law resting on Doyle v. Mitchell Brothers, 247 U.S. 179, 38 S.Ct. 467, 62 L.Ed. 1054 (1918), which held that funds obtained by the conversion of capital assets and which represented only the actual value of such assets was not taxable income. According to Nall, the Attorney General in a 1918 opinion considered the human body a kind of capital asset. Following the reasoning in Doyle, the opinion held that the proceeds of an accident insurance policy were not subject to tax because the proceeds of the insurance policy represented a conversion of the capital loss which the injured taxpayer had suffered. Nall mentioned similar opinions finding settlements received for personal injury not taxable income. Eventually the Code was amended to include a specific provision covering the tax consequences of compensation for injuries or sickness. Nevertheless, Nall explained, the theory has reappeared in situations involving the exchange of something so personal that its value is not susceptible to measurement. In these transactions— such as property settlements in divorce actions or damage awards for alienation of affection or for defamation of character— the value received is deemed equal to the value given, resulting in no taxable gain. Nall compared blood plasma, a part of the body which no one can value, and concluded that it too must be worth its market value. He therefore reasoned that its exchange produces no gain. The district court heard the testimony of these two experts but refused to admit either opinion in the evidence which went to the jury because it considered the question of taxability to be one of law for the court and not the jury to decide. However, the court did permit the government to introduce testimony by an Internal Revenue Service agent who qualified as an expert in the field of accounting and taxation. This agent offered his opinion that additional taxable income was due but not reported in the years in question. His testimony was received over defense objection that it was based on his conclusion that the compensation received was income and taxable. During cross examination, the witness conceded that the taxability of money received for giving up a part of one’s body is a unique and undecided question in tax law. He also agreed that money received as a return on a capital product is not subject to tax. Yet, he based his calculations on his opinion that the blood plasma donations here were taxable personal services. His view was, in turn, based solely on a Revenue Ruling which declared donations of whole blood to be a service for purposes of determining the deductibility of a charitable contribution. The court sustained objections to the relevancy of further inquiry regarding the nature or value of blood plasma. The defense argued to the court that the expert testimony of Daniel Nall should be presented to the jury to rebut the government’s expert IRS agent, to show that doubt existed as to whether a tax was due because it was incapable of being computed, and to demonstrate the vagueness of the law, which would preclude a willful intent to violate it. The court recognized that Nall’s theory could be relevant to its judicial resolution of the legal conflict. It ruled however that since Nall had never discussed his opinion of the law with the defendant, it had no relevancy to the fact issue of Garber’s intent. The jury never heard the testimony. It did, however, hear considerable factual evidence relating to Garber’s actual intent. After hearing all the evidence, the court ruled as a matter of law that the moneys Garber received for her blood plasma, whether considered a personal service or a product, were income subject to federal income taxation. Consistent with that ruling the jury was instructed that the funds Garber received from the sale of her blood plasma were taxable income. The court also instructed the jury extensively on good faith and willfulness but refused the instructions requested by defense to the effect that a misunderstanding as to defendant’s liability for the tax is a valid defense to the charge of income tax evasion, saying: I have said over and over again [to the jury] that she must act willfully, knowingly and willfully, in an effort to evade and defeat a tax by filing a false return, and that tells it all as far as I am concerned. This business about doubt and all these debatable things I have listened to around here for several days, and I’m not going to charge the jury that way, so as to confuse them. I think that would do more harm than good, and I think it would be error. We hold that the combined effect of the trial court’s evidentiary rulings excluding defendant’s proffered expert testimony and its requested jury charge prejudicially deprived the defendant of a valid theory of her defense. No court has yet determined whether payments received by a donor of blood or blood components are taxable as income. If, as the government contends, by subjecting herself to the plasmapheresis process Garber has performed a service, her compensation would be taxable under section 61(a)(1) of the Code. In some ways, Garber’s activity does resemble work: artificial stimulation, which is not a necessary prerequisite to plasma extraction, causes nausea and dizziness; the ordeal of plasmapheresis can be extremely painful if a nerve is struck, can cause nausea, blackouts, dizziness and scarring, and increases the risks of blood clotting and hepatitis. These efforts of production may logically compare to the performance of a service. On the other hand, blood plasma, like a chicken’s eggs, a sheep’s wool, or like any salable part of the human body, is tangible property which in this case commanded a selling price dependent on its value. The amount of Garber’s compensation for any given pint of plasma was directly related to the strength of the desired antibodies. The greater their concentration, the more she was paid; her earnings were in no way related to the amount of work done, pain incurred, or time spent producing one pint of plasma. Of course, the product/service distinction is relevant only if the sale of the product results in no taxable gain. The experts testifying for both parties here concede that section 61(a)(3) includes in income only the profit gained through the sale or conversion of capital assets. They do not, however, agree on the computation of gain, because they differ in their theories as to how the value of the product before its sale is to be established. The cost of Garber’s blood plasma, containing its rare antibody, cannot be mathematically computed by aggregating the market cost of its components such as salt and water. That would be equivalent to calculating the basis in a master artist’s portrait by costing the canvas and paints. No evidence of any original cost exists in the case of Garber’s unusual natural body fluid. In such a situation it may well be that its value should be deemed equal to the price a willing buyer would pay a willing seller on the open market. See United States v. Davis, 370 U.S. 65, 82 S.Ct. 1190, 8 L.Ed.2d 335 (1962); Bar L Ranch, Inc. v. Phinney, 426 F.2d 995 (5th Cir. 1970); Raytheon Production Corp. v. CIR, 144 F.2d 110 (1st Cir.), cert. denied, 323 U.S. 779, 65 S.Ct. 192, 89 L.Ed. 622 (1944); Farmers’ & Merchants’ Bank v. CIR, 59 F.2d 912 (6th Cir. 1932). If this were the proper basis, the exchange would be a wash resulting in no tax consequences. However, we need not and do not undertake the complex task of resolving what the law should be, nor is it necessary to decide whether, as the trial court concluded, the question is purely one of law for the court and not the jury to resolve. Rather, because the district court refused to permit Bierman, the expert for the government, and Nall, the expert for the defense, to testify and because it reserved to itself the job of unriddling the tax law, thus completely obscuring from the jury the most important theory of Garber’s defense — that she could not have willfully evaded a tax if there existed a reasonable doubt in the law that a tax was due — her trial was rendered fundamentally unfair. A tax return is not criminally fraudulent simply because it is erroneous. Willfulness is an essential element of the crime charged. As such, the government must prove beyond a reasonable doubt that the defendant willfully and intentionally attempted to evade and defeat income taxes for each year in question by filing with the IRS tax returns which she knew were false. United States v. Pomponio, 429 U.S. 10, 97 S.Ct. 22, 50 L.Ed.2d 12 (1976); United States v. Bishop, 412 U.S. 346, 93 S.Ct. 2008, 36 L.Ed.2d 941 (1973). It is not enough to show merely that a lesser tax was paid than was due. Nor is a negligent, careless, or unintentional understatement of income sufficient. Holland v. United States, 348 U.S. 121, 75 S.Ct. 127, 99 L.Ed. 50 (1954); United States v. Murdock, 290 U.S. 389, 54 S.Ct. 223, 78 L.Ed. 381 (1933); United States v. Pechenik, 236 F.2d 844 (3d Cir. 1956). The government must demonstrate that the defendant willfully concealed and omitted from her return income which she knew was taxable. When the taxability of unreported income is problematical as a matter of law, the unresolved nature of the law is relevant to show that defendant may not have been aware of a tax liability or may have simply made an error in judgment. Nordstrom v. United States, 360 F.2d 734 (8th Cir.), cert. denied, 385 U.S. 826, 87 S.Ct. 59, 17 L.Ed.2d 63 (1966); United States v. Bridell, 180 F.Supp. 268 (N.D.Ill.1960). Furthermore, the relevance of a dispute in the law does not depend on whether the defendant actually knew of the conflict. In United States v. Critzer, 498 F.2d 1160 (4th Cir. 1974), the Fourth Circuit reversed a criminal tax fraud conviction against an Eastern Cherokee Indian who failed to report a portion of her income derived from land held by the United States in trust for the Eastern Cherokee Band. The evidence clearly established that the underreporting was intentional. Whether the income was taxable, however, was a disputed question dependent on the interpretation of certain land allotment statutes, which the court did not resolve. Instead, it reversed the conviction because of the absence of authority definitively governing the situation. The court’s language is particularly apt here: As a matter of law, defendant cannot be guilty of willfully evading and defeating income taxes on income, the taxability of which is so uncertain that even co-ordinate branches of the United States Government plausibly reach directly opposing conclusions. As a matter of law, the requisite intent to evade and defeat income taxes is missing. The obligation to pay is so problematical that defendant’s actual intent is irrelevant. Even if she had consulted the law and sought to guide herself accordingly, she could have had no certainty as to what the law required. 498 F.2d at 1162 (emphasis added). Critzer differs from this case in that the defendant there had been advised by the Bureau of Indian Affairs that the income received from the transactions on the Reservation was exempt from taxation. The fact that Garber did not have the benefit of such official advice does not persuade us that the result here should be different. The Critzer court did not so limit its holding: It is settled that when the law is vague or highly debatable, a defendant — actually or imputedly — lacks the requisite intent to violate it. 498 F.2d at 1162. To hold otherwise would advocate convicting an unsophisticated taxpayer who failed to seek expert advice as to whether certain income was taxable while setting free a wise taxpayer who could find advice that taxes were not due on the identical type of debatably taxable income. That Critzer was not decided on the basis of the defendant’s actual intent is further evidenced by the reasoning of the court and its reliance on James v. United States, 366 U.S. 213, 81 S.Ct. 1052, 6 L.Ed.2d 246 (1961). In James, the Supreme Court put to rest a dispute over the taxability of embezzled funds. Fifteen years before James, the Court had held such funds non-taxable. CIR v. Wilcox, 327 U.S. 404, 66 S.Ct. 546, 90 L.Ed. 752 (1946). Subsequently a realigned Court undermined the viability of Wilcox by deciding that extortion money was taxable, distinguishing Wilcox on tenuous grounds. Rutkin v. United States, 343 U.S. 130, 72 S.Ct. 571, 96 L.Ed. 833 (1952). When the taxability of embezzled funds again reached the Court in James, it decided that Rutkin had in effect overruled Wilcox and that embezzled monies were taxable. Nevertheless, the court reversed James’ conviction for willfully failing to report embezzled funds in violation of section 7201 because of the uncertainty of the law created by Wilcox. Significantly, neither James nor the cases following James required actual reliance on Wilcox to negate willful intent. Kahr v. CIR, 414 F.2d 621 (2d Cir. 1969); United States v. Dawson, 400 F.2d 194 (2d Cir. 1968); cert. denied, 393 U.S. 1023, 89 S.Ct. 632, 21 L.Ed.2d 567 (1969); Nordstrom v. United States, 360 F.2d 734 (8th Cir. 1966), cert. denied, 385 U.S. 826, 87 S.Ct. 59, 17 L.Ed.2d 63 (1966). As noted in Critzer: the uncertainty created by Wilcox as a matter of law precluded a demonstration of “willfulness,” without regard to the defendant’s actual state of mind with respect to his knowledge or reliance on Wilcox. 498 F.2d at 1163. Both Critzer and James involved disagreements among recognized authorities which were more clearly documented than the theories presented here. James involved conflicting Supreme Court decisions, and in Critzer the Bureau of Indian Affairs and the Internal Revenue Service strongly disagreed on the taxability of the income. In the case presently before us, as conceded by all the experts who testified, there is a dearth of authority directly supporting either argument. However, the fact that the question has never before evoked anything more than theories on either side adds to rather than detracts from the critical conflict upon which defendant’s criminal liability hinges. Neither position is frivolous, and the fact that both are urged without clear precedential support in law demonstrates that the court should not have restricted the evidence or instructed as it did. The tax treatment of earnings from the sale of blood plasma or other parts of the human body is an uncharted area in tax law. The parties in this case presented divergent opinions as to the ultimate taxability by analogy to two legitimate theories in tax law. The trial court should not have withheld this fact, and its powerful impact on the issue of Garber’s willfulness, from the jury. Morissette v. United States, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288 (1952); United States v. Pomponio, 563 F.2d 659 (4th Cir. 1977). In a case such as this where the element of willfulness is critical to the defense, the defendant is entitled to wide latitude in the introduction of evidence tending to show lack of intent. United States v. Brown, 411 F.2d 1134 (10th Cir. 1969); Petersen v. United States, 268 F.2d 87 (10th Cir. 1959); Miller v. United States, 120 F.2d 968 (10th Cir. 1941). The defendant testified that she subjectively thought that proceeds from the sale of part of her body were not taxable. By disallowing Nall’s testimony that a recognized theory of tax law supports Garber’s feelings, the court deprived the defendant of evidence showing her state of mind to be reasonable. This error was compounded by the court’s instructions to the jury which took from them the question of the validity of the tax. In effect, the court adopted the government’s position that a tax was owing as a matter of law. Garber admitted receiving unreported money and disclosed its source; the defense in this case rested entirely on a denial of the necessary criminal intent to evade taxes. The court erred by refusing to instruct the jury that a reasonable misconception of the tax law on her part would negate the necessary intent. See Morissette v. United States, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288 (1952); Mann v. United States, 319 F.2d 404 (5th Cir. 1963); United States v. Tadio, 223 F.2d 759 (2d Cir. 1955); Wardlaw v. United States, 203 F.2d 884 (5th Cir. 1953). By withholding this theory, the court left the jury with the impression that a tax was clearly due and that Garber simply refused to pay it. A panel of this court in United States v. McClain, 593 F.2d 658 (5th Cir. 1979), recently reached a similar conclusion when' criminal liability for importing stolen Mexican artifacts depended on an interpretation of complicated, uncertain, and changing Mexican law declaring national ownership of artifacts. At the first trial, the district court heard in camera expert testimony interpreting the Mexican Constitution and relevant statutes, and instructed the jury on its determination of the foreign law. On appeal this was held to be error and the case remanded: The court’s instruction that the Mexican government had owned the artifacts for over seventy-five years was highly prejudicial to the defendants. It could have been the decisive factor in the jury’s inferring that the defendants must have known that the artifacts in question were stolen. United States v. McClain, 545 F.2d 988, 1000 (5th Cir. 1977). The second trial was replete with historians, professors, and others expressing their views on the changing Mexican laws, based for the most part on independent review of the Mexican Constitution and relevant statutes. After hearing all the experts, the jury was given the task of first deciding whether and when Mexico actually enacted national ownership of the artifacts, and then determining the defendants’ guilt based on that law. The defendants were convicted. Despite the “near overwhelming” evidence of guilt and intent to violate the law, the panel reversed the substantive convictions because the most likely jury construction of Mexican law upon the evidence at trial is that Mexico declared itself owner of all artifacts at least as early as 1897. And under this view of Mexican law, we believe the defendants may have suffered the prejudice of being convicted pursuant to laws that were too vague to be a predicate for criminal liability under our jurisprudential standards. 593 F.2d at 670. Similarly in the case before us, the government presented persuasive evidence showing that the defendant knowingly and willfully evaded her taxes. She received a significant amount of money over a three year period, but reported none of it. The proof also showed that those with whom she dealt advised her that they thought the proceeds were taxable. Nevertheless, the tax question was completely novel and unsettled by any clearly relevant precedent. A criminal proceeding pursuant to section 7201 is an inappropriate vehicle for pioneering interpretations of tax law. The conviction is reversed and the cause is remanded for retrial. REVERSED and REMANDED. . Sale of her plasma allegedly brought her $80,200 in 1970, $71,400 in 1971, and $87,200 in 1972. . Section 104 of the Code, 26 U.S.C.A. § 104, now expressly excludes from taxable income certain insurance proceeds and (2) the amount of any damages received (whether by suit or agreement) on account of personal injuries or sickness; 26 U.S.C.A. § 104(a)(2). The defendant has alternatively argued that the payments here in question fall within this exclusion from taxable income. Section 104(a)(2) has consistently been applied only to payments resulting from the settlement or prosecution of a tort claim. Knuckles v. CIR, 349 F.2d 610 (10th Cir. 1965); Starrels v. CIR, 304 F.2d 574 (9th Cir. 1962); Agar v. CIR, 290 F.2d 283 (2d Cir. 1961). The only evidence in the record which could possibly support a claim that the payments to Garber were in settlement of a tort liability were medical release of liability forms she signed. We express no opinion on the ultimate merits of this contention. . To prove that Garber had to have been actually aware of her tax liability, the government offered testimony from an employee of Dade Reagents, contradicted by defendant’s own statements, that in Garber’s early dealings with that company not only had she been advised of the taxable element of her payments but the company had also opened a savings account in her name and regularly deposited a portion of her earnings allegedly for income tax purposes. The IRS agent who first investigated the Garbers took the stand and testified that, in his initial interview with both Mr. and Mrs. Garber concerning their 1971 joint return, defendant denied having received any income other than the reported $200 per week salary from Biomedical. However, that same afternoon following the interview, defendant called the agent, explained that she and her husband were about to be divorced, and arranged a second interview in which she discussed her plasma donations and disclosed all monies received. The agent admitted that Garber was cooperative in the absence of her husband; she produced all relevant records including the 1099 forms received from Biomedical. The defense offered affirmative evidence to show that Garber did not willfully misstate her income. An accountant had prepared all three joint returns from information supplied by Mr. Garber, who was not indicted, without consulting with defendant. Furthermore, it was undisputed that all payments to defendant were made by check, payable to her, and deposited in her bank account. Payments were never made in cash; there was no duplicative bookkeeping or other clandestine financial dealings indicative of an attempt to secrete earnings. Her returns for the years in question disclosed Biomedical as a source of income. In addition, Garber produced a copy of her 1969 tax return on which she declared no taxable income but noted “I have no W-2 forms as my income was made up entirely from donating blood plasma from various blood banks.” The defendant herself testified that she thought, after speaking with other blood donors, that because she was selling a part of her body the money received was not taxable. . The plurality opinion in James stated: We believe that the element of willfulness could not be proven in a criminal prosecution for failing to include embezzled funds in gross income in the year of misappropriation so long as the statute contained the gloss placed upon it by Wilcox at the time the alleged crime was committed. Therefore, we feel that petitioner’s conviction may not stand and that the indictment against him must be dismissed. 366 U.S. at 221-222, 81 S.Ct. at 1057. Justices Black and Douglas were of the opinion that Wilcox still represented the controlling law, but agreed with the plurality that the new determination finding embezzled funds taxable should not be applied to past conduct: [A] criminal statute that is so ambiguous in scope that an interpretation of it brings about totally unexpected results, thereby subjecting people to penalties and punishments for conduct which they could not know was criminal under existing law, raises serious questions of unconstitutional vagueness. 366 U.S. at 224, 81 S.Ct. at 1058. The two dissenting Justices argued that a remand was necessary for a jury to determine the factual question of actual reliance on Wilcox. . During its deliberations, the jury asked the court whether any effort was made by the government to settle the case in any other way previous to filing an indictment. Obviously they were not aware that the taxability of the sums was still a disputed question. Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)", specifically "other agency, beginning with "F" thru "N"". Which specific federal government agency best describes this litigant? A. Food & Drug Administration B. General Services Administration C. Government Accounting Office (GAO) D. Health Care Financing Administration E. Immigration & Naturalization Service (includes border patrol) F. Internal Revenue Service (IRS) G. Interstate Commerce Commission H. Merit Systems Protection Board I. National Credit Union Association J. National Labor Relations Board K. Nuclear Regulatory Commission Answer:
songer_typeiss	A	What follows is an opinion from a United States Court of Appeals. Your task is to determine the general category of issues discussed in the opinion of the court. Choose among the following categories. Criminal and prisioner petitions- includes appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence or the validity of continued confinement. Civil - Government - these will include appeals from administrative agencies (e.g., OSHA,FDA), the decisions of administrative law judges, or the decisions of independent regulatory agencies (e.g., NLRB, FCC,SEC). The focus in administrative law is usually on procedural principles that apply to administrative agencies as they affect private interests, primarily through rulemaking and adjudication. Tort actions against the government, including petitions by prisoners which challenge the conditions of their confinement or which seek damages for torts committed by prion officials or by police fit in this category. In addition, this category will include suits over taxes and claims for benefits from government. Diversity of Citizenship - civil cases involving disputes between citizens of different states (remember that businesses have state citizenship). These cases will always involve the application of state or local law. If the case is centrally concerned with the application or interpretation of federal law then it is not a diversity case. Civil Disputes - Private - includes all civil cases that do not fit in any of the above categories. The opposing litigants will be individuals, businesses or groups. James David ELLER, Appellant, v. UNITED STATES of America, Appellee. No. 18666. United States Court of Appeals Ninth Circuit. Jan. 21, 1964. Rehearing Denied Feb. 25, 1964. Dewey E. Turner, Palo Alto, Cal., for appellant. Moody Brickett, U. S. Atty., Great Falls, Mont., and Richmond F. Allan, Asst. U. S. Atty., Billings, Mont., for ap-pellee. Before MADDEN, Judge of the Court of Claims, and CHAMBERS and BROWNING, Circuit Judges. BROWNING, Circuit Judge. Appellant pleaded guilty to a charge of assisting in the escape of a prisoner in violation of 18 U.S.C.A. § 752. Since the prisoner was charged with a misdemeanor, appellant’s offense was likewise a misdemeanor, punishable by confinement for not more than one year. Appellant was sentenced under the Youth Corrections Act, 18 U.S.C.A. §§ 5005-5026, which provides for conditional release within four years and unconditional release within six years. § 5017 (c). Appellant’s subsequent motion under 28 U. S.C.A. § 2255, challenging the constitutionality of the Youth Corrections Act as applied to him, was denied by the District Court in reliance upon Carter v. United States, 113 U.S.App.D.C. 123, 306 F.2d 283 (1962), and Cunningham v. United States, 256 F.2d 467 (5th Cir. 1958). This appeal followed. Since the District Court’s decision we have twice indicated our agreement with Carter and Cunningham. See Standley v. United States, 318 F.2d 700, 701 (9th Cir. 1963), and Young Hee Choy v. United States, 322 F.2d 64, 66 n. 7 (9th Cir. 1963). We now do so again. In this court appellant also complains, for the first time, that he was not told prior to his plea of guilty and sentence that he might be sentenced under the Youth Corrections Act, and thus be subjected under his plea of guilty to a substantially longer period of restriction than that provided by 18 U.S.C.A. § 752. The government responds that ■since this issue was not raised before the District Court it should not be considered on appeal (Standley v. United States, supra, 318 F.2d at 701) and that appellant’s remedy is in the District Court by way of a new motion under 28 U.S.C.A. § 2255 or an application under Rule 32 (d) of the Federal Rules of Criminal Procedure. Pilkington v. United States, 315 F.2d 204, 209 (4th Cir. 1963); Carter v. United States, supra, 306 F.2d at 285-286. See also Kadwell v. United States, 315 F.2d 667 (9th Cir. 1963). We agree. Question: What is the general category of issues discussed in the opinion of the court? A. criminal and prisoner petitions B. civil - government C. diversity of citizenship D. civil - private E. other, not applicable F. not ascertained Answer:
songer_treat	D	What follows is an opinion from a United States Court of Appeals. Your task is to determine the disposition by the court of appeals of the decision of the court or agency below; i.e., how the decision below is "treated" by the appeals court. That is, the basic outcome of the case for the litigants, indicating whether the appellant or respondent "won" in the court of appeals. FEDERAL RESERVE BANK OF BOSTON, Plaintiff, Appellant, v. COMMISSIONER OF CORPORATIONS AND TAXATION OF the COMMONWEALTH OF MASSACHUSETTS, Defendant, Appellee. No. 74-1028. United States Court of Appeals, First Circuit. Argued May 6, 1974. Decided July 11, 1974. Daniel B. Bickford and Richard J. McCarthy, Boston, Mass., with whom Ely, Bartlett, Brown & Proctor, Boston, Mass., was on brief, for plaintiff, appellant. Terence P. O’Malley, Asst. Atty. Gen., Boston, Mass., with whom Robert H. Quinn, Atty. Gen., and Walter H. Mayo, III, Asst. Atty. Gen., Boston, Mass., were on brief, for defendant, appellee. Before COFFIN, Chief Judge, Mc-ENTEE and CAMPBELL, Circuit Judges. LEVIN H. CAMPBELL, Circuit Judge. This appeal raises the question whether the Federal Reserve Bank of Boston may sue in federal court for a declaration concerning the legality of the Massachusetts sales tax on materials used to construct its new building. The Bank, had asked the Massachusetts Commissioner of Corporations and Taxation for a certificate of exemption pursuant to state law which exempts from tax: “(d) Sales to the United States, the commonwealth . . ., or their respective agencies. “(f) Sales of building materials and supplies to be used in the construction, . . . of (1) any building structure, . . . owned by or held in trust for the benefit of any governmental body or agency mentioned in paragraph (d) and used exclusively for public purposes . . . . ” The Commissioner refused to issue a certificate, stating that “[s]ales of building materials and supplies to be used in the construction of the Federal Reserve Bank of Boston, an agency of the United States, do not qualify for exemption under [M.G.L.] Ch. 64H § 6(f)(1) since the building will not be used exclusively for public purposes.” This conclusion stemmed from the fact that the Bank was erecting a larger building than it néeded, intending, until its own requirements increased, to rent surplus space to governmental and perhaps private tenants. After the Commissioner’s adverse ruling, the Bank brought the present suit for declaratory judgment in the district court. It asserted that the Commissioner erred because the Bank was not empowered to hold property for other than public use; because rental revenues would go for a public purpose (reduction of the bonded indebtedness of the United States); and because the ruling conflicts both with 12 U.S.C. § 531, exempting federal reserve banks from state and local taxation, and with the Supremacy Clause. Sought is either a declaration that the Commissioner’s ruling was erroneous under state law or, alternatively, if correct, that 12 U.S.C. § 531 exempts the materials and supplies purchased by the Bank from the Massachusetts sales tax. The district court dismissed the petition, ruling that a federal reserve bank is similar to federal savings and loan associations which, under Great Lakes, we held could not on their own obtain a federal court declaration against state taxes. United States v. State Tax Comm’n, 481 F.2d 963 (1st Cir. 1973). The district court discounted 12 U.S.C. § 632, giving federal reserve banks access to the federal courts, on the ground that while it conferred “jurisdiction” it did not overcome the principals of comity, equity and federalism underlying Great Lakes. Relying upon our decision in United States v. State Tax Comm’n, supra 481 F.2d at 974, the court held that the state court .remedy to contest the taxes was adequate. The district court also determined that as federal reserve banks were not “instrumentalities” of the United States, they were without recourse to a federal forum. The latter point stems from an apparent misunderstanding of United States v. State Tax Comm’n. We did not hold that savings and loan associations were not federal instrumentalities. To the contrary, we said that they were. But we held that Great Lakes barred even such instrumentalities from suing when not joined as co-plaintiffs with the United States. The entities we were considering had “many of the characteristics of private corporations.” Id. 481 F.2d at 975. We pointed out that the 4500 federal savings and loan associations were at the bottom of a three-tiered arrangement headed by the Home Loan Bank Board. If any such bank wished to by-páss normal state tax collection and litigation channels, we said it should persuade the Attorney General of the United States, acting on behalf of the Home Loan Bank Board, to join in its claim. We had in mind that if a sufficient threat to federal sovereignty were to arise, the Attorney General would presumably lend the umbrella of the United States, thus permitting access to the federal courts; if not (and, given the nature of savings and loan associations, such claims might well be of predominantly private commercial import) there was no reason to by-pass and possibly subvert state tax collection procedures. Thus the present case does not turn on whether federal reserve banks are instrumentalities. Plainly they are. The question is whether there is any reason to treat them differently from instrumentalities like savings and loan associations. As was true of the associations, the Bank comes before us represented by private counsel rather than the Attorney General of the United States, and is not joined as- co-plaintiff with the United States. Is it privileged, like the United States itself, to maintain this proceeding? We think the answer must be in the affirmative. While savings and loan associations may in many ways be analogized to private corporations, federal reserve banks, by contrast, are plainly and predominantly fiscal arms of the federal government. Their interests seem indistinguishable from those of the sovereign and there are good reasons to relieve them of any symbolic requirement of joinder with and by the United States. There are twelve such banks in the nation, of which the plaintiff is one. They were created and are operated in furtherance of the national fiscal policy. They are not operated for the profit of shareholders, and do not provide ordinary commercial banking services; their stockholders, the member banks, lack the powers and rights customarily vested in shareholders of a private corporation. Federal reserve banks act as depositories for money held in the United States Treasury and as fiscal and monetary agents of the United States. 12 U.S.C. § 391. They hold the legal reserves of members banks, issue currency, facilitate check clearance and collection, and have supervisory duties as to member banks. They also provide important services for the Treasury with respect to the public debt and the issuance, handling and redemption of government securities. The limited income generated is used to pay expenses and dividends limited to 6 percent. Any remaining earnings are paid into the surplus fund, 12 U.S.C. § 289, where they may be used by the United States Treasury to supplement the gold reserve. Should a federal reserve bank go into liquidation, any surplus becomes the property of the United States, 12 U.S.C. § 290. See generally Board of Governors, The Federal Reserve System: Purposes and Functions (5th ed. 1969). In his dissenting opinion in First Agricultural Nat’l Bank v. State Tax Comm’n, 392 U.S. 339, 88 S.Ct. 2173, 20 L.Ed.2d 1138 (1968), Mr. Justice Marshall chronicles the transfer of governmental fiscal functions from the national banks to the federal reserve banks, pointing out that the national banks’ role as federal functionaries has correspondingly diminished to the point where the latter scarcely differ from their state chartered competitors. Id. at 356-358, 88 S.Ct. 2173. Like the national banks, federal savings and loan associations today play a relatively slight role as agencies of government, whereas the federal reserve banks, analogous to the central banks of other nations'such as the Bank of England, play a major role. Thus we think a state tax affecting one of the twelve federal reserve banks calls directly into question the sovereign interest of the United States. Such a bank lacks the Janus-faced characteristics of savings and loan associations. Moreover, Congress has made it plain by express statute that a federal reserve bank is to have unrestricted access to the district courts. In Federal Reserve Bank v. Kalin, 77 F.2d 50, 51 (4th Cir. 1935), the court said that 12 U.S.C. § 632 is written "in the broadest possible language” and that, “It was doubtless the intention of Congress to grant full right of recourse to the federal courts to these institutions, which had become important agencies of the federal government in its control'of banking and currency.” Another court has concluded that 12 U. S.C. § 632 reflects a congressional policy to have any litigation affecting the Federal Reserve System centered in a federal forum to promote uniformity of decision. Bickford’s, Inc. v. Federal Reserve Bank, 6 F.Supp. 928, 930 (S.D.N.Y.1934). Such a clearly expressed strong federal interest in litigating all reserve bank business in the federal courts further tips the scale away from the general hostility to interfering with a state taxing scheme. The positioning of the federal reserve banks in the federal governmental structure also militates against forcing them to acquire the separate support of the Attorney General before asserting the same right available to the United States to contest, in federal court, an allegedly unconstitutional state exaction. The federal reserve banks share the making of policy with the seven member Board of Governors of the Federal Reserve System. Members are appointed by the President for staggeréd terms, and the Board, like the banks, may employ counsel. It would seem that Congress intended all components of the Federal Reserve System, including the banks, to act in many respects outside the executive chain of command, although their greater independence in no way signals a diminished role in the operations of government. We thus see little purpose in insisting upon a symbolic joinder by the United States itself. We conclude that appellant may proceed in a federal forum under the same exception to Great Lakes available to the United States were it a named plaintiff. In so deciding, we must accept the absence of any bright line to facilitate analysis; each instrumentality must be examined in light of its governmental role and the wishes of Congress as expressed in relevant legislation. We add that the question to be litigated is largely, if not entirely, a “federal” rather than state question. The fundamental issue is whether the state has reached beyond its powers under the Supremacy Clause and under the federal statute exempting federal reserve banks from tax. 12 U.S.C. § 531. While an interpretation of the Commonwealth’s statute exempting certain governmental bodies and operations is also required, the meaning of "public purposes” is almost inextricably interwoven with federal issues, including constitutional principles and the federal charter and regulations of the Bank. Cf. Reconstruction Finance Corp. v. Beaver County, 328 U.S. 204, 66 S.Ct. 992, 90 L.Ed. 1172 (1946); Springfield v. United States, 99 F.2d 860 (1st Cir. 1938), cert. denied, 306 U.S. 650, 59 S.Ct. 592, 83 L.Ed. 1049 (1939). Were this not so— were the case to raise a pure question of state law — we might think it wise to require abstention by the district court pending litigation of the state issue in the state court. Abstention in such circumstances is appropriate even when the United States is a party. See United States v. Nevada Tax Comm’n, 439 F.2d 435 (9th Cir. 1971); United States v. New York, 175 F.2d 75 (2d Cir.), cert. denied, 338 U.S. 885, 70 S.Ct. 189, 94 L.Ed. 543 (1949). It allows the state courts to employ their special expertise in construing state law without surrendering the protection of the federal court with respect to federal rights. But we conclude here both that the Great Lakes doctrine does not prevent the Bank from securing a declaration in the district court and that it would be inappropriate, in these particular circumstances, for the district court, while retaining jurisdiction, to abstain. Reversed and remanded for further proceedings consistent herewith. . In so doing, the Bank was following guidelines issued by the Board of Governors of the Federal Reserve System: “When, for various reasons, relocation of the Bank to a new site is deemed advisable, the building program should be developed to meet predictable needs for a minimum • of thirty years. ... It is recommended that a new building provide twenty percent more gross office space than the peak area estimated to be required during the thirty years after the completion of construction. . . . The provision of this amount of extra space for future expansion will have a profound effect upon the design of new Bank buildings, for it will be economically defensible only if this excess office space is leased until needed.” Guidelines for Design and Construction of Federal Reserve Bank Buildings 15, 21 (1970). . “Federal Reserve banks, including the capital stock and surplus therein and the income derived therefrom, shall be exempt from Federal, State, and local taxation, except taxes upon real estate.” . Great Lakes v. Huffman, 319 U.S. 293, 63 S.Ct. 1070, 87 L.Ed. 1407 (1943). . 12 U.S.C. § 632 provides in part: “Notwithstanding any other provision of law, all suits of a civil nature at common law or in equity to which any Federal reserve bank shall be a party shall be deemed to arise under the laws of the United States, and the district courts of the United States shall have original jurisdiction of all such suits; and any Federal reserve bank which is a defendant in any such suit may, at any time before the trial thereof, remove such suit from a State court into the district court of the United States for the proper district by following the procedure for the removal of causes otherwise provided by law. . Great Lakes extended to declaratory proceedings the prohibition in the Tax Injunction Act, 28 U.S.C. § 1341, against a federal court’s enjoining of state tax collections if an adequate state remedy existed. But the Supreme Court has recognized “an unbroken line of authority, and convincing evidence of legislative purpose, that [the Tax Injunction Act] does not act as a restriction upon suits by the United States to protect itself and instrumentalities from unconstitutional state exactions.” Department of Employment v. United States, 385 U.S. 355, 358, 87 S.Ct. 464, 466, 17 L.Ed.2d 414 (1966) (footnotes omitted). In United States v. State Tax Comm’n, supra, we recognized that the United States enjoys similar freedom from the limitations in Great Lakes. . The typical co-plaintiff joining with the United States in other cases has been not a public governmental body, as in the instant case, but a private party performing some functions for the federal government. See, e. g., United States v. Bureau of Revenue, 291 F.2d 677 (10th Cir. 1961) (Phillip Petroleum Co.); United States v. Department of Revenue, 202 F.Supp. 757 (N.D.Ill.), aff’d, 371 U.S. 21, 83 S.Ct. 117, 9 L.Ed.2d 95 (1962) (Olin Mathieson Chemical Corp.); United States v. Livingston, 179 F.Supp. 9 (E.D.S.C.1959), aff’d, 364 U.S. 281, 80 S.Ct. 1611, 4 L.Ed.2d 1719 (1960) (E.I. duPont de Nemours & Co.). . In Agua Caliente Band of Mission Indians v. County of Riverside, 442 F.2d 1184 (9th Cir. 1971), cert. denied, 405 U.S. 933, 92 S.Ct. 930, 30 L.Ed.2d 809 (1972), an instrumentality of the United States was allowed io sue without the aid of the United States. In that case there was also a special jurisdictional statute, 28 U.S.C. § 1362, although one less comprehensive than 12 U.S.C. § 632. . In Great Lakes the Court stressed that federal courts should decline to exercise jurisdiction only when private, not public, rights were at stake. “[A] federal court of equity, which may in an appropriate case refuse to give its special protection to private rights when the exercise of its jurisdiction would be prejudicial to the public interest {citations omitted], should stay its hand ■in the public interest when it reasonably appears that private interests will not suffer.” 319 U.S. at 297-298, 63 S.Ct. at 1073. Question: What is the disposition by the court of appeals of the decision of the court or agency below? A. stay, petition, or motion granted B. affirmed; or affirmed and petition denied C. reversed (include reversed & vacated) D. reversed and remanded (or just remanded) E. vacated and remanded (also set aside & remanded; modified and remanded) F. affirmed in part and reversed in part (or modified or affirmed and modified) G. affirmed in part, reversed in part, and remanded; affirmed in part, vacated in part, and remanded H. vacated I. petition denied or appeal dismissed J. certification to another court K. not ascertained Answer:
songer_respond2_8_3	E	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the second listed respondent. The nature of this litigant falls into the category "miscellaneous", specifically "fiduciary, executor, or trustee". Your task is to determine which of the following specific subcategories best describes the litigant. CUTAIAR, Richard, Lemon, William, Dagen, Vincent, Schurr, Maurice, and Gormley, William, as Trustees of the Teamsters Health and Welfare Fund of Philadelphia and Vicinity and as Trustees of the Teamsters Pension Trust Fund of Philadelphia and Vicinity and Schaffer, Jr., Charles J., Administrator of the Teamsters Health and Welfare Fund of Philadelphia and Vicinity and as Administrator of the Teamsters Pension Trust Fund of Philadelphia and Vicinity and Teamsters Pension Trust Fund of Philadelphia and Vicinity and Teamsters Health and Welfare Fund of Philadelphia and Vicinity v. MARSHALL, F. Ray, Secretary of Labor, Appellant. No. 78-1380. United States Court of Appeals, Third Circuit. Argued Nov. 17, 1978. Decided Jan. 12, 1979. Carin Ann Clauss, Sol. of Labor, Monica Gallagher, Associate Sol., Plan Benefits Security Div., Norman P. Goldberg, Counsel for Litigation, Judith Burghardt, Atty., U. S. Dept. of Labor, Washington, D. C., for the Secretary of Labor, appellant. James J. Leyden, James D. Crawford, Nicholas N. Price, Edward Davis, James McG. Mallie, Philadelphia, Pa., for appellees; Schnader, Harrison, Segal & Lewis, Philadelphia, Pa., of counsel. Before ALDISERT and HUNTER, Circuit Judges, and GERRY, District Judge. Honorable John F. Gerry, of the United States District Court for the District of New Jersey, sitting by designation. OPINION OF THE COURT ALDISERT, Circuit Judge. The Secretary of Labor, responsible for enforcement of the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1001 et seq., issued an opinion letter stating that certain transactions by the trustees of two union employee benefit plans were in violation of the Act. The trustees sought, and the district court granted, a declaratory judgment that the Secretary’s letter was “null and void.” This appeal requires us to decide whether the trustees’ complaint presented a justiciable controversy, and, if so, whether there was a violation of ERISA. Because we find no jurisdictional defect, and because the trustees violated the Act, we reverse. I. In 1951, the Teamsters Health and Welfare Fund of Philadelphia and Vicinity (welfare fund) was created to provide medical, hospital, disability, life insurance and other welfare benefits to members of a number of Teamster local unions in Eastern Pennsylvania. In 1957, the Teamsters Pension Trust Fund of Philadelphia and Vicinity (pension fund) was created to provide retirement income to members of the same union locals. Both employee benefit plans were established and administered pursuant to the terms of the Labor Management Relations Act of 1947, 29 U.S.C. § 141 et seq. (Taft-Hartley Act). The obvious parallelism of the plans and the large overlap in the identity of participants, union locals and employers who were parties to the plans made it feasible to administer them jointly. Each of the multi-employer plans had an administrator and a board composed of three union-designated trustees and three employer-designated trustees; these seven individuals were the same for both plans. In 1974, due to decreased employer contributions, rising medical costs and increased utilization, the welfare fund developed a serious cash flow problem. By mid-1975, it became clear that the fund would have to borrow $4 million to pay currently accumulated benefit claims, and the trustees voted unanimously to do so on the recommendation of the administrator. By contrast to the welfare fund, the pension fund had ample liquid assets. It appeared possible to benefit both funds by transferring the money from one to the other; the pension fund, as lender, might receive»a higher rate of interest than was commercially available while the welfare fund, as borrower, might pay less interest than would be required commercially. On a motion, to lend the $4 million to the welfare fund, the pension fund trustees deadlocked, three of them expressing concern as to their fiduciary responsibility in authorizing the transactions, and the issue was referred to an impartial umpire under § 302(c)(5) of the Taft-Hartley Act, 29 U.S.C. § 186(c)(5). The umpire was asked to decide the legality of the loan under ERISA. The umpire issued an award holding that the trustees’ deadlock presented an arbitrable dispute under § 302(c)(5), that ERISA did “not countermand or modify the impact” of the Taft-Hartley Act in this respect, and that nothing in ERISA prohibited the pension fund from making the disputed loan to the welfare fund. Although the umpire did not direct the trustees to enter into the proposed transaction, the decision satisfied the concerns of the trustees and the loan was consummated. A subsequent investigation by the Department of Labor led to the conclusion that the loan violated ERISA § 406(b)(2), 29 U.S.C. § 1106(b)(2): (b) A fiduciary with respect to a plan shall not— (2) in his individual or in any other capacity act in any transaction involving the plan on behalf of a party (or represent a party) whose interests are adverse to the interests of the plan or the interests of its participants or beneficiaries. . On August 3, 1977, the Deputy Administrator for Pension and Welfare Benefit Programs, United States Department of Labor, wrote to the trustees to inform them of the violation. Among other things, the letter stated that while you were fiduciaries with respect to the Pension Trust, you acted in a “transaction involving the plan on behalf of a party (the Welfare Trust) whose interests are adverse to the interests of the plan or the interests of its participants or beneficiaries.” . . . Also, you should be aware that if the Pension Trust suffers any losses because of this transaction, you may be held personally liable therefor under § 409. For your future guidance, please be advised that we are of the view that any sale or loan between the two plans as presently administered is violative of § 406, and exemptions under § 408 of the ERISA should be sought with regard thereto. Appendix at 62-63. The issuance of this letter allegedly made it difficult for the trustees to obtain fiduciary liability insurance. They filed suit in federal district court seeking a declaratory judgment that the letter was null and void because the Secretary exceeded his authority under ER-ISA and erroneously determined that the trustees violated the Act. The Secretary has appealed from the order of the district court which granted the requested relief. We are asked to examine various provisions of the Taft-Hartley Act and the interaction of the subsequently enacted ERISA provisions relating to the administration of employee benefit plans. Preliminarily, however, we must address a challenge to the jurisdiction of the court based on the assertion that the trustees’ complaint did not present a justiciable controversy under Article III of the Constitution. II. The Secretary’s jurisdictional challenge is predicated on the notion that the trustees “hinged their suit for declaratory relief on the allegation that the Secretary’s letter of August 3,1977 had created a ‘serious doubt’ that the plaintiff Trustees would be able to secure fiduciary insurance.” Brief for Appellant at 18. Appellant asserts that without the alleged adverse impact on their ability to obtain insurance, the trustees would lack standing to litigate the Secretary’s interpretation of ERISA, and that the Secretary’s decision not to impose sanctions for the violation precludes a finding of justiciability. Id. at 18-19. Appellant alleges that proof of adverse impact on the trustees fell far short of the allegations in the complaint. The trustees, on the other hand, argue that the district court’s factual finding that the Secretary’s letter had a “negative effect” on their ability to obtain insurance was not clearly erroneous, that the effect was sufficient to establish the immediacy, reality and adversity of an “actual controversy.” Appellees also argue their standing “to challenge the Secretary’s ruling wholly irrespective of the effect that the . letter may have had on their ability to obtain new insurance,” Brief for Appellees at 10, because their complaint sought judicial review of final agency action pursuant to §§ 502(k) and 507(a) of ERISA, 29 U.S.C. §§ 1132(k) and 1137(a). This raises the fundamental inconsistency of appellant’s position: the Secretary asserts his authority to investigate employee benefit plans and to interpret and enforce the provisions of ERISA, yet his final action in declaring a statutory violation pursuant to that authority is not subject to judicial review because it is so meaningless as to fail to create an actual controversy. A. The trustees’ complaint alleged jurisdiction under 29 U.S.C. § 1132(k), which provides as follows: Suits by an administrator, fiduciary, participant, or beneficiary of an employee benefit plan to review a final order of the Secretary, to restrain the Secretary from taking any action contrary to the provisions of this Act, or to compel him to take action required under this subchapter, may be brought in the district court . ., and under 5 U.S.C. § 704, made applicable by 29 U.S.C. § 1137(a). Title 5 U.S.C. § 704 provides: Agency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court are subject to judicial review. A preliminary, procedural, or intermediate agency action or ruling not directly reviewable is subject to review on the review of the final agency action. Except as otherwise expressly required by statute, agency action otherwise final is final for the purposes of this section whether or not there has been presented or determined an application for a declaratory order, for any form of reconsideration, or, unless the agency otherwise requires by rule and provides that the action meanwhile is inoperative, for an appeal to superior agency authority. Although jurisdiction was invoked under ERISA and the Administrative Procedure Act, the trustees sought only declaratory relief. Title 28 U.S.C. § 2201 allows a federal court to grant a declaratory judgment in “a case of actual controversy.” The statute creates a remedy only; it does not create a basis of jurisdiction, and does not authorize the rendering of advisory opinions. Thus the Supreme Court has held that there must be a “live dispute” between the parties, Powell v. McCormack, 395 U.S. 486, 517-18, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969), and that there must be a “substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.” Zwickler v. Koota, 389 U.S. 241, 244 n. 3, 88 S.Ct. 391, 393, 19 L.Ed.2d 444 (1967). The Court has also held that the Declaratory Judgment Act requirement of an “actual controversy” is identical to the constitutional requirement of “cases” and “controversies.” Aetna Life Insurance Co. v. Haworth, 300 U.S. 227, 239-40, 57 S.Ct. 461, 81 L.Ed. 617 (1937). B. We think jurisdiction was properly exercised under 29 U.S.C. § 1132(k) and 5 U.S.C. § 704. Appellant has stipulated that the contested letter “was final and that there was no administrative appeal procedure.” Appendix at 101. Unless the issuance of the letter was a nullity, or unless the Secretary was without statutory authority to investigate the trustees’ action and to determine its legality under ERISA, then we fail to understand how the Secretary can challenge the court’s jurisdiction to review the agency’s action pursuant to 5 U.S.C. § 704. Furthermore, the trustees established by affidavit that a carrier of fiduciary liability insurance rejected the trustees’ application “because of the Department of Labor’s finding, set forth in a letter dated August 3,1977, that the trustees of the Trusts have engaged in a prohibited transaction and the possibility of a future suit or suits which Aetna would have to defend.” Appendix at 92. Based on that evidence, the court found as a fact that the letter had a “negative effect” on the trustees’ ability to obtain insurance, id. at 302. We do not consider that finding to be clearly erroneous, and we think that such a negative effect creates sufficient immediacy and adversity to present the court with an “actual controversy.” We find readily distinguishable the cases presented by appellant to attack the justiciability of this controversy and the trustees’ standing to challenge the Secretary’s interpretation of ERISA. The cases relied on concern the circumstances under which a party may challenge governmental action of general applicability, rather than action aimed specifically at the party making the challenge. None of the cases cited by appellant involved a situation comparable to what exists here — a final ruling by an administrative agency declaring unlawful specific conduct by specific individuals, and an attempt by those individuals to obtain judicial relief to clear their names. The Secretary’s enforcement responsibilities with respect to ERISA, the exhaustion of agency re.view, and the direct impact of the Secretary’s action on the trustees were sufficient to establish justiciability and to vest jurisdiction in the district court to grant or deny declaratory relief. III. Our review of the merits raises questions of the interaction of various provisions of the Taft-Hartley Act and ERISA. Simply put, the trustees urge that no violation of ERISA occurred because the two funds were not adverse within the meaning of the Act, and that even if a violation occurred, good faith reliance on the umpire’s award is a valid defense. The Secretary’s conclusion that a violation did occur was based on his interpretation that § 406(b)(2) creates a per se proscription of the type of transaction in question, and that a Taft-Hartley umpire cannot possibly adjudicate the legality of a transaction under ERISA. The Secretary’s position is that a borrower and a lender in the same transaction are always “adverse” within the meaning of § 406(b)(2). Brief for Appellant at 27. A.- It is important to understand that this case involves no taint of scandal, no hint of self-dealing, no trace of bad faith. The violation was concededly a technical one, the result • of a misunderstanding of the requirements of the newly enacted ERISA bolstered by the result of good faith submission of the dispute to impartial arbitration. Uncontradicted testimony before the district court established that the terms of the transaction were fair and reasonable with respect to both plans. The pension and welfare plans, from their inception, had been subject to the rigid structural requirements of the Taft-Hartley Act. A central section of the Act, § 302(c)(5), 29 U.S.C. § 186(c)(5), requires that employee benefit plans to which employers contribute must have an equal number of employer and employee representatives, and if the two groups cannot agree on the administration of the fund, they must choose an impartial umpire to decide the dispute. It was under this provision that the trustees of the pension plan submitted the propriety of the loan transaction to the umpire. The umpire, as we have noted, decided that the proposed loan would not violate the Taft-Hartley Act or ERISA. The Department of Labor, exercising its investigatory and enforcement responsibilities under ERISA, examined the loan and determined that the pension trustees acted on behalf of a party, the welfare plan, whose interests were adverse to interests of the pension plan, thus violating § 406(b)(2). The Secretary’s reasoning relies on the fact that the participants and beneficiaries in the two plans are not co-extensive, though it is undisputed that a great many employees participate in both plans and that most participants in the welfare plan are future participants in the pension plan and thus have a strong interest in the strength of the fund. Also critical to the Secretary’s conclusion is the conception that a borrower and a lender in the same transaction always have interests which are legally opposed. B. With this framework, the issues are resolved by a simple exercise in statutory construction. Does § 406(b)(2) prohibit transactions “adverse” in the technical sense asserted by the Secretary, or must a transaction exhibit fiduciary misconduct, reflecting harm to the beneficiaries, before the statute is violated? We endorse without reservation the interpretation of the Secretary. When identical trustees of two employee benefit plans whose participants and beneficiaries are not identical effect a loan between the plans without a § 408 exemption, a per se violation' of ERISA exists. ERISA went into effect on September 2, 1974. To ascertain legislative concerns and policies, it is not necessary to delve deeply into committee hearings and reports. In the first section of the Act, Congress stated its findings and policy: (a) The Congress finds that the growth in size, scope, and numbers of employee benefit plans in recent years has been rapid and substantial; . . . that the continued well-being and security of millions of employees and their dependents are directly affected by these plans; that they are affected with a national public interest; . . . that owing to the inadequacy of current minimum standards, the soundness and stability of plans with respect to adequate funds to pay promised benefits may be endangered; that owing to the termination of plans before requisite funds have been accumulated, employees and their beneficiaries have been deprived of anticipated benefits; and that it is therefore desirable in the interests of employees and their beneficiaries, for the protection of the revenue of the United States, and to provide for the free flow of commerce, that minimum standards be provided assuring the equitable character of such plans and their financial soundness. (b) It is hereby declared to be the policy of this Act to protect interstate commerce and the interests of participants in employee benefit plans and their beneficiaries, by requiring the disclosure and reporting to participants and beneficiaries of financial and other information with respect thereto, by establishing standards of conduct, responsibility, and obligation for fiduciaries of employee benefit plans, and by providing for appropriate remedies, sanctions, and ready access to the Federal courts. 29 U.S.C. § 1001.’ We note the national public interest in safeguarding anticipated employee benefits by establishing minimum standards to protect employee benefit plans. The substantial growth of plans affecting the security of millions of employees and their dependents, as well as the limited resources of the Department of Labor in the enforcement of ERISA, leads us to believe that Congress intended to create an easily applied per se prohibition of the type of transaction in question. We do not regard this as a harsh rule. Section 408(a), 29 U.S.C. § 1108(a), allows the Secretary to grant exemptions to fiduciaries from the restrictions of § 406. Section 408(a) requires publication in the Federal Register and explicitly provides: The Secretary may not grant an exemption under this subsection unless he finds that such exemption is— (1) administratively feasible, (2) in the interests of the plan and of its participants and beneficiaries, and (3) protective of the rights of participants and beneficiaries of such plan. The Secretary may not grant an exemption . . from section 1106(b) of this title unless he affords an opportunity for a hearing and makes a determination on the record with respect to the findings required by paragraphs (1), (2), and (3) of this subsection. That such extensive publication and hearing procedures were established by Congress before exemption may be authorized indicates an intent to create, in § 406(b), a blanket prohibition of certain transactions, no matter how fair, unless the statutory exemption procedures are followed. We have no doubt that the pension fund’s loan to the welfare fund falls within the prohibition of § 406(b)(2). Fiduciaries acting on both sides of a loan transaction cannot negotiate the best terms for either plan. By balancing the interests of each plan, they may be able to construct terms which are fair and equitable for both plans; if so, they may qualify for a § 408 exemption. But without the formal procedures required under § 408, each plan deserves more than a balancing of interests. Each plan must be represented by trustees who are free to exert the maximum economic power manifested by their fund whenever they are negotiating a commercial transaction. Section 406(b)(2) speaks of “the interests of the plan or the interests of its participants or beneficiaries.” It does not speak of “some” or “many” or “most” of the participants. If there is a single member who participates in only one of the plans, his plan must be administered without regard for the interests of any other plan. C. The conflict between the Taft-Hartley Act and ERISA is more apparent than real. Although the former Act established certain structural and procedural requirements for employee benefit plans in 1947, ERISA created numerous higher standards for the administration of such plans. The new standards are incontestably applicable to plans formerly governed only by the TaftHartley Act. It is commonplace that new statutes create new requirements and prohibitions where none existed before. It is axiomatic that provisions in different statutes should, if possible, be interpreted so as to effectuate both provisions. The Taft-Hartley umpire provision was created to break deadlocks between employer and employee groups “[on] the administration of such fund,” not to insulate trustees from the effects of their illegal acts. Surely if the employer and employee trustees deadlocked over a motion to embezzle the fund, submission of the dispute to an umpire would have no legal effect. Section 302(c)(5) of the Taft-Hartley Act contemplates the resolution of deadlocks over two permissible administrative courses of action. Because the transaction in question was prohibited by statute in 1974, a Taft-Hartley umpire had no power to approve it in 1975. The umpire’s award is not before us. That the Secretary’s action is inconsistent with the award is beyond the scope of our review. We simply approve the action of the Secretary and endorse his interpretation of § 406(b)(2) of ERISA. D. We need not address the contention of the trustees that their good faith, as evidenced by their submission of their dispute to an umpire, should constitute a defense in an action against them as individuals for engaging in a prohibited transaction to the detriment of the fund. The record reflects that this transaction did not harm the fund. The Secretary contemplates no action against the trustees. Appendix at 62. Therefore, no issue relating to the liability of the trustees is before us for review. IV. We hold that the final action of the Secretary in issuing a letter specifying a violation of ERISA by the trustees of an employee benefit plan is reviewable under the Administrative Procedure Act and presents a case or controversy under the Constitution. We endorse the Secretary’s interpretation of § 406(b)(2) and hold that it creates a per se prohibition of a transfer between two funds where the trustees are identical but the participants and beneficiaries are not. The district court’s order declaring the Secretary’s letter to be null and void will be reversed and the proceedings remanded with a direction to enter judgment in favor of the Secretary of Labor. . 29 U.S.C. § 186(c)(5) provides: (c) The [restrictions] of this section shall not be applicable ... (5) with respect to money or other thing of value paid to a trust fund established by such representative, for the sole and exclusive benefit of the employees of such employer, and their families and dependents (or of such employees, families, and dependents jointly with the employees of other employers making similar payments, and their families and dependents): Provided, That (A) such payments are held in trust for the purpose of paying, either from principal or income or both, for the benefit of employees, their families and dependents, for medical or hospital care, pensions on retirement or death of employees, compensation for injuries or illness resulting from occupational activity or insurance to provide any of the foregoing, or unemployment benefits or life insurance, disability and sickness insurance, or accident insurance; (B) the detailed basis on which such payments are to be made is specified in a written agreement with the employer, and employees and employers are equally represented in the administration of such fund, together with such neutral persons as the representatives of the employers and the representatives of employees may agree upon and in the event the employer and employee groups deadlock on the administration of such fund and there are no neutral persons empowered to break such deadlock, such agreement provides that the two groups shall agree on an impartial umpire to decide such dispute, or in event of their failure to agree within a reasonable length of time, an impartial umpire to decide such dispute shall, on petition of either group, be appointed by the district court of the United States for the district where the trust fund has its principal office, and shall also contain provisions for an annual audit of the trust fund, a statement of the results of which shall be available for inspection by interested persons at the principal office of the trust fund and at such other places as may be designated in such written agreement; and (C) such payments as are intended to be used for the purpose of providing pensions or annuities for employees are made to a separate trust which provides that the funds held therein cannot be used for any purpose other than paying such pensions or annuities; . . Question: This question concerns the second listed respondent. The nature of this litigant falls into the category "miscellaneous", specifically "fiduciary, executor, or trustee". Which of the following specific subcategories best describes the litigant? A. trustee in bankruptcy - institution B. trustee in bankruptcy - individual C. executor or administrator of estate - institution D. executor or administrator of estate - individual E. trustees of private and charitable trusts - institution F. trustee of private and charitable trust - individual G. conservators, guardians and court appointed trustees for minors, mentally incompetent H. other fiduciary or trustee I. specific subcategory not ascertained Answer:
songer_genresp2	I	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task is to determine the nature of the second listed respondent. If there are more than two respondents and at least one of the additional respondents has a different general category from the first respondent, then consider the first respondent with a different general category to be the second respondent. Willis Arthur TRIMIER, Appellant, v. UNITED STATES of America, Appellee. No. 16890. United States Court of Appeals Eighth Circuit. Oct. 19, 1961. Before JOHNSEN, Chief Judge, and MATTHES, Circuit Judge. PER CURIAM. Appellant challenges the certificate of the trial court that his attempt to appeal is without merit and so not taken in good faith, and he asks leave from us to prosecute the appeal in forma pauperis. The appeal is from an order denying, without a hearing, his motion under 28 U.S.C.A. § 2255, to have his sentence vacated. Appellant had pleaded guilty to having, as a person previously convicted of a crime of violence, transported a firearm in interstate commerce, thereby violating 15 U.S.C.A. § 902(e). A sentence of five years’ imprisonment was imposed upon him. His motion under § 2255 alleges that he had pleaded guilty because of representations to him that he would not be given a sentence of more than three years. He does not charge that the representations were made by the United States Attorney, or that they purported to be held out to him as resting in any other way on some contact with, or expression by, the court. What he predicates his motion on were statements which he says were made to him by a deputy marshal, and by his court-appointed attorney. He alleges that the deputy marshal told him: “The maximum sentence on this charge is five years, but nobody ever gets over three, and I can personally promise you that you won’t get over three years.” His attorney is claimed to have stated: “There’s nothing I can do, because the Government has an open-and-shut case against you; because they caught you with a pistol and you have a record, you will be convicted. I will ask for leniency, and because you didn’t commit any crime of violence or anything of that sort, you won’t get any more than three years.” If these statements were made, they cannot, on the contents of appellant’s motion, be said to have constituted or to be capable of being regarded, in their source, circumstances, and form, as anything except expressions of personal views and opinions. No setting is shown that could in any way cause them to be coercive. Further, in their lack of any actual or purported official basis, either judicial or prosecutional, the statements, and whatever reliance appellant may have chosen to place on them, did not constitute a legal taking-of-advantage or processive unfairness against appellant, requiring his conviction and sentence to be set aside. To clear the records of the pending appeal, it will be permitted to be docketed without payment of fee, and will then be dismissed as frivolous. Appeal dismissed. Question: What is the nature of the second listed respondent whose detailed code is not identical to the code for the first listed respondent? A. private business (including criminal enterprises) B. private organization or association C. federal government (including DC) D. sub-state government (e.g., county, local, special district) E. state government (includes territories & commonwealths) F. government - level not ascertained G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization) H. miscellaneous I. not ascertained Answer:

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